Veda & Harendra - [2024] FedCFamC1F 846

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Veda & Harendra [2024] FedCFamC1F 846

File number: SYC 3939 of 2022

Judgment of: CHRISTIE J

Date of judgment: 9 December 2024

Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where the children have been exposed to parental conflict and family violence – Where younger child is experiencing school refusal – Where older child has rejected maternal family – Where Court finds father poses a psychological risk of harm to children – Children to live with mother and spend supervised time with father graduating upon condition to unsupervised time – Injunctions granted.

Legislation: Family Law Act 1975 (Cth) ss 4AB(2), 60B(b), 60CC(2)(a), 60CC(2)(b), 60CC(2)(c), 60CC(2)(d), 60CC(2)(e), 61B and 68B

Cases cited:
H v K [2001] FamCA 687

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

Slater v Light (2013) 48 FamLR 573; [2013] FamCAFC 4

Division: Division 1 First Instance

Number of paragraphs: 200

Date of hearing: 4–8 November & 11–14 November 2024

Counsel for the Applicant: Ms Dart

Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators

Counsel for the Respondent: Mr Coleman SC with Mr Alexander

Solicitor for the Respondent: Rita Thakur & Associates

Counsel for the Independent Children's Lawyer: Ms Rebehy

Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers
ORDERS

SYC 3939 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VEDA

Applicant

AND:
MR HARENDRA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

9 DECEMBER 2024

THE COURT ORDERS THAT:
1.The mother shall have sole long-term decision-making responsibility for the children, X born in 2010 and Y born in 2013 (“the children”).
2.The children shall live with the mother.
3.The children shall spend time with the father as follows:
(a)Commencing on the second Sunday after the making of these Orders:
(i)Each alternate Sunday from 10.00 am until 4.00 pm;
(ii)On Father’s Day from 10.00 am until 4.00 pm;
(iii)On the father’s birthday from 3.00 pm until 8.00 pm;
(iv)In odd numbered years, the father is to spend time with the children on each of their birthdays from 3.00 pm until 8.00 pm;
(v)The children’s time shall be suspended on Mother’s Day and the father shall have time with the children on another Sunday as agreed between the parties;
(vi)At other time as agreed between the parties in writing.

4.From the date of these Orders until Y’s birthday in 2026, the children’s time with the father pursuant to these Orders is to be supervised by a professional supervision service as agreed between the parties and if no arrangement is reached then G Contact Service and:
(a)The father shall be responsible for the costs of supervision;
(b)The parties shall follow the directions and terms of the supervision service;
(c)The paternal family are at liberty to attend the supervised visits; and
(d)The mother is at liberty to obtain a written report from the supervision service at the mother’s cost.

5.In the event that the father speaks to the children, approaches the children, contacts the children in any way or spends time with the children contrary to the terms of these orders unless agreed by the parents in writing, then time specified in Order 3 is suspended for 8 weeks on the first occasion and indefinitely on any subsequent occasion.
6.Provided time has not been suspended in accordance with Order 5 then after Y’s birthday in 2026, the children’s time pursuant to Order 3 is to be unsupervised.
7.Provided time has not been suspended in accordance with Order 5 then from Y’s birthday in 2027 the children’s time with the father will be:
(a)During school term each alternate weekend from after school Friday to before school Monday;
(b)Each Tuesday at 6.00 pm, the children are at liberty to contact the father by way of FaceTime or telephone or text message and he is at liberty to respond;
(c)On Father’s Day from 10.00 am until 4.00 pm;
(d)On the father’s birthday from 3.00 pm until 8.00 pm;
(e)In odd numbered years, the father is to spend time with the children on each of their birthdays from 3.00 pm until 8.00 pm;
(f)The children’s time shall be suspended on Mother’s Day and the father shall have time with the children on another Sunday as agreed between the parties;
(g)Half of all school holidays by agreement and failing agreement the second half.

8.The mother is at liberty to suspend the children’s time with the father, for up to 6 weeks per year, for the purpose of travelling, attending camp or school excursions.
(a)The mother is to provide the father with 4 weeks’ notice of the intended dates.
(b)The mother is to provide the father with make-up times for any time that the father misses.

9.The father shall immediately notify the mother if either of the children attend the father’s residence or seek to spend time or communicate with the father outside of these Orders.
10.Should the children attend the father's residence or be in the father’s presence other than as permitted in these Orders, the father shall return the child or children to the mother within the hour.

Communication and information sharing
11.The parties shall communicate via a parenting application, Devitto, and if for whatever reason that application is no longer available, the parents are to communicate in a manner as nominated by the mother.
(a)The parties shall only use this to communicate about the children.

12.The father is permitted to receive the children’s school reports, school photos, and other information ordinarily provided to parents directly form the children’s schools, and this Order shall constitute sufficient authority to the children’s schools to provide this information to the father.
13.The mother is at liberty to provide a copy of these Orders to the children’s school and any person the children may attend for therapy and/or counselling.
14.The mother is at liberty to provide a copy of the Single Expert Report and the judgment in these proceedings to any person that the children may attend upon for the purpose of counselling and/or therapy.
15.The mother and the father are at liberty to provide a copy of the Single Expert Report and the judgment in these proceedings to any person they may attend upon for the purpose of counselling and/or therapy.

Restraints
16.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father, Mr Harendra born in 1979 is restrained from contacting the children other than in accordance with these Orders, whether by electronic means or otherwise.
17.The parties are restrained from discussing these proceedings or any evidence filed in these proceedings or any evidence heard during the course of the final hearing, with the children, or from allowing any family members to do so.
18.Each parent shall at all times:
(a)Be courteous and respectful to the other parent and their family members;
(b)Not denigrate the other parent or their family members; and
(c)Be restrained from using profane language and making derogatory comments about the other party or their family members,

in the presence or hearing of the children and shall remove the children from the presence of any person who is denigrating the other parent or the other parent’s family in the presence of the children.

Explaining these Orders to the children
19.The mother is to facilitate the children meeting with the Independent Children’s Lawyer (“ICL”) in person or by video on the day of the judgment delivery at a time nominated by the ICL for the purpose of the final orders being explained to the children by the ICL.
20.Within 6 months of the date of these Orders, each parent shall pay the sum of $10,636.50 to the Legal Aid Commission of New South Wales, subject to any waiver.
21.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Veda & Harendra has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:

The parties have asked the Court to make final parenting orders in respect of their two children X born 2010 (“X”) and Y born 2013 (“Y”), (“the children”).
The circumstances in which these children find themselves are complex. They have two intelligent, loving parents. Ideally, that would support the making of orders which saw both parents substantially involved. For the reasons which follow, that outcome is not available.
Each party seeks an order that the children live with them. The mother’s primary position is that there be limited supervised time between the children and the father. The father proposes that there be less limited time between the children and the mother. Each party addresses possible alternatives. The Independent Children’s Lawyer (“ICL”) sought final orders providing that the children live with the mother and spend regular supervised time with the father, with supervision to continue until Y turns 13.
Each party seeks an order that he or she have sole decision-making responsibility.
It is significant that since separation the children have experienced living with their mother and spending limited time with the father, living in an equal time arrangement, and for a short time, contrary to orders, living in the predominant care of the father. It is also significant that each parent and the ICL has amended the relief sought on a number of occasions including during the trial. These circumstances speak to the difficulty in determining what prospective arrangement will be in the best interests of these children.
The determination of what orders will function in the best interests of the children will be guided by the findings in respect of contested factual issues including:
(a)Has either party engaged in conduct which meets the definition of family violence?
(b)If the answer to the first question is yes in respect of either parent (or both parents) – what is the significance for the parenting arrangements, and in particular, what orders would be safe for the children and parents?
(c)What are the views of the children?
(d)What weight can be attached to these views?
(e)What is the significance of Y’s school refusal to the parenting arrangements?
(f)What is each party’s commitment to facilitating the children’s access to therapeutic supports?
(g)Does the conduct of either parent pose a risk to the psychological well-being of both or either child? If so, what approach (if any) might mitigate the risk?
The children
It is important in this case to make findings about the children’s developmental, psychological, emotional and cultural needs.
Y
At the time of hearing, Y was 11 years old and in year five at school. Y’s paternal family are of Country H heritage and Y’s maternal family of Country J/Country K heritage.
The single expert said (at [263]):
[Y] is at the stage of development where children tend to behave very judgmentally, viewing things in very black and white terms. They also tend to respond to situations that disrupt their lives and routines with anger and may start to act out. Whereas a younger child may respond to parental separation with sadness, children at [Y’s] stage of development tend to make their dissatisfaction known.
(Single expert report dated 18 September 2023)
Prior to separation, Y enjoyed a good relationship with his extended family on both sides, and through that relationship and regular contact, lived experience of his Country H and Country K cultural identity.
The mother recorded Y as having made a series of derogatory comments about Country K people. The mother linked this to comments made by the father during the relationship. Whether the father is the source of Y’s comments, they are of concern in terms of his identity and well-being. Y (with his sister) is of Country K heritage. His mother and her family are as well. Being comfortable with his identity will be important to Y’s well-being and is most likely to be fostered by spending time with family with whom he shares that cultural heritage and experiencing it as a positive and valuable part of him.
In 2024, the mother has ensured Y has spent time with his maternal grandparents and cousins and, on her report, he has enjoyed this time. Time with the extended maternal family will be important for Y to understand his background, conversely as the single expert opined rejection of heritage can cause “an impact on the children in regard to identity formation, particularly in regard to culture” (Single expert report at [302]).
The evidence did not contain any indication that Y has anything other than a good relationship with the paternal extended family and appreciation for their shared culture.
X
At the time of hearing X was 14 years old and in year nine at school. X’s paternal family are of Country H heritage and X’s maternal family of Country J/Country K heritage.
The single expert said (at [237]):
At 13 years of age, [X] is ill-equipped to make major decisions that will have last lasting consequences for her, including in regard to her relationships with her parents. Although her father and grandmother were quick to describe her as ‘very mature’, this is best explained as pseudo-maturity. This is a term used to describe children who act more mature than they are in order to gain peer approval or to cope with family problems. This may interfere with the development of real maturity, especially in cases where abuse is present or when children take over adult roles, leading them to experience role confusion.
(Single expert report dated 18 September 2023)
In the mother’s affidavit she details the breakdown of X’s relationship with the maternal extended family. The mother records X as having said “[i]t’s kind of embarrassing that I have to be blood related to them but whatever. Can’t really undo that. Your parents in my opinion are bitchy stupid and dumb…” (at [390]).
The father says the children’s relationship with the mother’s family has been effected by them speaking ill of him in the children’s presence. I accept the maternal grandfather may have been overheard complaining of the father’s lateness to changeover or failure to comply with orders (he conceded the possibility in cross-examination). This alone should not end the relationship between X and a grandparent with whom she has had such a strong connection. The maternal grandfather retired from his employment in anticipation of her birth to be available to assist with her care and did so for many years.
Like Y, X’s psychological well-being will be adversely affected by a rejection of family given that there is no evidence that her rejection of them is grounded in appropriate self-protective behaviour. The evidence does not establish a sound basis for X’s current complete rejection of the maternal family.
As with Y, the evidence did not contain any indication that X has anything other than a good relationship with the paternal extended family and appreciation for their shared culture.
The children’s views
It is mandatory that I consider any views expressed by X and Y. Listening to those views (as expressed in the evidence) is necessary to discharge the obligation referred to in s 60B(b) of the Family Law Act 1975 (Cth) (“Act”).
It is particularly important in this case to have regard to the children’s concern that they have not been heard in the proceedings. I appreciate that X in particular holds that view and given her age – it is necessary to spend some time understanding the nature of her experience and how that has formed her expressed views.
X told the single expert (at [226]):
… “I just want to live with Dad for the moment. It is a good environment and he is supportive of us and helps us with our homework and takes us to sports. When we are with Mum it doesn’t feel like a family. We just stay in our separate rooms and we don’t talk much”.
(Single expert report dated 18 September 2023)
I accept that X’s consistently expressed view has been that she wants to live with her father.
Looking at why the children express the views they do is important. When Y spoke to police at the end of July 2023 about his failure to return to his mother’s care, Y told police his father’s home is closer to school. The father’s home is very conveniently located in proximity to the children’s schools and it is a legitimate reason for a child to prefer one household to another. However, at the time this view was being expressed neither child was spending any time with the mother. A preference for convenience would always take back seat where the children’s relationship with one parent was being jeopardised by apparent alignment with one parent and unilateral suspension of time.
The mother submitted that the father has been, contrary to court orders, communicating with X. In support of that finding, counsel referred to the text messages which X sends to her father saying “hi” – as being a coded request by X for her father to contact her (Exhibits 35 and 36). The father denied that there was any such code. Exhibit 35 is a series of text messages from X to the father. X sent the father a text at 4:33pm on the first day of the trial. She followed that up 2 minutes later with an angry poo emoji. The mother’s counsel submitted that the Court would find this was X expressing displeasure with the fact that the father had not phoned on receipt of the “hi” message. Senior counsel for the father submitted that the finding was not open on the evidence. I agree. While the explanation makes logical sense, I cannot safely conclude it to be the case. However, I am not confident that it makes much difference at the end of the day because I am comfortably satisfied that X has had extensive communication with the father over and above that provided for in the orders. The father accepted that he had phoned X on the date of the text message in Exhibit 35 (even though it was not a day for communication under the orders). He says he did not speak with her. That does not explain why he rang her contrary to the orders. This is not the only occasion he has telephoned her contrary to the orders. He has also had face to face time with X on numerous occasions unsupervised contrary to the orders.
As discussed later in these reasons, the language adopted by the children raises a concern that they have adopted the father’s language about the mother. In addition to this, the single expert identified that X’s views have likely been influenced by the fact that “she feels loved and needed by her father” and has developed a dependence on him (particularly as regards homework assistance) (Single expert report at [241]).

Y’s views as expressed to the single expert seem incongruent with his age and experience. The single expert recorded (at [255]):
The report writer asked [Y] what he had come to tell her. He said, “Only that I would like to spend a lot more time with Dad than with Mum”. The report writer asked why that was the case. [Y] said, “Because Dad knows how to look after us better. Mum is not so good at that. Dad walks me to school and we are going to ride our bikes to school sometime soon. We like going bike riding together and Dad always pays attention to me but Mum just worries about her [clients] and is always focused on Court stuff – talking to her layer or to her sister who is a [professional]”. The report writer asked [Y] if that makes him feel uncomfortable and if so, why. [Y] said that it did make him feel uncomfortable but he didn’t know why.
(Single expert report dated 18 September 2023)
Y’s later comment to the single expert that he would like to stay living in the apartment with his father and sister close to family and school would appear to be a more genuine expression of his view. As did his message for his parents to “[s]top fighting, be nice to each other. Share us. Make it fair” (Single expert report at [262]).
The single expert reflected on Y’s developmental stage and black and white thinking concluding “at this point in time [Y] is considered ill-equipped to be making decisions about parenting arrangements and this will influence the weight to be given to his expressed wishes” (Single expert report at [268]). Apart from the passing of time – there is no evidence to suggest that this did not remain true at the time of trial when Y was still only 11 years old.
The children’s views need to be understood alongside their developmental needs. The single expert interviewed both children in September 2023. I accept that X is now more than a year older and so I approach the conclusions with that in mind. The single expert said of X at 13 that she is “ill-equipped to make major decisions that will have lasting consequences for her, including in regard to her relationships with her parents” (Single expert report at [237]).
If the father had been able to facilitate the children spending time with the mother, then I would have been able to place weight on the children’s preference to live with the father. If the evidence about what had occurred in the past created a basis to conclude that the father will support the children’s time with and relationship with the mother, then it would not be necessary to look at the risks associated with giving weight to the children’s expressed wishes. One of those risks was identified by the single expert as “cognitive dissonance” explained as follows (at [245]):
From a developmental perspective, both [X] and her brother are likely to be experiencing a great deal of cognitive dissonance at this time. Cognitive dissonance is the mental discomfort that comes from holding two opposing beliefs, values or attitudes. This is likely to become worse over time as further loyalty demands are made of the children and they are required to pick a side in the conflict. If a child’s experience of a parent’s behaviour is markedly different from information being provided by another source, this can lead to anxiety and depression and even problems with identity formation. Cognitive dissonance can have a powerful influence on our behaviours and actions. It doesn’t just influence how you feel, it can motivate you to take steps to reduce the discomfort (for example, avoiding a parent when you think they will be displeased or angry with you for siding with the other parent).
The single expert maintained that view at trial and I accept it.
The children’s safety
Having heard the evidence, I am satisfied that neither parent poses a direct risk to the physical safety of either child.
To reach this conclusion, it was necessary to make some findings about allegations of violence.
The father asserted the children were at physical risk in the mother’s care because she had assaulted them. Y had been assaulted by his grandfather in the mother’s home and both children had run away from time-to-time while in the care of the mother.
I accept the children have absconded while in the mother’s care but given their ages, this has not placed them at any significant physical risk.
The father made some specific allegations of assault.
Late 2022
X spoke to police in late 2022. The police record states:
[X] stated to police that she had her I- Pad in her hand when the POI told her to hand it over. [X] refused at which point the POI grabbed it and took it into her possession. [X] explained to police that it hurt her hand but didn't think her mother tried to hurt her. At no point was there a physical altercation between [X] and the POI, with the POI only grabbing the I-Pad.
(Mother’s tender bundle, p.18)
The incident does not demonstrate that the children are at any risk of physical harm from the mother but rather that they struggle with accepting her rules.
Early 2023
On this day the children were due to spend time with the father supervised by his mother. The changeover was due to take place at Suburb L Police Station. The mother, children and the family dog were in the car. The mother intended to spend that day with her family and was taking the dog.
When the time came for the children to go to the father, Y wanted to take the dog. The mother did not permit this. Y reacted to the mother’s position by screaming and crying. The mother took some video footage. X also took some video footage.
Y spoke to the police (although the “PR” or “person reporting” is identified as the father). The COPS record (Exhibit 50) reads:
[In early] 2023 the [father] attended [Suburb L] police station stating that his son has been assaulted by the [mother] an argument/struggle regarding bringing the family dog to the scheduled supervised visit. The [father] repeatedly stated to police that he wants the [mother] charged because she has assaulted [Y]. Police separated the [father] and [Y] ...
Police spoke with [Y] who was with his grandmother as a support person. [Y] stated to police that him and the [mother] had an argument about him bringing their family dog to the supervised visit with the [father]. [Y] did not disclose any assault allegations to police at time. Police did not observe any physical sign of an assault. Police asked [Y] if they had been assaulted however he did not make any complaints of being assaulted, he only spoke of an argument he had with his mother regarding the dog.
I viewed the video which the mother took of the incident and agree with the police records that the video does not depict the mother physically hurting Y.
X can also be seen in the mother’s video footage (Exhibit 37) herself filming what happened on her mobile phone. The footage taken by X was not in evidence. This is in circumstances where the father relied on a recording which X took later that day.
I accept Y was distressed but I am unable to conclude that his distress arose from an assault by the mother. Y was not permitted to do what he wanted (take the dog). Y did not respond well to his mother’s refusal.
The father’s actions as recorded by the police in insisting the mother be charged are significant for two reasons: firstly because the father (and, as will be discussed later, his family) accepts that the children are always truthful when they make statements critical of the mother or her conduct and he does not consider whether the children may be exaggerating, telling him what they believe he wishes to hear, embellishing or otherwise departing from a true narrative. Secondly, his inability to give the children’s mother the benefit of the doubt demonstrates the impossibility of cooperative parenting.
The father’s affidavit material did not make plain that he had facilitated the children attending upon the police station that day. The father was cross-examined about the events of that day. He believes that Y reported what had occurred (an assault) and was distressed that the police did not believe him. The father had not been present. The police notes do not support the father’s narrative. It was plain from the paternal grandmother’s evidence that she equally takes the view that Y was assaulted by his mother on that day, that he reported it to police but was disbelieved.
The children were due to spend time with their father from 9.00am. The time effectively commenced at the police station where Y was interviewed. The paternal family – grandmother, grandfather, X, Y and the father then travelled from Suburb L to Suburb M. At some point that day the children prepared handwritten accounts of the morning (Exhibit 38). To the extent that X’s statement deals with the events of that morning it says:
Today when [Y] was wanting to take [the dog] [Y] was being pulled by Mum and he said she was hurting and strangling him. [Y] was able to get away however he was crying and went off first to find dad while I got my bag and came shortly afterwards…
The handwritten statement does not say that X witnessed an assault but rather that Y complained of one. That is consistent with the video evidence.
Y’s handwritten statement says:
This morning in the car I wanted to take [the dog] to see dad and the other dogs. Mum threatened me and tried to pull me away from [the dog]. As she did this, it hurt my arm slightly so I told her to stop but she wouldn’t listen, I was very upset but managed to get [the dog] and myself out even though my arm was hurting more…
Again, the contemporaneous account by Y is not supportive of a finding of an assault. Y did not follow his mother’s directions and became more and more upset. The video which was Exhibit 37 makes clear that it is not appropriate to take Y’s allegations at face value. As the mother calmly tries to take control of the family dog, Y accuses her of “animal abuse”.
Later the same day, Y locked his mother out of her home and demanded an apology from her as a precondition to allowing her entry. The mother’s parents were present inside the house when Y locked the mother outside. The maternal grandfather tried to persuade Y to open the door. Y accused him of having hurt him. X recorded a distraught Y on that date accusing his mother and grandfather of physical assault. The father relied on this recording. It is not easy to hear him but the highest his allegation reaches is that he says the maternal grandfather physically assaulted him by grabbing his shoulder. The police spoke with the maternal grandfather. No action was taken by the police. The context is important. Y had locked the mother out of her house and the maternal grandfather was trying to assist the mother to re-enter and Y was present. The actions of the mother’s family on this day seemed proportionate with Y’s conduct. I am further convinced that the maternal grandfather’s account is to be preferred over Y’s accusation because Y in the same recording (by X) claims to have been physically assaulted by his mother in the morning. I have elsewhere found that this did not occur.
In early 2023, the children’s time with their father was supervised by the paternal grandparents. Having collected the children from Suburb L Police Station on the morning of the incident they returned to the father’s home. The children prepared written statements during their supervised time which dealt predominantly with the morning’s events. If the time had been professionally supervised, no such activity would have occurred. The paternal grandmother was not vigilant about the conversations which occurred during her period of supervision – no doubt because she did not perceive a need for vigilance. She indicated that there were often many family members present and activities occurring.
I understand that the mother’s case is premised on her desire to provide a safe home for the children and that she perceived that what she described as the escalation in the father’s conduct in the period preceding separation caused her to fear for her safety and that of the children. The father asks that I find that the mother “lied” to gain advantage in the anticipated proceedings. I do not accept that the evidence supports such a finding. I accept that the mother recognised a pattern of conduct which caused her concern. I accept that she interpreted the father’s words and deeds through the lens of the advice she received from a domestic violence hotline. I am not critical of the mother for her conduct. That does not, however, mean that the conduct which concerned her is such that I am concerned about the children’s physically safety in the care of the father moving forward.
I need to examine the evidence which each party gave (and which was tested in cross‑examination) in light of the available contemporaneous records: these include the children’s notes and texts, the police records, the mother’s journals and the various counselling records.
Incidents of physical violence
The Act provides a definition of family violence:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There is a non-exhaustive list of examples of behaviour that may constitute family violence in s 4AB(2).
Both parties agree that until the period leading up to separation, neither of them viewed the relationship as one characterised by family violence. In retrospect, the mother says she now sees that a series of events and conduct meet the definition. I will review the incidents of physical violence or threat of violence alleged by the mother first.
The mother gave evidence that in 2013 the father hit her on the bottom during an argument about their overseas scholarships. She says she told the early child health nurse. The father did not give evidence about this incident. The mother was cross-examined about this incident and in particular whether it appeared in her diary. It did not, which senior counsel for the father said was consistent with no incident of significance to the mother having occurred. I accept the incident occurred notwithstanding the lack of diary entry. It is consistent with other conduct by the father which has involved him behaving in a physical manner in response to a disagreement with the mother. The mother recounted her memory that Y was one month old when it occurred.
The mother gave evidence that in 2015 the father pushed her and she hit her head on the wall (at the business). The argument between the parents occurred in the context of the parties discussing Y’s tantrums. The mother made a contemporaneous note of the incident in her 2015 blue diary. The note in Exhibit 66 says “[Y] throwing tantrum – hit my arm”. The maternal grandmother gave evidence that when X was about five or six, she attended at the parents’ place of work and the mother was crying. The mother reported that the father “pushed me and I hit my head against a cabinet”. It was not put to the maternal grandmother that this conversation had not taken place and I accept that it did. I also accept the mother’s evidence that the father hit her on that occasion. The mother’s statement to police timed the incident to be when her aunt came from Melbourne in early 2016. The father submitted that he was not present at the office on that day and accordingly the incident could not have occurred. I find that the mother was mistaken as to the date when she provided the statement to police and that her diary and her mother’s recall are accurate as to the timing. The father gives no other evidence (save for the denial). I accept the mother’s evidence supported by contemporaneous documents over his denial.
In early 2016, the mother gave evidence the father hit her arm. The mother had Y by a swimming pool. Both the mother and Y were wearing clothes. The mother says that she was swinging Y and joked she would throw him in the pool. The father says he believed the mother intended to throw Y into the pool and instinctively “swiped downwards” making contact with her arm. That day the mother made a note in her diary “joking – throw [Y] into water – hit my arm – not good…didn’t mean to hurt me but can’t treat me like that – disrespect…but not divorceable behaviour so move on” The father’s action was not objectively consistent with the circumstances. It is inherently implausible that the mother would throw fully clothed Y (then aged almost 3) into the swimming pool and so the action cannot be seen as necessary to protect Y. If as the father says the action was designed to prevent the mother releasing Y, it would in all likelihood have the opposite effect. The mother considered the incident serious at the time. I accept the father’s conduct was an act of physical violence – whether undertaken by him instinctively or not.
The mother says that in late 2016 the father hit her on the bottom during a conversation about his weight. The mother wrote in her pink diary in the early hours of a date in early 2017:
[…]/16 [Mr Harendra] hit me on bottom he was c/o [complaining of] back pain + I said he should lose weight. Obviously a sensitive topic but didn’t warrant that reaction … He apologised/said he made a mistake + would not do it again but still upset me – showed ↓respect for me – 3 x now – when [Y] baby told comm[unity] health nurse / at office – my head hit on wall / this time. I told him he’d crossed the line + hope it will never happen again …
The entry continues with the mother’s expression of forgiveness for the father. The father denies striking the mother on the bottom and says he does not recall the events of that day. I prefer the mother’s account which is consistent across her affidavit, her evidence in her police statement and when questioned in the Local Court and contained in her handwritten diary.
The parents agree they argued in late 2017. The mother says the father shoved her against the wall.
On this day the mother says the father kicked a hole in the door in their home in Suburb N. It is not in issue that the door was damaged. Two days later the mother texted the father saying “Hi darling u have completely smashed ur door through to the other side! Can u get a new one from Bunnings? It looks pretty bad” In the text exchange the father says “U broke it/For the recording” The mother responded “No u did. You and I. Can install it.” There are pictures of the damaged door.
The father says the damage occurred when the parties were moving furniture and not – as the wife contends – because he kicked it. He explains the text messages as a joke.
In mid-2022 the mother recorded the father (Exhibit 21) – it would appear without his knowledge. She raised the historical damage to the door. It seems to be a transparent attempt by her to record a concession that the father had caused the damage. The mother raises a number of times the suggestion that the father caused the hole by kicking the door. If, as he now contends the damage was from furniture removal I would expect that he would have immediately corrected the mother. Instead he responds at one point “Lucky it was just the door”. The mother at a later point says to the father – about this incident – “should I have called the police?” to which the father responds “probably”. Eventually the father offers, on the recording, somewhat faintly that he does not think it actually happened but taken as a whole the recording supports the mother’s contention that in late 2017 the parties had “a big fight” which she recorded in her diary and on that day the father kicked and damaged the door in anger. I prefer the mother’s evidence about this than the father’s submission that the mother has retrospectively lied about an innocuous event. I have considered the evidence of the skip bin but am not persuaded that this negates the mother’s evidence.
In late 2017, the parties were travelling between Sydney and City O when the father slapped the mother’s leg. The parties disagree about what occurred before the slap. The mother says she asked the father to pull over as X was feeling car sick. The father says the mother made a motion to grab the steering wheel.

The mother photographed her injury after the father pulled over. The father’s fingers can be seen on the mother’s thigh where she had been slapped. The father said he used his left hand – that is consistent with the mother being seated in the passenger seat. The injury was to the mother’s left thigh. Even if she were angled towards the father, that is the leg further away from him. It would have required some force to make the mark which can be seen in the photograph.
The father does not cavil with the proposition that his hand made contact with the mother’s leg but says this was in response to her dangerous action and him forcing her hand away from the steering wheel. The mother’s evidence in the Local Court when she was asked whether she reached over and grabbed the steering wheel was that that was “completely untrue. I would never do anything like that”.
The mother’s diary entry reads:
[City O] trip – drove to [City O] – [father] angry on way there as [X] feeling sick – I told him to pull over + he didn’t think was safe – panic reaction but sorry after – he slapped my thigh. I was v upset. He says was trying to protect our family + won’t do it again but I have to let him take charge. He agrees to listen to me + consider. Respect each other.”
(Exhibit 66 – 2017 Diary, Diary entry dated late 2017)
When the mother was cross-examined in the Local Court about her diary entry it was put to her that the comment about the father trying to protect the family was consistent with the father’s version of events namely that he had hit the mother because she was acting recklessly. That interpretation is plainly open. But when the diaries (as opposed to the individual entry) are considered together with the other evidence (audio and video recordings and affidavits) the mother’s diary entry is plainly consistent with a pattern where the father behaves in a violent or aggressive manner and he apologises and seeks to explain his conduct and the mother contemplates and considers what this conduct means for their relationship and her role in it. In that context the father hitting the mother is a response to her questioning his judgment.
The mother says that in mid-2020, the father raised his fists at her. The father denies that he did. The mother put that allegation to the father at the time and he denied it. It is plain that they were fighting on that day. I am unable to conclude that the incident occurred as the mother alleged.
In mid-2021, during an argument the mother says the father “shook” a steel bar at her. She took video footage after the event of the father walking away with the steel bar. He claims he was moving it and only holding it coincidentally. I do not accept that the mother has invented the fear she described when the father approached her during the argument with the steel bar in his hand. I cannot conclude that his intention was to frighten her, but I accept that it did. The argument itself was unfortunate as it took place in the immediate vicinity of the children and directly involved them in the conflict. The mother was upset that the father had ripped up the children’s tutoring worksheets (an activity for which she was responsible) and the father justified his conduct by indicating that the children wanted him to do so.
The incidents of physical harm and threat are placed by the mother in the larger context of conduct which she retrospectively views as coercive and controlling.
It is unnecessary to recount each incident or occasion described by the mother.
The mother says the father limited her social interactions – in particular with her family. I accept that the father did not want the mother to spend as much time with her family as the mother wished to spend with them. The father’s conduct did not have the effect of isolating the mother from supports, however, telling the mother how long she could spend with her family and using threats and consequences if she disobeyed was plainly controlling.
The mother has characterised the father’s actions as financially controlling. I accept that the father exercised more control over the family’s finances than the mother but the evidence does not support a finding that his financial control amounted to family violence.
The father described his remote monitoring of the mother’s location as a “privilege” –presumably she should feel privileged that he cared about her sufficiently to wish to be able to locate her. In the latter part of the relationship, as the mother expressed her discomfort about her movements being tracked, the father failed to appreciate and take into consideration her views.
The mother said the father took her keys and her phone and confined her to the walk-in wardrobe. In the video which was taken in early 2022 (Exhibit 10), the mother is plainly in the wardrobe and Y can be seen in the wardrobe standing between the mother and father. The mother asks repeatedly to be able to leave the wardrobe. The father is blocking her exit and in a raised voice remonstrating with her while simultaneously saying “I love you”. On the basis of the audio and video footage from 2020 to 2022, it appears that as the mother attempts to assert herself and end the relationship the father endeavours to prevent that by actions such as blocking her way or repeatedly telling the mother he loves her. The mother experienced the father’s actions in that regard as an escalation of his controlling behaviour.
The father originally sought the following findings from the Court:
2. The Mother is a liar and is an unreliable witness.
3.In relation to records made by the Mother, including when writing in her diaries or in making a recording of events, the mother misconstrued, embellished or fabricated events in order to suit how she wanted to perceive those events at the time.
4.The Mother has lied in her police statement and in her affidavits in that she has made up allegations of family violence against the Father.
5.The Mother has deliberately used the Court system to maximise the time that she can spend with the children and minimise the time the Father is allowed to spend with the children.
(Father’s Schedule of Factual and Legal Issues, p.1)
At the conclusion of the trial, the father had somewhat modified his position – it being acknowledged by his legal representatives that the evidence supported the conclusion that, by at least mid-2022, whatever the factual matters may have been, the mother genuinely believed that he had been coercive and controlling. No submission was made that the mother’s diary and journal records were recent invention. It is less clear whether the father still maintained that the mother had lied in her police statement. Given he denied incidents of violence which she set out there and repeated on oath in her affidavit, I infer he maintained the position that she had lied.
Much of the father’s evidence focused on discounting the mother’s assertion of coercion and control. I accept the submission that the father does not have an onus to disprove the mother’s allegations. Each party is only obliged to give such evidence as he or she can from their personal knowledge relevant to facts in issue – the mother put squarely in issue her view that the father’s conduct towards her would be regarded as coercive and controlling and that in the months leading up to separation she came to retrospectively view this as a pattern, which was escalating, giving rise to her fear.
It is useful to think about the evidence which relates to this topic in three periods: the parties’ relationship up to about 2020 (as discussed above), the parties’ relationship between 2020 and separation (a period in which the children were exposed to the conflict), the parties’ post‑separation relationship (where conflict has not abated).
The events of early 2022
In early 2022, X dropped milk bottles. The mother perceived that the incident had occurred because X was impatient. The father intervened in the discussion between X and the mother.
On the following day, the incident with the milk bottles was revisited. The mother had made a booking for the family to swim between 12.00 and 1.00pm. The father sought to leave the apartment with the children to utilise the booking. The mother opposed this – on the basis that she had made the booking. She told the father she intended to leave and take Y. The father responded “what about [X]?” to which the mother said “Fuck [X].” X was present. The mother blocked the lift to the swimming pool and the father took the children back inside the apartment and locked the mother out. The mother’s actions in early 2022 were immature and lacking in child focus. They exposed the children to conflict. The mother yelled and kicked the door in an effort to gain access to her home. The police were called. The police record that both the mother and father provided the same story.
X spoke to the school counsellor about this incident:
[X] expressed a sense of responsibility for family breakdown. She explained that there was an incident a few weeks ago where Mo and [X] were unpacking groceries. [X] asked Mo to help her with putting away the milk and Mo did not respond. This culminated in [X] dropping the milk and triggered an argument between Mo and Fa that led to police being called. [X] recalls that parents previously fought approx. once per month but following this argument their fights increased daily until Mo decided to leave Fa.
(Exhibit 62, p.1)
The events of mid-2022
The mother’s affidavit indicates that the father and she had a conversation in the morning in which each said words to the effect (at [135]):
I said, “I woke up and there's a big man standing next to my bed”. He said, “A big man? Your husband, your owner.” Then he put his right hand around my neck. I said, “What are you doing?” He said, “Reminding you who your owner is. You seem to have forgotten on the weekend, don't listen to me and I will disown you”. He took his hand off my neck and then placed it back. Our dog […] growled. I said, “[The dog] doesn't like you doing that” He said, “Well, if I disown you, he won't see you again” and again talked about being my owner. He said, “It’s so good.” I said, “Oh you mean Johnny won. How is that good?” He said, “Yes, because she’s evil and makes shit up and he's cool and she’s facing financial ruin now”. I went to the toilet and sent [Mr Harendra] an SMS, “You're not my owner btw you're my husband …”
The reference to “Johnny” is a reference to the actor Johnny Depp. The mother says the father spoke often during this period about the court case between Johnny Depp and his former wife and drew parallels with the parties’ relationship.
The father agrees the mother said: “You are not my owner.”
The mother was not challenged about her contention that in the context of a discussion about the father being the mother’s owner the father placed his hands on her neck.
I accept that the mother, who had been planning to leave the relationship interpreted this event as being serious and significant and it precipitated the steps she then took. I reject the suggestion that the fact that the mother returned for Y’s sports gear demonstrates she was not genuinely fearful. In cross-examination, she said that having determined to leave that day she believed that acting as normally as possible would decrease the risk she perceived to her as a consequence of her decision. It was also submitted that the financial transactions she undertook and the fact that she returned to the apartment to collect items (including the parties’ safe) are inconsistent with her stated fear. I accept that she could be fearful and nonetheless engage in conduct which would be anticipated to anger her spouse. She explained her actions as an attempt to provide financial security for herself and the children.
It follows from my findings above that I am satisfied that the father has engaged in family violence to which the children have been exposed. The father has largely denied or minimised his actions such that I accept there remains a risk of the children being exposed to family violence in the future. I accept that the parties’ separation means that is less likely. While this risk has informed the ultimate orders the more significant concern arising out of the evidence has been the risk of psychological harm.
Psychological harm
I am concerned that the children have been and remain at risk of psychological harm from a number of interrelated factors. Unfortunately, I am not confident that there is a form of order which can negate this risk.
X and Y have been involved in the conflict between their parents for a number of years (including prior to separation).
The evidence suggests that X came to see herself as providing information about the mother’s household and matters relating to these proceedings to the father and his family. Following the meeting with the Court Child Expert (“CCE”) X sent her grandmother a text message reporting on her session and received the response: “Thanks [X] ... Brave girl.” She followed up by texting her paternal grandmother: “… I just wanted to tell you that mum has been talking to [the CCE] for around 40 minutes now. I dont know if thats important but Im just letting you know”.
It is not an isolated example of the children’s involvement in reporting information. X complained about the conditions in her mother’s rental accommodation to her grandmother. While it is not surprising that X felt aggrieved at the loss of amenity – the role of the father and the father’s family was to reassure her that her time with her mother was more important than the quality of the accommodation.
Both children appeared on the evidence to have been provided information to the father explicitly in the context of these proceedings. Y is reported to have stated to his mother “I’m recording evidence to show court you are a bad mum” (Exhibit 56). The father relied on X’s recordings at trial.
The father permitted X to be interviewed by his criminal lawyers with a view to her providing evidence in the Local Court proceedings. His preparedness to involve X in those proceedings raises a significant concern about his level of insight about the potential distress to X of participation in court proceedings involving her parents.
The Department of Communities and Justice (“DCJ”) expressed concern in 2023 that X’s narrative mirrored that of the father, for example she told the DCJ worker “[Professionals] make enough money to buy a proper house” (Exhibit 55). This is in keeping with the father’s expressed concern that the mother was somehow abusing the system by utilising a refuge, following by supported transitional housing. The father has contended that X has formed this view independently of him but this fails to appreciate the reality of the mother’s circumstances post-separation. The father returned to live in the well located home in the area of the children’s school and where he has family support. His circumstances are in stark contrast to those of the mother.
The police recorded this observation in early 2023: “The children argued with police about what their mother should and shouldn’t be allowed to do in relation to house rules” (Exhibit 39).
The children were aware of the family law and criminal proceedings to an extent inconsistent with their best interests.
The mother submitted that the children have copied/mirrored the father’s conduct towards her. In her affidavit she provided examples such as the father calling her stupid and incapable of homework assistance in X’s presence. The mother’s affidavit recorded X as saying (at [410]): “…[y]ou’re a horrible mother and need to work on your parenting…You’re stupid, dumb and a bitch”. The mother’s concern that the children have taken on their father’s perspective and conduct is supported by her observations. There was no challenge to the mother’s account (nor could there properly have been). I accept that the interactions with the children recorded in her affidavit are an accurate representation of what occurred.
The language used by the father and the children was similar in nature. The father complains that the mother uses threats with the children. The children accuse the mother of using “threats”. But the evidence suggests that what the children have come to label as “threats” are appropriate consequences for misbehaviour, for example, the mother suggesting that after Y had thrown objects at her he would not be permitted to play an online game with a friend until he had completed his school work. The mother records Y saying “[t]hat was a threat, and I am going to tell Dad and he will write it in his report and you’ll get in trouble and then we’ll live with Dad”. In a similar vein, the mother recounted Y saying “[g]ive me my laptop or you can stay outside” reminiscent of the father locking the mother outside the parties’ apartment.
In evidence are communications between the father and the children and his family and the children which have helped establish the message that the father and his family will protect the children. Exhibit 71 contains text messages between X and the father in which the father conveys concern that the mother may be angry and suggests the children don’t have to talk if it will get them in trouble with their mother and X effectively reassures the father that she will not get in trouble. In separate text messages following the events of early 2023, X’s grandmother sent a text to X “[w]e are working and talking to our lawyers today… I am sure truth will win soon” (Exhibit 71). The language creates divided loyalties for a child to be directly exposed to the narrative that one family is working with the legal system to secure truth.
In the post-separation period, the children referred to the mother as “crazy” or “psychotic” or “stupid” again echoing themes pursued by the father.
The mother has undertaken counselling since separation to assist her in understanding and navigating this complex dynamic.
The complaints to third parties
In mid-2022, the father wrote to the relevant professional authority (Exhibit 48) about the mother’s failure to return to the parties’ shared business and inexplicably including details about the family law matters.
Exhibit 47 records that in late 2022, five months after the parties’ separation and in circumstances where the parties were not seeing one another, the father called a mental health service provider in respect of the mother. The mother did not become aware of this call until she inspected a document in her own medical records. The father’s action in making this call could not have been as a consequence of any acute incident or event witnessed by him.
In late 2022 the father emailed a relevant professional authority (Exhibit 48). In that communication the father described the mother as “becoming more paranoid, erratic and has even now refusing to accept Court decisions…”. The father was referring to the fact that while the Local Court magistrate had determined that the mother could work on days that the father was not rostered, she had declined to return to their shared business. The complaint spoke in detail of the family law proceedings, he questioned her professional judgment and detailed his conclusions about her level of anxiety. While he stated in the email that he was writing in good faith and with genuine concern, I have concluded that he was strongly motivated by a desire to correct a narrative which he perceived favoured the mother. The mother was obliged to answer the complaint which was dismissed and the mother was notified in February 2023.
On 12 December 2022, P Lawyers wrote to the mother’s solicitors alleging the mother had breached the Corporations Act amongst other complaints and requiring a response by 16 December 2022. I have read the correspondence passing between the two firms. I consider that the correspondence of 12 December was unnecessary, given the family law firms were seized of the issues and the expectation of a four-day response was entirely unreasonable.

On 12 February 2024 the father wrote to a colleague:
As I believe you are aware, in [mid] 2022 my former wife [Ms Veda] made a series of false accusations against me. I understand these false claims spread through the […] department at [the workplace] and beyond, causing significant reputational damage to me personally and professionally. In the interests of disclosure, I would appreciate knowing the extent of the claims that were made against me, to whom and in what forum.
(Exhibit 63)
There is no evidence that the mother did anything more than utilise the employee assistance program at the workplace.
On 26 February 2024 the father wrote to a Director at the workplace explaining among other issues that the Local Court Magistrate had “raised serious concerns about the honesty, integrity and conduct of [Ms Veda]” and found him, the father, to be an “honest, reliable, credible and genuine witness” (Exhibit 63). Assuming that the email accurately records the findings, it would still appear to be an action taken by the father in an attempt to rehabilitate what he understood may have been reputational damage by asserting – as the subject line of his email did “serious conduct concerns” about the mother. He must have done so either knowing the potential consequences for her or reckless as to them.
On 23 May 2024 the father took X to see the school counsellor. The father reported to the counsellor, among other things, an account which caused the counsellor to make the following note: “[Mother] has defrauded $1M from their (?) company” (Exhibit 61). It is very difficult to understand the basis upon which the father concluded that provision of such information was necessary.
I consider the father’s actions were at best reckless as to the potential consequences for the mother’s employment and income. This is significant in circumstances where he does not pay periodic child support.
The nature of the father’s communication with the mother
The parents’ communication dynamic post-separation has its genesis in their pre-separation communication. On 29 May 2022, the mother indicated a desire to see and spend time with her family. The father sought to limit the time to a length acceptable to him. The mother did not agree and returned home later than the time the father had set. He referred to their earlier conversation that day in which he had threatened the mother: “[y]ou get home in 2 hours or you’ll come home to find all your dresses cut up”. The threat to discipline the mother for failure to adhere to his schedule in terms of time she could spend with her family was plainly coercive and controlling.
When the parents’ relationship had deteriorated the father involved the children in the dynamic. He referred to the mother as “crazy”, “insane”, “mad”, “mentally insane” and “stupid” in the children’s presence on multiple occasions. Discussing the mother’s proposal that X attend a learning program in the USA the father said to X: “this woman who claims to be your mother says you will be interested in it” (Exhibit 26). The father’s conduct was disrespectful to the children’s mother and harmful to X.
The single expert raised concerns with the father about his use of the parenting communication application. She indicated that the father did not acknowledge the concerns. The single expert’s oral evidence reiterated concern that the nature of the father’s post-separation communication with the mother was controlling. The father was aware that the children were to attend a residential therapy program and raised this with the mother in the parenting communication application on 10 January 2024. The father was plainly unsupportive of the children’s attendance. He wrote: “Are the children being threatened and intimidated to attend?” (Exhibit 58).
The parenting application is replete with examples of the father asking the mother to explain her “aggressive” or “violent” behaviour. The mother’s responses are firm and polite. The dialogue on 5 November 2023 when the father retained the children contrary to court orders is an example: see Exhibit 59.
The mother acted appropriately when the grooming issue arose concerning Y. She asked for the father’s support to implement safety strategies. The father responded by saying “[t]his dysfunction cannot continue” (Exhibit 59). Far from assisting the mother to support Y in navigating a serious risk for online grooming, the father’s message seemed designed to allocate blame in circumstances where it was objectively unnecessary.
The mother kept the father informed about the medical issue involving X’s ear in April 2024. The father’s constant messages between 7:04pm and 11:23pm demonstrate a lack of child focus: see Exhibit 60. He was distracting the mother from being present for the child and it could only have been to satisfy his own needs since his input was not necessary.
The nature of the children’s relationships with their mother
X
It was uncontroversial that X has always been close to her father. But it is important to understand the nature of X’s relationship in the following periods:
(a)Prior to separation;
(b)Between separation and October 2023;
(c)Between October 2023 and the present.
Prior to separation
When X met with the CCE for the purpose of the Child Impact report the report writer wrote: “[X] said for the most part her relationship with her mother is good however recently they have been arguing” (Child Impact Report dated 5 April 2023 at [13]).
The evidence of the paternal grandmother identified no difficulties in the relationship between mother and child prior to separation.
In X’s diary she acknowledges that part of her “hate” for her mother is because “she left”.
Between separation and October 2023
The mother says that after separation the relationship between herself and X was good and that she marks the deterioration in the relationship as having commenced when the children commenced spending time with their father after separation.
There is support for this in the school counselling records from X’s school counsellor. The note of the meeting between X and the counsellor on 16 June 2022 (Exhibit 62) reads that X “discussed family dynamics – namely that historically she has been closer to [Father] and brother has been closer to Mo”.
A Senior Judicial Registrar had made orders on 2 June 2023 which provided that the children live with each parent in a week about arrangement. The mother had the first week and the children entered the care of the father on 9 June 2023.
It is useful to examine the communication between X and the mother at the time of the mother’s hospitalisation in mid-2023 because there is no indication in those messages that there are difficulties in the mother/daughter relationship such as to explain the cessation of time upon the mother’s discharge. In mid-2023 the mother arranged for the children to live with the father because she had to be admitted to hospital. On that date the messages were as follows:
Mother: “Thanks heaps for packing the bag for me. You’re wonderful to think of all the things I didn’t think of!”
X: “No problem I cant believe u forgot a toothbrush hahah”
Later that night at 9:20pm
X: “hi r u ok”
On the following day Mother: “Hi darling I’m still in hospital and can’t talk right now. I love you and [Y]”
X: “Ok will u feel better to talk a bit later? Love u too hope u get better soon ♥”
The mother followed up the last text from X by texting and phoning in the following weeks but seemingly without response. There is nothing in the evidence to permit the conclusion that X’s time stopped because of any act or omission by her mother.
Between October 2023 and the present
X’s relationship with the mother experienced significant strain in the period between October 2023 and July 2024 culminating in X remaining in her father’s care in July 2024 notwithstanding the existence of orders for equal time at that point.
On 27 October 2023 orders were made which reintroduced supervision of the father’s time and the children again commenced to live with the mother. During the period which followed the children’s time with their father was professionally supervised. The relationship between the mother and X has, according to the mother, gradually improved. There is some objective support for that conclusion – as X has come to abscond from her mother’s care less over time. I accept the mother’s unchallenged evidence that the relationship has improved.
There remains a significant concern about the father’s capacity to support the children’s relationships with their mother. This concern arises out of his propensity to act in ways which undermine the mother as a parent. One example is his facilitation of X’s absconding from her mother’s care. He has declined to remove her keys to his home and she has also returned to other members of the paternal family during the mother’s time. The father sets out a list of 18 occasions between November 2023 and May 2024. His affidavit was filed at the beginning of October 2024. I therefore conclude that this issue settled substantially between 30 May 2024 and 5 October 2024.
In early 2024, X was due to participate in a residential program at Q Family Services with her mother and brother. Exhibit 58 shows messages between the parents via the parenting communication application after X had absconded from her mother’s care. At 12:11pm, the mother sent the father a message: “[X] has run away. Please let me know if she comes to you. Thank you.”
The father’s response at 1:31pm was “I am at work sorry. I understand [X] was scared at being threatened repeatedly.” The message seems to suggest that the father is aware that X has absconded as a response to the mother’s repeated threats. The father does not say, as might be expected: how can I help? He does not say I will try to get my mum/sister to locate her or anything of that nature.
At 4.00pm, the mother indicated to police that X had not returned to her care (Exhibit 40).
At 4.02pm (almost four hours after the mother had informed him that X had absconded), the father followed up with a message: “[w]hat is happening with [X]?”.
At 4:39pm, the mother wrote to the father: “have you been home to see if she is there? I have asked the police to check there.”
The father was critical of the mother for involving the police. His criticism is not warranted. The parties’ 13-year-old daughter had run away and he had not apparently checked his home, asked anyone else to check or otherwise sought assistance to locate her (or he had done so but not informed the mother).
The idea that the mother’s involvement of police was inappropriate was a recurring theme. The father said the mother used this “threat” with the children but failed to support her and explain to his children that asking the police for assistance in locating missing children is sometimes necessary and appropriate.
The father called the police at 6:30pm to report that he had arrived home and found X there.
In May 2024, X reported to the school counsellor that she does not have a good relationship with her mother. She reported fighting with her mother or not speaking to her. She said the fights have become physical. She reported both parents calling the police to the other’s home. X explained that the court proceedings had exacerbated the situation (Exhibit 61).
Another way in which the father has undermined the mother’s parenting capacity and authority in her own home is by allowing the children to report to him about their criticisms and complaints. The mother told DCJ that Y has stated things like “that’s assault” and “if you touch me, I’m going to tell my dad about that” (Exhibit 53).
The mother reported improvement in the second half of 2024 and described her relationship with X in her oral evidence as really good compared to what it has been. She said they have cuddles and X asks her mother to do her hair and they talk about school.
The single expert said on 9 October 2023:
There is a small window of opportunity to repair and restore the relationship between [X] and her mother; however, this is unlikely to occur if the child remains living with the father. At this point in time, they still have a loving relationship; however, there is a good chance that the mother-daughter relationship will fracture if the current situation is allowed to continue. [X] would then become estranged from both her mother and her extended maternal family. This would come at a significant cost to the child’s emotional and psychological well-being and to her future development.
(Exhibit 67)
I accept the mother’s evidence that the relationship with X is improving and I am conscious that to consolidate these gains in light of the expert opinion X should remain in the care of her mother.
Y
Y co-slept with his mother from birth and continues to sleep with his mother.
The mother acknowledged in her evidence that X has always been closer to her father and that this was not the case for Y. X made a similar comment to the school counsellor.
Y and the mother have been in conflict, but the mother has acted appropriately in managing that conflict.
The nature of the children’s relationships with the father
I am confident that the children love their father and he returns their love. I am equally confident on the basis of the evidence and the mother’s concessions that the children enjoy spending time with the father and would like to spend more time with him than is presently the case.
Immediately after separation in a session with X the school counsellor recorded:
[X] discussed family dynamics – namely that historically she has been closer to Fa [father] and brother has been closer to Mo [mother]. [X] stated ‘I know he has done some bad things, and I don’t think that’s okay, but I really love him and he’s never done anything to hurt me’
(Exhibit 62)
This is significant as it demonstrates that in the period immediately after separation X was in a position to express a significantly more nuanced appreciation of the situation which acknowledged the reality of the children’s preferences for each parent and acknowledged that the father had engaged in conduct which was “bad”. As time passed X became wedded to a narrative which had erased for her the possibility that her father may have done wrong.
In a risk assessment report dated 13 September 2023, the Department of Communities and Justice recorded (Exhibit 53): “[X] appears to be highly anxious and exhibits perfectionist tendencies by emphasising commitment to her schoolwork, talking to the pressure of performing by dedicating additional hours at night and weekends to her studies … idolising [her father] & seeking to maintain his favour.”
The mother expressed a fear that, just as she did not appreciate the dynamic between herself and the father until after separation, she is concerned that X does not have the age, maturity and life experience to navigate a healthy relationship with the father.
During the relationship the mother reported to the single expert that she had questioned the father’s boundaries with X, concerned that he did not cease co-sleeping with her until she commenced high school and then would cuddle her to sleep. He would also observe her on school premises with a telescope. The mother expressed concerns that the father’s blurring of boundaries increased X’s feelings of dependence on the father.
The single expert expressed the opinion that X’s level of dependence on her father may have negative consequences for X. X’s diary was in evidence, as were her text messages with her father. The evidence supports the opinion of the single expert which I accept.
Y’s school refusal
Exhibit 57 outlines Y’s attendance at school in the period between 2 June 2022 and 1 November 2024. In broad terms Y’s attendance was better during the period he was in the care of the father and poor while he has been in the mother’s care.
The situation is complicated. All things being equal, if I were satisfied that the father was able to ensure Y’s attendance and the mother less able, this may be a factor which would weigh heavily in favour of an order that Y live predominantly with the father.
During supervised contact on 25 August 2024 Y had a conversation with his father which is recorded in the contact report. It is recorded in Exhibit 81 that he told his father: “he [Y] … would not miss any days if he was living at his father’s, except Tuesdays that he has [sport] and does not like…”.
The father has given a number of reasons why, in his view, Y’s school attendance has been poor in the mother’s household. When he met with the report writer for the Child Impact Report the father said:
11.[Mr Harendra] expressed concern that [Y] is not engaging in school because he does not like the thought of travelling to school on the train and that both of the children would like to be able to spend time with him after school, given how close he lives to their school. [Mr Harendra] believes that the children are resisting and rebelling against their mother because they have been taken away from all that they know and their environments and lifestyle has changed drastically.
…
26.[Mr Harendra] expressed significant concern about [Y’s] non-attendance at school and him being left home alone for long periods during the day when he is not at school. [Mr Harendra] is of the view that the children are fearful of their mother and are afraid to convey their views about wanting to spend time with him or live with him.
(Child Impact Report dated 5 April 2023)
I accept that, based on Y’s comment to his father and the history, it is likely that Y would attend school in his father’s care.
The expert evidence suggests that Y’s school attendance is not an indicator of parental capacity – by that the expert contends that the issue exists in a family dynamic where it is important to understand why Y is refusing to attend school as opposed to examining which parent has a better track record for ensuring attendance.
It makes little sense that Y would use school refusal in an effort to live with the father (as opposed to the mother). This is in circumstances where the effect of a refusal to attend school is that he would be in the mother’s care. The single expert expressed the view that the genesis of the school refusal was likely to be in Y’s anxiety and if the root cause of his anxiety could be addressed and Y obtain some stability then it is likely that the school refusal would abate.
The school refusal has ebbed and flowed since it started at the beginning of 2023. The single expert placed emphasis on the fact that after the orders were made which returned Y to his mother’s care and imposed supervision on the father’s time there was a corresponding improvement in Y’s school attendance. She opined that Y’s school refusal appeared to be linked to stress and anxiety (perhaps related to these proceedings).
The father submitted that limited weight could be placed on the single expert’s opinion given the amount of time which had elapsed since she saw Y. I accept that this is a limitation to the report. However, the single expert drew on her professional experience with school refusal to identify the most likely cause having read the parties’ recent up to date affidavit material and I accept her opinion.
Has the father sought to undermine the children’s therapeutic relationships?
On 9 December 2022, an order was made that the parents facilitate the children’s participation in the R Program.
The mother promptly completed the paperwork necessary for the children to participate.
The father did not complete the paperwork until April 2023. In cross-examination, he said that the intervention of Christmas and his expectation that paperwork would be forwarded to him by the mother were responsible for the delay. The order was unequivocal in providing a 7-day timeframe to complete the enrolment paperwork. The mother raised this issue with the R Program in February 2023. The mother asked the CCE to raise the matter with the father in April and on 3 April (or thereabouts) the father completed the intake paperwork. The children were then placed on the waitlist. They did not attend until about mid-2023. More than six months passed between the making of the order and the children’s participation. The father’s actions lacked child focus having regard to the circumstances in which the children found themselves at that time.

While I cannot discount the possibility that the father was deliberately seeking to prevent the children obtaining assistance, the explanation may be more benign. In either event, I am able to find that his inaction caused delay and at best he was not attentive to an issue which was important from the children’s perspective.
After the children commenced with the program, I can have no doubt that X found the sessions with her counsellor useful and important to her. On or about 11 January 2024, she recorded the following in her journal:
[Ms S]
I was talking to dad and he said to be careful around [Ms S] because she’s two faced. aparently she said I “feel the need to pick a parent.” I just can’t believe she said that. I mean she could’ve said a lot more, and a lot worse but idk [I don’t know]. And apparently dad said it sounded like she’s on mum’s side and stuff. And dad said maybe I should start seeing her less. Idk, it kinda makes me upset and I don’t know why. It’s like the 2 people I trust most against each other. and I can’t believe I trust [Ms S] so much. Like I feel like I’m finally being understood, but after she told dad that I feel like she doesn’t understand me at all. But she’s also helped me so much I don’t know why I can’t get her out of my mind, but I’m always thinking abt [about] what to say to her that it’s making me overthink about everything and making me more miserable. Like why do I think about her 24/7? I think I’m scared to lose her. Because she finally listens, and understands what I’m going through. And since I’m scared to lose her, I feel like I need her to validate my sadness and emotions. like I need to be “worthy” enough to deserve her. “Worthy” meaning “sad” so its like I actually need her.
(Exhibit 32, pp.30–31)
On 27 October 2023, the court had made an order that required the parents to encourage the children’s attendance at therapy and say nothing to discourage their attendance. X attributes to her father two representations:
(1)That X needs to be careful around her counsellor because she is “two-faced”; and
(2)It sounds like the counsellor is on “mum’s side”.
X’s note leaves little doubt that however the father may have phrased his comments about the counsellor, they were interpreted by X in a manner which was discouraging of attendance at therapy.
The R Program sought the parents’ consent to speak to the schools attended by Y and X. The mother gave her consent in respect of both children. The father was asked about the consent in cross-examination and said he had consented. He was asked to provide the document which contained the consent. He subsequently accepted that he had withheld his consent in respect of X.
I accept that the father is wary of therapeutic interventions for his children because of a concern that those who assist the children may accept the mother’s “false narrative” and provide treatment against that background.
This is problematic because even if the father has a basis to be cautious about treatment being provided to the children with only the perspective of one of their children’s parents, an approach which delays or seeks to curtail or stop treatment for this reason alone is not focused on the real needs of the children.
The father consented to X attending counselling (at the mother’s request) but declined her suggestion that the counselling be funded from the joint mortgage offset facility. The result was that it did not occur. In the broader context where the mother was not receiving child support and not living in the former matrimonial home, the father’s failure to consent to use joint funds to meet the children’s needs is inexplicable.
The mother says that Q Family Services informed her that the father had expressed the view that the children had no need of the service. In cross-examination the father expressed the view that his research had suggested the program was not appropriate. The children had been assessed as suitable and his failure to support their attendance and involvement was a missed opportunity. Given the fact that at the time the father expressed the view that his children were seeing him on a supervised basis and sometimes absconding – had a fractured relationship with their mother and maternal family and police and DCJ had been involved – it is unfortunate that he took the view that his children would not be assisted.
I am satisfied the father’s attitude and conduct have impacted on the children’s access to therapy.
Other relevant issues
In addition to the matters listed in s 60CC(2)(a)–(e) of the Act, it is important to consider any other relevant matters particular to these children.
One factor which is significant is the disparity in the parties’ living arrangements post‑separation. The father lives in the former matrimonial home which is an apartment in Suburb M on a high floor, his parents have an apartment on a lower floor and his sister an apartment on a lower floor. The apartment has a gymnasium and swimming pool. It is located in close proximity to X’s school and Y’s school. The mother lived in a refuge and subsequently transitional housing facilitated by a charitable organisation. It is uncontroversial that it is not of the same quality as the father’s residence and requires the children to take public transport.
The distinction between the two homes is a factor which has been influential on the children’s thinking. The convenience and amenity of the father’s home are clearly motivating some of the children’s approach to their living arrangements. This is understandable.
The mother gave evidence that she intends to obtain a new home (bought or rented) and this may assist the children practically to feel more at home in her household although it will not be walking distance from their schools.
Conclusions
What do the findings about the relevant considerations mean for the type of orders which will manage risk and facilitate ongoing relationships?
The parenting orders must be in the best interests of both children. That takes into account matters in respect of the present and ongoing safety and well-being.
The children have been exposed to family violence perpetrated by their father against their mother. This has had an ongoing impact on the dynamic between the parents and on the relationships of the children with each parent.
As already explained, the Court has the benefit of being able to see how various parenting arrangements have been implemented and with what degree of success.
I could not be confident that if I made the orders that the father seeks, the children would spend time (or regular time) with their mother. I could not be satisfied that the father would facilitate and encourage that important relationship. The mother is wary of the father having anything other than supervised time with the children. In the first instance, she was concerned that the pattern of escalation of his behaviour in the years leading to separation caused her to act protectively in respect of her own physical safety. I did not understand her to be saying that she seeks to maintain supervision now because of a fear that the children may come to physical harm while with their father and I have found that this is not the case.
I have found that the mother has been committed to her own parental education and the psychological and therapeutic needs of the children in a manner which is to the children’s advantage.
The evidence clearly establishes from prior to separation that the father has been prepared to deride the mother in the children’s presence and I find that this has contributed to their rejection of her. I am also concerned that what the single expert described as a “fawning” response may be responsible for X’s idealisation of her father.
The orders which will assist the children to develop a healthy relationship with both parents are orders which see them remain in the primary care of the mother.
I am concerned that absent a mechanism for ensuring compliance with orders, the history suggests that the father (and his family) will facilitate the children spending time with him contrary to court orders and so I propose to make an Order which provides that if the father speaks to, approaches, has contact with the children or either of them other than in accordance with the Orders, then his time is suspended.
The mother wanted indefinite supervision. Such an order may be made if there are cogent reasons for it: Moose & Moose (2008) FLC 93-375, H v K [2001] FamCA 687 and Slater v Light (2013) 48 FamLR 573.
Here, the role and function of professional supervision is to ensure that the time the children and the father spend together does not have the function of undermining the children’s relationship with the mother. It is to protect the children from the psychological harm which would flow from being exposed to a narrative which deliberately or inadvertently casts the father and his family as better and the mother and her family as worse. If that protection is maintained, then the children will have the opportunity to settle in their mother’s care – respond positively to her rules and boundaries without the spectre of another parent who helps the children interpret parental boundaries and consequences as abusive and threatening.
Because of the children’s ages and the lack of desirability of indefinite supervision, I am not persuaded that the children’s time with their father should be supervised indefinitely. While these reasons for judgment have necessarily focused on risk the father does pose, he has a significant amount to offer his children and indefinite supervision would rob the children of those benefits.
I propose to make Orders which provide that the children see and spend supervised time with their father which will be suspended (for a period) if there is any contact with the father outside that provided in the Orders and if there is a repeat of contact, then the Orders will be permanently suspended. This Order is designed to ensure that the children and the father know the consequences of non-compliance and are motivated to adhere to the Orders. It is not a punishment but an incentive to comply.
If there is no occasion of non-compliance for a period of two years, that would signal an appreciation of a number of things:
(a)Respect for the Orders, their operation and implementation; and
(b)Capacity for self-reflection and consideration of long-term best interests of the children.
It follows that I accept that in the event that the Orders are complied with, the time should become unsupervised. It could then be gradually increased such that the children spend alternate weekends and half holidays with the father.
Parental responsibility
Parental responsibility is defined in the Act:
61B Meaning of parental responsibility
Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Each parent asks that I allocate sole parental responsibility to him or her.
An order for sole parental responsibility is a parenting order and the best interests principle applies. I propose to make an Order for sole parental responsibility in favour of the mother for three main reasons:
·Each party recognises that sharing was and is untenable;
·The children will, under my Orders, live predominantly in her care and so for practical reasons, this is the Order which best meets their needs; and
·I have concerns about the manner in which the father approached the children’s access to therapeutic services as discussed above.

I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.
Associate:
Dated: 9 December 2024

File number:	SYC 3939 of 2022
Judgment of:	CHRISTIE J
Date of judgment:	9 December 2024
Catchwords:	FAMILY LAW – PARENTING – Final parenting orders – Where the children have been exposed to parental conflict and family violence – Where younger child is experiencing school refusal – Where older child has rejected maternal family – Where Court finds father poses a psychological risk of harm to children – Children to live with mother and spend supervised time with father graduating upon condition to unsupervised time – Injunctions granted.
Legislation:	Family Law Act 1975 (Cth) ss 4AB(2), 60B(b), 60CC(2)(a), 60CC(2)(b), 60CC(2)(c), 60CC(2)(d), 60CC(2)(e), 61B and 68B
Cases cited:	H v K [2001] FamCA 687 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 Slater v Light (2013) 48 FamLR 573; [2013] FamCAFC 4
Division:	Division 1 First Instance
Number of paragraphs:	200
Date of hearing:	4–8 November & 11–14 November 2024
Counsel for the Applicant:	Ms Dart
Solicitor for the Applicant:	Rubin Blight Hardy Family Lawyers & Mediators
Counsel for the Respondent:	Mr Coleman SC with Mr Alexander
Solicitor for the Respondent:	Rita Thakur & Associates
Counsel for the Independent Children's Lawyer:	Ms Rebehy
Solicitor for the Independent Children's Lawyer:	Kathryn Renshall Lawyers

SYC 3939 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS VEDA Applicant
AND:	MR HARENDRA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	9 DECEMBER 2024