Viteri & Manfredi - [2024] FedCFamC1F 858

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Viteri & Manfredi [2024] FedCFamC1F 858

File number(s): MLC 9701 of 2021

Judgment of: WILLIAMS J

Date of judgment: 12 December 2024

Catchwords: FAMILY LAW – PARENTING – Where the father seeks a change of residence and imposition of a six week moratorium and thereafter for the children to spend five nights a fortnight with the mother – Where the mother proposes the children remain living with her and spend limited time with the father – Where the children’s rejection of the father is irrational and an anxiety provoked reaction to both parents – Consideration of the mental health impacts of both proposals on the children – Where the mother is unable to facilitate a relationship between the children and their father – Where the children are not at risk in the fathers care – Where it is in the childrens best interests to have a meaningful relationship with both parents – Orders made substantially in accordance with the fathers proposal – Change of residence – Imposition of a six week moratorium and change of residence – Order for joint long term decision making responsibility for the children

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) pt VII, ss 4, 4AB, 60B 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 65L

Family Law Amendment Act 2023 (Cth)

Cases cited:
Mazorski v Albright (2007) Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 265

Date of hearing: 6-8 August 2024 and 6 September 2024

Place: Melbourne

Counsel for the Applicant: Mr Nehmy SC

Solicitor for the Applicant: Suke & Associates

Counsel for the Respondent: Mr Puckey KC

Solicitor for the Respondent: CE Family Law
ORDERS

MLC 9701 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VITERI

Applicant

AND:
MS MANFREDI

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:
Parenting
1.All prior parenting orders in relation to X and Y be and are discharged.

Parental responsibility
2.The mother and father (the parents) have joint parental responsibility and must make joint long-term decisions for the children:
(a)X born 2012 (X);
(b)Y born 2013 (Y);

collectively (the children).

Live with
3.The children shall live with the father commencing forthwith.

Moratorium period
4.Upon the making of these orders there be a six (6) week moratorium (the moratorium) during which the children spend no time with the mother.
5.During the moratorium, each of Orders 16, 17, 19, 20, 21, 25 and 27 in so far as it relates to the mother, is suspended.

Handover
6.For the purposes of giving effect to Orders 3 and 4 herein:
(a)After delivery of judgment in this matter the mother, his servants and agents forthwith leave the Court building and not return within 500 metres of the Court building for a period of 24 hours.
(b)After delivery of judgment, a Court Child Expert shall explain to the children the Orders made this day prior to releasing the children into the care of the father.
(c)The father, along with any elected support person/s, shall attend upon Court Child Services as directed by a Court Child Expert and follow the instructions of Court staff.
(d)The father shall collect the children from Court Child Services and for the purposes of changeover a Court Child Expert shall be in attendance.

7.There is liberty to a Court Child Expert to obtain the services of court security to assist in the handover of each of the children from the mother to the father.

Restraints
8.The mother is hereby restrained by injunction from approaching the children or removing the children from the father’s care during the times they are to live with the father pursuant to these Orders, or any other order of this Court, except with the prior written consent of the father, noting this Order (after the moratorium) does not prevent the mother from attending school events involving the children whether at their school or elsewhere and approaching the children at those events but she may not remove the children from the father’s care on those occasions.

9.Upon the father filing an affidavit deposing to the mother failing to return a child in breach of an order that she do so, an order issue forthwith that, in respect of each of X and Y, for a period of 12 months, the Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 1) and all officers of the Australian Federal Police and all officers of the police force of Victoria are hereby authorised to take possession of X and Y and deliver the children to the father, being the parent with whom the children live and the parent who has sole parental responsibility for the children pursuant to these Orders and for the purpose of giving effect to these Orders at any time, and with such assistance as they require, and if necessary, by force, to stop and search any vehicle, vessel or aircraft and to enter and search the premises situated at and known as B Street, Suburb C or any other premises or place in which there is at any time reasonable cause to believe the children may be found.

10.During the moratorium, while X and Y are in the care of the father, the mother is restrained by injunction from communicating with X and Y by any means, (which expression includes responding to any communication directly or indirectly from them to the mother or of which the mother becomes aware) including but not limited to by way of telephone, email, SMS text message, iMessage, messenger kids, posting on any website, messaging through any social media platform or by any other means.
11.In the event that the children contact or communicate with the mother, her servants and/or agents during the moratorium period, the mother, her servants and/or agents shall not respond to such contact or communication and shall report such contact or communication to the father via email within 24 hours of the mother, her servants and/or agents receiving it.
12.In the event the children attend upon the mother at her home, or any other location save as explicitly outlined in these orders, the mother shall report same to the father and shall do all things necessary to facilitate the childrens return to the father.
13.The mother shall not be at either of the children’s schools during the window commencing 30 minutes before and concluding 30 minutes after the appointed time that the father is due to collect the child (unless otherwise agreed in writing between the parents), provided that this shall not apply in respect of the mother attending at school for the purpose of events to which parents are ordinarily invited, after the moratorium period.
14.The mother is hereby restrained from:
(a)doing or saying anything to the children or in their presence or hearing derogatory of the father, his partner or family members;
(b)allowing the children to remain in the presence or hearing of any third party who does or says anything to the father or the children or in their presence or hearing derogatory of the father, his partner or family members; and

15.The mother shall use her best endeavours to ensure that no third party does or says anything to the children or in their presence or hearing derogatory of the father, his partner or family members or detrimental to the relationship the father, his partner or family members have with the children.

Time with the mother
16.At the conclusion of the moratorium period each of the parties shall do all things necessary to cause, the children to spend time with the mother during the school terms on a fortnightly basis as follows:
Week one
(a)From the conclusion of school on Thursday (or if a non-school day from 3.30pm) in the first week until the commencement of school the following Monday (or if a non-school day from 3.30 pm) in the second week; and

Week two
(b)From the conclusion of school on Thursday (or if a non-school day from 3.30 pm) until the commencement of school on Friday (or 3.30 pm if a non‑school day), (Term Time Care Arrangements).

School term holidays
17.For the purpose of these Orders:
(a)School term holidays will be deemed to commence at 3.30 pm at the conclusion of the school term and conclude at 5.00 pm on the day before the commencement of the new school term whether or not that day is a non-school day; and
(b)After the conclusion of each school term holiday period, the parent who spent time with the children during the first half of the school holidays will spend time with the children on the first weekend of the new school term (encompassed within the Term Time Care Arrangements in paragraphs 16(a) and 16(b) herein) of the new school term following the conclusion of the school term holiday period.

18.After the operation of Orders 4 to 5 herein, each of the parties shall do all things necessary to cause the children to spend time with each of their parents for one half of each school term holiday period, at times agreed in writing between the parents and in default of agreement in the first half, with the parent whom the children would otherwise have lived with on the first weekend of the school term holidays and spend the second half of the school term holiday period with their other parent.

Summer school holidays
19.Each of the parties shall do all things necessary to cause the children to spend each Summer School Holidays period with each of their parents at times as are agreed between them, save that in default of agreement they each shall cause the arrangements be pursuant to paragraph 20 herein, save that such orders be suspended insofar as is necessary to give effect to paragraphs 4 to 5 herein and the Christmas and Special occasions set out in paragraphs 21 to 25 herein.
20.During the Summer School Holidays from 2024 and each year thereafter:
(a)first, the term time arrangements in paragraphs 16(a) and 16(b) herein continue from the last day of Term 4 until 23 December;
(b)secondly, the Christmas arrangements set out in paragraph 21 herein be given effect;
(c)thirdly, from 5.00pm on 30 December the children live with each of their parents for one half of the balance of the holiday period at times as may be agreed between the parents in writing and in default of agreement:
(i)first, the children live with the parent they did not spend the Christmas week with (first parent) in the first half of the Summer Holidays then remaining, commencing at 5.00pm on 30 December;
(ii)secondly, the children live with the parent they spent Christmas week with (second parent) in the second half of the Summer Holidays then remaining; and
(iii)thirdly, the children return to the care of the first parent to recommence the Term Time Care Arrangements pursuant to paragraphs 16(a) and 16(b) herein with either the Week 1 or Week 2 care arrangements being adopted by the parents so as to ensure the children’s time with the first parent that week be inclusive of the first weekend of the First School Term.

Christmas
21.For the purpose of celebrating Christmas in 2024 and each year thereafter:
(a)In 2024 and each alternate year thereafter the children spend time with their father from 5.00 pm on 23 December until 5.00 pm on 30 December, and
(b)In 2025 and each alternate year thereafter the children spend time with their mother from 5.00 pm on 23 December until 5.00 pm on 30 December.

Special days
22.Each of the parties shall do all things necessary to cause the arrangements for celebrating each of the children’s birthdays as follows:
(a)if the birthday falls on a weekday, that the children spend time with the parent they are not otherwise spending time with pursuant to these Orders, from the conclusion of school until 7.00 pm to celebrate their birthday;
(b)if the birthday falls on a weekend day, that the children spend time with the parent they are not otherwise spending time with pursuant to these Orders, from 2.00 pm to 6.00 pm;
(c)or as may be otherwise agreement between the parents in writing.

23.Each of the parties shall do all things necessary to cause the children to spend time with their father from 5.00 pm the day prior to Father’s Day until the commencement of school on the following Monday and that any provision for time in any other paragraph inconsistent with this paragraph herein be suspended so as to facilitate time pursuant to this paragraph.
24.Each of the parties shall do all things necessary to cause the children to spend time with their mother from 5.00 pm the day prior to Mother’s Day until the commencement of school on the following Monday and that any provision for time within another paragraph that is inconsistent with this paragraph herein be suspended so as to facilitate time pursuant to this paragraph.
25.Each of the parties shall do all things necessary to cause the children to spend time with their parents on the parents’ respective birthdays at times as may be agreed between the mother and the father in writing, and failing agreement, the children shall spend time with the parent celebrating his/her birthday as follows:
(a)with the father:
(i)if a school day from 3.30 pm to 7.00 pm; and
(ii)if a non-school day from 9.00 am to 7.00 pm,

(b)with the mother:
(i)if a school day from 3.30 pm to 7.00 pm; and
(ii)if a non-school day from 9.00 am to 7.00 pm,
save for if the father is holidaying with the children outside the Melbourne Metropolitan area, the mother’s time with the children under this Order be suspended with the father to offer make-up time as soon as reasonably practicable upon the father returning with the children to the Melbourne metropolitan area, and that any provision as to time under any other paragraphs of these orders that is inconsistent with this paragraph be suspended to facilitate the children spending time with each of their parents on their birthdays pursuant to this order.

Easter holidays
26.For the purposes of celebrating Easter, each of the parties shall do all things necessary to cause the following arrangements to be carried out:
(a)in even numbered years the children spend time with their mother from 9.00 am on Good Friday until 5.00 pm on Easter Monday; and
(b)in odd numbered years the children spend the day with their father from 9.00 am on Good Friday until 5.00 pm on Easter Monday, and that any other paragraphs in these orders that are inconsistent with this paragraph be suspended to give effect to this paragraph.

Telephone contact
27.That the parent with whom the children are not living/spending time with have not more than two (2) telephone calls per week with the children, between 5.30 pm and 7.00 pm, whilst the children are in the care of the other parent.

Changeover
28.All non-school changeovers will take place at a public venue to be nominated by the father, subject to the venue being within 5 kms of the mother’s current residence.

Medical
29.Each parent shall keep the other parent informed of the children’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the parent in whose care the children are in at the relevant time to inform the other parent as soon as practicable) and after the moratorium, shall do all things necessary to enable the involvement of the other parent in the child’s medical care, inclusive of facilitating timely communication with the child’s treating health practitioners.
30.Save as otherwise provided in these Orders, the parents each ensure that they obtain the written consent of the other parent prior to taking either of the children to any counsellor, psychologist, psychiatrist or other like specialist except for the children’s current treating medical practitioners or in the case of an emergency.
31.After the moratorium, both parents be at liberty to attend each child’s medical and/or psychological appointments and, where practicable, the parent who organises the medical appointment to provide the other parent no less than seven (7) days’ notice of the appointment.
32.After the moratorium, each of the parents shall forthwith do all acts necessary to authorise any medical practitioners and/or like health professionals treating either child to be able to communicate directly with each parent.

Specific issues
33.Each parent keep the other parent informed of the children’s progress at school as well as the timing of all parent/teacher appointments, co-curricular activities involving the children so as to provide the other with the opportunity to attend.
34.The parent who receives school notices, information, newsletters, school reports, school photographs shall provide copies of each such document to the other party within 7 days of receipt by that parent.
35.Each parent shall do all things necessary to enable the other to be registered to access any parent portal or like online communication platform maintained by the school attended by the children or either one of them.
36.After the moratorium, for the purposes of schooling of the children, each parent be at liberty to communicate directly with the schools about all issues of the educational health and welfare of either child and each parent be at liberty to attend any event, function or meeting at which parents of a child would usually attend.
37.Each parent shall advise the other of any change in his/her contact telephone number, email or residential address within 24 hours of such change occurring.
38.Each parent is restrained from making critical and/or derogatory remarks about the other or members of the other’s family within the presence or within the hearing of the children, or either of them, and that the parents each do all acts that are reasonably necessary to ensure that no other person makes any critical or derogatory remarks about one parent and/or members of the other parent’s family in the presence or within the hearing of the children, or either of them.
39.The father be restrained from consuming alcohol whilst the children are in his care pursuant to these orders.
40.The parents will each do all acts and things to encourage and not undermine each child’s relationship with the other parent and be respectful in all their communications with each other parent.
41.The parents will each do all acts required for the father to be provided with full access to the Apple ID and passwords relating to each of X and Y’s mobile phones and or other electronic device, and that the mother be and is hereby restrained from altering the Apple ID and passwords without the father’s knowledge and consent.
42.Each parent is at liberty to provide to the children’s school and/or medical practitioners, a copy of these Orders.

Interstate and overseas travel
43.After the moratorium period, in the event that either parent seeks to take either or both of the children on an interstate or overseas holiday, the parent so wishing to take the children shall provide the other parent with:

(a)at least one (1) month’s written notice (for overseas travel) and two (2) weeks’ notice (of interstate travel) of the proposed holiday; and
(b)all relevant details relating to the proposed holiday and the children’s itinerary, including flights, accommodation and contact telephone numbers;

and neither parent will unreasonably withhold consent to such travel.
44.Upon request by either parent, the other parent shall do all acts and sign all such documents as are necessary to renew or replace either of the children’s passports at the parent’s joint and equal expense, with each parent to pay any and all costs of obtaining any other necessary travel documents required for each child’s intended travel with the children.
45.The children’s passports be held by their father at all times the children are not travelling.
46.The father provide the mother with the children’s passports:
(a)where necessary in order for the mother to obtain a visa or other travel document and thereafter the passports be returned to the father; and
(b)Not less than fourteen (14) days before any intended overseas travel date and the mother return the passports to the father within seven (7) days of her return to Australia with the children.

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

The applicant is the father, and the respondent is the mother of the children, X born 2012, and Y born 2023 (“the children”). The children currently live with the mother and spend minimal time with the father.
Subsequent to parental separation in November 2019, the children spent time with the father pursuant to parenting plans entered into in December 2019, and February 2020. Because the parents were unable to reach agreement about the children’s holiday time with the father, the father filed an Initiating Application in August 2021.
On 31 March 2022, orders were made providing for the children to spend time with their father for five nights per fortnight, and half of school holidays. Between March 2022 and April 2023, the children spent time with the father substantially in accordance with the orders. In May 2023, the mother unilaterally suspended the children’s time with the father.
Since April 2023, the children’s time with the father has been sporadic and limited, despite numerous unsuccessful attempts to engage in family therapy. The children have refused to participate in family therapy and have been resistant to expand time with their father.
The father seeks primary residence of the children, the imposition of a moratorium, and thereafter for the children to spend five nights a fortnight during school term with their mother and school holiday time.
The mother seeks for the children to remain living with her and continue to spend limited time with the father.
For the reasons below, I will make orders substantially in accordance with the father’s proposal.
ISSUES IN DISPUTE
The following issues were the subject of dispute between the parents:
(a)Does the father pose a risk of harm to the children;
(b)Is the mother able to facilitate a relationship between the children and their father;
(c)Should the children remain living with their mother and continue to spend minimal time with the father; or
(d)Should the children live with the father, and after a moratorium period, spend time with their mother.
I will consider these issues in the context of the relevant statutory framework.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The parties submitted a joint chronology of events and procedural history, which is as follows.

DATE

EVENT

1976

Ms Manfredi born (aged 48) (Mother)

1977

Mr Viteri born (aged 47) (Father)

2005

Parties commence cohabitation. They do not marry.

2007

D born – passed away in infancy. Mother attends Ms E for counselling until 2020.

2012

X born (aged 12) (X).

2013

Y born (aged 11) (Y).

August 2018

The parties attend couples counselling with Ms F. They also each attend upon Ms F separately.

3 November 2019

Parties separate.

December 2019– May 2021

Parties attend 3 mediations with Ms G.

13 December 2019

Parties negotiate parenting plan providing, inter alia, that the children live with mother and spend three nights per fortnight with father and father does not consume more than two standard drinks in any 24-hour period whilst the children are in his care, to commence on 30 January 2020.

The parties attend three mediations with Ms G, entering into a parenting plan that was implemented and updated after the sessions, however, an impasse was reached in late 2020. The parties participate in a further “lawyer led mediation”, convened on 25 May 2021, without result, (being 4 mediations in total).

2020

Mother arranged for children to see Ms F, whom the parties had seen for relationship counselling.

24 March 2020

Parties negotiate further parenting plan providing, inter alia, that children live with mother, spend four nights per fortnight with father and father not consume more than two standard drinks in any 24 hour period whilst the children are in his care.

31 August 2021

Father files Initiating Application seeking parenting orders. Father seeks, inter alia, equal shared parental responsibility, children live with him five nights per fortnight, half of school holidays.

3 November 2021

Mother files Response to Initiating Application seeking, inter alia – children live with mother and spend three nights per fortnight with father. 2-3 night blocks with the father during the school holidays and special days, fathers time subject to him providing clear breathalyser samples, father undertake hair follicle testing.

10 November 2021

First Return before Senior Judicial Registrar Kourtis. Parties are to see Dr H for a Family Report on 8 December 2021. Matter adjourned to 22 December 2021 before Judicial Registrar Glass.

21 December 2021

Family Report prepared by Dr H.

22 December 2021

Interim Defended Hearing before Senior Judicial Registrar Glass.

24 December 2021

Judgment Delivery before Senior Judicial Registrar Glass. Orders pronounced by the Court, Inter alia, the children spend time with the father, five nights a fortnight together with half of the term and summer holidays.

December 2021

Mr Viteri takes the children on holiday to Queensland to visit their paternal family for thirteen nights and returns them to Ms Manfredi in January 2022.

31 December 2022

Mother files Application for Review of specific paragraphs of the Order made 24/12/2022 but not sealed by the court until 13/1/2023

11 January 2022

Mr Viteri undertakes a CDT test and provides and negative result.

1 February 2022

CE Family Lawyers ceases to act for mother.

2 February 2022

K Lawyers are instructed by the mother.

9 February 2022

Directions Hearing before Senior Judicial Registrar Kourtis. Matter adjourned is 31 March 2024 before Judge Blake.

Early 2022

Father admits to slapping X’s arm, leaving a red mark 8 hours after the incident. This incident was reported to DFFH by the children’s school in early 2022.

Early 2022

Father admits to hitting X on the shoulder after she accidentally telephoned of his clients while driving in the car. This incident was reported to DFFH by the children’s school in early 2022.

Early 2022

X interviewed by police in the presence of their teacher, Ms L.

30 March 2022

Mother files Application in a Proceeding seeking, inter alia, DFFH prepare S69ZW report, father’s time be suspended.

31 March 2022

Interim Defended Hearing before Judge Blake Interim parenting orders by consent (March 2022 Orders) that children live with Mother and spend time with Father 5 nights per fortnight and for one half of the school holidays and special days Orders for hair follicle testing and the parties to see Ms M.

Mother’s Application for Review dismissed.

April 2022

Mr Viteri takes children to Adelaide to visit his brother and their cousins for three (3) nights and returns them to Ms Manfredi’s care in April 2022.

26 April 2022

The parties attend upon Ms M.

23 May 2022

The parties attend upon Ms M.

30 May 2022

Interlocutory property orders by Senior Registrar Kourtis. Matter otherwise adjourned to 28 September 2022.

6 June 2022

Children commence seeing Ms N, psychologist.

June 2022

Mr Viteri takes the children to City O for seven (7) nights.

30 June 2022

Ms Manfredi files Amended Response to Initiating Application.

1 July 2022

The parties and the children attend upon Ms M.

27 July 2022

The parties attend upon Ms M.

August 2022

Mr Viteri takes the children to Town P for three (3) nights.

29 August 2022

The parties attend upon Ms M.

18 September 2022

Application in a Proceeding filed by Ms Manfredi – Defended Hearing before Justice Williams. Matter adjourned to 21 September 2023 for an interim defended hearing (parenting). Matter adjourned to a five-day hearing in March 2024.

23 September 2022

Hair follicle test for alcohol and illicit drugs. Test was positive for alcohol.

28 September 2022

Directions Hearing before Senior Judicial Registrar Kourtis. Orders made, inter alia, that the parties have a mediation with Mr Q on 16 November 2022.

November 2022

Dr S prepares report responding to questions surrounding the father’s Hair Follicle Testing results. He advises, in part that the level detected is consistent with consumption of an average of 6 or more standard drinks daily.

Late 2022

Children accepted as patients of the Child and Youth Mental Health Services (CYMHS)

14 November 2022

Ms M releases report.

14 November 2022

Mr Viteri undertakes CDT test and produces positive result: excessive consumption.

16 November 2022

Mediation occurs with Mr Q. The matter does not resolve.

21 November 2022

Mention before SJR Kourtis – interim consent orders – financial and listed for Readiness Hearing.

November 2022

Mr Viteri takes the children camping in Region R for two (2) nights.

Late 2022

Children attend intake with CYMHS.

12 December 2022

Chambers Hearing before Senior Judicial Registrar Kourtis. Orders made for the parties to see Dr T.

19 December 2022

Parties attend upon Dr T for psychiatric assessments. Dr T releases his reports on 15 January 2023.

23 December 2023

The children spend time with Mr Viteri for seven (7) nights during the school holidays until 30 December 2022.

7 January 2023

The children spend time with Mr Viteri for seven (7) nights during the school holidays until 14 January 2023.

15 January 2023

Dr T prepares psychiatric report for both parties.

23 January 2023

The children spend time with Mr Viteri for three (3) nights during the school holidays until 26 January 2023.

10 Feb 2023

Chambers Hearing before Senior Judicial Registrar Kourtis. Interim Orders providing, inter alia release of S67Z report to the family consultant.

March 2023

Children conclude attending upon Ms N (psychologist).

2 March 2023

Mr Viteri undertakes a CDT test and provides a negative result. Ms Manfredi questions the result due to damaged sample noted in report.

March 2023

Ms Manfredi travels overseas.

9 March 2023

Y does not attend time with Mr Viteri.

29 March 2023

Parties attend Dr H for an updated Family Report.

6 April 2023

The children were to spend the first half of the Easter holidays with Mr Viteri. Time did not proceed.

22 April 2023

Parties attend further sessions with Dr H.

1 May 2023

Parenting session with Ms N, she recommends parents adopt small steps approach and hold stop overnights.

22 May 2023

Updated Family Report prepared by Dr H.

7 June 2023

Mr Viteri undertakes a CDT test and provides a negative result. Ms Manfredi questions the result due to damaged sample noted in report.

16 June 2023

Father files Further Amended Initiating Application seeking inter alia, financial orders.

22 June 2023

Judge Harland – Readiness Hearing – Orders made providing, inter alia – Trial set 18/9/23 and trial directions.

30 June 2023

Mother files Further Amended Response to Initiating Application seeking financial orders.

27 July 2023

K Lawyers files a notice of ceasing to act. Mother becomes self‑represented.

9 August 2023

Ms Manfredi sends an email requesting Mr Viteri consent to adjourn the Final Hearing with a Mention date in eight weeks’ time.

11 August 2023

SAA send email to Ms Manfredi confirming Mr Viteri does not consent to an adjournment.

24 August 2023

Ms Manfredi directly emails Dr U seeking to obtain her availabilities for a program. Ultimately the parties do not participate in the program.

28 August 2023

Father files his trial material in accordance with the Trial directions

1 September 2023

Mother files Application in Proceeding for adjournment of trial.

8 September 2023

Father files Response to Application in a Proceeding.

14 September 2023

Mr Viteri undertakes a CDT test and provides a positive result: low to moderate consumption.

18 September 2023

Final Hearing before Justice Williams (five days) set down to commence.

Ms Manfredi’s application for adjournment is dismissed.

Trial is adjourned to 4 March 2024.

Parenting to proceed by way of an Interim Defended Hearing on 21 and 22 September 2023. Ms Manfredi subsequently attends Court on 21 September 2023 and appears self-represented. Matter is unable to proceed. Orders made for, inter alia, the parties and the children to attend upon Ms V for reportable family therapy.

2 October 2023

CE Family Lawyers file Notice of Address for Service on behalf of Mother.

3 October – 16 November 2023

Parties and children attend upon Ms V for reportable family therapy (seven sessions in total).

5 October 2023

Ms Manfredi and the children meet with Ms V however the children’s involvement is limited.

8 October 2023

Mr Viteri is to spend time with the children in accordance with Orders made 21 September 2023 (September 2023 Orders). This visit does not proceed.

15 October 2023

Mr Viteri is to spend time with the children in accordance with the September 2023 orders. This visit did proceed, albeit in a limited capacity and not in accordance with the September 2023 Orders.

22 October 2023

Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit does not proceed.

29 October 2023

Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit does not proceed due to Ms V advising it should not go ahead.

2 November 2023

Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit did proceed, albeit in a limited capacity and not in accordance with the September 2023 Orders.

9 November 2023

Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit did proceed, albeit in a limited capacity and not in accordance with the September 2023 Orders.

10 November 2023

Mother files Application in Proceeding (sealed 13/11/23) seeking, financial Orders.

14 November 2023

Father undertakes hair follicle test for alcohol and illicit drug use. Result was positive for alcohol.

24 November 2023

Father files Response to Application in Proceeding seeking, financial orders.

28 November 2023

Ms V prepares report concerning family therapy.

29 November 2023

Application in a Proceeding filed by Ms Manfredi – Mention before Justice Williams.

8 December 2023

Application in a Proceeding filed by Ms Manfredi – Seeking interim financial support.

13 December 2023

Interim Defended Hearing before SJR Conlan

January 2024

X commences Year 7 at W School. Y commences Grade 5 at Z School.

2 January 2024

Mr Viteri spends time with the children at a shopping centre for two (2) hours

7 January 2024

Mr Viteri spends time with the children at a recreation centre for two (2) hours

11 January 2024

The parties were to attend upon Ms V. Ms Manfredi does not attend this appointment as she was unwell. Mr Viteri proceeded with this appointment.

15 January 2024

Mr Viteri spends time with the children at a shopping centre to watch a movie.

18 January 2024

Mr Viteri undertakes a CDT test and provides a negative result.

26 January 2024

Mr Viteri spends time with the children at his home for two and a half hours.

30 January 2024

The parties attend upon Ms V

1 February 2024

Mr Viteri spends time with the children for three hours and 15 minutes.

Early 2024

Ms Manfredi takes Y to the Doctor and a report is made by the Doctor to DFFH

7 February 2024

CE Family Lawyers send correspondence to Suke & Associates regarding an “incident” with Y in early 2024 and that a report to DFFH has been made

12 February 2024

Father files Further Further Amended Initiating Application pursuant to Trial Directions.

15 February 2024

Mr Viteri spends approximately 40 minutes with the children after Ms Manfredi drops them at his house for a swim.

21 February 2024

Mother files Further Further Amended Response to Initiating Application pursuant to Trial directions.

27 February 2024

Y attends Dr AA’s rooms.

29 February 2024

X attends Dr AA’s rooms.

4 – 8 March 2024

Defended Hearing before Justice Williams – Final Orders for property. Parties enter into a binding child support agreement and a spousal maintenance binding financial agreement. Parenting matters adjourned to final hearing commencing 6 August 2024.

8 March 2024

Between 8 April and 17 July 2024, Mr Viteri spent limited time with the children on approximately eight (8) occasions, for a couple hours at a time.

14 March 2024

The parties and the children are scheduled to meet with Ms V. Ms Manfredi sends an email on 12 March 2024 indicating X was ill meeting rescheduled.

21 March 2024

Family session with Ms V. The session was unsuccessful. Ms V suspends therapy.

3 April 2024

Mr Viteri has a single appointment with Ms V. Ms V indicated she wished to meet with Ms Manfredi the following week.

27 April 2024

Both children attend Dr AA’s rooms.

13 May 2024

Mr Viteri undertakes a CDT test and provides a negative result.

26 May 2024

Ms V releases third report.

4 June 2024

Mr Viteri (and Ms BB) attends upon Dr CC.

6 August 2024

Final hearing before Justice Williams. All extant applications adjourned to 06/09/24.

6 September 2024

Final Hearing (last day) to commence before Justice Williams.

THE PROPOSALS OF THE PARTIES
The father’s proposal

Prior to the commencement of the trial, the father filed a Further, Further Amended Initiating Application on 20 February 2024 which sets out with precision the final orders he seeks. The father’s lawyers also provided to my Chambers on 6 September 2024, a Minute of Proposed Orders about the children’s phones, in the event orders were made imposing a moratorium period. A Minute of Proposed Orders is Annexure A to the father’s Case Outline Document filed 2 August 2024, and is Annexure A to these reasons.
Documents relied upon by the father
The father relied upon the following documents:
(a)Further, Further Initiating Application filed 12 February 2024;
(b)Affidavit of the father filed 12 February 2024;
(c)Affidavit of the father filed 28 February 2024;
(d)Affidavit of the father filed 26 July 2024;
(e)Affidavit of Mr J filed 28 August 2023;
(f)Affidavit of Ms M filed 17 November 2022;
(g)Affidavit of Dr T filed 3 April 2023;
(h)Affidavit of Dr H filed 25 March 2022;
(i)Affidavit of Dr H filed 28 July 2023;
(j)Affidavit of Ms N filed 15 February 2024;
(k)Affidavit of Ms V filed 29 November 2023;
(l)Affidavit of Ms V filed 6 March 2024;
(m)Affidavit of Ms V filed 28 May 2024;
(n)Affidavit of Ms DD filed 26 February 2023;
(o)Affidavit of Ms BB filed 29 February 2024;
(p)Affidavit of Ms EE filed 29 February 2024;
(q)Outline of Case document filed 2 August 2024; and
(r)Documents tendered by counsel, including documents produced pursuant to subpoena.
The mother’s proposal
Prior to the commencement of the trial, the mother filed a Third Further Amended Response Application on 30 July 2024 which sets out with precision the final orders she seeks. A Minute of Proposed Orders is Annexure B to the mother’s Case Summary Document filed 2 August 2024, and is Annexure B to these reasons.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Third Further Amended Response to Initiating Application filed 30 July 2024;
(b)Affidavit of Ms FF filed 31 July 2024;
(c)Affidavit of Ms GG filed 31 July 2024;
(d)Affidavit of the mother filed 30 July 2024;
(e)Affidavit of Ms V filed 28 May 2024;
(f)Affidavit of Ms V filed 6 March 2024;
(g)Affidavit of Ms DD filed 26 February 2024;
(h)Affidavit of the mother filed 20 February 2024;
(i)Affidavit of Ms N filed 16 February 2024;
(j)Affidavit of Dr S filed 7 February 2024;
(k)Affidavit of Ms V filed 29 November 2023;
(l)Affidavit of Dr T filed 3 April 2023;
(m)Affidavit of Dr H filed 28 July 2023;
(n)Section 67Z Response filed 4 May 2022
(o)Section 67Z Response filed 30 November 2021;
(p)Affidavit of Ms GG filed 26 October 2021;
(q)Affidavit of Ms FF filed 28 October 2021.
(r)Outline of Case document filed 2 August 2024; and
(s)Documents tendered by counsel, including documents produced pursuant to subpoena.
Credibility of witnesses
The father was the sole witness to give evidence in his case and was cross-examined by Kings Counsel for the mother. The father was a considered, thoughtful, and directly responsive witness who was prepared to make appropriate concessions, particularly about his past alcohol consumption and his fractured relationship with the children. He did not prevaricate and demonstrated considerable insight into the problematic family dynamic and the future challenges he would inevitably face if orders were made in accordance with his proposal. He presented as a reliable historian. I consider him to be a truthful witness.
The mother was the sole witness to give evidence in her case and was cross-examined by Senior Counsel for the father. She was frequently nonresponsive, and consistently struggled to directly answer questions. Her answers were frequently vague and lacked specificity. She also had some difficulty recalling historical events. She refused to make any concessions adverse to what she perceived her interest to be. An example was her answers to questions about the impact of her marijuana use on her parenting capacity (Transcript 7 August 2024, p.82 lines 13-36). She viewed historical events through a somewhat myopic prism, that is her assessment of the father as dangerous, unsafe, and not capable of adequately caring for or parenting the children. Where the evidence of the mother and father conflicts, I prefer the evidence of the father.
Ms V, psychologist, was appointed as family therapist, pursuant to orders made 21 September 2023. She gave evidence and was cross-examined by Senior Counsel for both parties. Ms V prepared three reports about her attempts to conduct family therapy. During cross-examination, she appeared to agree with most propositions put by each counsel, which were obviously advantageous to their respective client’s case and disadvantageous to the other parent’s case. It was difficult to understand and reconcile her answers given to both Senior Counsel. In some instances, her responses to propositions were contradictory to her three written reports. I refer to her evidence in greater detail below.
The following documents were tendered during the course of the trial:

Exhibit Number

Description

F-1

Three hair analysis tests of the father dated 14 September 2023, 16 January 2024, and 13 May 2024.

F-2

CDT test results.

F-3

Letter of Dr AA dated 6 August 2024.

F-4

Various documents pursuant to the fathers ‘List of Exhibits to Tender’.

J-1

Joint chronology.

THE APPLICABLE LAW

This case was heard after the enactment of the Family Law Amendment Act 2023 (Cth). The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act, and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders.
Section 60CC of the Act sets out how the court is to determine what is in a child’s best interest by reference to general considerations (s 60CC(2)). Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account. These include arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child, any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child, the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs and the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
When considering those matters, the Court must include consideration of any history of family violence abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
Abuse in relation to a child is defined in s 4 of the Act and includes an assault, including a sexual assault, of the child; or involving the child in a sexual activity in which the child is used directly or indirectly as a sexual object or causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or serious neglect of the child
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the court to include in the order any necessary safeguards.
Turning now to the general considerations.
GENERAL CONSIDERATIONS
What arrangements would promote the safety of the child
In order to determine issues relevant to the safety of the children, I will firstly turn to the allegations of risk made by both parents.
Assertions as to risk by each parent relevant to the safety of the children
Neither parent contended the other parent posed an unacceptable risk of harm to the children, and the risk allegations raised in the proceedings were largely historical, other than the mother’s concern about the father’s level of alcohol consumption. I have below addressed the issue of the father’s alcohol consumption and as stated, will make an injunction restraining him from drinking alcohol whilst the children are in his care. I am satisfied the injunction will address and alleviate any future concerns that the father’s alcohol consumption may pose a future risk to the children.
Otherwise, I have dealt with the risk allegations historically, and have not undertaken a predictive risk exercise, other than to assess the impact on the children’s mental health of the orders I propose to make. Bearing in mind the comments of Kings Counsel for the mother, as outlined at paragraph [209] of these reasons with which I agree, it is open to the court to objectively assess the children’s rejection of the father as irrational and over reactional to the level of identified problem. There is no purpose served by engaging in a prospective risk assessment to inform any prediction about the safety of the children or mother from future family violence.
Both parents filed a Notice of Child Abuse, Family Violence or Risk (“Notice of Risk”) in 2021. In the father’s Notice of Risk filed 31 August 2021, the father alleged the mother used cannabis daily, would drink to excess with him during the relationship, excessively check up on the children while they are in his care, and had denigrated him in the presence of the children.
In the mother’s Notice of Risk filed 3 November 2021, she alleged the father had perpetrated family violence, child abuse or neglect, and had abused alcohol. She alleged the father had physically assaulted her by pushing her away when he was intoxicated, made threatening comments towards her, perpetrated emotional and psychological abuse, had often consumed alcohol to excess, and verbally abused her in the presence of the children.
The mother filed a second Notice of Risk on 30 March 2022, wherein she referred to two incidents in early 2022, when the father physically disciplined X, as well as repeating the allegations outlined in her first Notice of Risk.
Despite the allegations in the respective Notices of Risk, in the first Family Report, Dr H noted there were no serious allegations of violence perpetrated by either parent towards the children. The mother reported to Dr H that the father had never been violent with the children, but her key concerns related to neglect of the children in the context of excessive alcohol use, and not being present with them nor able to adequately attend to them. The mother expressed her concern that the father had been absent from the children’s lives prior to separation, describing him as being emotionally unavailable and poorly attuned to the children.
By the time of the trial in August 2024, the allegations of each parent had become more contained.
Despite the mother’s contrary assertion, the father did not advance that the mother had alienated the children from him. It was the father’s contention the mother does not actively encourage the children to spend meaningful time with him, whereby she either does not have the skills to facilitate the children spending time with him, or she is unwilling or powerless to do so. Extensive attempts at therapy have thus far been a spectacular failure, and absent a change of residence, the children’s relationship with their father, will be at best, superficial and possibly cease altogether. The children will be at future risk of emotional and psychological harm and will likely follow a negative mental health and social trajectory, if they are denied a proper and meaningful relationship with their father.
The mother professed to acknowledge it is in the children’s best interests to spend time with their father, subject to safety considerations. She contended the genesis of the children’s fraught relationship, anxiety, and reluctance to spend regular time with their father, was the father’s abuse towards her, his abuse and neglect of the children, and his alcohol abuse. She did not contend there was any risk of future abuse of her by the father nor seriously contend future abuse or neglect of the children by him. Rather, she contended to force the children, against their will, would be detrimental to them and further exacerbate their anxiety and reluctance. She opined continuing the current arrangements of informal “catchups” for about an hour or so once or twice a month, with the children involved in the decision-making process, would best promote and repair the fractured relationship between the children and their father. The mother did not propose any future progression of these arrangements.
As would generally be expected, the relationship between the parents shortly prior to separation was fraught and strained. The mother was critical of the father’s alcohol abuse and for being absent from the household due to work commitments, although she did acknowledge the father had relinquished opportunities to further his career by declining managerial roles in his legal practice.
Historical care arrangements for the children
In order to consider what arrangements would promote the safety of the children, it is relevant to consider the care arrangements for the children which were implemented consensually by the parents subsequent to separation in November 2019, and whether any risk issues were identified or arose from those arrangements and also to consider parenting orders made by the Court.
With the assistance of a mediator, the parents initially agreed about parenting arrangements for the children, which were embodied in a series of parenting plans (Exhibit MV-1).
The first parenting plan provided for the parents to share care of the children during the 2019/2020 long summer holidays, and thereafter for the children to live with their mother and spend time with their father four nights a fortnight.
The mother agreed that she and the father managed to coparent “overall pretty well” during the period following separation,[1] although she was reluctant to increase the children’s time with their father because the children were experiencing difficulties separating from her and transitioning back into her care.
[1] Mothers’ affidavit filed 20 February 2024, para 31.
The second parenting plan generally reflected the first parenting plan and provided for the plan to be updated subsequent to the 2022 term three school holidays.
The third parenting plan provided for the children to continue to spend four nights a fortnight with the father, with a slightly different configuration and an agreement in principle for the children to spend half school holidays with each parent.
The mother’s evidence was that during this period, including during Covid-19 lockdowns, she and the father navigated parenting arrangements reasonably well, although she began to have concerns about the extent of his alcohol consumption. During the September 2020 school holidays, the children spend four nights with their father, and according to the mother the children appeared to cope well. During the summer holidays in 2020/2021, the children spent a five-night block with the father and again manage reasonably well, although they often cried when they spoke to their mother on the phone and were apparently upset when they returned to their mother.
According to the mother, the children continued to have some reluctance to go to the father’s home, however she was generally able to persuade them to spend time with their father.
In her trial affidavit filed 20 February 2024, the mother deposes to a series of incidents in 2020 which gave rise to her concerns about the children’s wellbeing in the father’s care because of his alcohol consumption.
In early 2020, the father lost his driver’s licence due to driving over the blood alcohol limit, and his license was suspended for a period. His license was restored in early 2021, with an interlock device installed in his car. The interlock device was removed in late 2021. The father expressed remorse and regret for his poor decision-making, which he said was due to him struggling with the pressures of separation and Covid-19.
According to the mother, in late 2020 when the children were spending the weekend with the father, they told their mother upon their return home that the father and a friend had fallen asleep on the couch, leaving beer cans and bottles all over the table. The children apparently had to turn off all the lights in the house and put themselves to bed.
In late 2020, there was another incident which occurred at the father’s home. The father described enjoying a Friday evening drink with a neighbour, during which X was misbehaving. She threw ice at the neighbour’s son after she was told not to, and thereafter slipped on the ice she had thrown on the floor. In response to the father telling X to behave, X text and called her mother, whereupon the mother attended the father’s home and took X, whilst Y remained with her father. The mother’s version of the event was that X had told her the father would not wake up, and because she was concerned about the extent of X’s injuries, she attended the father’s home. Upon her arrival, the father was visibly intoxicated, and she took only X because the father would not permit Y to return home with her mother.
In late 2020, the children were with the father and attended a function with some school families. The mother was told by two friends, who attended the function and who later swore affidavits filed in the proceeding, that the father was visibly intoxicated when he arrived at the function with the children and continued to drink throughout the function until he was slurring his words and unable to walk in a straight line. Two school mothers offered to take the children home from the function, which is what occurred, with the mother collecting the children from their various sleepovers the next day.

According to the mother, the children have a heightened awareness of the father’s drinking as a result of what they experience during the relationship and post separation, which became more apparent after the two incidents in late 2020.
After X’s return from a school camp in mid-2021, she was due to spend the day with her father. Upon arrival at the father’s home, X locked the car doors, was crying and sobbing, and was insisted she did not want to spend time with the father and told him she did not want to live with him. From the mother’s perspective, that was the first time X had taken such extreme measures not to spend time with her father. Ultimately, the father agreed for X to return home. The mother’s evidence was that the following day, X refused to go to school unless the mother promised the father would not collect her from school that day.
Because the parents were unable to reach a firm agreement about progressing parenting arrangements, the father filed an Initiating Application in this Court on 31 August 2021.
On 22 December 2021, orders were made by Senior Judicial Registrar Glass (as his Honour then was) for the children to spend substantial time with the father, and holiday time in the immediate summer holidays.
The children spent 18 nights with the father from 25 December 2021. According to the mother, upon their return to her care she noticed their separation anxiety had significantly increased, and the children’s reluctance to transition to their father’s home also increased around that time. From the mother’s perspective, drop-offs at school began to become difficult for Y and she struggled to leave her mother, difficulties increased with changeovers into the father’s care as did the children’s anxiety leading up to visits with their father.
The mother also attributes the children’s anxiety and reluctance to spend time with their father to two incidents which occurred in early 2022. The first incident occurred in early 2022, when the husband admitted to slapping X’s elbow in anger after she was yelling at Y to get ready for school. A letter from the father’s solicitors to the mother’s dated 23 March 2022 referred to the incident and stated, “[the father] most certainly regrets slapping [X’s] elbow”. The father subsequently told an investigating detective in early 2022 that it was merely a tap. The mother described a red mark on X’s arm eight hours after the incident, and said X had told her a few times during the day her arm hurt.
In early 2022, the father admitted to hitting X on the shoulder after she accidentally telephoned one of his clients while he was driving. Both incidents were reported to the police and child protection by the children’s school, after Y disclosed the incidents to the vice principal. X was interviewed by the police during the investigation. The father was remorseful about his actions.
According to the mother, after the incidents of physical discipline in early 2022 it became increasingly difficult for the children to transition into the father’s care, and there were numerous incidents of the children refusing to go to their father and they were anxious about the impending time with him.
On 31 March 2022, Judge Blake made orders for the children to spend five nights per fortnight with their father, notwithstanding the mother’s allegations about the two incidents of physical discipline in early 2022.
The children generally spent time with the father pursuant to Court Orders between 25 December 2021 and May 2023, although according to the mother they did so with reluctance and anxiety. During that period, the children spent time with their father each alternative weekend as well as holiday trips to Queensland, Adelaide, City O, Town P, and camping in Region R.
In late 2022, X threatened to self-harm, which I refer to in greater detail below.
In her evidence in chief, the mother refers to various occasions between March 2022 and November 2022, as being demonstrative of the children’s anxiety and reluctance to spend time with their father during this period.
From about March 2023, X has not spent time with her father in accordance with the orders, and from April 2023 Y has not spent time with her father in accordance with orders. From around May 2023, the mother unilaterally suspended the father’s time with the children in accordance with her purported interpretation of recommendations in the updated Family Report of Dr H.
Both parents advanced reasons for the emerging difficulty in the family dynamics. The mother asserts the children were reluctant to spend time with their father and were rejecting him because of his past conduct and as a consequence were anxious in leaving her care to spend time with the father. The father asserted the mother was unable to facilitate time between himself and the children, they are enmeshed with and adversely influenced by the mother, and the mother has precipitated the children’s hypervigilance about the father’s behaviour.
The allegations raised by the parents and the events referred to do not substantiate the children being at risk of family violence or neglect in the care of either parent, which would require specific orders to promote the safety of the children, other than a restraint on the father consuming alcohol when the children are in his care, which both parties propose should be made. I will make such an injunction, which will adequately address any concerns arising from excessive alcohol consumption.
There is no family violence order applying to the children nor a member of their family, and there has never been one. I accept the father was remorseful and has gained and demonstrated insight into his conduct on the two occasions in early 2022 and will not further physically discipline either child.
The care arrangements after separation demonstrate that prior to May 2023, when the mother unilaterally stopped time, the children had regular time with their father including holiday time and were not at risk in their father’s care or subjected to safety concerns, other than some excessive alcohol use in 2020 and the two unacceptable incidents involving X in early 2022, and I so find. I have also had regard to the orders of Judge Blake of 31 March 2022, which were made after the incidents of physical discipline of X.
Subsequent to May 2023, the children have had limited “catch ups” with the father, and except for the children’s asserted reluctance to attend, as exhibited by their outrageous conduct at changeovers, there has not been any circumstances where it could be said the children have been unsafe, except for the mother’s contention that forcing the children to attend time with their father is detrimental to their emotional and mental health, and I find accordingly.
The dispute between the parents was primarily focused on whether extended time between the father and the children, contrary to their expressed wishes, would be detrimental to their mental health, or whether there should be a moratorium and reversal of primary care to enable the children to have a relationship with their father, whilst maintaining their strong relationship with the mother.
Any views expressed by the children
Both children have expressed their views to the parents and numerous professionals throughout the course of the litigation. Shortly after the commencement of the litigation, the children’s view about spending time with their father was more contained and less florid.
The first recorded occasion of the children expressing their views was during the interview with Dr H in December 2021, when X was aged nine and in grade four at Z School. Y was aged eight and in grade two at Z School. X is now twelve years old, and Y is eleven years old.
Both girls expressed favourable opinions about their mother and reported an excellent relationship with her. X said she and her mother get along very well and she did not get into trouble very often. She said her mother was always there for her, will let her talk, and gives her as many hugs as she wants. When asked about her favourite things with her father, X said she was not very sure, and when asked about what she would change about her father she said, “that he is there for me some more”. X said the father would sometimes take them bowling or to see a movie, but at other times she felt lonely and misses her mummy a lot. She thought the time at her fathers from Thursday to Sunday night felt too long, although she was comfortable with spending four days in a row with her father during the holidays.
Y said she gets along “good with her mother”, she gives her cuddles, plays with her and is always there when she is upset. She also said she gets along “good with her father”, although she was unable to identify her favourite things about him.
Y said she would rather be at her mothers, but also acknowledged she misses her father at times and that the current arrangement was “a good amount of time”.
On 1 July 2022, the children were observed by Ms M after they had spent a week with the father interstate and expressed a positive time with their father, although she noted the children presented as resisting time with their father.
In her updated report filed 16 February 2024, Ms N records X reported no difficulty at her mother’s house but said she did not feel comfortable being at her father’s house. When asked to elaborate, X reported she sometimes felt unsafe with her father driving too fast and sometimes felt unsafe when her dad yells or doesn’t talk with them. She referred to the incidents in early 2022 when the father slapped her.
X’s comments about her father were:
·she doesn’t think that anything can be improved;
·she doesn’t feel comfortable her father’s house and doesn’t trust him;
·he doesn’t always tell them what the plans are for what they would do at his house, and he doesn’t always stick with what he says;
·sometimes his family members are there, and her father encourages her to spend time with them but she doesn’t feel comfortable;
·she doesn’t feel safe at dad’s house; he organises play dates for her without asking her opinion on where she wants to go; she has an early memory when her father wasn’t around much; has memories of a family holiday when her parents decided to separate, and she and her mother left the holiday early;
·she has memories of when she was supposed to be picked up from school by her father, but her paternal grandmother came to get them instead X reported that she didn’t want to go with her at all and did like spending time with her grandmother.
Y’s comments to Ms N about her mother were that she prefers being with her mother as things are more relaxed at her mother’s home, she does creative things with them and feels she can talk with her mother. She reported she did not want to go on a family trip to City O with her father and did not want to go away with him at Christmas time because it was too long. She said she would prefer to just live with her mother, and she finds it hard to go home with her father after school on Thursdays, and that is when her feelings show up.
Y’s comments about her father and his family were:
·she didn’t like it when her father yells or when they argued, but she was unable to come up with any examples of times when that it happened or the kinds of things they argued about;
·she did not want to go to her father’s house and said he was mean, but was unable to expand on that;
·she hadn’t like it when her father had tried to push her to get into the car when he’d been trying to bring her to one of her appointments and she had not wanted to go with him;
·she did not like spending time with her paternal grandmother.
There is no doubt that as the litigation has progressed, the children have expressed more strident views about not wanting to spend time with their father. They have been diagnosed as experiencing separation anxiety when leaving their mother. Both children have anxiety, heightened emotions, are oppositional, defiant, and dysregulated when faced with the prospect of spending time with their father. They have also refused to engage in therapy with their father and Ms V. Their conduct at attempted changeovers, in accordance with the unchallenged evidence of Ms DD, the professional supervisor, is extraordinarily dysregulated, unacceptable, and out of control.
Ms V describes the children as presenting as aligned with their mother in anxious and regressed attachment behaviour. She describes the children’s distresses as not having abated, and that their functioning has deteriorated.
It is clear the children have adopted the mother’s narrative and do not want to spend time with their father. However, I consider caution should be applied in attaching any probative weight to their expressed views, particularly as Ms M was of the opinion the children’s narrative was rehearsed and unbalanced, mirrored the mother’s criticisms of the father, and the reasons offered for rejecting their father are disproportionate to the outcome. Dr H considered the children’s presentation appears disproportionate to the overall clinical picture of the family and in the context of the children’s presentation, emotional and psychological vulnerabilities, referred to below.
Developmental, psychological, emotional and cultural needs of the child
In her affidavit filed 30 July 2024, the mother describes X as being in year seven at W School, where she is transitioning well. She has made strong friendships, and academically has done, and is doing really well. She had a positive report at the end of semester one and has been undertaking her studies and work in a very diligent manner.
She finds maths a little more challenging and has received extra support at home which has resulted in positive improvements. She continues to do an extracurricular activity and has joined an extracurricular class after school. She has engaged in Saturday sport and recreational sports for the remainder of the winter sport season. X has told her mother that she is excited to be part of W School interschool sports team.
Y is in grade five at Z School and is “more settled in school this year”. Her semester one report showed she was consistently positive in applying herself. She has shown exceptional results in art and displays creativity. At home is often found to be painting, drawing, or working on a creative piece. She has made great progress attending to her homework and submitting it on time each week. She plays weekly sport and competes in the Victorian interschool sports because she loves sport. She is one of the taller girls in her year, and her doctor and physiotherapist have advised the mother that her bones are growing at a faster rate than her muscles and tendons which sometimes creates body aches, which has impacted on her running and general sports.
There have been numerous professional assessments of the children’s developmental, psychological, and emotional needs. These include:
·Dr H, Family Report writer, in December 2021 and in May 2023;
·Ms M, Family Therapist, during her family therapy sessions between April and August 2022;
·HH Hospital – X in late 2022;
·Ms N, psychologist, in 2022 and 2023;
·Ms V, Family Therapist, from October 2023 to early 2024;
·Dr AA, paediatrician, in 2024.
The children do not have any identified particular cultural needs.
I now turn to the opinions of each professional.
Dr H – first Family Report
Dr H conducted observation sessions for the first Family Report in December 2021, and again in March 2023 for the second Family Report. The first Family Report is annexed to her affidavit filed 25 March 2022 and the second is annexed to her affidavit filed 28 July 2023.
In the first Family Report, Dr H noted there were no concerns for any special intellectual or developmental issues for either child.
During her interviews with the parents, each described the children in a thoughtful and insightful manner. The father described X in the following way:
…she is super smart, super perceptive, very quiet, she sees everything, she’s a great writer and reader, she’s a really good friend, she loves giving, but she is better in a small group”. He stated that [X] has had slight anxiety with strangers or larger groups and likes to order things in her room and sort things by colours. He explained that she needs a bit more reassurance that she is doing well, as compared to [Y].
He described Y as follows:
…she’ll make friends with anyone, she is a real all-rounder, very bubbly and cheeky, very talented artistically and athletically, slightly less introspective than [X] and has a very different talent… she is good at maths, makes friends easily in the playground.
The mother described X in the following way:
She’s quite eager to please, she loves to do the right thing, always does all of her homework, loves music […]”.
She then described Y as:
Personality plus, she loves sport, plays [an instrument], she loves [sport], she is a bit bossy… we boss each other around a bit, a little bit more resilient like her sister.
Ms M
The orders of Judge Blake made in March 2022 include an order made by consent, that the family attend upon Ms M for reportable family therapy.
Ms M prepared a report of the family’s attendance upon her from 26 April 2022 until 29 August 2022, for seven sessions. Her report is annexed to her affidavit filed 17 November 2022. Both counsel referred to her report, however she was not required for cross-examination.
On 1 July 2022, Ms M conducted interviews with both children, an observation session of the children with the father, and an observation of the children’s transition to the mother.
During her observations between the children and their father, Ms M observed the children presented as happy, settled, and spoke freely about the activities on a holiday they had spent interstate with their father, which included attending an adventure park, water sports, and animals. There were no concerns identified with the father and “their interaction appeared natural and comfortable, and conversation flowed”.
As noted at paragraphs [29] and [30] of her report, during individual interviews with the children, Y said her time with her father was positive and she was unable to report any concerns or worries. X did not report any events she identified as concerning during her time with the father, although she said she misses her mother. X said being able to call her mother made her feel better, but then said two weeks at Christmas would be too long and that she wanted more time with her mother. Ms M explored with the children how they experience their parents’ relationship, with Y becoming overwhelmed with emotion and stating, “they are still fighting” and X saying, “I feel caught in the middle”. Both children became upset and emotional.
Ms M identified in her conclusions a number of ongoing difficulties and examples of highly strained parental discord which causes painful loyalty conflicts for the children. She opined:
…The children have adopted a protective and loyal position around their mother, as their narrative mirrors their mother’s criticisms of the father, with specific reporting like “I don’t feel safe”, with no details of events. Unreliable and exaggerated reporting appears based on “borrowed stories”, in addition to a narrative that mirrors the mother’s complaints, including an unwillingness to spend time with the father for Christmas.
HH Hospital
In late 2022, X threated self-harm at the mother’s home. the mother called the police, who involved the triage psychiatrist at HH Hospital. Paragraphs [57] - [64] of the mother’s affidavit filed 21 February 2024 refer to the details of the incident. A psychiatrist from HH Hospital attended the mother’s home and spoke to X, subsequently leaving around two and a half hours later. Both children were referred to the HH Hospital Child Youth Mental Health and Wellbeing Service (CYMHS). At the time of this incident, both children were consulting Ms N.
Ms N, psychologist

Both parents sought usual and orthodox orders pertaining to the children’s health and the requirement for both parents to notify the other and provide consent for medical treatment, and for each parent to be at liberty to attend the children’s medical appointments. There was little difference in the wording of the orders proposed by each parent, and for convenience I will adopt those as sought by the father.
Specific issues
Both parents proposed specific issues orders pertaining to informing each other about the children’s progress at school, obtaining access to school notifications and the like, and advising each other of any change of contact details. Again, there was little difference in the wording of the orders proposed by each parent, and I will adopt those as sought by the father.
Recovery order
The father sought that a recovery order be made in respect of the children in the event the mother is in breach of an order to return the children to the father’s care, with the order to remain in the registry until activated. As foreshadowed above, there may be difficulties in ensuring the transition of the children from their mother’s care to their father’s care, which would require a recovery order. I will make the recovery order as sought by the father.
Injunctions
The father seeks injunctions against the mother effectively preventing her from communicating with the children during the moratorium period, removing the children from the fathers care, to restrain her from attending the children’s schools 30 minutes prior, and 30 minutes after the father is due to attend the school, and to restrain the mother from denigrating the father or his relatives or permitting any third party to do so. There were no specific submissions from either counsel pertaining to the injunctions, although it is obvious why the father would require an order restraining the mother from attending the school, due to past difficulties at school changeovers and why he would seek an order restraining her from contacting the children during a moratorium period. I intend to make the restraints as sought, including an injunction restraining each parent from denigrating the other and their relatives, or permitting any third party to do so in the presence or hearing of the children.
The father also sought an injunction to restrain the mother from approaching the children or removing the children from the father’s care during the times they are to live with the father except with the prior written consent of the father. Because of the history of problematic school changeovers, I will make the order sought by the father.
Both parents also sought an injunction for the father to be restrained from consuming alcohol whilst the children are in his care. As referred to above, I will make the injunction.
The mother sought an injunction restraining the father from physically disciplining the children, or either of them. In seeking such an order, although not specifically articulated, the mother relied upon the two incidents involving X and the father in early 2022, which are referred to above. I do not propose to make any such order, as I am satisfied the father has not engaged in any such behaviour since early 2022, was remorseful and has gained and demonstrated insight into his conduct on those two occasions. For those reasons, I consider it highly unlikely he will engage in similar conduct in the future. Furthermore, an order in those terms might reinforce to the children the incorrect notion that the father currently presents as a risk to them, where objectively there is little basis to their apprehension and so-called fears of spending time with him.
The father sought an order for each parent to inform the other if they wish to introduce a new partner to the children and offer the other parent the opportunity to meet the new partner before the children do. The mother did not seek any such order and there was little evidence about the necessity for same. I do not propose to make an order in those terms.
The father sought an order enabling provision of the orders to the children’s school and medical practitioners, as did the mother. I will make the relevant order.
The mother also sought an order restraining each parent from taking illegal drugs within 24 hours of the children coming into each parent’s care and whilst the children are in their care. The father did not propose any such order. The father’s concerns about the mother’s marijuana use were historical and the mother did not level any allegations against the father about current drug use, other than his alcohol consumption. As referred to above, I intend to make orders restraining the father from alcohol consumption, but do not consider a restraint about illegal drug taking is required for either parent.
Travel
Both parents sought orders in the event either parent seeks to travel overseas or interstate with the children, including relevant notice and details of an itinerary. The father proposed the notice be provided one month prior for overseas travel, and two weeks prior for interstate travel, with neither parent to unreasonably withhold consent. It is obviously appropriate for a parent to notify the other parent of proposed holiday plans, and I will make orders requiring one-month prior notice for overseas travel and two weeks’ notice for interstate travel. I consider these to be adequate notice periods.
The mother proposed an order for makeup time in the event the children’s travel impinged on the father’s time. Because of the orders I intend to make for the children’s living arrangements and holiday time with each parent, overseas and interstate travel should be undertaken within each parent’s time pursuant to the orders, and there should be no need for any make up time to be provided to either parent.
Passports
Both parents sought orders for each parent to cooperate to obtain passports for the children at their joint expense, which I consider to be entirely appropriate. Both parents sought an order for them to be the custodian of the passports. Because the father will be the primary residential parent of the children, I consider it appropriate for him to have custody of the passports but to be required to provide the mother with the children’s passports in the event she needs to obtain a visa or other travel document, and for the purposes of overseas travel in accordance with paragraph [44] of the father’s Minute of Proposed Orders. I also intend to make an order that the mother return the passports to the father within seven days of her return to Australia with the children.
Witness fees
The mother also sought an order that the father pay 100% of the costs for various professional witnesses to attend court at the final hearing. Of the list of witnesses referred to at paragraph [27] of the mother’s Minute of Proposed Orders, the only professional witness required for cross-examination was Ms V, who gave her evidence electronically. Because property matters have been resolved between the parties and there were no submissions as to why the father should pay Ms V’s fees, I do not propose to make any orders as sought by the mother.

I certify that the preceding two hundred and sixty-five (265) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 12 December 2024
ANNEXURE A
Fathers Minute of Proposed Final Orders
Parenting
1.All prior parenting orders in relation to X and Y be and are discharged.

Parental Responsibility
2.The Mother and Father (the parents) have equal shared parental responsibility for the children:
(a)X born 2012, (X);
(b)Y born 2013, (Y);

collectively (the children).

Live with
3.The children shall live with the Father commencing forthwith.

Moratorium period
4.Upon the making of these orders there be a six (6) week moratorium (the moratorium) during which the children spend no time with the Mother.
5.Order 2 be suspended during the moratorium with the Father having sole parental responsibility.
6.During the moratorium, each of Orders 13, 14, 15, 17, 19, 21, 22 and 23, in so far as it relates to the Mother, is suspended.

Restraints
7.The Mother is hereby restrained by injunction from approaching the children or removing the children from the Father’s care during the times they are to live with the Father pursuant to these Orders, or any other order of this Court, except with the prior written consent of the Father, noting this Order (after the moratorium) does not prevent the Mother from attending school events involving the children whether at their school or elsewhere and approaching the children at those events but she may not remove the children from the Father’s care on those occasions.
8.Upon the Father filing an Affidavit deposing to the Mother failing to return a child in breach of an order that she do so, an order issue forthwith that, in respect of each of X and Y, for a period of 12 months, the Deputy Marshal of the Federal Circuit and Family Court of Australia (Division 1) and all officers of the Australian Federal Police and all officers of the police force of Victoria are hereby authorised to take possession of X and Y and deliver the children to the Father, being the parent with whom the children live and the parent who has sole parental responsibility for the children pursuant to these Orders and for the purpose of giving effect to these Orders at any time, and with such assistance as they require, and if necessary, by force, to stop and search any vehicle, vessel or aircraft and to enter and search the premises situated at and known as B Street, Suburb C or any other premises or place in which there is at any time reasonable cause to believe the children may be found.
9.During the moratorium, while X and Y are in the care of the Father, the Mother is restrained by injunction from communicating with X and Y by any means, (which expression includes responding to any communication directly or indirectly from them to the Mother or of which the Mother becomes aware) including but not limited to by way of telephone, email, SMS text message, i-message, messenger kids, posting on any website, messaging through any social media platform or by any other means.
10.The Mother shall not be at either of the children’s schools during the window commencing 30 minutes before and concluding 30 minutes after the appointed time that the Father is due to collect the child (unless otherwise agreed in writing between the parents), provided that this shall not apply in respect of the Mother attending at school for the purpose of events to which parents are ordinarily invited, after the moratorium period.
11.The Mother is hereby restrained from:
(a)doing or saying anything to the children or in their presence or hearing derogatory of the Father, his partner or family members;
(b)allowing the children to remain in the presence or hearing of any third party who does or says anything to the Father or the children or in their presence or hearing derogatory of the Father, his partner or family members; and

12.The Mother shall use her best endeavours to ensure that no third party does or says anything to the children or in their presence or hearing derogatory of the Father, his partner or family members or detrimental to the relationship the Father, his partner or family members have with the children.

Time with the mother
13.At the conclusion of the moratorium period each of the parties shall do all things necessary to cause, the children to spend time with the Mother during the school terms on a fortnightly basis as follows:
Week one
(a)From the conclusion of school on Thursday (or if a non-school day from 3.30pm) in the first week until the commencement of school the following Monday (or if a non-school day from 3.30pm) in the second week; and

Week two
(b)From the conclusion of school on Thursday (or if a non-school day from 3.30pm) until the commencement of school on Friday (or 3.30pm if a non-school day), (Term Time Care Arrangements)

School term holidays
14.For the purpose of these Orders:
(a)school term holidays will be deemed to commence at 3.30 pm at the conclusion of the school term and conclude at 5:00pm on the day before the commencement of the new school term whether or not that day is a non-school day; and
(b)after the conclusion of each school term holiday period, the parent who spent time with the children during the first half of the school holidays will spend time with the children on the first weekend of the new school term (encompassed within the Term Time Care Arrangements in paragraphs 13(a) and 13(b) herein) of the new school term following the conclusion of the school term holiday period.

15.After the operation of Orders 4 to 6 herein, each of the parties shall do all things necessary to cause the children to spend time with each of their parents for one half of each school term holiday period, at times agreed in writing between the parents and in default of agreement in the first half, with the parent whom the children would otherwise have lived with on the first weekend of the school term holidays and spend the second half of the school term holiday period with their other parent.

Summer school holidays
16.Each of the parties shall do all things necessary to cause the children to spend each Summer School Holidays period with each of their parents at times as are agreed between them, save that in default of agreement they each shall cause the arrangements be pursuant to paragraph 17 herein, save that such orders be suspended insofar as is necessary to give effect to paragraphs 4 to 6 herein and the Christmas and Special occasions set out in paragraphs 18 to 22 herein.
17.During the Summer School Holidays from 2024 and each year thereafter:
(a)first, the term time arrangements in paragraphs 13(a) and 13(b) herein continue from the last day of Term 4 until 23 December;
(b)secondly, the Christmas arrangements set out in paragraph 18 herein be given effect;
(c)thirdly, from 5.00pm on 30 December the children live with each of their parents for one half of the balance of the holiday period at times as may be agreed between the parents in writing and in default of agreement:
(i)first, the children live with the parent they did not spend the Christmas week with (first parent) in the first half of the Summer Holidays then remaining, commencing at 5.00pm on 30 December;
(ii)secondly, the children live with the parent they spent Christmas week with (second parent) in the second half of the Summer Holidays then remaining; and
(iii)thirdly, the children return to the care of the first parent to recommence the Term Time Care Arrangements pursuant to paragraphs 13(a) and 13(b) herein with either the Week 1 or Week 2 care arrangements being adopted by the parents so as to ensure the children’s time with the first parent that week be inclusive of the first weekend of the First School Term.

Christmas
18.For the purpose of celebrating Christmas in 2024 and each year thereafter:
(a)In 2024 and each alternate year thereafter the children spend time with their father from 5.00pm on 23 December until 5.00pm on 30 December, and
(b)In 2025 and each alternate year thereafter the children spend time with their mother from 5.00pm on 23 December until 5.00pm on 30 December.

Special days
19.Each of the parties shall do all things necessary to cause the arrangements for celebrating each of the children’s birthdays as follows:
(a)if the birthday falls on a weekday, that the children spend time with the parent they are not otherwise spending time with pursuant to these Orders, from the conclusion of school until 7.00pm to celebrate their birthday;
(b)if the birthday falls on a weekend day, that the children spend time with the parent they are not otherwise spending time with pursuant to these Orders, from 2.00pm to 6.00pm;
(c)or as may be otherwise agreement between the parents in writing.

20.Each of the parties shall do all things necessary to cause the children to spend time with their Father from 5.00 pm the day prior to Father’s Day until the commencement of school on the following Monday and that any provision for time in any other paragraph inconsistent with this paragraph herein be suspended so as to facilitate time pursuant to this paragraph.
21.Each of the parties shall do all things necessary to cause the children to spend time with their Mother from 5.00pm the day prior to Mother’s Day until the commencement of school on the following Monday and that any provision for time within another paragraph that is inconsistent with this paragraph herein be suspended so as to facilitate time pursuant to this paragraph.
22.Each of the parties shall do all things necessary to cause the children to spend time with their parents on the parents’ respective birthdays at times as may be agreed between the Mother and the Father in writing, and failing agreement, the children shall spend time with the parent celebrating his/her birthday as follows:
(a)with their Father:
(i)if a school day from 3.30 pm to 7.00 pm; and
(ii)if a non-school day from 9.00 am to 7.00 pm,

(b)with their Mother:
(i)if a school day from 3.30 pm to 7.00 pm; and
(ii)if a non-school day from 9.00 am to 7.00 pm,
save for if the Father is holidaying with the children outside the Melbourne Metropolitan area, the Mother’s time with the children under this Order be suspended with the Father to offer make-up time as soon as reasonably practicable upon the Father returning with the children to the Melbourne metropolitan area, and that any provision as to time under any other paragraphs of these orders that is inconsistent with this paragraph be suspended to facilitate the children spending time with each of their parents on their birthdays pursuant to this order.

Easter holidays
23.For the purposes of celebrating Easter, each of the parties shall do all things necessary to cause the following arrangements to be carried out:
(a)in even numbered years the children spend time with their Mother from 9.00 am on Good Friday until 5.00 pm on Easter Monday; and
(b)in odd numbered years the children spend the day with their Father from 9.00 am on Good Friday until 5.00 pm on Easter Monday, and that any other paragraphs in these orders that are inconsistent with this paragraph be suspended to give effect to this paragraph.

Telephone contact
24.That the parent with whom the children are not living/spending time with have not more than two (2) telephone calls per week with the children, between 5.30 pm and 7.00 pm, whilst the children are in the care of the other parent.

Family therapy
25.Upon the making of these orders:
(a)the Father shall make an appointment at the earliest available time for the family to continue to attend family therapy with Ms V (therapist) for the purpose of reportable therapeutic family counselling; and
(b)each of the parties shall do all things necessary to cause the family (the parents and children) to continue to attend upon Ms V for such period of time as recommended by her.

26.Each of the parents shall co-operate with all reasonable requests made by the therapist, (if any are made), for the involvement of that party, and/or the children by provision of information and in any other way.

Medical
27.Each parent shall keep the other parent informed of the children’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the parent in whose care the children are in at the relevant time to inform the other parent as soon as practicable) and after the moratorium, shall do all things necessary to enable the involvement of the other parent in the child’s medical care, inclusive of facilitating timely communication with the child’s treating health practitioners.

28.Save as otherwise provided in these Orders, the parents each ensure that they obtain the written consent of the other parent prior to taking either of the children to any counsellor, psychologist, psychiatrist or other like specialist except for the children’s current treating medical practitioners or in the case of an emergency.
29.After the moratorium, both parents be at liberty to attend each child’s medical and/or psychological appointments and, where practicable, the parent who organises the medical appointment to provide the other parent no less than seven (7) days’ notice of the appointment.
30.After the moratorium, each of the parents shall forthwith do all acts necessary to authorise any medical practitioners and/or like health professionals treating either child to be able to communicate directly with each parent.

Specific issues
31.Each parent keep the other parent informed of the children’s progress at school as well as the timing of all parent/teacher appointments, co-curricular activities involving the children so as to provide the other with the opportunity to attend.
32.The parent who receives school notices, information, newsletters, school reports, school photographs shall provide copies of each such document to the other party within 7 days of receipt by that parent.
33.Each parent shall do all things necessary to enable the other to be registered to access any parent portal or like online communication platform maintained by the school attended by the children or either one of them.
34.After the moratorium, for the purposes of schooling of the children, each parent be at liberty to communicate directly with the schools about all issues of the educational health and welfare of either child and each parent be at liberty to attend any event, function or meeting at which parents of a child would usually attend.
35.Each parent shall advise the other of any change in his/her contact telephone number, email or residential address within 24 hours of such change occurring.
36.Each parent is restrained from making critical and/or derogatory remarks about the other or members of the other’s family within the presence or within the hearing of the children, or either of them, and that the parents each do all acts that are reasonably necessary to ensure that no other person makes any critical or derogatory remarks about one parent and/or members of the other parent’s family in the presence or within the hearing of the children, or either of them.
37.Each parent shall inform the other parent if they wish to introduce a new partner (with whom they have been in a relationship for at least four months) to the children and to offer the other parent the opportunity to meet the new partner before the children do.
38.The father be restrained from consuming alcohol whilst the children are in his care pursuant to these orders.
39.The parents will each do all acts and things to encourage and not undermine each child’s relationship with the other parent and be respectful in all their communications with each other parent.
40.Each parent is at liberty to provide to the children’s school and/or medical practitioners, a copy of these Orders.

Interstate and overseas travel
41.After the moratorium period, in the event that either parent seeks to take either or both of the children on an interstate or overseas holiday, the parent so wishing to take the children shall provide the other parent with:
(a)at least one (1) month’s written notice (for overseas travel) and 2 weeks’ notice (of interstate travel) of the proposed holiday; and
(b)all relevant details relating to the proposed holiday and the children’s itinerary, including flights, accommodation and contact telephone numbers;

and neither parent will unreasonably withhold consent to such travel.
42.Upon request by either parent, the other parent shall do all acts and sign all such documents as are necessary to renew or replace either of the children’s passports at the parent’s joint and equal expense, with each parent to pay any and all costs of obtaining any other necessary travel documents required for each child’s intended travel with the children.
43.The children’s passports be held by their Father at all times the children are not travelling.
44.The Father provide the Mother with the children’s passports:
(a)where necessary in order for the Mother to obtain a visa or other travel document and thereafter the passports be returned to the Father; and
(b)not less than 14 days before any intended overseas travel date and the Mother return the passports to the Father within 7 days of her return to Australia with the children.

ANNEXURE B
Mothers Minute of Proposed Final Orders
Parenting
1.That the mother and father have joint long-term decision-making responsibility of the children, X born 2012 and Y born 2013.
2.That the children live with the mother.
3.That the children spend time with their father each alternate Thursday from 5.30pm to 7.00pm.
4.That the children otherwise spend time with the father in accordance with their wishes.

Special days
5.The children spend time with the father on special days, as agreed in writing and in default of agreement as follows:
(a)Christmas eve from 11:00pm to 1:00pm in 2024 and Christmas Day in 2025 from 11:00pm to 1:00pm and each alternate year thereafter.
(b)On the children’s birthday from 5:00pm to 7:00pm.
(c)On Father’s Day from 11:00am to 1:00pm.
(d)On the father’s birthday from 5:00pm to 7:00pm.

Changeover
6.That the mother will deliver the children and collect the children to and from a venue nominated by the father subject to the venue being within 5km of the mother’s residence and if the venue is more than 5km of the mother’s residence, changeover take place at the mothers home.

Communication
7.That the children communicate with the father and the mother by telephone should they desire to do so during the time they are spending with the other parent.
8.For the purpose of telephone communication:
(a)The father will ensure that the children have access to a land line and or mobile to contact the mother; and
(b)The mother will sure that the children have access to a land line and or mobile to contact the father.

9.The father be restrained by injunction from consuming any alcohol 24 hours prior to the children coming into his case, or consuming alcohol while the children are in his care, or being under the influence of alcohol while the children are in his care.

Medical
10.That each parent keep the other parent informed of the children’s heath and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the parent in whose care the children are in at the relevant time to inform the other parent as soon as possible) and ensure the involvement of the other parent in the child’s medical care, inclusive of timely communication with the child’s treating health practitioners.
11.The parents each ensure they obtain the written consent of the other parent prior to taking either of the children to any counsellor, psychologist, psychiatrist, or other like specialist except for the children’s current treating medical practitioners or in the case of an emergency.
12.Both parents be at liberty to attend each child’s medical and/or psychological appointments save for routine GP check-ups and similar appointments for minor ailments.
13.The parents agree to forthwith do all things necessary to authorise any medical practitioners and like health professionals treating the children to be able to communicate directly with both parents.

Specific issues
14.The father be and is hereby restrained from physically disciplining the children or either of them.
15.That each parent keep the other parent informed of the children’s progress at school as well as the timing of al parent/teacher appointments, co-curricular activities involving the children so as to provide the other with the opportunity to attend.
16.The party that receives school notices, information, newsletters, school reports, school photographs is to provide copies of them to the other party within 7 days of receipt by that party and to be registered to access any parent portal or like online communication platform maintained by the school attended by the children or either one of them.
17.For the purposes of all schooling of the children, each party be at liberty to communicate directly with the school about all issues of the education, health and welfare of either child and each party be at liberty to attend any event, function, or meeting at which parents of a child would normally be entitled to be present.
18.That the parties advise the other of any change of their contact telephone number, email or residential address within 24 hours of such change occurring.
19.That the parties not criticise or denigrate the other parent or the other parents family in the presence of or within hearing of the children or either one of them.
20.That neither parent will take illegal drugs within 24 hours of the children coming into their case pursuant to these orders nor whilst the children are in their care pursuant to these orders.
21.That the parents will encourage and not undermine each child’s relationship with the other parent and to be respectful in all their communications with each other parent.
22.Rach parent is at liberty to provide to the childrens school, medical practitioner, and counsellor a copy of these orders.

Travel
23.In the event that either of the father or the mother intends to travel with the children outside of the Commonwealth of Australia, they shall not less than 45 days notify the other in writing as to:
(a)The country/ies to which the children will travel and with whom the children will travel;
(b)The airline/s and flight details which the children will travel;
(c)The date upon which the children will depart from and return to the Commonwealth of Australia;
(d)The addresses at which the children shall reside and a telephone number on which the other party can communicate with the children and not less than 14 days prior to the departure provide a final itinerary for the children.

24.In the event the mother travels overseas, in Victoria or interstate, paragraphs 3 and 5 are suspended and the mother will provide the father with makeup time and such time is not to be consecutive and to be within 2 months of the children’s return from their travel.

Passports
25.That the father and mother will do all acts and things to ensure that at all times the children have up to date passports that have not expired and the costs of obtaining such passports be born equally.
26.The passports of the children will be held by the mother.

Witness fees
27.That the father pay 100% of the costs for the following witnesses to attend court at final hearing when such fees are due and payable;
(a)Dr H;
(b)Ms M;
(c)Ms V;
(d)Ms DD; and

(e)Dr T.

File number(s):	MLC 9701 of 2021
Judgment of:	WILLIAMS J
Date of judgment:	12 December 2024
Catchwords:	FAMILY LAW – PARENTING – Where the father seeks a change of residence and imposition of a six week moratorium and thereafter for the children to spend five nights a fortnight with the mother – Where the mother proposes the children remain living with her and spend limited time with the father – Where the children’s rejection of the father is irrational and an anxiety provoked reaction to both parents – Consideration of the mental health impacts of both proposals on the children – Where the mother is unable to facilitate a relationship between the children and their father – Where the children are not at risk in the fathers care – Where it is in the childrens best interests to have a meaningful relationship with both parents – Orders made substantially in accordance with the fathers proposal – Change of residence – Imposition of a six week moratorium and change of residence – Order for joint long term decision making responsibility for the children
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) pt VII, ss 4, 4AB, 60B 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 65L Family Law Amendment Act 2023 (Cth)
Cases cited:	Mazorski v Albright (2007) Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	265
Date of hearing:	6-8 August 2024 and 6 September 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Nehmy SC
Solicitor for the Applicant:	Suke & Associates
Counsel for the Respondent:	Mr Puckey KC
Solicitor for the Respondent:	CE Family Law

MLC 9701 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VITERI Applicant
AND:	MS MANFREDI Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	12 DECEMBER 2024

DATE	EVENT
1976	Ms Manfredi born (aged 48) (Mother)
1977	Mr Viteri born (aged 47) (Father)
2005	Parties commence cohabitation. They do not marry.
2007	D born – passed away in infancy. Mother attends Ms E for counselling until 2020.
2012	X born (aged 12) (X).
2013	Y born (aged 11) (Y).
August 2018	The parties attend couples counselling with Ms F. They also each attend upon Ms F separately.
3 November 2019	Parties separate.
December 2019– May 2021	Parties attend 3 mediations with Ms G.
13 December 2019	Parties negotiate parenting plan providing, inter alia, that the children live with mother and spend three nights per fortnight with father and father does not consume more than two standard drinks in any 24-hour period whilst the children are in his care, to commence on 30 January 2020. The parties attend three mediations with Ms G, entering into a parenting plan that was implemented and updated after the sessions, however, an impasse was reached in late 2020. The parties participate in a further “lawyer led mediation”, convened on 25 May 2021, without result, (being 4 mediations in total).
2020	Mother arranged for children to see Ms F, whom the parties had seen for relationship counselling.
24 March 2020	Parties negotiate further parenting plan providing, inter alia, that children live with mother, spend four nights per fortnight with father and father not consume more than two standard drinks in any 24 hour period whilst the children are in his care.
31 August 2021	Father files Initiating Application seeking parenting orders. Father seeks, inter alia, equal shared parental responsibility, children live with him five nights per fortnight, half of school holidays.
3 November 2021	Mother files Response to Initiating Application seeking, inter alia – children live with mother and spend three nights per fortnight with father. 2-3 night blocks with the father during the school holidays and special days, fathers time subject to him providing clear breathalyser samples, father undertake hair follicle testing.
10 November 2021	First Return before Senior Judicial Registrar Kourtis. Parties are to see Dr H for a Family Report on 8 December 2021. Matter adjourned to 22 December 2021 before Judicial Registrar Glass.
21 December 2021	Family Report prepared by Dr H.
22 December 2021	Interim Defended Hearing before Senior Judicial Registrar Glass.
24 December 2021	Judgment Delivery before Senior Judicial Registrar Glass. Orders pronounced by the Court, Inter alia, the children spend time with the father, five nights a fortnight together with half of the term and summer holidays.
December 2021	Mr Viteri takes the children on holiday to Queensland to visit their paternal family for thirteen nights and returns them to Ms Manfredi in January 2022.
31 December 2022	Mother files Application for Review of specific paragraphs of the Order made 24/12/2022 but not sealed by the court until 13/1/2023
11 January 2022	Mr Viteri undertakes a CDT test and provides and negative result.
1 February 2022	CE Family Lawyers ceases to act for mother.
2 February 2022	K Lawyers are instructed by the mother.
9 February 2022	Directions Hearing before Senior Judicial Registrar Kourtis. Matter adjourned is 31 March 2024 before Judge Blake.
Early 2022	Father admits to slapping X’s arm, leaving a red mark 8 hours after the incident. This incident was reported to DFFH by the children’s school in early 2022.
Early 2022	Father admits to hitting X on the shoulder after she accidentally telephoned of his clients while driving in the car. This incident was reported to DFFH by the children’s school in early 2022.
Early 2022	X interviewed by police in the presence of their teacher, Ms L.
30 March 2022	Mother files Application in a Proceeding seeking, inter alia, DFFH prepare S69ZW report, father’s time be suspended.
31 March 2022	Interim Defended Hearing before Judge Blake Interim parenting orders by consent (March 2022 Orders) that children live with Mother and spend time with Father 5 nights per fortnight and for one half of the school holidays and special days Orders for hair follicle testing and the parties to see Ms M. Mother’s Application for Review dismissed.
April 2022	Mr Viteri takes children to Adelaide to visit his brother and their cousins for three (3) nights and returns them to Ms Manfredi’s care in April 2022.
26 April 2022	The parties attend upon Ms M.
23 May 2022	The parties attend upon Ms M.
30 May 2022	Interlocutory property orders by Senior Registrar Kourtis. Matter otherwise adjourned to 28 September 2022.
6 June 2022	Children commence seeing Ms N, psychologist.
June 2022	Mr Viteri takes the children to City O for seven (7) nights.
30 June 2022	Ms Manfredi files Amended Response to Initiating Application.
1 July 2022	The parties and the children attend upon Ms M.
27 July 2022	The parties attend upon Ms M.
August 2022	Mr Viteri takes the children to Town P for three (3) nights.
29 August 2022	The parties attend upon Ms M.
18 September 2022	Application in a Proceeding filed by Ms Manfredi – Defended Hearing before Justice Williams. Matter adjourned to 21 September 2023 for an interim defended hearing (parenting). Matter adjourned to a five-day hearing in March 2024.
23 September 2022	Hair follicle test for alcohol and illicit drugs. Test was positive for alcohol.
28 September 2022	Directions Hearing before Senior Judicial Registrar Kourtis. Orders made, inter alia, that the parties have a mediation with Mr Q on 16 November 2022.
November 2022	Dr S prepares report responding to questions surrounding the father’s Hair Follicle Testing results. He advises, in part that the level detected is consistent with consumption of an average of 6 or more standard drinks daily.
Late 2022	Children accepted as patients of the Child and Youth Mental Health Services (CYMHS)
14 November 2022	Ms M releases report.
14 November 2022	Mr Viteri undertakes CDT test and produces positive result: excessive consumption.
16 November 2022	Mediation occurs with Mr Q. The matter does not resolve.
21 November 2022	Mention before SJR Kourtis – interim consent orders – financial and listed for Readiness Hearing.
November 2022	Mr Viteri takes the children camping in Region R for two (2) nights.
Late 2022	Children attend intake with CYMHS.
12 December 2022	Chambers Hearing before Senior Judicial Registrar Kourtis. Orders made for the parties to see Dr T.
19 December 2022	Parties attend upon Dr T for psychiatric assessments. Dr T releases his reports on 15 January 2023.
23 December 2023	The children spend time with Mr Viteri for seven (7) nights during the school holidays until 30 December 2022.
7 January 2023	The children spend time with Mr Viteri for seven (7) nights during the school holidays until 14 January 2023.
15 January 2023	Dr T prepares psychiatric report for both parties.
23 January 2023	The children spend time with Mr Viteri for three (3) nights during the school holidays until 26 January 2023.
10 Feb 2023	Chambers Hearing before Senior Judicial Registrar Kourtis. Interim Orders providing, inter alia release of S67Z report to the family consultant.
March 2023	Children conclude attending upon Ms N (psychologist).
2 March 2023	Mr Viteri undertakes a CDT test and provides a negative result. Ms Manfredi questions the result due to damaged sample noted in report.
March 2023	Ms Manfredi travels overseas.
9 March 2023	Y does not attend time with Mr Viteri.
29 March 2023	Parties attend Dr H for an updated Family Report.
6 April 2023	The children were to spend the first half of the Easter holidays with Mr Viteri. Time did not proceed.
22 April 2023	Parties attend further sessions with Dr H.
1 May 2023	Parenting session with Ms N, she recommends parents adopt small steps approach and hold stop overnights.
22 May 2023	Updated Family Report prepared by Dr H.
7 June 2023	Mr Viteri undertakes a CDT test and provides a negative result. Ms Manfredi questions the result due to damaged sample noted in report.
16 June 2023	Father files Further Amended Initiating Application seeking inter alia, financial orders.
22 June 2023	Judge Harland – Readiness Hearing – Orders made providing, inter alia – Trial set 18/9/23 and trial directions.
30 June 2023	Mother files Further Amended Response to Initiating Application seeking financial orders.
27 July 2023	K Lawyers files a notice of ceasing to act. Mother becomes self‑represented.
9 August 2023	Ms Manfredi sends an email requesting Mr Viteri consent to adjourn the Final Hearing with a Mention date in eight weeks’ time.
11 August 2023	SAA send email to Ms Manfredi confirming Mr Viteri does not consent to an adjournment.
24 August 2023	Ms Manfredi directly emails Dr U seeking to obtain her availabilities for a program. Ultimately the parties do not participate in the program.
28 August 2023	Father files his trial material in accordance with the Trial directions
1 September 2023	Mother files Application in Proceeding for adjournment of trial.
8 September 2023	Father files Response to Application in a Proceeding.
14 September 2023	Mr Viteri undertakes a CDT test and provides a positive result: low to moderate consumption.
18 September 2023	Final Hearing before Justice Williams (five days) set down to commence. Ms Manfredi’s application for adjournment is dismissed. Trial is adjourned to 4 March 2024. Parenting to proceed by way of an Interim Defended Hearing on 21 and 22 September 2023. Ms Manfredi subsequently attends Court on 21 September 2023 and appears self-represented. Matter is unable to proceed. Orders made for, inter alia, the parties and the children to attend upon Ms V for reportable family therapy.
2 October 2023	CE Family Lawyers file Notice of Address for Service on behalf of Mother.
3 October – 16 November 2023	Parties and children attend upon Ms V for reportable family therapy (seven sessions in total).
5 October 2023	Ms Manfredi and the children meet with Ms V however the children’s involvement is limited.
8 October 2023	Mr Viteri is to spend time with the children in accordance with Orders made 21 September 2023 (September 2023 Orders). This visit does not proceed.
15 October 2023	Mr Viteri is to spend time with the children in accordance with the September 2023 orders. This visit did proceed, albeit in a limited capacity and not in accordance with the September 2023 Orders.
22 October 2023	Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit does not proceed.
29 October 2023	Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit does not proceed due to Ms V advising it should not go ahead.
2 November 2023	Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit did proceed, albeit in a limited capacity and not in accordance with the September 2023 Orders.
9 November 2023	Mr Viteri is to spend time with the children in accordance with the September 2023 Orders. This visit did proceed, albeit in a limited capacity and not in accordance with the September 2023 Orders.
10 November 2023	Mother files Application in Proceeding (sealed 13/11/23) seeking, financial Orders.
14 November 2023	Father undertakes hair follicle test for alcohol and illicit drug use. Result was positive for alcohol.
24 November 2023	Father files Response to Application in Proceeding seeking, financial orders.
28 November 2023	Ms V prepares report concerning family therapy.
29 November 2023	Application in a Proceeding filed by Ms Manfredi – Mention before Justice Williams.
8 December 2023	Application in a Proceeding filed by Ms Manfredi – Seeking interim financial support.
13 December 2023	Interim Defended Hearing before SJR Conlan
January 2024	X commences Year 7 at W School. Y commences Grade 5 at Z School.
2 January 2024	Mr Viteri spends time with the children at a shopping centre for two (2) hours
7 January 2024	Mr Viteri spends time with the children at a recreation centre for two (2) hours
11 January 2024	The parties were to attend upon Ms V. Ms Manfredi does not attend this appointment as she was unwell. Mr Viteri proceeded with this appointment.
15 January 2024	Mr Viteri spends time with the children at a shopping centre to watch a movie.
18 January 2024	Mr Viteri undertakes a CDT test and provides a negative result.
26 January 2024	Mr Viteri spends time with the children at his home for two and a half hours.
30 January 2024	The parties attend upon Ms V
1 February 2024	Mr Viteri spends time with the children for three hours and 15 minutes.
Early 2024	Ms Manfredi takes Y to the Doctor and a report is made by the Doctor to DFFH
7 February 2024	CE Family Lawyers send correspondence to Suke & Associates regarding an “incident” with Y in early 2024 and that a report to DFFH has been made
12 February 2024	Father files Further Further Amended Initiating Application pursuant to Trial Directions.
15 February 2024	Mr Viteri spends approximately 40 minutes with the children after Ms Manfredi drops them at his house for a swim.
21 February 2024	Mother files Further Further Amended Response to Initiating Application pursuant to Trial directions.
27 February 2024	Y attends Dr AA’s rooms.
29 February 2024	X attends Dr AA’s rooms.
4 – 8 March 2024	Defended Hearing before Justice Williams – Final Orders for property. Parties enter into a binding child support agreement and a spousal maintenance binding financial agreement. Parenting matters adjourned to final hearing commencing 6 August 2024.
8 March 2024	Between 8 April and 17 July 2024, Mr Viteri spent limited time with the children on approximately eight (8) occasions, for a couple hours at a time.
14 March 2024	The parties and the children are scheduled to meet with Ms V. Ms Manfredi sends an email on 12 March 2024 indicating X was ill meeting rescheduled.
21 March 2024	Family session with Ms V. The session was unsuccessful. Ms V suspends therapy.
3 April 2024	Mr Viteri has a single appointment with Ms V. Ms V indicated she wished to meet with Ms Manfredi the following week.
27 April 2024	Both children attend Dr AA’s rooms.
13 May 2024	Mr Viteri undertakes a CDT test and provides a negative result.
26 May 2024	Ms V releases third report.
4 June 2024	Mr Viteri (and Ms BB) attends upon Dr CC.
6 August 2024	Final hearing before Justice Williams. All extant applications adjourned to 06/09/24.
6 September 2024	Final Hearing (last day) to commence before Justice Williams.

Exhibit Number	Description
F-1	Three hair analysis tests of the father dated 14 September 2023, 16 January 2024, and 13 May 2024.
F-2	CDT test results.
F-3	Letter of Dr AA dated 6 August 2024.
F-4	Various documents pursuant to the fathers ‘List of Exhibits to Tender’.
J-1	Joint chronology.