Velderman & Velderman - [2022] FedCFamC1F 724

Federal Circuit and Family Court of Australia
(DIVISION 1)
Velderman & Velderman [2022] FedCFamC1F 724

File number: SYC 7114 of 2017

Judgment of: HENDERSON J

Date of judgment: 27 September 2022

Catchwords: FAMILY LAW – CHILDREN – Best interests – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks an order for sole parental responsibility – Where the mother holds unsubstantiated allegations of the father grooming the children – Where the mother has failed to properly exercise her parental responsibility – Where an order for equal shared parental responsibility is an order in the best interests of the children – Where the father seeks the children spend equal time with him ultimately – Where the children have expressed a wish to spend more time with the father – Where it is not an order in the best interests of the children for equal time – Where the children are to immediately spend five nights broken up over a fortnight for 12 months with the father – Where in 12 months the children’s time will be one block of five nights a fortnight – International travel – Where there is agreement that overseas travel is to be to countries that are signatories to the Hague Convention – Where the mother seeks the father pay a bond of $30,000 to ensure the return of the children – Where there is no evidence of the father’s financial circumstances – Where there is no evidence to support the payment of a bond and no concerns the father will not return the children – Where the payment of a bond may restrict overseas travel and not be in the best interests of the children.

Legislation: Family Law Act 1975 (Cth) ss 60CC(2)(a), (2)(b), (3)(a), (3)(b), (3)(c), (3)(ca), (3)(d), (3)(g), (3)(m), 61DA, 102NA.

Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.

Division: Division 1 First Instance

Number of paragraphs: 197

Date of hearing: 1–4 August 2022

Place: Sydney

Counsel for the Applicant: Ms Murphy

Solicitor for the Applicant: Swifte Law

Counsel for the Respondent: Ms Kennedy

Solicitor for the Respondent: Santone Lawyers

Counsel for the Independent Children's Lawyer: Ms Giacomo

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

SYC 7114 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VELDERMAN

Applicant

AND:
MS VELDERMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HENDERSON J

DATE OF ORDER:

27 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The mother and father (“the parties”) shall have equal shared parental responsibility of the children, X ("X") born 2012 and Y ("Y") 2015 ("the children").
2.Notwithstanding Order 1, for the purposes of the children's attendance at high school, the children are to attend any school as agreed between the parties, and failing agreement, they are to attend the school that is closest to them within the catchment area in which the children reside.
3.Notwithstanding Order 1, in relation to the children's attendance at a regular general practitioner ("GP"), they are to continue to attend their current GP, however should a change of GP be required, the children attend a GP agreed upon by the parties, and failing agreement, a GP that is closest to the mother’s residential address.
4.For the purposes of making decisions for the children, the parties are to communicate with each other, as much as practically possible, by email, at an email address nominated by each parent.
5.For the purposes of Order 4, each parent is to ensure that they have and will continue to provide the other parent with their most up-to-date email address.

Live with
6.The children shall live with the mother.

Time with the Father
7.The children shall spend time with the father as agreed between the parties in writing.
8.Failing written agreement between the parties pursuant to Order 7, the children shall spend time with the father, during the school term, on a fortnightly basis as follows:
(a)Commencing immediately, in week 1, from after school Wednesday until the commencement of school Friday;
(b)Commencing immediately, in week 2, from after school Friday until the commencement of school Monday;
(c)Commencing the first week in November 2023, and each alternate week thereafter, from after school Wednesday until the commencement of school Monday;
(d)The operation of Order 8(a)–(c) inclusive is that the time the children spend with the father is to commence in the first week of the school term;

9.Failing agreement between the parties pursuant to Order 7, the children spend time with the father during the mid-term school holidays as follows:
(a)In 2022, in the first week of the holidays from 9.00am Monday until 6.00pm Saturday (5 nights), and in the second week of the holidays, from 9.00am on the last Friday until 9.00am Monday (3 nights);
(b)In 2023 and each alternate year thereafter, for the first half of the holidays, from 3.00pm on the last day of school, with changeover to occur at 6.00pm on the middle Saturday of the holidays;
(c)In 2024 and each alternate year thereafter, for the second half of the holidays, with changeover to occur at 6.00pm on the middle Saturday of the school holidays and to conclude at 9.00am on the Monday;

10.Failing written agreement between the parties pursuant to Order 7, the children spend time with the father during the end-of-year school holidays as follows:
(a)In 2022/23:
(i)From 6.00pm on 22 December until 4.00pm 25 December 2021;
(ii)From 12noon 29 December 2021 until 6.00pm 4 January 2022;
(iii)From 12noon 11 January 2022 until 6.00pm 16 January 2022;
(iv)From 6.00pm 21 January 2022 until 6.00pm 26 January 2022;

(b)In 2023/24, in the second week of the holidays from 6.00pm and alternating weekly thereafter, with weekly changeover to be at 6.00pm;
(c)In 2024/25, in the first week of the holidays from 3.00pm the last day of school and alternating weekly thereafter with weekly changeover to be at 6.00pm;
(d)In 2025/26 and each alternate year thereafter, for the second half of the school holiday period, with changeover at 6.00pm at the midpoint of the holiday period and concluding at 6.00pm the Friday before school resumes;
(e)In 2026/27 and each alternate year thereafter, for the first half of the school holidays commencing at 3.00pm on the last day of school with changeovers at 6.00pm at the midpoint of the holiday period;

11.Unless otherwise specifically provided for in these orders, for the purpose of calculating the parties' time during school holidays, the holidays shall commence at 3.00pm on the last day of the children's school term and shall end at 9.00am on the morning of the children's first day of school the next term and shall include any pupil free days or public holidays at either the beginning or end of the school holidays.
12.Whilst the children are with each parent, that parent is to ensure that the children are at liberty to speak to and/or communicate with the other parent by telephone, FaceTime, etcetera, as requested by the children.

Special Occasions
13.That Orders 8–10 inclusive shall be suspended on the following special occasions and the children shall spend time with the parties as follows:
(a)If Father's Day falls on a weekend when the children are not already spending time with the father, the children are to spend time with the father from 6.00pm on the Saturday before Father's Day until before school Monday;
(b)If Mother's Day falls on a weekend when the children are not already spending time with the mother, the children are to spend time with the mother from 6.00pm on the Saturday before Mother's Day until before school Monday;
(c)If on the mother's birthday or the birthdays of W and Z (the half-siblings of the children), the children are with the father, they are to spend time with the mother for 4 hours on a school day, commencing at 3.00pm until 7.00pm, and for 4 hours on a non-school day, as agreed, but failing agreement from 3.00pm until 7.00pm;
(d)On the father's birthday if the children are with the mother, they are to spend time with the father for 4 hours on a school day, commencing at 3.00pm until 7.00pm, and for 4 hours on a non-school day, as agreed, but failing agreement from 3.00pm until 7.00pm;
(e)On X's birthday, the children are to spend time with the parent who is not already spending time with the children pursuant to these orders, from 2.00pm until 6.00pm;
(f)On Y's birthday, the children are to spend time with the parent who is not already spending time with the children pursuant to these orders, from 2.00pm until 6.00pm;
(g)At Easter, if same does not fall within the school holidays:
(i)In 2022 and each alternate year thereafter:
A.From after school on the Thursday before Easter until 6.00pm Easter Saturday with the father;
B.From 6.00pm Easter Saturday until 6.00pm Easter Monday with the mother;

(ii)In 2023 and each alternate year thereafter:
A.From after school on the Thursday before Easter until 6.00pm Easter Saturday with the mother;
B.From 6.00pm Easter Saturday until 6pm Easter Monday with the father.

Changeover
14.Changeovers shall occur as agreed between the parties, and failing agreement, at school and on non-school days at the Suburb D Supermarket, with the parties or their agent to effect changeover.

Communication and Information Sharing
15.Whilst the children are in each parent's care, both parties shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child, and in the case of an emergency, within 2 hours, and in other circumstances, within 24 hours, or when reasonably practicable.
16.Unless in an emergency, if the father is required to take the children to a GP, the father is to make a genuine effort to ensure the children attend AA Medical Practice or a medical practice as is agreed.
17.If the children are prescribed medication, the parties are to provide that medication to the other parent at changeover.
18.In addition to Order 5, both parties are to keep the other advised of their current residential address and contact telephone number and shall advise the other parent within 48 hours of any changes.
19.These Reasons for Judgement and the two Family Reports prepared in this matter may be provided to any treating health professional either child attends.

Passport and Travel
20.Unless agreed by the parties otherwise, that from 1 January 2025, each parent is permitted to remove the children from the Commonwealth of Australia, subject to their compliance with Orders 22–25 inclusive for no more than a two week period unless otherwise agreed.
21.From 2027, the parties may travel overseas with the children, subject to their compliance with Orders 22–25 inclusive, for 3 weeks in school holiday periods unless otherwise agreed.
22.The parties shall do all acts and things and sign all documents necessary to ensure that the children obtain and/or renew a valid Australian passport at all times from the date of these orders.
23.In the event that either party fails to do all acts and things and sign all documents within 7 days of being requested to do so in writing in order for the children to obtain or renew a passport, the requirement for that parties' consent will be dispensed with such that the requesting party may make a unilateral application for the children's passport and shall be permitted to provide a copy of these orders to the issuing body in support of that application.
24.Pursuant to section 65Y of the Family Law Act 1975 (Cth), either party shall be permitted to remove the children from the Commonwealth of Australia, unless otherwise agreed between the parties in writing, on the following conditions:
(a)The travelling party is to provide the other party, no less than 3 months prior to the date of the travel, the following:
(i)Evidence of paid return airfares/tickets for the children and parent;
(ii)Evidence of travel insurance of the children and the parent; and
(iii)An itinerary for travel, including addresses where the children will be staying and contact phone numbers.

(b)Neither party shall be permitted to travel with the children to a destination which has, at the time of the anticipated travel, an overall advice level that is equal to or greater than "exercise a high degree of caution", or equivalent, having regard to the travel advice guidelines maintained by the Department of Foreign Affairs and Trade.
(c)Neither party shall be permitted to travel with the children to a destination that is not a party of the Hague Convention.
(d)The mother shall hold the passports whilst the children are not travelling with the father.
(e)Should the father travel with the children, the father is to return the children's passports to the mother within 7 days of returning from overseas travel.

25.Whilst the children are travelling with a parent, the parent that is travelling with the children is to ensure that the children are able to speak/communicate with the other party as requested by the children.

Medical Treatment and Counselling for X
26.Within 14 days of these orders, the mother shall do all things necessary to facilitate X attending an appointment with Ms BB of CC Health Service and shall provide any report prepared by Ms BB to X’s treating GP.
27.The parties shall facilitate X's attendance for further testing or upon further appointments with specialists as recommended by Ms BB.
28.The mother and father are to provide to the other parent, as soon as reasonably possible, any recommendations and/or reports that are prepared as a result of the appointment with Ms BB and provide details of any follow up appointments.
29.The mother is to provide any recommendations and/or reports that are prepared by Ms BB to X's GP, as may the father.
30.The costs of complying with Order 26–29 inclusive is to be equally shared by the parties.

Parents Therapeutic Intervention
31.Within 14 days of these orders, the parties are to do all things necessary to arrange an appointment to attend upon the family therapist that is recommended by Ms S and communicated to the Independent Children's Lawyer.
32.The parties are to communication to each other and the Independent Children's Lawyer, in writing, confirming that they have arranged an appointment with the recommended therapist and provide the date of that appointment.
33.These Reasons for Judgement and the two Family Reports prepared in this matter may be provided to any treating health professional either parent attends.

Restraints
34.Neither parent will discuss these proceedings with the children.
35.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, to or in the presence or hearing of the child and any other third parties, and shall remove the child from the presence of any person who is denigrating the other parent or the other parent's family in the presence or hearing.

AND THE COURT NOTES THAT:
A.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 are set out in Annexure A 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Velderman & Velderman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J

The matter of Velderman concerned the parenting arrangements for the parties' children, X ("X"), born in 2012, and Y ("Y"), born in 2015 ("the children").
For the past four years, the children have spent four nights a fortnight in the father's care broken up over the fortnight. Since 31 January 2020, this time has occurred from after school Thursday to the commencement of school on Friday in the first week, and from after school Friday to the commencement of school the following Monday in the second week. Although there is no order for equal or sole parental responsibility, the reality is the mother has made sole decisions for the children in that period of time.
The father seeks an order for equal shared parental responsibility with the mother. The father seeks that the children spend five nights a fortnight with him in a block from after school on a Wednesday to the commencement of school the following Monday immediately, rather than the time be broken up over the fortnight.
The father also seeks from the commencement of Term 1 2025, the children spend equal time with each of their parents from the commencement of school Monday as well as orders for special occasions, half of school holiday time, communication, overseas travel and the like.
The mother's case is that she have sole parental responsibility for the children, a situation that has been in existence informally since their birth, that they maintain the four nights a fortnight regime of time into the future. The mother’s position is if the Court was of the view five nights a fortnight was an order in the best interests of the children, that the extra night be added to the first week, making a two-three night split.
The mother was ultimately agreeable to overseas holidays of no longer than two weeks' duration commencing in 2025 when X is 12 years of age, provided the father places a bond of $30,000 with her lawyers to ensure the children's return and that the father only travel to countries that are a signatory of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). It is common ground that although the father is a Country U national, he is now an Australian citizen and both he and the mother are desirous of the children visiting Country U, which is part of their cultural heritage.
Both the Independent Children's Lawyer ("ICL") and the father had a consistent positions that if time was to be broken up over the fortnight, a recommendation made by Ms S, the family consultant, time should commence on Thursday after school in both weeks. In week one from Thursday after school until the commencement of school on Friday, and in week two until the commencement of school Monday.
The mother produced four sets of orders throughout the hearing. The initial orders sought were that she has sole parental responsibility for the children and they spend four nights a fortnight with the father, split into one night in the first week and three nights in the second week, changeover to occur at school, school holiday time be limited until 2023, when holidays would be for one weeks duration alternating weekly, time for special occasions, and that the father be permitted to travel with the children from 2029 onwards.

The second set of orders contemplated if the Court ordered five nights a fortnight sought that the time be split into two nights in the first week and three nights in the second week.
The third set of orders included a provision for the mother to notify the father regarding any major long-term issues relating to the children and provide the father the opportunity to respond, which response the mother was to consider as part of exercising her parental responsibility. This set of orders would also allow the father to travel with the children from 2026 onwards, on the condition that the father pay a $30,000 bond.
The fourth set of orders, which were proposed on the last day of the hearing, added orders relating to medical treatment and counselling for X, and the provision of this judgement and the two Family Reports prepared in this matter be provided to X's future psychologist/counsellor and to Ms V, the mother's treating counsellor. The mother sought specific orders in relation to X as follows:
(1)His attendance upon Ms BB of CC Health Service, with the provision of her report to his general practitioner and that X engage in this service as long as required. X suffers from enuresis and encopresistwo medical conditions and has suffered so for approximately seven years; and
(2)The mother to follow up on a referral for X to have psychological treatment as was recommended for him by his GP in 2020 and not followed up by the mother.
These orders relating to X's medical treatment and counselling required the mother to provide all information and reports produced to the father. Additionally, the father would be permitted to attend upon Ms BB and inform himself regarding her treatment of X.
Despite the various sets of orders the mother produced at the hearing, the orders relating to special occasions were matters the parents agreed upon.
SHORT SUMMARY
The mother's position that she have sole parental responsibility was supported by the ICL at the commencement of the hearing and Ms S, who has prepared two Family Reports in this matter. At the conclusion of the hearing and consequent upon the evidence the ICL and Ms S, changed their position and opined parental responsibility should be shared. This change was based upon their joint concerns shared by the Court that it could not be accepted that the mother would exercise sole parental responsibility in the children's best interests, given how she had exercised that responsibility in the past.
It was the mother's case that the father had behaved violently towards her during the marriage that she was frightened of him, and he was not capable of caring for the children for more than four nights a fortnight. One wonders the difference between four or five nights in the father's care, even if I accept the mother’s evidence at its highest. The mother's dogged position that time with the father and the children should continue indefinitely for four nights a fortnight was not supported by the ICL or Ms S, given it was the children’s wishes to spend more time with the father, as reported to Ms S. The mother's concerns for the children's welfare being negatively impacted upon by the addition of one night a fortnight were explored in-depth and ultimately found to be without substance for the reasons that follow.
The mother’s dogged position on this issue was maintained in circumstances where the children are craving more time with the father. The mother could not take on board the words of her children or the recommendations of Ms S, that the children wanted to see the father each week, in fact, see both parents each week, and they missed the father when they were with the mother, and vice versa.
THE HEARING
The hearing occurred over four days from 1 to 4 August 2022. The father was self-represented, and pursuant to section 102NA of the Family Law Act 1975 (Cth) ("the Act"), was appointed a lawyer to assist him. The father was represented at the hearing by Ms Murphy of counsel.
The mother was represented by Ms Kennedy of counsel and the ICL represented by Ms Giacomo of counsel.
The witnesses that gave evidence during the hearing were as follows:
(1)For the father:
(a)The father;
(b)A friend of the father, Ms DD; and
(c)The paternal grandmother, Ms EE from Country U (with an interpreter).
(2)For the mother:
(a)The mother; and
(b)The mother’s treating counsellor, Ms V.
(3)The Family Consultant, Ms S.
DOCUMENTS AND EXHIBITS
The documents and exhibits relied upon in the hearing were as follows:
(1)For the father:
(a)Contained in his Court Book:
(i)Case Outline filed 3 February 2022;
(ii)Amended Initiating Application filed 5 June 2019;
(iii)Affidavit of the father, Mr Velderman filed 10 December 2021;
(iv)Affidavit of the paternal grandmother, Ms EE filed 10 December 2021;
(v)Affidavit of the paternal step-grandfather, Mr FF filed 10 December 2021;
(vi)Affidavit of the father’s friend, Ms DD filed 10 December 2021;
(vii)The first Family Report of Ms S dated 8 August 2019 (see below);
(viii)An Expert Report of Dr GG dated 21 May 2018;
(ix)CDC Memorandum of Ms HH dated 30 January 2018;
(x)The mother’s Notice of Risk filed 7 March 2018;
(xi)A Notice to Admit Facts filed 12 April 2021; and
(xii)A bundle of tender documents.
(b)Further documents to be relied upon:
(i)A further bundle of tender documents, including various subpoena material and the Reasons for Judgment delivered by a judge of the Federal Circuit Court of Australia on 6 July 2018;
(ii)Affidavit of the father, Mr Velderman filed 27 June 2022; and
(iii)Affidavit of the father, Mr Velderman filed 1 August 2022.
(c)Documents tendered at the hearing:
(i)Case Outline filed 28 July 2022 (Exhibit F1);
(ii)Original Minute of Orders sought attached to Exhibit F1 (Exhibit F2) and amended during the hearing;
(iii)A schedule of emails sent between the parties from 10 January 2020 to 22 July 2022 prepared pursuant to section 50 of the Evidence Act 1995 (Cth) (Exhibit F3);
(iv)A letter from Ms BB, an Advisor at CC Health Service dated 16 November 2018 (Exhibit F4);
(v)A bundle of emails sent between the parties from 13 October 2019 to 25 April 2022 (Exhibit F5); and
(vi)School reports from JJ School for X and Y for 2022 – Semester 1 (Exhibit F6).
(2)For the mother:
(a)Contained in her Court Book:
(i)Case Outline and Minute of Orders sought filed 3 February 2022;
(ii)Response to Initiating Application filed 7 March 2018;
(iii)Notice of Risk filed 7 March 2018;
(iv)Affidavit of the mother, Ms Velderman filed 21 January 2022;
(v)Affidavit of the maternal grandfather, Mr G, filed 21 January 2022;
(vi)Affidavit of the mother’s sister, Ms KK filed 21 January 2022;
(vii)Affidavit of the expert, Dr GG filed 28 April 2021;
(viii)Affidavit of the expert, Dr GG filed 21 January 2022;
(ix)Affidavit of the mother’s treating counsellor, Ms V filed 24 January 2022; and
(x)A bundle of tender documents.
(b)A second bundle of tender documents;
(c)Affidavit of the mother, Ms Velderman filed 27 June 2022; and
(d)Documents tendered at the hearing:
(i)Case Outline filed 28 July 2022 (Exhibit M1);
(ii)Original Minute of Orders sought as of 11 July 2022, amended on 2 August 2022 and further amended on 4 August 2022 (Exhibit M2); and
(iii)Costs Notice filed 31 July 2022 (Exhibit M3).
(3)For the ICL:
(a)Original Minute of Orders sought (Exhibit ICL1) and amended during the hearing; and
(b)Case Outline filed 29 July 2022 (Exhibit ICL2).
(4)For the Court:
(a)The first Family Report of Ms S dated 8 August 2019 (Exhibit C1) (“the first Family Report”); and
(b)The second Family Report of Ms S dated 1 May 2022 (Exhibit C2) (“the second Family Report”).
CHRONOLOGY
In 1981, the mother was born, and at the time of the hearing was 41 years of age.
In 1983, the father was born in Country U, and at the time of the hearing was 38 years of age.
In late 2010, the parties commenced cohabitation at the mother’s apartment in Suburb LL.
In 2011, the mother observes the father with a small orange bottle and the father advises the mother of a diagnosis of panic and anxiety disorder. At this time, the father informs the mother that the paternal grandfather suffers from a mental health issue.
In late 2011, the father is hospitalised for four weeks.
In 2012, the parties marry.
In late 2012, the father lodged an application for a partner visa.
In 2012, X is born, and at the time of the hearing was 11 years of age. The mother takes 12 months of maternity leave.
In late 2013, the mother returns to work. The paternal grandmother and step-grandfather come to Australia from Country U and live with the parties in Suburb M.
In early 2014, the paternal step-grandfather returns to Country U.
In late 2014, the paternal grandmother returns to Country U.
In late 2014, the father has a panic attack, and takes the mother and X to a secluded location.
In 2015, Y was born, and at the time of the hearing was seven years of age. The mother takes 12 months of maternity leave.
In early 2015, the father’s visa application was granted.
In late 2015, the mother returns to work part-time, three days per week. The maternal grandmother cares for the children from late 2015 to early 2016.
In late 2015, the parties move to Suburb B in the C Region, to live with the maternal grandfather.
From early to mid-2016, the paternal grandmother comes to Australia to assist with the care of the children.
In early 2016, the mother falls pregnant with a third child.
In mid-2016, the mother miscarries.
Between 16 July 2016 and 27 November 2016, the parties separate for the first time. During this time, the mother creates a profile on a sperm donation website.
In mid-2016, the father pulls the mother onto his lap in a jumping castle whilst having an erection.
In mid-2016, the father attempts to pull the mother towards him at MM School whilst having an erection.
In late 2016, the father informs the mother, “I want to die”.
During 2016 and 2017, the mother asserts she was coerced into having sexual intercourse with the father during panic attacks. The father asserts these events were consensual.
From early 2017 to early 2018, the children attend day care for three days per week, and increasing to four days per week.
Between 11 April 2017 and 22 July 2017, the parties separate for a second time. During this time, the father approaches the mother’s sister and makes allegations of mental illness against the mother.
In mid-July 2017, the father approaches the mother for sexual intercourse in her bedroom at the Suburb B property. The mother asserts she refuses his advances multiple times. The father asserts this interaction was consensual.
On 20 August 2017, the parties separate on a final basis, living separately under one roof at the Suburb B property.
On 27 October 2017, the father files an Initiating Application in the Federal Circuit Court of Australia (as it then was), seeking parenting and property orders.
In late 2017, while naked, the father brushes against the mother whilst she is bathing the children. The father also enters the bedroom and views the mother naked as she exits the shower.
In late 2017, the mother makes reports of sexual assault.
In late 2017, the father takes the children to an unknown location.
On 24 January 2018, the parties attend the Child Inclusive Conference, and the memorandum is issued to the parties on 30 January 2018.
On 2 March 2018, the father emails the mother about “Mr NN”, causing the mother to believe he has access to her emails.
In early 2018, the mother moves with the children to reside at the maternal grandmother’s house in Suburb M and enrols the children at the N Early Learning Centre.
On 8 April 2018, the father provides the children with a mobile phone with GPS capabilities.
In early 2018, the father attends the mother’s workplace.
In mid-2018, the mother reports this attendance at her workplace to the police.
On 14 May 2018, orders are made for an expert report to be prepared by Dr GG regarding the father’s mental health.
In mid-2018, the mother alleges that the father leaves the children unattended at an indoor pool.
On 19 June 2018, the parties appear before a judge of the Federal Circuit Court of Australia for an interim hearing.
On 6 July 2018 orders are made for the children to live with the mother, spend four nights a fortnight with the father (one night in the first week, three nights in the second week), with changeovers at the mother’s residence in Suburb M.
On 6 July 2018, orders are made to vary the Thursday changeovers to occur at day care at 4.00pm.
In mid-2018, the mother is advised by the father that he has relocated to Suburb J. The father also attends the Suburb B property with the paternal grandmother.
In mid-2018, the father attends the Suburb B property multiple times to collect belongings without seeking the mother’s or the maternal grandfather’s agreement. In mid-2018, the police attend the Suburb B property while the father is present.
In mid-2018, the parties commence attending family therapy with Mr PP.
A short time later in 2018, the mother cancels family therapy.
In late 2018, upon attending the Suburb B property, the mother found that her personal documents were missing. Later in the month, the father returns the marriage certificate, but no other personal documents.
In late 2018, the parties divorce. The mother also receives a letter requesting she meet the father at the gate at changeovers.
On 1 November 2018, the father files an Application in a Case seeking various parenting and property orders, including changing Y’s day care and time during school holidays.
On 17 December 2018, the father files an Amended Application in a Case.
On 18 December 2018, orders are made by consent regarding parenting including X’s enrolment at JJ School and an order was made for the appointment of an ICL.
In early 2019, the mother moves back into the Suburb B property and X commences kindergarten at JJ School.
In early 2019, the mother collapses and is taken to QQ Hospital. The mother is on sick leave from her work.
The next day in 2019, Y ceases attending day care at N Day Care in the city and is not re-enrolled at pre-school.
On 28 February 2019, the father files a Contravention Application.
On 1 March 2019, orders are made for, inter alia, changeovers to occur at the Suburb D Supermarket or school, with each parent to carry out changeover personally.
In early 2019, the mother commences maternity leave for 12 months.
On 4 April 2019, the father files an Amended Application in a Case in respect to the upcoming interim hearing regarding parenting.
On 12 April 2019, orders are made for Y to attend pre-school, time in school holidays to progress to shared time in terms 1, 2, and 3, and week-about in term 4, time for the children’s birthdays, and changeovers at Suburb D Supermarket.
In mid-2019, the father becomes an Australian citizen.
In 2019, the mother’s third child W is born, and at the time of the hearing was three years of age.
On 5 July 2019, the father files an Amended Contravention Application.
In mid-2019, the mother observes a bruise on Y’s hip.
On 15 July and 6 August 2019, the parties appear before a judge of the Federal Circuit Court of Australia with respect to the Contravention Applications. At the conclusion of the hearing, both parties make oral applications to vary the existing parenting orders, and judgment was reserved.
On 8 August 2019, the first Family Report of Ms S is released, which recommends sole parental responsibility for the mother and a continuation of the ongoing live with and spend time with arrangements.
On 24 January 2020, consent orders are made for the mother to attend a psychiatric assessment with Dr GG.
On 31 January 2020, a judge of the Federal Circuit Court of Australia finds the mother guilty of contravening orders in not personally attending for changeover and not facilitating changeover at her residence.
In early 2020, the mother finds a medicine syringe in Y’s lunchbox.
Some days later in 2020, the Mother observes blood on Y’s underwear.
On 25 February 2020, the father files an appeal in relation to the orders made on 31 January 2020. In the same month, the mother takes Y to the GP, Dr RR.
In late 2020, a doctor concludes the blood on Y’s underwear was the result of an anal fissure.
In early 2020, the father’s partner visa expires.
On 10 March 2020, the father files a second Contravention Application alleging the mother did not personally facilitate changeover and did not facilitate Y attending pre-school on various days.
On 10 June 2020, the father files an Amended Notice of Appeal in relation to the orders made on 31 January 2020.
On 1 October 2020, the Amended Notice of Appeal is upheld.
On 21 October 2020, the remitted hearing was before another judge of the Federal Circuit Court of Australia, where orders are made for the matter to be transferred to the Family Court of Australia (as it then was).
On 30 November 2020, the parties entered into consent orders on a final basis with respect to the property proceedings.
On 21 April 2021, an order pursuant to section 102NA of the Act is made.
On 18 August 2021, the matter is listed for final hearing.
On 10 November 2021, the mother is informed by the children that they are left unattended at the father’s residence.
On 7 February 2022 the final hearing is adjourned to 1 to 4 August 2022, and an updated report is ordered.
In 2022, the mother’s fourth child Z is born, and at the time of the hearing was a few months old. The mother commences maternity leave until 2023.
In early 2022, Y commences speech therapy.
On 17 May 2022, the second Family Report of Ms S is released.
Parties’ Evidence
Despite the mother’s evidence of her fear of the father, it is clear from the email correspondence between the parties that the mother currently has little difficulty currently in sending an email to the father setting out her position, making requests of him or responding to emails from him[1].The mother is in a far healthier mental health state today than at the time of the marriage breakdown and for a number of years thereafter and this is due to the work the mother has done with her counsellor Ms V. It is also as a result of the father’s realisation that his prior conduct in seeing matters in a black and white manner and having little understanding of the impact of his behaviour on the mother was wrong and his position vis-à-vis the mother has softened. This is positive progress and very much to the children’s benefit as was confirmed by Ms S at the hearing.
[1] Exhibit F3.
The mother agreed that in early 2019, she suffered a breakdown whilst pregnant with her third child and was having extreme difficulty dealing with her life, the father, and particularly, physically seeing the father at changeover. At this time, orders are provided for changeovers to occur at the mother's residence at Suburb M.
The mother's evidence was that in complying with this order and coming face-to-face with the father at changeover caused her extreme psychological distress. I accept this evidence and it is evident from the reports of her counsellor, Ms V, whose evidence and written reports were that the mother was “constantly triggered … [from] any contact with [the father]”.
Ms V's evidence was that the mother had attended upon her with as follows:
(1)Weekly sessions from early 2018 to mid-2019;
(2)Sessions every two to three weeks from mid-2019 to late 2021; and
(3)Monthly sessions and any further sessions as required from late2021 to the date of the hearing.
Counsel for the father asked Ms V what her role was in providing therapeutic support to the mother, to which Ms V replied that:
The purpose of therapy is to provide a safe place for the client to tell their story and process the story and the impact of their story. It’s not to influence how they tell that story or what that story may be; that is entirely up to the client.

During these sessions, Ms V had worked with the mother to develop strategies enabling her to deal with what she found to be very difficult circumstances, facing the father and him coming to her home. There is no doubt this order caused the mother psychological stress and had a negative impact upon her capacity to parent the children. I accept that the mother believes she is frightened of the father and does not want to come into his presence.
The parties last had a civilised conversation during family therapy in 2018, and they last saw each other, other than in Court, in 2019 at a sports carnival.
The parents commenced to communicate about their children via a communication book in or around mid-2018, assisted by Mr PP, and from early 2020, have sent emails to each other, and each have reported that this is working well. They have been respectful, polite and courteous to each other in at least the last six months. The father would say 12 months or longer.
There is also clear evidence that the parents have been able, in the last six months, to vary the orders made as follows:
(1)For the children to return early from time with the father to attend medical appointments or attend a function;
(2)The mother agreeing for the father to be involved in and take X to training and competitions;
(3)To take Y to her dental appointments; and
(4)Inviting the father to attend Y's speech therapy appointments.
The mother agreed that their communication in the last 12 months has been better, but it can still trigger strong emotions in her. It is apparent that the work Ms V has been doing with her has been successful as the mother can send emails requesting information, asking for information and respond to the father's emails generally most of the time. As Ms S said, this form of communication in exercising equal shared parental responsibility by the parents is good enough for the children.
The mother has a long-standing supportive relationship with Ms V and will continue to use Ms V if required. The mother's mental health has continued to improve since she has been seeing Ms V and certainly improved in 2020. I accept that her mental health from separation under the one roof in 28 August 2017 until about early 2020 was precarious and difficult, and that emails from the father and his lawyers could trigger her into an episode of such emotional distress that she simply could not respond. One of the strategies Ms V recommended, which the mother used, was to have her sister read correspondence to her that she could not deal with. The mother has made excellent progress in dealing with her reaction to what she says were the father's abusive, controlling, and coercive behaviours towards her during the relationship and marriage.
Father’s conduct as alleged by the mother
The mother suffered child sexual abuse at a very young age and this has had a clear and profound effect upon her. Ms S described her current attitude to the father and her children as hyper-vigilant and, as the evidence disclosed, the mother is hyper-vigilant in the area of child protection. The mother is a professional working in allied health, and would be well across terms such as grooming, abuse, intimidation, violence, coercion and control, in her current work.
The father's evidence was somewhat marked by an affect or an attitude of seeking to have orders followed to the letter and pursuing his legal rights in what might be regarded as a non-child-focused way. The Contravention Applications he brought, which were surprisingly heard by a judge in the Federal Circuit Court of Australia were testament to this rigid approach. The father complained the mother had breached orders in not personally attending changeover and having the maternal grandfather attend instead, even though the father always spent time with the children. The father's conduct, in bringing Contravention Applications, in these circumstances, was misguided and not child-focused given he always spent time with the children in accordance with the orders. It is a mystery why a finding of reasonable excuse was not accepted by the Court. I have formed the view that the father had a deficit in, or lacked insight, into the impact of his behaviour upon others and the needs of other people if it conflicted with his needs at this time. This can be difficult for children, but was particularly difficult for the mother.
In her affidavit filed 21 January 2022, the mother deposes approximately 11 pages of allegations of family violence perpetrated against her by the father. These allegations are asserted to have occurred throughout the relationship and particularly around the periods of separation. The allegations made by the mother include coercion by the father for the mother to terminate two pregnancies, “gaslighting” the mother, an incident of damage to property, sexually coercive behaviour, which included attempted discreet sexual acts and negative reactions from the father if the mother refused or deflected any sexual advances, threatening and intimidatory conduct in the form of the father yelling at the mother, stalking and going through personal items, as well as aggressive behaviour at changeovers. The mother also deposes allegations of financial abuse, as the mother alleged that the father lived to a higher standard of living than the mother and children, and “financial support was not reciprocal” between the parties. The mother further deposes an incident where she alleges the father took boxes of her personal documents.
The mother particularises instances where the father made unwanted sexual advances in public settings. Two of these incidents were set out as follows:
70.On an outing to [a] play centre on approximately [… 2016], [Mr Velderman] invited me into a jumping castle with [Y], then pulled me down onto his lap so I was sitting on his erection, with him hugging me from behind. We were separated at the time and this behaviour was both uninvited and extremely unwelcome to me. During the drive home he said, "Sorry for before, if that was inappropriate”.
71.On an outing to [MM School] fete (during a period of separation) on approximately [… 2016], [Mr Velderman] asked me to “hug him" as he sat cross legged in a secluded part of the playground. He attempted to pull my hand towards me so I would sit on his lap. I pulled away as l was feeling anxious; and he said, "I feel sick, I have an erection". I felt very distressed as I was worried [Mr Velderman] wouldn't invite me on more outings with the children if I refused his sexual advances.
The father denied such behaviour, and justified this behaviour, saying to Dr GG:
I found my wife to be attractive, and I had an erection.
I accept that the father made advances to the mother of a sexual nature that were not welcome and he did not pick up on the mother's signals that she was not interested in him touching her breast, sitting on his erect penis, or having sexual intercourse or intimacy with him. The mother did not ask the Court to make any findings that the father had perpetrated sexual assault upon her, however, I accept her evidence that she found his advances towards her at the end of the relationship, and whilst they were separated and living under the one roof, frightening at times and coercive, and that this behaviour was compounded by the father's subsequent attitude to the mother when they endeavoured to parent their children in a separated situation.
I am not so satisfied that the father was violent or as coercive and controlling in other aspects as alleged by the mother. I do accept that the mother found his conduct and manner intolerable, and that despite her best efforts to deflect him, the father was unaware of the reaction to his manner and behaviour engendered in his wife. There was little effective communication between these parents towards the end of their relationship.
The father filed proceedings in the Federal Circuit Court of Australia on 27 October 2017 and his attitude to the litigation has been a point of contention for the mother.
The father filed an Initiating Application and he cannot be criticised given the difficulties he was experiencing at that time in his relationship and in co-parenting the children with the mother. He has filed six further applications, being four Applications in a Case and two Contravention Applications. I do not criticise him for filing the four Applications in a Case, given the difficulties he was having in spending time with his children. His Contravention Applications were entirely misconceived. I accept that the mother found face-to-face changeovers at her home with the father and the children psychologically damaging and this reaction should have been apparent to the father.
The father, consistent with the finding I have made of his difficulty understanding another person’s reaction to him, could not see that face-to-face changeover was a problem for the mother. The mother sought the assistance of the maternal grandfather to effect changeover, and this had its own difficulties, as the maternal grandfather did not always act well and these men fought and yelled on occasions and this was totally unsatisfactory for the children. It is apparent that there needed to be some different arrangement in place. The bringing of the Contravention Applications was compounded by the submissions made by the father at the hearing. The father submitted the mother should have been dealt with at the most serious level, she had made a serious breach of orders, that it was fundamental, and she was not following what must happen. These submission were not only incorrect and unnecessary they caused the mother further stress and anxiety.
The father has never ever once missed spending time with the children. The mother has always ensured the children spent time with the father, and whether that was effected by her or the maternal grandfather should have been irrelevant to the father, but it was not. The submissions for penalty made in early 2019 only added to the mother’s dissembling and she collapsed oin early 2019. These are matters that should have been taken into account by the father in his decision to pursue a Contravention Application as rigorously as he did.
The first Family Report was released shortly after the contravention hearing was completed. Ms S recommended sole parental responsibility for the mother and the four nights per fortnight to continue. On 24 January 2020, orders were made by consent for the first Family Report to be released to the father's therapist, Mr PP, and that the mother would attend Dr GG to obtain a psychiatric report as the father had done. Dr GG did a report on each parent, finding neither of them had a psychiatric condition.
The father's behaviour in pursing unwanted sexual advances to the mother pre- and post-separation whilst under the one roof and the Contravention Applications have resulted in the mother distrusting the father and his motives. Although the mother conceded in her evidence that communication between them has improved in the last 12 months and particularly in the last six months and that they have been able to vary the orders, an impossibility in 2019, submissions by her counsel at the conclusion of the hearing were the contrary.
The submissions made by counsel for the mother were as follows:
(1)That I make a credit finding against the father in failing to disclose an Australian citizen girlfriend he had kept that secret from the Court, the mother, and the paternal grandmother;
(2)This adverse credit finding would lead me to make a finding that he has not been sincere in the last 12 months with his courteous, business-like, constructive emails to the mother and that this is all done as a front and a subterfuge; and
(3)That if I make an order for equal shared parental responsibility, the father will revert to his prior behaviour towards the mother, she will dissemble and the children will suffer.
This submission came at the conclusion of the hearing in circumstances where the mother was so distressed by Ms S now recommending equal shared parental responsibility, that she could not listen to any submissions made by counsel for the father, the ICL, or even her own counsel.
ISSUES FOR DETERMINATION
The issues ultimately for determination are narrow but important and are as follows:
(1)Sole or equal share parental responsibility.
(2)The regime of time for the children and the father.
(3)Whether time with the father increases to equal time, and if so, when that should occur.
(4)When the parties be permitted to take the children overseas, and whether a bond be required for overseas travel.
The Evidence
The father was firm in his evidence. He wants to have equal shared parental responsibility, to have equal input into important decisions made for his children and he does not accept that that such a responsibility should be exercised solely by the mother. The father was clear and validly pointed out that in communication between the parents about issues in the past, there had been conflict but that there has been no conflict in their communication for at least 12 months.
At the hearing, Ms S said she now supported equal shared parental responsibility for the following reasons:
(1)The father has attended various parenting courses and he has learnt that his prior behaviour seeking, that which he believed he was entitled to as a father, is not the correct approach and that a business-focused, polite and courteous manner of approaching the mother is the best way forward for his children.
(2)The mother’s therapeutic intervention with Ms V has been of significant benefit to her. The strategies Ms V has given the mother, which the mother has put into practice, have worked, thus these parents can, communicate well enough to share parental responsibility. Ms S noted that the fact that they have been able to negotiate and vary orders in the last 12 months is a huge leap from where they were in 2019 and early 2020 and is a positive for the future.
(3)After hearing evidence of decisions the mother has made in relation to X’s health and that the mother maintains vague allegations that the father is grooming Y (which evidence is to follow), she is concerned the mother’s focus is on child protection and not what is in their best interests when it comes to making decisions for the children.
Counsel for the mother submitted that Ms S's positivism is based upon a father who is not sincere, who has lied to the Court about his relationship, or whether he has a relationship, and he is not someone that the Court can rely upon to maintain and continue this positive trajectory. These submissions were built upon the father not disclosing with whom he is in a relationship with. The paternal grandmother said she knew the father had a partner but that she has never met this person and does not know their name. The children have never met this person and have never spoken to the mother about any partner of the father's. A friend of the father, Ms DD, who gave evidence of their social interactions, having parties at his home and her home with nine children running around, getting together eight or so times a year, had no idea that the father had a partner nor had seen anyone fitting this description with the father.
In his affidavit filed 27 June 2022, the father's provided the following in regard to his relationship status:
Regarding my status in Australia and my relationships. … I am in a long-term relationship with an Australian citizen …
The father clarified in cross-examination that he wanted to keep this person away from the Court because he did not want the Court processes to interfere with his relationship or involve this person. I accept his concerns. The father gave evidence that he has never introduced the children to this person, they do not know who they are, and they play no role in the relationship between himself and the children, nor any of his friends. On the basis of this evidence, I reject the submission that I should or could make and adverse credit finding against the father.
Concerns regarding the mother’s capacity to exercise sole parental responsibility
My concern in this matter is that the mother has not been truthful with the Court. The mother has behaved in a manner that leads me to the view that she has at times maintained the conflict for the reasons that follow.
The mother used language such as intimidating, grooming, and abusive liberally to describe the father. The mother still has concerns that the father is grooming Y. The mother first raised this concern in the first Family Report, where Ms S reports the following:
[Ms Velderman] stated that she had seen photos on social media of [X] sitting on a man’s lap who [Mr Velderman] had described as a “friend” however, neither [Ms Velderman] nor [X] had met the “friend” previously. [Ms Velderman] stated that she has concerns about who [Mr Velderman] is introducing the children to. [Ms Velderman] agreed that neither child had ever disclosed that they had been exposed to harm whilst being in the company of [Mr Velderman’s] friends.
The mother still has ongoing concerns about the father's capacity to parent the children four years after orders have been made and time has continued without issue. The mother was much calmer and content with the children in the father's care when the paternal grandmother was visiting from Country U.
In 2019, X's medical condition was a continuing issue and he still suffers from this condition, although it is lessened. It is heightened when he returns to his mother's care on her evidence, and on the father’s evidence, is not evident in his care currently. X continues to suffer from night time ….
The mother acknowledged to Ms S that the children's unsettled behaviours on return from the father may be because their younger brother, W, had just been born at this time. They now have a second brother, Z, who was a few months of age at the time of the hearing. It is apparent there has been significant and joyful changes for the children with two new siblings whom they love and that the arrival of these children may have been a cause for upset at times and not due to any poor parenting by the father.
The mother alleged that the father has continued to behave in an intimidating manner such as an incident at school inmid-2019 for the Mother's Day morning tea. The mother had asked the father not to come to the school, but says he had arrived at the school unexpectedly. The mother saw X see her and he was trying to come and greet her, however, the father would not let go of his hand and they walked towards her. She felt fearful of the father, did not want X to be upset. She called out to X that she would see him later and left.
I could see no intimidatory behaviour by the father in that incident. X had been in the father's care that weekend and in the usual course he brought him to school. I accept the mother was startled to see the father, however, she could not expect to not see him when the children had been in his care the night before. The father had X in hand as the child approached the mother. That is not an example of intimidation by the father, rather the mother's reaction to normal behaviour. The mother used intimidating knowing the impact it may have on a family consultant or a judicial officer of this Court.
Further, in the first Family Report, Ms S reports the mother denied enrolling X in JJ School unilaterally, yet she did. The father wrote to the mother in mid-2018 telling her he had enrolled X at TT School, asking for her comments, to have a discussion about it and giving her information, but received no response. The father’s legal representative wrote to the mother in mid-2018 advising her of the same thing, inviting her to provide her views on this issue and whether she agreed. No response was provided to this correspondence. This was at the time when her sister was reading out correspondence to her, she having at that stage just been engaged with Ms V.

In late 2018, the mother enrolled X at JJ School without telling the father by letter, email or a solicitor's letter, or in any fashion, after having ignored his perfectly appropriate and proper correspondence to her about X’s enrolment at TT School. The mother alleged that the father had done the wrong thing, when the reality is that it is the mother who unilaterally enrolled the child at JJ School without telling the father and the father acquiesced to her unilateral decision.
Further to this, Ms S reports in the first Family Report that the mother felt as though the father had attempted to bully her by enrolling X at TT School. This is a fiction and a fantasy. The father enrolled X and told the mother about it and asked for her input. The mother did not do him the same courtesy. The mother used the word “bully” knowing its possible effect on a family consultant or a judicial officer of this Court. The father did not behave inappropriately at all in this regard as the mother alleged.
Not only did the mother unilaterally enrol X at JJ School, when she placed the father's name on school records under contact details, she wrote:
I don’t have consent to disclose his personal information.
That was a subterfuge by her given she had not told the father of her decision or asked for his "authority", even if it was needed. The mother took this action to distance the father from the school intentionally. Again, the mother knows the legal language to use to "elevate” a situation.
The mother received a referral for X in 2020 from her GP to see a psychologist. The mother took no steps to engage a psychologist saying that she did not think the father would agree and it would not be welcomed by the Court. I reject that excuse and this is the mother endeavouring to justify her failure to put X's needs to the fore. This is one example of the failure by the mother to take steps to exercise parental responsibility in an appropriate manner in respect to X. The mother’s most significant failure in relation to X relates to treatment for his continuing medical condition, which failure she sought to shore up in the fourth Minute of Order sought.[2]
[2] Exhibit M2.
In late 2018, the father provided the mother with a report prepared by Ms BB, an advisor from CC Health Service. The father had taken X to see Ms BB as he was concerned about his continued condition at night. The father provided a copy of this report to the mother.
The mother's evidence in relation to her dealing with the report is this:
MS GIACOMO: Did you have any discussions with [Mr Velderman] [the father] about whether [X] would benefit from continuing to see [Ms BB]?
[MS VELDERMAN]: No. I provided information to him about what the GPs were saying about his […]medical conditions.
MS GIACOMO: So you didn’t see any benefit at that time – this is in late 2018 – to [X] continuing to see [Ms BB], who was [an…adviser]?
[MS VELDERMAN]: I believe she was a paediatrician and she was in [Suburb VV] somewhere, and I – I didn’t know why he would need to see a specialist in Sydney, no, when the GP had not recommended that.
…
MS GIACOMO: You gave some evidence yesterday that the reason that you didn’t act on that referral is because of these proceedings. Do you recall that evidence?
[MS VELDERMAN]: I felt that that would be very unwelcome by [Mr Velderman], and I didn’t want to do it.
MS GIACOMO: All right. Well, ma’am, what does that mean? You were given a referral from a GP to a psychologist for a problem that [X] has had since – at least 2018, a referral to a psychologist, and you’re saying that you didn’t organise it because you didn’t think it would be welcome by [Mr Velderman] …
HER HONOUR: The court and – or agreed to.
[MS VELDERMAN]: There was no – yes, so there was no expectation from the GP that I would take him to a psychologist. He said, “I will give you the referral if you want to use it, and see what the paediatrician says.” But he was also, at the time, seeing a school counsellor.
HER HONOUR: Ma’am, you’re his mother. You’re the one who makes these decisions, not the GP. That’s why he gave it to you. It’s to allow you to make a decision for your son to see a psychologist when it was appropriate?
[MS VELDERMAN]: Yes, and I decided not to.
…
HER HONOUR: Now, did you show this letter to your GP at any time?
[MS VELDERMAN]: No, I told [Dr UU] that I was …
…
HER HONOUR: You didn’t, you didn’t?
[MS VELDERMAN]: I told him about it.
…
HER HONOUR: Now, did you take your son to a […], or tell [Dr UU] that it was recommended he have a […and a … would be useful]. Did you describe that to [Dr UU]?
[MS VELDERMAN]: No.
HER HONOUR: Why not? This is a problem your son has, not you, your son. Why didn’t you do that?
[MS VELDERMAN]: I don’t know. Perhaps I should have.
The mother's evidence is she took the child to see a paediatrician once some four years ago concerning this issue and that she and her GP have been dealing with it since. The mother said she was “reassured by the GP that it […] was still normal” at 10 years of age. Clearly this approach to dealing with X’s [medical conditions] has not been effective, for at 10 years of age, …. He is unable to stay over at a friend's house because of this issue and on the mother's own evidence he is utterly embarrassed by this and understandably so. The mother said in her affidavit:
[X] continues to have []. [X] is not at an age where he recognises he’s had an […]. He quietly comes over to me and informs me he’s […].
The mother had not one sound explanation why she did not show this report to X’s GP, who is only a GP and not a specialist in this very difficult area for children or make an appointment with Ms BB to discuss treatment options. I have formed the view the mother did not do this because the father recommended it and X has missed out on possible beneficial treatment for four years due to this blinkered approach. This is an abject failure of the mother to exercise sole parental responsibility in a child-focused and appropriate manner.
Grooming of Y
The mother says she has not seen evidence that the father is not grooming Y, that is, the father has not been able to prove a negative to her. The mother does not say the father is grooming Y, but still has a concern that he may be. Counsel for the ICL and the mother had the following exchange regarding the father grooming Y:
MS GIACOMO: Ma’am, yesterday you gave some evidence and you used the term “grooming”; do you recall that?
[MS VELDERMAN]: Yes.
MS GIACOMO: And by “grooming”, you meant, didn’t you, preparing a child with the intention of committing a sexual offence at a later date; that’s what you meant when you used that term, didn’t you?
[MS VELDERMAN]: I think the term “grooming” is broader, but I did mean, yes, for some nefarious purpose, but not necessarily a sexual offence. An incremental set of actions that will prepare a person for something that is not in their interests.
HER HONOUR: So when you used the term “grooming”, you didn’t necessarily mean a child being prepared with the intention of committing a sexual offence at a later date. You meant that, on some occasions when you used it, that you were grooming them for doing something that’s not in their interests; is that what you’re saying?
[MS VELDERMAN]: Well, that’s my under – that’s my understanding of the phrase “grooming” in terms of, I believe, a person can groom other people, not for child sexual offence purposes. In the context of the children, I do believe things like showering with children, sleeping in their beds may be grooming behaviours preparing for a sexual offence, yes.
…
HER HONOUR: Ma’am, that’s very confusing to me. You’re in the Family Court. We’re dealing with children. “Grooming” has a specific meaning in these circumstances?
[MS VELDERMAN]: An example might be [Mr Velderman] [the father] groomed the day care supervisor at [T Preschool] to stop communicating with me and to only communicate with him. That would be another context of grooming.
I reject that evidence. The mother is a professional, works in allied health and would be well aware of the contextual meaning of grooming, particularly in family law proceedings. The mother has maintained since 2018 that the father was grooming the children. The mother now says he is not grooming X, but has this lingering doubt about Y.
This ongoing lingering issue of grooming by the mother was referred to in the first Family Report by Ms S and it continues at the periphery today. It was put squarely to the mother by counsel for the ICL what were her concerns about grooming of Y by the father, being grooming for the purposes of illegal sexual activity into the future. The mother's answer was as follows:
MS GIACOMO: Do you believe that [Mr Velderman] [the father] is preparing [Y] with the intention of committing a sexual offence against her at a later date?
[MS VELDERMAN]: I haven’t formed a view. I think the evidence is suggestive, but not conclusive.
Counsel for the ICL then enquired with the mother as to what the father does to cause her concern, to which the mother offered the following:
(1)The father being undressed while caring for the children, and the children seeing the father undressed;
(2)The father showering with the children;
(3)The father sleeping with the children;
(4)The father putting photos on social media, in particular the event where X was sitting in the lap of the father’s “friend”;
(5)Y saying she had been given “yucky medicine” by the father in a syringe that was found in her lunchbox;
(6)Y having blood or “what looked like blood” on her underwear;
(7)Y having bruises on her hips that continued to appear and the mother got no response from the father regarding these bruises;
(8)The mother’s own experience with the father and the things she has observed;
(9)The father’s sense of entitlement;
(10)The father’s possessive nature of the children;
(11)The father’s lack of empathy for the children;
(12)The father using the children to serve his needs; and
(13)That the father is a sexual predator and was so towards her.
The family consultant, Ms S, was asked to comment on these concerns. Her evidence summarised was that the children being undressed, the father being undressed, co-sleeping, the father showering with the children are all normal activities that can occur when you are parenting children and should not raise any risk of harm in a parent's mind.
The blood on Y's underwear has been explained by a doctor in the mother’s affidavit, wherein she was told by Dr RR:
It sounds like [Y’s] had a haemorrhoid or fissure that is re-opening on bowel motions.
Dr RR concluded that this was where the blood had come from. Y had not been examined when the mother first raised this issue with the doctor and upon an examination by Dr RR at a later date, there was no sign of any abuse of the child.
Bruising on the child's hips is non-specific and it can occur for many reasons. I note Y does handstands and is a bit of a gymnast.
A child sitting on another man's lap with a photo taken by the father is insufficient to raise a concern. Ms S was clear the mother's fears should have been allayed and grooming can no longer be justified as a concern.
Ms S said, for the mother to continue to use the word “grooming” insofar as Y and the father are concerned is unfounded, as there have been no disclosures whatsoever by Y of the father behaving in this fashion towards her. Ms S went on to say the mother's attitude in not acting on Ms BB's report, not following up on X's psychology assessments and maintaining a concern as to grooming has caused her real concern that, in the exercise of sole parental responsibility, the mother would not take a child-focused approach and that her approach is a child protection approach. As such, the mother would not then be making decisions in the children's best interests, as she has occurred in the past.
Further, Ms S agreed that the use of terms by the mother such as intimidation when there were none, grooming when there is no evidence of grooming, abuse, bullying and such other terms when there is none, calling the father a sexual predator is highlighting the child protection concerns over what is in the best interests of the children. I questioned the mother's concern that the father did not feed the children their evening meal and that if she believed this, how could she possibly let the children live with the father four nights a fortnight, that as a protective parent this could not be sustained and would not be sustainable. The mother had no answer.
In light of this evidence, I reject the mother's assertion the father does not feed the children their evening meal. X told Ms S he does not give them enough for lunch, gave them salami on their sandwiches they do not like. These are normal issues. The father has taken notice of this and I accept he feeds the children appropriately. He may not feed them the same way as the mother, but he feeds the children.
The father's mental health
In the first Family Report, Ms S reports the following:
[Ms Velderman] has expressed concern for the children due to [Mr Velderman's] ongoing mental health issues.
There is no doubt the father was seriously unwell in 2011. The father was on a cocktail of - drugs and perhaps alcohol, and had mental health issues and this was at a time the mother supported him and would have been very stressful for her. In his Expert Report of 29 May 2018, [Dr GG] says this of [Mr Velderman]:
[Mr Velderman] described himself as a “detailed orientated” person …
(Emphasis removed)
This is consistent with his evidence.
Dr GG reported that the father described his children as “such beautiful children, I love them". The father also described the challenges of learning to become a parent, that he is not currently prescribed any psychiatric medication and not seeing a psychiatrist or psychologist. The father described his mood as good, but he has short periods of sadness “whilst contemplating the separation from his children and the family breakdown”. The father reported that he completed a Parenting after Separation course, which he found beneficial, and Mr PP recommended the Circle of Security course to further assist him.
This was the time when the father was seeking the children's primary care as he was concerned about the mother's mental health, which was in decline and there is no doubt this is correct. Dr GG found his mental examination to be consistent across two interviews:
My mental state examination findings were consistent across the two interviews. [Mr Velderman] engaged in the assessment process well, and in my opinion his response style was forthcoming. During two lengthy interviews (lasting a total of approximately three hours), there was no evidence of psychomotor agitation or abnormal movements. He did not present as anxious, and appeared relaxed in manner. His facial expressions were consistent with the topics under discussion. He was not distracted by unseen stimuli and there was no evidence of hallucinations. He did not engage in a hostile way. He maintained an appropriate level of eye contact. His speech was accented, but easily understandable. He described the stability of his mood. Objectively, he was euthymic (normal mood state, not depressed or related). He denied experiencing any ideas of self-harm or suicide. There was no evidence of mood symptoms or psychotic symptoms. He identified intermittent feelings of sadness concentrating on the family breakup and separation from his children, although these were not pervasive or persistent. I elicited no evidence of cognitive impairment on rudimentary testing. In my view he was insightful, and appeared to have a good level of understanding as to his deteriorating mental state in 2011, and background of anxiety. He engaged well in the assessment process, forthcoming, lengthy interviews lasting three hours in total. No evidence of psychomotor agitation or abnormal movements. He did not present as anxious and appeared relaxed in manner. His facial expressions were consistent with topics under discussion. He was not distracted by unseen stimuli. No evidence of hallucinations. Did not engage in a hostile way. Maintained an appropriate level of eye contact. His speech was accented, but understandable. He described stability of mood. He was euthymic. Normal mood state. Not depressed or elated. No ideas of self-harm or suicide. No evidence of mood symptoms or psychotic symptoms. Intermittent feelings of sadness. Concentrating on the family breakup and separation from his children, although these were not pervasive or persistent. I elicited no evidence of cognitive impairment on rudimentary testing. He was insightful and appeared to have a good level of understanding as to his deteriorating mental health in 2011 and background of anxiety.
This assessment was brought to the attention of the mother during her cross-examination:
MS GIACOMO: So you would have taken great comfort, wouldn’t you, in that report of [Dr GG] which indicated to you that whatever [Mr Velderman’s] [the father’s] mental health difficulties had been in the past, they weren’t present in [Mr Velderman] as at [mid-2018]?
[MS VELDERMAN]: That’s somewhat reassuring, yes.
This concern of the mother is referred to in her affidavit extensively together with her view that the father cannot adequately parent the children on his own. These concerns are some of the reasons why the mother is resistant to the children having additional time with the father. In the second Family Report, the mother is reported to have said:
[Ms Velderman] stated that she wanted the current orders of the amount of time that the children spent with their father to continue. [Ms Velderman] discussed that she believed that the children had settled into the routine, and that they enjoyed the amount of time that they spent at their father’s house. [Ms Velderman] discussed that she did not believe that the children would cope with changes, and they demonstrated this both in unsettled behaviour at home and at school. [Ms Velderman] disputed that the children were encouraged to have contact with her whilst at their father’s. [Ms Velderman] discussed that the children rarely contacted her, and that they found the phone calls with their father “stressful”. [Ms Velderman] discussed that she had continued to support the children to have a positive relationship with [Mr Velderman] and she would continue to do so.
The mother's observations of the children, what they want and what makes them happy, is inconsistent with the children's wishes reported to and the observations of Ms S with the father. In the second Family Report, Ms S describes the close relationship the children shared with the father upon her observation, and stated the children exhibited no signs of fear or anxiety, enjoyed the activities they were engaging in, and noted the father had made them mushroom pasta. The children showed Ms S around the father's home with an iPad including photographs they had pinned on a wall. Ms S reported similarly positive interactions when observing the children with the mother.
Further in the second Family Report, Ms S states the following:
Despite [Ms Velderman’s] concerns, both children have reported a positive relationship with their father and [X] in particular is focused on being fair to both parents in terms of the amount of time that he spends with his mother and father. [Y] has shared a similar view with her brother. Despite [Ms Velderman’s] concerns about the children’s care whilst in the care of their father, neither child has reported any fear or anxiety whilst spending time with their father and there has been no evidence available for this report that would indicate that child protection services have had involvement due to neglect or abuse.
Ms S was most concerned that the family was beginning to triangulate with the children in the middle and that:
… the children are now feeling responsible to not only calm the conflict between their parents but also to ensure their mother and father's emotional wellbeing.

This opinion was based upon the children being concerned about being fair to the mother and father and consequently undertaking the role of assisting their parents with emotional support. Ms S opined that this is a very poor outcome for children and:
… an increase the time the children have with their father to 5 nights a fortnight, and half of the school holidays would benefit the children in being able to see their father. Despite [Ms Velderman’s] stated concerns about the care of the children should the time increase, the assessment has highlighted that this would benefit the children both in their emotional development and continuing a relationship with the father.
The Law
My first task is to determine the status of parental responsibility of these children.[3] Such a task requires me to start at the presumption of equal shared parental responsibility, before then determining if the presumption is in the best interests of the children and not impractical, or determine to rebut the presumption.[4] The grounds that permit me to rebut the presumption include violence of a parent against another parent or a child and/or if I were satisfied that it were not in the best interest of the children for the parents to have equal shared parental responsibility.[5]
[3] Family Law Act 1975 (Cth) s 61DA.
[4] Goode & Goode [2006] FamCA 1346 at [44].
[5] Family Law Act 1975 (Cth) s 61DA(4).
The father agreed that the legal proceedings have had a poor impact on the mother and he should have been cognisant of that at the contravention proceedings, and I accept the father's evidence that:
… there is no conflict that I see … and I see that we [have] progress[ed] so much.
The parents have progressed. The emails between them are pleasant and courteous. I have formed the view, consistent with the evidence, that there is no conflict between the parents at present, that the mother has not asked the Court to make a finding the father sexually assaulted her, and that the mother's allegations of the father's poor behaviour are historical and will not arise in the future as the parents do not meet physically. Thus, there is no impellor to rebut the presumption of equal shared parental responsibility due to violence. This does not affect my accepting the mother's stated view that she is fearful of the father for I accept she is.
Counsel for the mother submitted that if I do not give the mother sole parental responsibility, she will decompensate, and that is the worst case scenario and such an event would be a poor outcome for the children. Ms S was not as negative as was counsel for the mother that the mother would decompensate. I accept this is a possibility given the mother's historical fragility and inability to listen to closing submissions.
However, this factor must be weighed in the balance with other matters impacting on the parent’s capacity to make child-focused decisions for the children. Given the poor decisions the mother has made, particularly in respect of X's medical treatment, and his need for psychological intervention, in conjunction with the mother’s lingering doubt that the father has not presented evidence he has not and is not grooming Y, I have formed the view I may be placing the children at significant risk in regard to their health and continuation of their all-important relationship with the father if the mother was able to make these important decisions solely. The mother is more likely than not to not follow the father's lead when he has taken a positive step to assist his children, such as with X's condition, given her focus is child protection rather than a best interest focus.
There was a voluminous amount of material filed in this matter, which was not necessary for me to make the decision I have. I have relied upon the evidence which has impelled me to make this decision and not every piece of evidence that was raised, every answer in cross-examination or every submission made has been relied upon. I have not accepted the mother's reasons for her failure to follow up important medical needs for X nor do I accept her reasons for her lingering doubt as to whether the father is grooming or has groomed Y. This, together with the mother’s incapacity to accept an expert’s opinion, namely Ms S and Dr GG, which are inconsistent with her own opinion, causes me real concern. In addition, I find the mother’s capacity to put the children's needs before her own clearly very fixed views about many matters is compromised and for those reasons, parental responsibility must be shared if I am to make an order in the children best interests.
The relevant section 60CC factors
The children benefit from a meaningful relationship with each of their parents. This was the opinion of Ms S from her observations of the children in each parent's care at their homes, from the discussions and conversation she had with the children together with the children's expressed wishes.[6]
[6] Family Law Act 1975 (Cth) s 60CC(2)(a).
The children have been subjected to poor behaviour from the father's unwarranted sexual advances to the mother and the consequences of that on the mother's mental health functioning. Secondly, the father's decision to pursue the mother for contravention proceedings, when it should have been apparent to him that face-to-face changeovers with him were significantly destabilising for her, are further relevant to this factor. Such a destabilisation had a negative impact on the children and has had an adverse effect on the mother's opinion of him. The mother clearly had a reasonable excuse for not attending in person at changeover.[7]
[7] Family Law Act 1975 (Cth) s 60CC(2)(b).
The children both wish and desire more time with the father than they presently experience and have each said they missed the father when they are with the mother, and vice versa. At 10 years of age, X's views must be considered by the Court and are taken note of.[8]
[8] Family Law Act 1975 (Cth) s 60CC(3)(a).
The nature of the children's relationship with the mother is that she is clearly their primary parent and carer. The children have two other siblings in the mother's home whom they love and are closely attached to. The father is an important figure in their life, and as the children age, will become more important to them as he provides a different worldview to the mother and this is very important for the children, given the tragic events that occurred to the mother when she was young child and the consequences that has had upon her functioning and world view at times.[9]
[9] Family Law Act 1975 (Cth) s 60CC(3)(b).
Both parents take their responsibility of parenthood seriously in that the father has never missed any opportunity to spend time with his children and was proactive with X’s schooling and enuresis. The mother has a deficit in this regard in that she has not put the children's needs before her own views of the father in schooling matters and has not followed the father's appropriate lead in relation to X's medical condition. Further, the mother still casts doubt on the father grooming Y when the evidence is clear he has not engaged in such behaviour at any time and all her concerns in this regard have other innocent explanations.[10]
[10] Family Law Act 1975 (Cth) s 60CC(3)(c).
The parents are currently now communicating via email in a respectful, courteous and polite manner, and they have been able to vary the time the children return or spend time with one parent or the other. This is something that Ms S said she did not think would be possible when she prepared the first Family Report. Ms S said this form of communication is good enough communication to share parental responsibility but their relationship is not at a level to support and equal time order as the father seeks.[11]
[11] Family Law Act 1975 (Cth) s 60CC(3)(m).
Both parents support their children financially to the best of their ability.[12]
[12] Family Law Act 1975 (Cth) s 60CC(3)(ca).
I have determined that it is an order in the children's best interests that they immediately spend five nights a fortnight with the father. There is not one sound reason why this is not an order in the children's best interests.
I will initially put in place the regime of time that the mother has put forward for five nights a fortnight as it is the more likely regime of time that she will support and thus will be successful for the children in the initial stages. However after a period of approximately 12 months the father's time with the children will be in a block of time. This will give the mother sufficient time to accept that a block of time for the children in the father's care is appropriate and in their best interests.
I will not make an order for equal time in this matter, given Ms S’s opinion that the parents do not have the required level of a co-operative and cordial relationship which is an imperative if time is to be equally shared. In reality, for children to spend six or seven nights in one parents care is of little difference at the end of the day and thus the order in the children’s best inserts is ultimately one block of five nights per fortnight in the father’s care.[13] It should be of significant comfort to the mother that the children are still primarily in her care each fortnight. Supporting the mother to allow the children to develop their all-important relationship with the father is necessary if I am to have regard to the children's best interest as my paramount consideration.
[13] Family Law Act 1975 (Cth) s 60CC(3)(d).
In relation to overseas travel, both parents agree the children should travel to Country U to experience first-hand their paternal cultural heritage.[14] The mother is concerned the father will not return the children to Australia. The concerns are not based on any reasonable grounds, rather the focus is, as is noted by Ms S, of child protection issues rather than what is in the best interests of the children. The father is an Australian citizen. Australia is the father’s home, he lives and works in this country and there has never been conduct or behaviour by him to indicate he would separate the children from the mother and siblings on any permanent basis or any threats made to remove them from Australia.
[14] Family Law Act 1975 (Cth) s 60CC(g).
The mother seeks an order that would permit the father to travel with the children to a country that is a signatory to the Hague Convention, and that such travel be permitted from 2025 onwards, on the condition the father provide a bond of $30,000. The order for a bond was not supported by the ICL and I have no evidence as to the father's financial capacity to comply with such an order. This order cannot be made in a vacuum or merely because the mother wants the order. I must have sufficient evidence before me to demonstrate that it is necessary to put a bond in place to ensure the children’s return to Australia in circumstances where the father is a citizen of this country and lives and works in this country.
In circumstances where I am entirely satisfied that the father will return the children to the mother, given the absence of any evidence that the father has threatened to take the children away from the mother, threatened to remove them overseas, told the mother he no longer wishes to live in Australia or has conducted himself in a fashion that would raise the mother's concerns in this regard, it is apparent, as with the allegations of grooming of Y, the mother's concerns are based on her emotional fragility and her child protection focus. A bond of $30,000 would effectively result in the children never travelling to Country U with the father and the mother agreed the children should travel to Country U.
In the circumstances, I have formed the view that the father and mother can travel overseas and there is no necessity for a bond to ensure the father or the mother return the children.
The children will be free to travel with the father for two weeks in 2025 without the payment of a bond.
From 2027, when the father and mother will equally share all school holidays, the father may take the children overseas for a period of three weeks in the long school holidays as agreed between the parents.

I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.
Associate:
Dated: 27 September 2022

File number:	SYC 7114 of 2017
Judgment of:	HENDERSON J
Date of judgment:	27 September 2022
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks an order for sole parental responsibility – Where the mother holds unsubstantiated allegations of the father grooming the children – Where the mother has failed to properly exercise her parental responsibility – Where an order for equal shared parental responsibility is an order in the best interests of the children – Where the father seeks the children spend equal time with him ultimately – Where the children have expressed a wish to spend more time with the father – Where it is not an order in the best interests of the children for equal time – Where the children are to immediately spend five nights broken up over a fortnight for 12 months with the father – Where in 12 months the children’s time will be one block of five nights a fortnight – International travel – Where there is agreement that overseas travel is to be to countries that are signatories to the Hague Convention – Where the mother seeks the father pay a bond of $30,000 to ensure the return of the children – Where there is no evidence of the father’s financial circumstances – Where there is no evidence to support the payment of a bond and no concerns the father will not return the children – Where the payment of a bond may restrict overseas travel and not be in the best interests of the children.
Legislation:	Family Law Act 1975 (Cth) ss 60CC(2)(a), (2)(b), (3)(a), (3)(b), (3)(c), (3)(ca), (3)(d), (3)(g), (3)(m), 61DA, 102NA.
Cases cited:	Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.
Division:	Division 1 First Instance
Number of paragraphs:	197
Date of hearing:	1–4 August 2022
Place:	Sydney
Counsel for the Applicant:	Ms Murphy
Solicitor for the Applicant:	Swifte Law
Counsel for the Respondent:	Ms Kennedy
Solicitor for the Respondent:	Santone Lawyers
Counsel for the Independent Children's Lawyer:	Ms Giacomo
Solicitor for the Independent Children's Lawyer:	Kathryn Renshall Lawyers

SYC 7114 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VELDERMAN Applicant
AND:	MS VELDERMAN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HENDERSON J
DATE OF ORDER:	27 SEPTEMBER 2022