Volpe & Capo - [2022] FedCFamC1F 427

Federal Circuit and Family Court of Australia
(DIVISION 1)
Volpe & Capo [2022] FedCFamC1F 427

File number(s): SYC 7862 of 2019

Judgment of: BRASCH J

Date of judgment: 15 June 2022

Catchwords:
FAMILY LAW – CHILDREN – Spend time with – An application sought by the father for an equal time arrangement – Where the children had been spending five nights a fortnight with the father – Order for the fathers’ time to be increased to six nights a fortnight.

FAMILY LAW – CHILDREN – Parental responsibility – An application sought by the mother for sole parental responsibility – Order made for equal shared parental responsibility.

Legislation: Family Law Act 1975 (Cth) s 60CA; ss 60CC(2)(a)-(b); ss 60CC(3)(a)-(j); s60CC(3)(l)-(m); ss 60CC(6); s 61B; s 60I(1); s 65DAE; s65DAA.

Cases cited:
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

Carr v Baker (1936) 36 SR (NSW) 301;

Cotton & Cotton (1983) FLC 91-330;

Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127

Loddington & Derringford (No 2) [2008] FamCA 925;

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405;

Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262; [2000] NSWCA 29

T &N (2001) 31 Fam LR 281; [2001] FMCAfam 222

Division: Division 1 First Instance

Number of paragraphs: 141

Date of last submission/s: 9 June 2022

Date of hearing: 7 – 9 June 2022

Place: Sydney

Counsel for the Applicant: Mr Havenstein

Solicitor for the Applicant: King and York Lawyers

Counsel for the Respondent: Litigant in person

Counsel for the Intervener: Ms Carr

Solicitor for the Intervener: Stidwill Solicitors
ORDERS

SYC 7862 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VOLPE

Applicant

AND:
MS CAPO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

15 JUNE 2022

THE COURT ORDERS BY CONSENT THAT:
Special Occasions (save for the children’s birthdays)
1.The children, X, born 2013, and Y, born 2015 (“the children”), shall spend time with each parent on special occasions as agreed between the parties and, in default of agreement, as follows:
(a)where Father’s Day falls upon a weekend on which the children would not normally spend time with the father, the children will spend the weekend of Father’s Day with the father in substitution for the time which they would normally have spent with the father on the weekend immediately following Father’s Day;
(b)where Mother’s Day falls upon a weekend on which the children would normally spend with the father, the children will spend the weekend of Mother’s day with the mother in substitution for the time which they would normally have spent with the mother on the weekend immediately following Mother’s Day.
(c)The children shall spend time with each parent on the parents’ birthdays as follows:
(i)if a parent’s birthday falls on a school day from 3.00 pm on the day of the parent’s birthday until 9.00 am the following day;
(ii)if the parent’s birthday falls on a non-school day from 9.00 am on the day of the parent’s birthday until 9.00 am the following day.

(d)During Christmas as follows:
(i)in odd numbered years: with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day;
(ii)in even numbered years: with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day.

(e)During New Years as follows:
(i)in odd numbered years: with the mother from 3.00 pm on New Year’s Eve until 3.00 pm on New Year’s Day, and with the father from 3.00 pm on New Year’s Day until 3.00 pm on 2 January;
(ii)in even numbered years: with the father from 3.00 on New Year’s Eve until 3.00 pm on New Year’s Day, and with the mother from 3.00 pm on New Year’s Day until 3:00 pm on 2 January.

(f)During Orthodox Christmas as follows:
(i)in odd numbered years: with the mother from 3.00 pm on Orthodox Christmas Eve until 3:00 pm on Orthodox Christmas Day, and with the mother from 3.00 pm on Orthodox Christmas Day until 3.00 pm the day afterwards;
(ii)in even numbered years: with the father from 3.00 pm on Orthodox Christmas Eve until 3.00 pm on Orthodox Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm the day afterwards.

(g)During the Easter Long Weekend as agreed between the parties and, failing agreement, as follows:
(i)in even numbered years: with the father from 3.00 pm on Good Friday until 3.00 pm on Easter Sunday; and with the father from 3.00PM on Easter Sunday until 9.00 am the following Tuesday;
(ii)in odd numbered years: with the mother from 3.00 pm on Good Friday until 3.00 pm on Easter Sunday; and with the mother from 3.00 pm on Easter Sunday until 9.00 am the following Tuesday.

(h)During Orthodox Easter as agreed between the parties and, failing agreement, as follows:
(i)in even numbered years: with the father from 3.00 pm on Orthodox Good Friday until 3.00 pm on Orthodox Easter Sunday; and with the mother from 3.00 pm on Orthodox Easter Sunday until 9.00 am the following Tuesday;
(ii)in odd numbered years: with the mother from 3.00 pm on Orthodox Good Friday until 3.00 pm on Orthodox Easter Sunday; and with the father from 3.00 pm on Orthodox Easter Sunday until 9.00 am the following Tuesday.

(i)That the children have audio-visual communication with the parent with whom they are not already spending time each evening from 5.00 pm until 5.30 pm and, for the purposes of this order:
(i)the parent who is not spending time with the children shall dial the telephone number/contact handle of the other parent with whom the children are spending time, or the child’s telephone number/contact handle directly should they have their own;
(ii)each parent shall ensure that the children have access to a charge, Wi-Fi and/or data-accessible phone with audio-visual communication capabilities;
(iii)each parent shall ensure that they afford the children privacy and freedom from interference from them or anyone else; and
(iv)each parent shall facilitate additional communication with the other at any times that the children express a wish to do so.

School Holidays
2.The children shall spend time with each parent on a week about basis, according to the methodology provided at Order 17.

Changeover
3.Changeover shall occur at a location as agreed between the parties and, in default of agreement:
(a)If the children are at school, or it is a school day, the parent with whom the children are to spend time shall collect them from school;
(b)If the children are not at school, or it is a non-school day, the parent with whom the children are to spend time shall collect the children from the other parent’s residence.

Travel
4.The parents are permitted to temporarily travel with the children from the Commonwealth of Australia for the purposes of overseas travel and holidays provided that the parent proposing the travel (“the travelling parent”) notifies the other parent (“the non-travelling parent”) no fewer than 28 days in advance of the proposed travel and provides the non-travelling parent with the following information:
(a)written details of the names and places outside of the Commonwealth of Australia where it is proposed the children will be travelling, and the proposed departure and arrival dates to and from each country to which it is intended travel will occur;
(b)a copy of all return airline and or shipping tickets or other such details or documents if no ticket is issued, for each child evidencing each child's return to the Commonwealth of Australia, together with copies of all written itineraries; and
(c)written notice of the contact telephone numbers and address of all places where the children will be staying overnight when outside of the Commonwealth of Australia.

5.That, unless otherwise agreed by the parties in writing, the following shall apply in respect to travel with the children outside of the Commonwealth of Australia:
(a)the travelling parent can only travel with the children during school holiday periods;
(b)the travelling parent can travel with the children for up to two (2) consecutive weeks provided that:
(i)such travel does not occur more than once per year.
(ii)In the event that the travelling parent travels with the children during periods that would normally otherwise be spent with the non-travelling parent, the travelling parent shall arrange make-up time equal to the time missed.

Specific issues
6.Each parent shall notify the other of:
(a)changes to their residential address and/or mobile phone number(s) landline telephone number(s) and email address within 48 hours of all changes to the same;
(b)immediately upon becoming aware of the children, or any of them, being involved in a medical emergency, being seriously ill or admitted to hospital; and
(c)each party shall keep the other party informed at the earliest opportunity of all medical and health issues affecting any and all of the children, including any and all medical treatment that has been obtained, sought, or is required for a child.

7.That forthwith upon making of the orders and continuously thereafter, the parents shall each provide all authorities and shall give all necessary consents to ensure that each child's treating medical practitioners authorise and direct with, and provide information and copies of documents directly to each parent upon either parent’s respective request and at the requesting parent’s own cost.
8.That forthwith upon the making of the orders and continuously thereafter, the parents shall provide all authorities and shall give all necessary consents to ensure that the principal of each child's school (and thereafter each child's school teachers) are authorised and directed to communicate with and provide information and copies of documents and any other information or thing usually available to a parent directly to each of the parents upon either parent’s respective request and at the requesting parent’s own cost.
9.Both parties shall be at liberty to attend:
(a)all school functions and events that allow for parental attendance along with all special event days, the children, or any of them, may be involved in or participate in;
(b)all sporting activities and events where the children, or any of them, is involved or is participating in;
(c)parent/teacher interviews (to attend separately unless otherwise agreed by the parties in writing);
(d)all extracurricular activities and performances relating to the children; and
(e)the parent with the care of the child or children on that day will cause that child to be delivered to such an activity or event.

10.That the parents be and are hereby restrained from:
(a)discussing any aspect of these proceedings with the children or showing the children any material relating to these proceedings including any Applications, Responses, Affidavits or Reports;
(b)denigrating or criticising the other parent to the children or permitting any other person to do so within the presence or hearing of the children;
(c)physically disciplining the children;
(d)interrogating the children or attempting to unreasonably elicit information about time spent with the other parent; and
(e)embroiling the children in the conflict between the parties or otherwise using them as a vessel for communication between them.

Selection of the children’s secondary school
11.Prior to the children commencing their Year 7 studies, the parties are to confer, exercising the parties’ equal shared parental responsibility pursuant to Order 13 herein, as to which secondary school the children should attend and if the parties are unable to reach agreement they are to mediate the matter with the assistance of a Family Dispute Resolution Practitioner prior to the end of Term 1 in the year preceding each of the children’s commencement of secondary school.

ICL’s costs
12.That within 28 days of the date of these orders, each party shall pay to Legal Aid NSW the sum of $5642.25, being equal shares of the costs of the Independent Children’s Lawyer in the parenting proceedings between the parties.

THE COURT ORDERS THAT:
Parental responsibility
13.The parents shall have equal shared parental responsibility in relation to all major long-term decisions pertaining to the children: X, born 2013, and Y, born 2015, being the following major long-term decisions:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

14.Pursuant to s 65 DAE of the Family Law Act 1975 (Cth) whilst the children are in each parent’s care, that parent is not required to consult the other about decisions relating to the day-to-day care of the children.

Live with and Spend Time Arrangements
15.The children live with the mother.
16.The children shall spend time with the father as agreed between the parties and, in default of written agreement, on a fortnightly cycle during the NSW school terms as follows:
(a)in Week One: from the conclusion of school Wednesday, or 3.00 pm on non‑school attendance days, until the commencement of school Thursday, or 9.00 am if a non-school day;
(b)in Week Two: from the conclusion of school on Wednesday, or 3.00 pm on non‑school attendance days, until the commencement of school on the following Monday or 9.00 am if a non-school day.

School Holiday methodology
17.Unless otherwise agreed between the parties in writing, the following will apply with respect to calculating school holidays:
(a)school holidays are to be calculated in accordance with the calendar of the school that the children are attending;
(b)the mother’s and father’s time pursuant to Orders 15 and 16 is suspended for the duration of the school holiday period;
(c)if the last week of school term coincides with the Week One term time parenting arrangements, then:
(i)the father will collect the children from the mother’s residence at 9.00 am the Saturday that holidays start and the children will stay with him for a week, to the following Saturday, when the mother shall collect the children at 9.00 am from the father’s resident;
(ii)save for special occasions provided for in this Order, this Saturday to Saturday week about arrangement with each parent shall continue until the Saturday immediately before commencement of the next term.

(d)If the last week of school term coincides with the Week Two term time parenting arrangements, then:
(i)the mother will collect the children from the father’s residence at 9.00 am the Saturday that holidays start and the children will stay with her for one week;
(ii)save for special occasions provided for in this Order, this Saturday to Saturday week about arrangement with each parent shall continue until the Saturday immediately before commencement of the next term.

(e)On the Saturday immediately before commencement of the next term:
(i)if the children were with the father in the last week of school holidays, then, Week One term time parenting arrangements will resume, and the mother will collect the children from the father’ residence at 9 00 am on the Saturday immediately before commencement of the next term;
(ii)if the children were with the mother in the last week of school holidays, then, Week Two term time parenting arrangements will apply, and the father will collect the children from the mother’ residence at 9 00 am on the Saturday immediately before commencement of the next term.

Children’s birthdays
18.The children shall spend time on their birthdays with the parent with whom they are not already spending time pursuant to those orders as follows:
(a)If a child’s birthday falls on a school day from 3:00 pm to 6:00 pm;
(b)If a child’s birthday falls on a non-school day from 10.00 am to 2.00 pm

Non-travelling dates
19.With respect to the travel referred to in Orders 4 and 5, such travel shall not occur on 25, 26 or 27 December, unless agreed by the parties in writing.

Extra-curricular activities and invitations to the children
20.In the event one parent (“the enrolling parent”) enrols the children in any out of school activities which will take place in the other parent’s time, and to which that other parent has not consented (“the non-consenting parent”), then:
(a)the non-consenting parent is not required to take the children to those activities; and
(b)the parents are at liberty to agree that the enrolling parent may take and return the children to and from those activities when in the non-consenting parent’s care, so that the children can participate.

21.When either party receives a birthday party, play date or like invitation for either child that will occur in the other parent’s time, the parent who receives the invitation is to text or email a copy of that invitation within 24 hours of receiving any such invitation.

Health providers
22.In the event that either child requires medical or dental treatment other than that of a minor nature and the parties are unable to agree as to whether to such medical or dental treatment is necessary or in the best interests of the child, the parties shall accept the advice and guidance of the medical or dental practitioner who is charged with providing treatment to the child being;
(a)the B Medical Centre for medical issues (or other medical centre as might be agreed between the parents); and
(b)for dental work, within 28 days of the date of this order, the mother will identify three dental practices for the father to consider, and he will select one within 28 days of receipt of the mother’s list. Both parents are to communicate on this issue by email.

Other
23.All previous parenting orders are discharged.
24.Any outstanding applications are dismissed.

The Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Volpe & Capo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
Introduction

This is an application for parenting orders made by the father, Mr Volpe born in 1987 (“the father”) in relation to X born in 2013 and Y born in 2015 (“the children”). The mother is Ms Capo born in 1988 (“the mother”).

Proceedings were initiated by the father on 20 November 2019. At the final hearing, the father sought orders for equal shared parental responsibility and an equal time arrangement, such that the children would spend four nights with the father in Week One and three nights with the father in Week Two.
The mother, who was unrepresented throughout the proceedings, sought orders outlined in her Case Outline for sole parental responsibility and that the children spend time with the father one night a fortnight from after school (or 3.00 pm) Friday until 5.00 pm Saturday.
At the time of the hearing, the children were living with the mother and spending five nights a fortnight with the father. That arrangement was the product of a court order of Senior Judicial Registrar Hoult on 20 December 2021.
To their very great credit, by the end of the hearing the parties were able to agree on many specific issues and special occasions orders. I make those orders by consent because they are in the children’s best interest. I say that because they are practical proposals and fit within the wider themes of parental inclusion and involvements in the children’s lives, as expressed by the Family Consultant, Ms C, (“the Family Consultant”).
At the start of the hearing, I asked the parties to provide me with a List of Issues for determination at trial. This document became Court’s Exhibit 1 and provides:
·Whether the parents ought equally share parental responsibility, or the mother have sole parental responsibility;
·Whether there has been family violence perpetrated against the mother by the father;
·Whether either parent has exposed the children to physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence;
·What time arrangements should be made for the children to spend time with both parents; and
·Whether the mother has capacity to facilitate a meaningful relationship between the children and the father.
Documents relied upon
The applicant father relied upon the following documents:
·Amended Initiating Application filed 17 April 2020;
·Affidavit of Mr Volpe filed 29 April 2022; and
·Case outline filed 2 June 2022.
The father sought orders as set out in his Case Outline, not his Amended Initiating document.
The respondent mother relied upon the following documents:
·Response to Initiating Application filed 25 April 2020
·Affidavit of Ms Capo filed 21 January 2020;
·Affidavit of Ms Capo filed 6 April 2020; and
·Case Outline handed up to me on the first day and marked Mother’s Exhibit 1.
The mother also sought orders as set out in her Case Outline, not her Response.
The Independent Children’s Lawyer (“ICL”) relied upon the following documents:
·Family Report prepared by Ms C dated 16 June 2021, marked Court’s Exhibit 2;
·CDC Memorandum (“CDC Memo”) dated 27 February 2020, marked Court’s Exhibit 3;
·Case Outline filed 3 June 2022; and
·Minute of Proposed Order, handed up on the last day of hearing and marked ICL’s Exhibit 4.
A joint tender bundle was prepared by the ICL and relied upon by all parties, but as I indicated to the parties at the start of and during the hearing, I would only accept into evidence and mark as an exhibit those documents which were actually tendered. As a result, a total of 12 exhibits were tendered into evidence.
Only the parties and the Family Consultant were cross-examined.
Mr Havenstein, of counsel represented the father, the mother was self-represented, and Ms Carr, of counsel represented the ICL.
Chronology
The parties married in 2013. In February 2014 the parties relocated to the United States for the father’s employment. In July 2017 the parties separated under the same roof.
In May 2018 the mother and children travelled to Australia with the children and ultimately stayed. The father provided the mother with funds to support the children whilst they were in Australia.
The father spent approximately 10 to 12 days with the children in August 2018. He relocated to Australia in February 2019.
Between his return to Australia in February 2019 and prior to orders being made, the father said the children’s time with him was haphazard. The father also raised concerns that the mother was not adequately providing for the children. In turn, the mother accused the father of keeping the children in his care and returning them late, contrary to her consent.
On 20 November 2019 the father initiated proceedings in the Federal Circuit Court, as it then was. The mother joined issue with the proceedings by way of a Response to Initiating Application filed 21 January 2020.
On 26 February 2020 interim orders were made by Judge Boyle for the children to spend daytime time with the father and the appointment of an ICL. On 27 February the CDC Memo was released. On 28 April 2020 the children’s time with the father was extended by further orders made by Judge Boyle to include Friday night of each week.
On 20 December 2021 interim parenting orders were made by Senior Judicial Registrar Hoult that the children’s time be increased to five nights a fortnight with their father, plus half of all school holidays. The Family Report had been released by this date.
On 6 June 2022 the matter was listed for final hearing before a Division Two Judge, but was not reached. It was transferred to Division One of the Federal Circuit and Family Court of Australia and heard by me over three days commencing 7 June 2022.
Parenting proceedings – Legal principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
Primary Considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
With respect to the first primary consideration, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
…having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering” at [173].
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
Protection from harm
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
Whilst the mother’s case was that the father could only manage short bursts of time with the children before he would become abusive (as she alleged), I specifically asked all parties if this case was one of unacceptable risk. The answers were no.
In due course, I will consider the allegations of family violence and abuse which the mother makes.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
·        Issues relating to the children – their views, level of maturity, culture, and, relationships;
·        Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;
·        Issues of family violence;
·        Effect of change;
·        Practical difficulty of implementation;
·        Avoiding further proceedings; and
·        Other relevant matters the Court considers relevant.
Consideration – parenting dispute.
The presumption of equal shared parental responsibility
The first issue raised by the parties falls under this heading – whether the parents ought equally share parental responsibility, or the mother have sole parental responsibility.
Section 61B of the Act defines 'responsibility' as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, it normally refers to the decision-making process for major long–term and important decisions for children as opposed to the more mundane day–to–day decisions which parents make for their children. Matters of religious affiliation, children’s names and relocations are often cited as examples of the obligations of 'parental responsibility'. Haircuts, homework and routine medical care such as administering Panadol are often cited as examples of day-to-day decisions.
Within this context, at the start of trial, it was agreed by the parties that when regard is had to the major long-term issues, there was no dispute about the children’s names, religion and cultural upbringing, or, changes to the children’s living arrangements which would make it significantly more difficult for the children to spend time with a parent. It was also agreed that the parties would follow medical and allied health advice given for the children for major long‑term medical issues. Both children are at primary school, so that major long-term decision has already been determined.
Thus, at this point in time, the only issue that may loom is which high school the children will attend. The father gave refreshingly accommodating evidence that whilst he hoped the children could attend a selective high school, if the mother did not agree then he would yield to her preference: “if the mother does not agree, then I am not adamant”. In any event, the parties proposed consent orders which included a process to help them resolve any dispute about high school selection. I have already indicted that I will make the proposed consent orders.
Despite the above discussion about what major long-term decisions may actually loom, the mother pursued sole parental responsibility because of “the small things”. In closing submissions, the mother said those “small things” were haircuts, and education, by which she may have meant the parents’ different attitudes to homework as had featured in the trial (the mother had already agreed to the high school selection process in the draft Minute of orders). As I endeavoured to explain to her, haircuts are not major long terms decisions. As for education, the parents will do as they wish with homework when the children are with them.
It is useful to pause and observe that s 65DAE of the Act provides:
(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major-long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
The parties would be well served to reflect on whether some of their disputes are truly major long-term issues as defined in the Act, or day-to-day matters which do not require consultation.
Returning to the allocation of parental responsibility, the father submitted that equal shared parental responsibility (along with equal time) would level out the “tit for tat”. His submissions on this topic (and time) were very much about the children understanding the mother and father were equal as parents, and, to mitigate against, or “level out” the mother’s evidence that reducing time would see the children interpreting that outcome as the mother being right and the father being wrong, the mother being truthful and the father untruthful. I say more of this later.
The ICL supported an order for equal shared parental responsibility and relied upon the Family Consultant’s oral evidence in that regard. The Family Consultant had, in her report of last year, recommended sole parental responsibility in favour of the mother. However, in cross‑examination, the Family Consultant supported equal shared parental responsibility given there are likely to be very few major long-term decisions to be made, and that the parties are required to attend some form of FDR before returning to court (s.60I(1)).
The Family Consultant spoke of equal shared parental responsibility being “good in general terms for children … ideally equal shared parental responsibility”. I accept that evidence; it sits comfortably within the objects and purposes of the Act.
Later in these reasons I make a finding that the father had been abusive to the mother. But taking a prospective approach, I have concluded that the presumption of equal shared parental responsibility ought apply as being in the children’s best interests. I find this because the children ought have both parents involved in these major long-term issues, limited as they may be in reality. Equally, the mother’s application for sole parental responsibility for “the small things” was, respectfully, ill-conceived.
In making this order for equal shared parental responsibility, I am also heartened by the many orders about which the parties could agree, and, that both parties gave evidence that since the making of the December 2021 orders, that their communications have improved.
S60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
In her Report, the Family Consultant described both children as feeling safe and happy with their father, and that Y, albeit seven years in November, said he would like to spend more time with his father. In the Family Report, the mother acknowledged that the children liked spending time with their father, and that there are benefits to the children of spending time with him. As for X, the father produced a letter written by X when in the mother’s care, expressing some good things about her, but also some bad things. One bad thing was his mother saying that they spend more time with her. The mother said she had given X a safe environment to express himself when writing this letter. I do not know if the bad thing is his mother involving him in adult disputes, or, that he spent more time with her.
The mother also agreed in cross-examination that the children enjoyed their time with the father, had a good relationship with him, and, enjoyed the activities they were able to partake with him this year when the children’s time with the father increased by court order of December 2021. Those activities included camping, going to a park with friends, and a birthday celebration at the D Hotel. That said, it was the mother’s position that the father only engaged in these activities this year, in particular the camping, “to look good for court”. She also quibbled whether the friends at the park were the father’s adult friends or the children’s friends. She was unable to explain why that mattered. In circumstances where the father followed the mother and children across hemispheres to continue his relationship with the children, and where he initiated proceedings for parenting arrangements, I do not accept the father’s increased engagement with the children this year was opportunistic for court purposes. I also accept the Family Consultant’s opinion when asked about this, that “I guess it does raise concerns for me about her insight into the children’s relationship with their father and her ability to support a positive relationship with the father if she is always assuming the worst and doesn’t think that the children are getting any benefit out of it”.

Of the birthday party at the D Hotel, the mother said “it should be a positive experience I think that if they are surrounded by an environment that encourages narcissism for example it wouldn’t be a healthy good experience”. The mother referred to narcissism a number of times in the hearing, but other than her bald assertions I have no evidential basis to make any findings about this with respect to the father or his family. Similarly, the mother referred to the father’s toxic environment, but again, I have little evidence to advance this contention.
Another of the issues framed by the parties was whether the mother has the capacity to actively facilitate a meaningful relationship between the children and the father.
I find that the mother does not have that capacity. I do so, for a number of Reasons.
First (and in no particular order), I find that the mother sees parenting as a competition between her and the father, where any compliment to him, say, from the school for his involvement with reading, she saw as detracting from her parenting capacity. When asked this by counsel for the ICL, the mother confirmed that is how she felt.
Second, the mother sought to reduce the children’s time with their father, in part, because the children would then understand she is right and the father wrong; that she is truthful and he is not:
Have you thought about what impact it would have on both [Y] and [X] if the time was reduced? -- I have yes
What do you say would be the impact on them? -- It’s hard to speak directly from their perspective because I understand there would be a lot internalised that maybe even they won’t understand. I think the impact amongst relief would be a bit of confusion. I think they would sort of take it as some sort of justification of someone’s right and someone’s wrong.
Can you just tell me that last bit, so we have relief what was the next one? -- Confusion
And then the one that you just said - something about they would understand someone is right and wrong, can you explain that to me? -- I think they would see that as someone is telling the truth and someone isn’t.
I don’t understand. So if the time was reduced from the current five nights a fortnight to one night a fortnight, do I understand your evidence - because I’ve got to go away and look at all this and think about that, is what you’re really saying to me is that the [children]will get the message that you’re right, dads wrong, that you’re honest, dad’s not? -- I think so yes.
The mother sought to back track from this evidence in her re-examination saying she did not understand these questions were about her proposal to reduce the father’s time from five nights a fortnight to one night, but, rather about any reduction in time. I do not accept she could have been confused about the nature of the questions, but even if that were so, it really does not change the thrust of her evidence if she thought it was about any reduction. In submissions, the mother sought to add another gloss to her own evidence, submitting the children would perceive this right-wrong, truthful-untruthful perspective if there was any change to the current orders.
Parenting ought not be a competition and parenting arrangements ought not be causative of or risk messaging to children that one parent is right and truthful and the other wrong and untruthful. The mother struggled to explain how placing the children in that position was in any way good for them, or otherwise in the children’s best interest.
Of this evidence, the Family Consultant said:
I do wonder if she has a lack of understanding of how the children are experiencing their time with dad, and I say this tentatively cause maybe she does have a better understanding than anyone. It was my impression the children enjoyed time with their father and that they generally have a good time with the father. Her view that the children would be relieved by a reduction in time, I think maybe she’s got a skewed view of the children’s experience of time with their father and their relationship with their father. In interview two I wondered about this because she made comments about the children sometimes returning happy but sometimes returning unhappy. She thought more often than not they were not having a good experience with their father, which wasn’t the impression that I had from speaking with the children and observing the children. It is concerning to me that she is thinking in terms of the children would then see she is right. I think that the situation is complicated. The worst thing for children would be for them to be thinking to themselves in terms of who is right, who is wrong, who is good, who is bad. What we want for the children is to be able to have good relationships with both parents, experience good times with both of them and get the best out of both parents.
Later, the Family Consultant said this:
It’s going to have a negative impact on the children if they’re led to believe one parent is right and the other parent has been wrong; one parent is a liar, one parent is telling the truth one parent’s good, one parent’s bad. It creates a whole lot of confusion for the children when they’re in this situation where they are like well mum says this and dad says this and I don’t know who to believe, and that is usually distressing to them and is burdensome on their emotional wellbeing. To have to take sides in these disputes to be said the line, or supported to believe this person is right this person is wrong, that’s really detrimental to the children and can also have the impact of harming relationships children would have with one parent or the other and that’s really harmful to the children if the children suddenly are resentful or angry at one parent cause they think that they have been lied to. It has a range of flow on effects - they can be distracted at school, they can be unhappy at home, they can be vulnerable to mental health issues, cause they have been put in this situation where they are in a constant state of mental confusion and unhappiness with a person who is so vital to their upbringing and livelihood.
I accept the Family Consultant’s opinion because it speaks to the dichotomies which may well be interpreted by the children about their parents, and dichotomies that are not helpful or otherwise beneficial to them at their tender ages.
Third, the mother eventually (and I stress, eventually) accepted in cross-examination that she would place the children’s relationship with their father over the children’s ability to attend birthday parties with school friends. Children’s parties and social networks are important. But there is no reason why the father could not take the children to these parties. It would give the children the opportunity to enjoy their relationship with their father across another kind of environment.
Fourth, the mother completed and signed each of the children’s enrolment forms for school. Not once did she mention the father, not even in the sections headed “Non-residential Parent/Guardian”. For Y, that section was blank. For X, the mother included her own mother as the non-resident parent/guardian. I do not accept the mother’s justifications about Y’s form, signed 19 March 2020, which included:
(a)“He was overseas, I think that aspect of the contact details were to be in contact. I think if someone is overseas it kind of eliminates the purpose. I thought those details would be irrelevant at that point. Besides the fact he was overseas, he’s never much been involved in that aspect” - yet it was common ground that the father came to Australia in February 2019, not March 2020 when the form was completed It may be that the mother was confused at this point, thinking it was [X’s] form. Nevertheless, either way, she thought the father’s details were irrelevant;
(a)When asked if she thought it important for the school to know “there was a father out there” she replied “we’re like fleeing from him. If he randomly turned up I want them to ask questions. I don’t want them to just go oh you’re the father here are the kids, take them and who knows if we will ever see them again.” - yet at other times she contacted the school to say the father was collecting them. According to the form completed by the mother, the school also had the court orders in place at the time;
(b)“this was in the time when everything was very sporadic we weren’t on the same page, he was turning up to my house and taking them out of my house. We weren’t on civil terms whatsoever” - true, everything may have been sporadic and the parents may not have been civil or on the same page, but that does not justify the mother’s actions in omitting the father’s name from this important form”;
(c)“It’s the second enrolment form [i.e. [Y’s]] I just wanted to add what was necessary and required. They’d know [about the father] from [Y’s] enrolment” – yet [X’s] form was completely silent about the father too. In fact, under non-residential parent/guardian, the mother listed the maternal grandmother;
(d)“I didn’t really give it that [the father being named on the form] much thought, it’s the second enrolment form” – this I accept to be a true reflection of the mother’s attitude towards the father.
The mother’s completion of both enrolment forms, without any mention of the father, gives me no confidence that the mother places any, or any meaningful, value on the children having a father, let alone a relationship of meaning with him. This also comes back to the competition issue referred to earlier; that she was the primary parent and he was just a fun time bit-part adult.
Fifth, when it came to phone calls or other electronic communications the mother put the onus on the children: “Dad’s called. Do you guys want to talk to him. In most cases they have said yes and we have called him back. There’s also been instances where I have said maybe just call to say hi. You don’t have to say that much. You can just hang up.” This was not encouraging the children to talk to their father in any positive way. Similarly, when calls were due the mother said, “we would often be playing board games. So 5-5.30 is hard to take the call”. This is hardly putting the children in a frame of mind and environment conducive to their father’s communication. Rather, it was distracting for them. I also accept the ICL’s submission that these answers by the mother displayed “a distinct lack of capacity to encourage the relationships”.
Sixth, having heard the mother give evidence over a considerable period, I accept the premise of a question from the ICL’s counsel as representative of the mother’s thoughts about the father: “I’m asking about you, but you’re using this as an opportunity to have a go at him”. Similarly, noting the mother accepted the children enjoy their time with the father, the most the mother could about say of any positive attributes the father offered the children was:
I like that he takes them out. I like that he has a pool. I like that he is teaching them to swim, I respect that because I don’t know how to swim and it’s not really something I would have done but I like that they are learning to swim. I like that he did go out and buy a book that had handwriting; there’s little dots on there, they’re see-through and you can trace that, I think that helped [Y] with writing. I like he puts a little bit more time in; I noticed with [X’s] experiments like in terms of the science stuff, there was a period that he was doing some of that home schooling so I like that he was putting in a bit more time and effort into the experiments.
It was quite minimising and concerned her “likes” with respect to the father, not what the father may offer the children.
With respect to the mother’s view of the father, the Family Consultant said that as the mother perceived she was a victim of violence, then her conduct, responses and beliefs were filtered by that lens. I have no difficulty in accepting that observation of the mother’s beliefs and perspectives. However, my task is to consider the relevant statutory criteria to ultimately determine what is in the children’s best interests.
As identified by the Family Consultant, the children have much to benefit from a meaningful relationship with the father, and, of course, the mother. The father has much to offer them – or as the mother said in cross-examination he has characteristics which he can offer the children which she cannot, and equally she has characteristics to offer the children which he cannot. I agree entirely with the mother that the benefit to the children of meaningful involvement and relationships with both parents is that they will be “better rounded”.
However, whilst the mother was able to recognise these positives in a conceptual sense, it remained that she gave other evidence, as I have set out above, that gives me no confidence that the mother would actively facilitate a meaningful relationship between the children and their father. It falls then to the court to craft orders which will foster the children’s relationship with their father, that is in their best interests.
S60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The parties framed two issues under this heading:
(a)Whether there has been family violence perpetrated against the mother by the father;
(b)Whether either parent has exposed the children to physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
The mother’s two affidavits upon which she relied in these proceedings reveal many allegations of violence and abuse, but often expressed as conclusions and with little, if any, particularity. Such is the generalised nature of her evidence on this topic that it makes it difficult to engage with the specifics which support those conclusions, or to make inferences from them (Britt & Britt (2017) FLC 93-764(“Britt”)).
Conjecture is simply the contemplation of possibilities, whereas inferences are deductions of probabilities that spring from proven facts, though sometimes it may be difficult to discern the difference. The test is whether it is reasonable to draw the inference on the basis of the primary facts (see Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262 at [275]-[278]; Carr v Baker (1936) 36 SR (NSW) 301 at [306]-[307]).
Unlike the decision in Britt, supra, I have received the mother’s allegations into evidence and taken what she says into account. As opposed to being a question of admissibility (as was the matter in Britt), the generality of her allegations go to the ultimate weight to be given to that evidence. The generality of the mother’s own evidence however is somewhat resolved by both Counsels for the ICL and father agreeing that I would be assisted by having regard to what the Family Consultant reported the mother as saying. The mother did not disagree with this approach.
The Family Consultant gave a summary of the mother’s allegations, in particular, at paragraph 41-42; 45 of her report, which I have read in concert with the mother’s affidavits. The mother did not challenge these matters in cross-examination or in submissions, hence I accept it as a fair portrayal. Those paragraphs of the Report summarise the following allegations:
·Mr Volpe would call her stupid, call her a liar, and would tell her to “go and kill yourself” on a daily basis.
·Mr Volpe would also get very close to her face, and made threatening comments. She said that the children were exposed to “everything”, and that Mr Volpe was emotionally abusive towards them too.
·She provided the example that, when X would try defend her, Mr Volpe would say to X that he was a liar, just like his mother. She claims that Mr Volpe would also call the children “stupid”.
·She also claimed that Mr Volpe would pretend to spit on her in front of the children.
·Mr Volpe was controlling and described Mr Volpe restricting her access to money towards the end of the relationship.
·She said that Mr Volpe was also turning up to her house uninvited and would turn up and try convince the children to go spend time with him.
·Ms Capo said that Mr Volpe would behave in an antagonistic or aggressive manner towards her at times in the presence of the children.
·Ms Capo said that she is also concerned about the children’s physical safety with Mr Volpe as she said that the children have said that their father slapped them in front of all his family members. She added that the children seem to play “really rough” with Mr Volpe.
The mother is reported making similar allegations in the CDC Memo (Court’s Exhibit 3).
I readily accept the allegation that the father was turning up to her house uninvited and would turn up and try convince the children to go spend time with him. I do so because prior to orders, he accepted that to be the case. At one level, the father’s actions were understandable, having been driven from a sense of frustration. However, it had little regard to the position in which he placed the children. That ill-advised and rather selfish behaviour was certainly poor domestic behaviour, but does not meet the definition of family violence. Rather, it lacked child focused insight.
In cross-examination, the father denied most of these allegations, but accepted he would have called the mother “stupid” and a “liar” during fights. He said he might have called the mother mentally unwell in a message. He “did not recall” telling the mother to “kill yourself” or pretending to “spit on her” when they were in the United States. I thought these odd answers for such significant allegations. I also say that because the father outright denied some allegations put to him, but could not recall these rather significant allegations. On the father’s admissions, I accept he made repeated derogatory taunts of the mother, in particular by calling her stupid and mentally unwell. That is, I find an element of family violence and abuse, as defined in the Act, has been made out.
In so far as allegations are made which involved the children, the reports of the children in the Family Report do not support this. The children are described as feeling safe and happy with their father. Thus, I will not make a positive finding that the children were victims of family violence and abuse.
The mother puts on no sworn or affirmed evidence since April 2020 of any further allegations of family violence and abuse as defined in the Act. In answers to questions and in submissions the mother spoke of a transfer of abuse to her children directly, expressed through gas lighting, manipulation and coercion. But again, she spoke in conclusions and generalities. The mother was also critical of the father’s apparent rough play with the children “crossing the line”, but it is not apparent to me when she might have last witnessed that herself. More so, the father explained the rough play, for example, the finger stretching, which I accept. I do so because he described play with the children that was redolent of boisterous fun.
The ICL submitted that I would accept the mother’s “historical” (counsel’s words) allegations, but nevertheless make orders for equal shared parental responsibility and significant and substantial time for the children with the father. I have already made findings about abuse above.
Save for my findings above of abuse, it was otherwise for the mother to discharge the onus to establish the father had committed acts of family violence and abuse against her and that the children need protection from being subject to, or exposed to, abuse, neglect or family violence.
As a separate issue, I accept the submissions of the ICL that both parents have behaved badly. For example, the mother was ill-advised to turn up at the father’s house when the children were sick and he retained the children in his care. The mother accepted she attended, put her foot in the door to keep the door open, which was in the presence of the children, and called out to the children “Come home. Come home”. In doing this, the Family Consultant said the mother would have “caused unnecessary upset to the children”. I agree; the children were caught in a parental battle.

The father too was ill-advised to arrive at the mother’s house uninvited, hoping to see the children. It was high handed of him to collect the children from school rather than be in after school care to 6.00 pm when the mother said no. “You did anyway? – yes”.
The father also accused the mother of being controlling in allowing or not allowing the children to have time with him, in particular, prior to parenting orders being made. The mother also accused the father of holding over the children when sick, and manufacturing an opportunity to keep them in isolation due to Covid in October 2021.
Both parents have called the police at unnecessary times, For example, the mother called the police on 15 February 2020 when the father said he would join them at the beach, and she thought the father might have been following her the previous day. In that COPS report, the mother apologised to the police stating she overreacted in calling them and reiterated she had no fears for herself or her children; which became ICL’s Exhibit 1
Similarly, the father called the police when he went to the school and the children were not there. The father had not received the mother’s text that they would not be there because he had, unhelpfully, blocked her number. He caused the police to conduct a welfare check and accepted in cross-examination that the children would have been aware of the police attendance to check on them.
The mother too caused welfare checks to be undertaken by the police, including one that took place at 1.09 am on the father’s house in October 2021 arsing out what was called the Covid incident in October 2021.
No Apprehended Domestic Violence Orders have been sought or made. It does not seem the children have come to the attention of the Department of Communities and Justice.
Of police involvement, the Family Consultant said that would have caused the children “alarm and distress”. I agree; that is a matter of common sense.
Looking at the totality of the evidence, I accept what was said in paragraph 25 of the CDC memo and by the Family Consultant in oral evidence, that the children were caught in the parents’ tug-of-war over them, and that this would
likely be causing the children a lot of confusion, distress, and having a significantly negative impact on the children’s emotional wellbeing. The negative impact on the children’s emotional wellbeing could also lead to problems with the children’s behaviour and development.
I find that the children have been caught in the middle of each parent’s respective assertions of what each perceived as their parental “rights”. However, that placed the children in the middle of this adult push-and-pull. This adult rivalry does neither parent any credit. At one point in the trial when this conflict was being explored, I asked all parties if one of the best things I could do for these children was keep the parents apart as much as possible. No one spoke against that proposition. The Family Consultant supported that approach. Thus I will craft orders which use school as much as possible for change overs to protect the children from the parent’s conflict.
There is no doubt that the children need to be protected, as much as possible, from the conflict between the parties. However, in this case, that dysfunctional conflict does not amount to family violence and abuse, including psychological abuse. No submissions were made urging me to make such a finding.
Issues relating to the children – their views, level of maturity, culture and relationships:
I have already referred to Y’s wishes set out in the Family Report, and what X wrote in a letter at his mother’s house. However, both are young and been caught up in the adult rivalry. I cannot put significant or determinative weight on the children’s wishes for more time, but nevertheless do take into some account what they have said. This is but one of a raft of considerations.
I have also referred to the children’s relationships with each parent. Despite the adult conflict, they have good relationships with both parents.
The proposed minutes of consent, which I will make provide for the sharing of Orthodox Christmas and Easter, which is entirely appropriate for the cultural and religious context of these children.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
I have already addressed each parent placing the children in the centre of their tug-of-war. The father, in cross-examination, was able to accept the error of some of his ways. The mother also accepted that on occasions, her behaviour would have negatively impacted on the children.
I have already made findings about the mother’s incapacity to actively facilitate a meaningful relationship between the children and their father.
The father does not pay child support but the mother said she did not want child support from the father, as she did not “want to be controlled by him.” He does however pay school fees, but the quantum was disputed. I cannot resolve that difference, nor do I need to. He pays the school fees, whatever the cost may actually be.
I do not need to make findings about the children’s time with the parents prior to Orders being made, other than there was no consistency until their priest made some recommendations. Before that, when the mother would not agree to time, the father would take self-help measures. Neither party covered themselves in much glory during this period of time.
Usefully, neither parent has brought Contravention proceedings.
I have also referred to the parties use of welfare checks and involvement of the police, which in many occasion was an unnecessary diversion of precious police resources.
Issues of family violence:
I have considered this matter under the heading of protection from harm.
Effect of change:
The mother’s proposal to reduce the current five nights a fortnight with the father, to one night a fortnight would be a considerable change to the children. It was not supported by the Family Consultant who opined that such a reduction would be “very distressing” for the children to go from five nights to one night and that they would be “really upset to have such a reduction of time with their father”. The Family Consultant also indicated that the children may grow to resent the mother for the reduction in time.
In addition to the mother giving evidence that the children may well interpret the reduced time (or in her third iteration, any change to the orders) as a right and wrong parent, and a truthful and untruthful parent, she also said that they would also feel relief, confusion and safe, if time was reduced. I have no evidence to support the assertion that they would be relieved; rather, I have evidence from both children that they enjoy their time with him. More importantly, the Family Consultant described their relationship with their father as positive and beneficial, and that they both feel safe and happy in his care.
For reasons of enjoying time with their father and feeling safe and happy with him, I do accept that the children would be confused if time was reduced in the way proposed by the mother. I do not accept they would feel safe if time reduced, because the opposite is reported by the Family Consultant, whose evidence I accept.
Practical difficulty of implementation:
Both parents live in the same suburb. Neither identified any practical difficulties of implementing either parenting proposal the parents put forward. In those circumstances, I agree.
Avoiding further proceedings:
At the end of day one of the hearing, the mother asked what was the point of making orders when they will be breached. I do not know that to be so. I can say that since the matter has been in court since 2019, no contravention proceedings have been brought by either party. It would serve these children well if the parents could use the end of this litigation as the start of a new chapter of more positive and respectful parenting focused on the children not their adult wants. Both accept communications have been better since the December 2021 order; they would benefit their children to continue that trend.
If there are breaches in the future, then the Act provides for contravention proceedings to be brought. However, speculation as to what might occur in the future will not fetter my discretion in crafting orders which I determine are in these children’s best interests.
One issue that may be in dispute in the future is what high schools the children will attend. However, the parties agreed on a mechanism to deal with this issue and, s60I(1) of the Act requires them (save for some exemptions) to attend dispute resolution before filing in court.
Other relevant matters:
I do not identify any other relevant matters, nor was I taken to any in submissions.
CONCLUSION
I have already determined to make orders for equal shared parental responsibility.
The significance of either the presumption of equal shared parental responsibility applying or the Court making such an order is that the Court is then mandated to enter into a pathway of statutory and intellectual consideration in respect of the children's best interests where the Court is to consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. If the answer to either of those questions is in the negative, then the Court turns to consider whether it is both in the children's best interests and reasonably practicable for them to live in an arrangement of ‘substantial and significant time’ between the parents.
This then dovetails with another issue framed by the parties: what time arrangements should be made for the children to spend time with both parents?
I will not make an order for some form of equal time. I will not do so, because I accept the evidence of the Family Consultant that:
When there is a primary residence it does have that sense of just being able to anchor a child, particularly in circumstance where there is a lot of conflict between parents – poor communication, lack of co-operation and there’s big differences between the households. That’s what I saw beyond the issues of the parents not being able to get along and cooperate, it seems like they had different parenting styles or views about parenting. As I think is abundantly clear the parents have had great difficulty cooperating and agreeing about things. There have been arguments between them and police being called. That’s a High conflict, and it’s really nasty for children to experience and witness.
To have a primary residence then means that even when there might be flare ups of conflict between the parents when they are not cooperating they have this general consistency of this is my home, this is the routine, this is the care arrangement. It gives them time and space where they can settle into their care routine and just relax. I know the difference between five and seven nights a fortnight might not seem like a lot, but when children know that mum and dad don’t get along and there’s different rules and certain things I can’t speak about in this home or that home because it might create conflict, it is so difficult for children to move from one space to another it’s like they have to reset and shift. So to have one primary home can really anchor them and give them some consistency and help them to feel settled.
These parents’ capacity to communicate on matters relevant to the children's welfare has been fraught. However, with both agreeing communications have been better since the December 2021 order. I further note the mother now drops off uniforms to the father each week.
The parties have not demonstrated that they can implement a 50/50 living arrangement without undermining the children's adjustment. They do not agree on many matters relevant to the children's day to day life; for example, haircuts, attitudes to homework, and medication for fevers. I also do not consider that the mother respects the father as a parent (see for example: T & N (2001) 31 Fam LR 281 at [93]).
That finding then leads me to consider substantial and significant time, which is defined at s 65DAA(3) of the Act as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
…
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of specifical significance to the parent.
I conclude it is important for the children to have their father involved in not only the fun times (as called by the Family Consultant), but also the day-in-day out routine. I have also decided the children would benefit from the father having some more opportunities to engage with the children’s school. On her own evidence, the mother has been “less than prompt” in some of her replies to the school. Conversely, the father has received a glowing commendation from the school with respect to time he has dedicated to assisting Y improve on his reading and writing.
The Family Consultant had recommended the following in terms of time in her Report of 2021:
·That the children live primarily with Ms Capo; and
·That the children spend time with Mr Volpe
(a)each week from after school on Wednesday to before school on Thursday, and
(b)each alternate weekend from after school on Friday to 7.00 pm Sunday.
The Family Consultant readily agreed that it would be best for the children if I kept the parents apart as much as possible. The Family Consultant also agreed that on this basis, her recommendation for a 7.00 pm Sunday night change over ought be replaced by a return to school on Monday morning. I so find that for their adult dysfunction, the children do not need to see the parents at changeovers where that can be avoided.
The Family Consultant also agreed that the second week Wednesday overnight could be added to the Week Two weekend time. This would, she said, and I accept, avoid a changeover Wednesday and Thursday, and then again on Friday. However, the Family Consultant also said an advantage to the Wednesday was that it was a constant each week; in essence, the children would know that on Wednesdays they were spending time with their father. I agree and will make orders that both keep the consistency of the Wednesdays, but also reduce the mid-week changeovers in the second week.
The orders for Wednesday overnight in Week One, and Wednesday to Monday morning in Week Two sits comfortably within the evidence of the Family Consultant that one or two extra days with the mother might not seem much to adults, but when considering the concept of time through the children’s eyes, it would give them a primary residence or point or anchorage. It also offers the advantage as expressed by the Family Consultant that the father will have more involvement in homework and school matters as that “always enhances the relationship. It’s not just fun. There is an added depth”. I agree both with the opinion as to the need for a primary residence, and, the greater involvement of the father with schooling, a day-to-day matter. The former gives the children an anchor and the latter is consistent with the Act’s definition of significant and substantial time, which I have determined is in the best interests of the children.
Having also found that the mother will not actively support a positive relationship with the father, these time with orders will give an opportunity for the children to continue to have a meaningful relationship with him.
I do not accept the mother’s evidence that the father can only cope with short bursts of time, before becoming abusive. I do not have any persuasive or recent evidence to support that. Further, the current orders have been in place since December 2021, and the mother puts on no evidence of any concerns since those orders were mad. In cross-examination, the mother did refer to the father’s behaviour being transferred to the children, but again, few, if any, particulars to assist me to understand that.
The parties are also in dispute about some other proposed orders.
The ICL’s draft Minute contained a provision for calculating half holidays. However, the parties subsequently agreed that holidays would be week about. This required a different set of orders to determine who would have the first week of school holidays, and, what arrangement (Week One or Week Two) would commence on the return to school. I have made orders to deal with this. They are mechanical in nature. The ICL proposed a Saturday week to week arrangement and the Father a Sunday to Sunday arrangement. I have selected Saturday because that was what was proposed by the ICL, and, given school terms often end on a Friday, then using the Saturday will allow for holiday time to commence a little sooner.
The next order in dispute is whether the children’s birthday time would conclude at 5.00 pm or 7.00 pm. The mother pressed for 5.00 pm so the children could enjoy time with each parent in the evening. The father pressed for 7.00 pm, which was the original time proposed by the ICL in her Minute. There is no magic or legal principle in 5.00 pm or 7.00 pm or some other time. Hearing of the dispute, the ICL’s counsel suggested there must be a middle ground. I agree, and will order time ends at 6.00 pm. Both parents will get time in the evening. One parent will also get time in the morning.
The next issue concerned when overseas travel can occur. With Christmas, Boxing Day and the mother’s birthday all falling in December, the mother was keen to avoid a situation where the children missed celebrating her birthday. The father pressed for the draft as initially proposed by the ICL that such travel would only include special days every second year. The father was not prepared to make any further accommodation for the mother’s birthday, so much so, I expressed my concern that his position was not so much about the mother’s birthday, but about going overseas every second year so the children would also miss time with their mother on Christmas and Boxing Day.
Like the dispute whether the children’s birthday time ended at 5.00 pm or 7.00 pm, there are no legal principles which give me any particular assistance in resolving this dispute. Doing the best I can, these days are all special celebrations. Indeed, the parties have agreed to orders for the sharing of celebrations on these days. The spirit of that agreement would be thwarted if a parent could take the children overseas every second year. Therefore, given the parties have separately recognised the importance of these days by the consent orders they propose, I will order that overseas travel is not to occur on these days (inclusive), unless the parties agree otherwise in writing.
The next issue in dispute was really one of drafting; the ICL’s proposed order with respect to out of school activities. I formed the view that all parties were in agreement with the spirit of the order. The mother however, struggled with the draft order and also wanted to ensure the order extended to when, for example, a soccer club changed training times. As I said at the time, whilst I could deal with her former concern, the latter was beyond the power of even the most creative of drafting. I do not have crystal ball. The parents and ICL ultimately left it to me to review the drafting, and I have done so.
The next proposed order in dispute was one concerning medical and dental care. The father and, initially, the ICL posed this order:
In the event that either child requires medical or dental treatment other than that of a minor nature and the parties are unable to agree as to whether to such medical or dental treatment is necessary or in the best interests of the child, the parties shall accept the advice and guidance of the medical or dental practitioner who is charged with providing treatment to the child.

The mother sought to add the following at the end of the above:
… being the [B Medical Centre] for medical issues or other medical provider as might be agreed between the parents, and, for dental, within 28 days the mother will identify three dental practices for the father to consider and he will select one within 28 days of the receipt of the mother’s list. Both parents are to communicate on this issue by email.
The ICL supported this addition. The mother submitted that the father had lots of doctor and dentist friends so he could get the opinions he wanted. I do not accept that evidence from the bar table. However, what I do accept is that the mother has a perception that could well be causative of further dispute and friction.
The father’s case was that if the B Medical Centre doctors were not available, they would go over the road to another doctor. I have no evidence, other from the bar table about this. However, what I do accept is that the parents are always able to agree, preferably in writing, on different or additional doctors should the need arise. It also needs to be highlighted that this order concerns medical or dental treatment “other than that of a minor nature” and where the parties cannot agree on the treatment. As I said in the hearing, I do not consider taking a child to a doctor to have a splinter removed, or for a cold, falls within major long-term decision making. They are day-to-day matters where each parent can do what they need to at the time. This order concerns treatment other than of a minor nature.
I will make the order with the addition proposed by the mother and ultimately supported by the ICL. I do so because it reduces a possible area of conflict and is a transparent process.
The final issue in dispute was to provide a mechanism for one party to notify the other if a birthday party invitation or the like had been received for the child but would occur in the other party’s time. The ICL supported this. I will make such an order to give these parents a problem solving process.
Finally, I make procedural orders to dismiss any outstanding applications, to discharge all previous parenting orders, and, to discharge the ICL.

I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 15 June 2022

File number(s):	SYC 7862 of 2019
Judgment of:	BRASCH J
Date of judgment:	15 June 2022
Catchwords:	FAMILY LAW – CHILDREN – Spend time with – An application sought by the father for an equal time arrangement – Where the children had been spending five nights a fortnight with the father – Order for the fathers’ time to be increased to six nights a fortnight. FAMILY LAW – CHILDREN – Parental responsibility – An application sought by the mother for sole parental responsibility – Order made for equal shared parental responsibility.
Legislation:	Family Law Act 1975 (Cth) s 60CA; ss 60CC(2)(a)-(b); ss 60CC(3)(a)-(j); s60CC(3)(l)-(m); ss 60CC(6); s 61B; s 60I(1); s 65DAE; s65DAA.
Cases cited:	Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27 Carr v Baker (1936) 36 SR (NSW) 301; Cotton & Cotton (1983) FLC 91-330; Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127 Loddington & Derringford (No 2) [2008] FamCA 925; Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 McCall & Clark (2009) FLC 93-405; Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262; [2000] NSWCA 29 T &N (2001) 31 Fam LR 281; [2001] FMCAfam 222
Division:	Division 1 First Instance
Number of paragraphs:	141
Date of last submission/s:	9 June 2022
Date of hearing:	7 – 9 June 2022
Place:	Sydney
Counsel for the Applicant:	Mr Havenstein
Solicitor for the Applicant:	King and York Lawyers
Counsel for the Respondent:	Litigant in person
Counsel for the Intervener:	Ms Carr
Solicitor for the Intervener:	Stidwill Solicitors

SYC 7862 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VOLPE Applicant
AND:	MS CAPO Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BRASCH J
DATE OF ORDER:	15 JUNE 2022