Walters & Hannigen - [2021] FedCFamC2F 4

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
Walters & Hannigen [2021] FedCFamC2F 4

File number(s): MLC 847 of 2020

Judgment of: JUDGE BENDER

Date of judgment: 2 September 2021

Catchwords:
FAMILY LAW – PARENTING – the parties’ applications in relation to parenting arrangements for their two sons aged 6 and 3 – Mother proposes children live with her and spend 5 nights a fortnight with the Father – Father proposes the current shared care arrangement continue – where the Father unilaterally enrolled the child at a Primary School close to his home – the Mother seeks the children be enrolled at a Primary School closer to her home – both parties seek an order for equal shared parental responsibility – children exposed to the Father’s unrelenting negative view of the Mother’s parenting – parties’ relationship highly conflicted and they are unable to communicate

HELD – Orders made for the parties to have equal shared parental responsibility for the children – children live with the Mother and spend 5 nights a fortnight with the Father – children to be enrolled at a Primary School closer to the Mother’s home

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Child Support (Assessment) Act 1989 (Cth)

Cases cited:
AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Division: Division 2 Family Law

Number of paragraphs: 214

Date of last submission/s: 25 May 2021

Date of hearing: 24-25 May 2021

Place: Bendigo

Counsel for the Applicant: Ms Mallett

Solicitor for the Applicant: O’Farrell Robertson McMahon Lawyers

Counsel for the Respondent: Mr Combes

Solicitor for the Respondent: Peter Baker & Associates
ORDERS

MLC 847 of 2020

BETWEEN:
MS WALTERS

Applicant

AND:
MR HANNIGEN

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility of the children X born in 2014 (“X”) and Y born in 2018 (“Y”).
2.X and Y live with the Mother.
3.X and Y spend time and communicate with the Father as follows:
(a)during school terms:
(i)in week one from the conclusion of school Friday (or 3:30pm if a non-school day) to the commencement of school Monday (or 9:00am if a non-school day); and
(ii)in week two from the conclusion of school Wednesday (or 3:30pm if a non-school day) to the commencement of school Friday (or 9:00am if a non-school day).

(b)for one half of each school holiday period at times to be agreed between the parties in writing and failing agreement:
(i)in even numbered years:
A.for the second half of each term holiday period; and
B.for the second week of the long summer school holidays and each alternate week thereafter.

(ii)in odd numbered years:
A.for the first half of each term holiday period; and
B.for the first week of the long summer school holidays and each alternate week thereafter.

(iii)For the purposes of order 3(b), the school holiday period will start at the conclusion of the school day on the last day of term for X and Y’s school and conclude at 12:00 noon the day prior to the commencement of the first “pupil day” back at school in the subsequent school term.

(c)on Christmas Day
(i)in odd numbered years from 5:00pm Christmas Eve to 5:00pm Christmas Day with the Father and from 5:00pm Christmas Day to 5:00pm Boxing Day with the Mother; and
(ii)in even numbered years from 5:00pm Christmas day to 5:00pm Boxing Day with the Father and 5:00pm Christmas Eve to 5:00pm Christmas Day with the Mother.

(d)For a minimum of three hours on each of X and Y’s birthdays at times to be agreed and in the event that X and/or Y’s birthday falls during time already spent with the Father pursuant to these orders, such time be suspended for three hours to enable the Mother to spend time with X and Y on their birthdays;
(e)if Father’s Day does not fall on a weekend when X and Y spend time with the Father pursuant to these orders, then from 5:00pm the day prior to Father’s Day to the commencement of school Monday (or 9:00am if a non-school day);
(f)if Mother’s Day falls during X and Y’s time with the Father, he shall return them to the Mother at 5:00pm the day prior to Mother’s Day;
(g)The Mother shall make X and Y available to speak to the Father by telephone or FaceTime on two days each time they are in her care, with such days and times to be agreed and failing agreement for 20 minutes at 6:00pm on the Tuesday and Sunday after X and Y spend the weekend with the Father, on the Sunday and Tuesday after X and Y spend time with the Father from Wednesday to Friday and on the Monday and Thursday in the weeks of the school holidays X and Y are with the Mother, with the Father to call X and Y on the Mother’s phone.
(h)the Father shall make X and Y available to speak to the Mother on one day when they are in his care and on two days during the school holidays, such days and times to be agreed and failing agreement for up to 20 minutes on Sunday in week one, on Thursday in week two and on Monday and Thursday in the school holidays with the Mother to call X and Y on the Father’s phone;
(i)each parent shall facilitate X and Y telephoning the other parent upon X and Y’s reasonable request to do so; and
(j)as otherwise agreed between the parties in writing.

4.Where changeover does not occur at school, changeover take place at the City B Police Station or such other location as agreed between the parties in writing.
5.Each parent will obtain the consent of the other parent before enrolling X and/or Y in an extra-curricular activity which occurs during X and Y’s time with the other parent.
6.The parties do all such acts and sign all necessary documents for X to be enrolled in C Primary School for the commencement of the 2022 school year.
7.The parties do all such acts and sign all necessary documents to enrol Y in C Primary School when he commences primary school.
8.Each parents’ involvement with X and Y’s school be as follows:
(a)the parents will each download and use the school app (if any) to access school information, news and events;
(b)if the school does not have an app for communication with the parents, then the parents shall authorise each other to arrange with the school that copies of all notices and newsletters are sent to them individually;
(c)each parent hereby agrees and authorises that the other parent may, subject to any school policy, attend all school community events and functions which parents are normally invited;
(d)each parent may volunteer to assist in school activities where volunteers are requested by the school or school associated groups;
(e)the parents may jointly attend any parent/teacher interviews but if agreement cannot be reached between them regarding a mutually convenient time to attend, then the parents may arrange separate interview times; and
(f)if any dispute arises regarding X and Y’s schooling, then the parents shall attend mediation in an attempt to resolve such dispute.

9.Each party shall advise the other of any serious illness or injury suffered by X and/or Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
10.The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and/or Y and from permitting any other person from doing so.
11.The parties do all things and sign all documents necessary to enroll in and attend counselling with D Counsellors Town B or such other agreed organisation.
12.The parties are hereby authorised and are to provide a copy of these orders and reasons for judgment to D Counsellors or such other agreed organisation for the purposes of counselling pursuant to order 11 herein.

AND THE COURT NOTES THAT:
A.The Paternal Grandmother is strongly encouraged to attend counselling with D Counsellors in City B or such other agreed organisation pursuant to these orders.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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 under the pseudonym Walters & Hannigen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION

This matter relates to the parenting arrangements for the parties’ two children X born in 2014 (“X”) and Y born in 2018 (“Y”).
The Mother is seeking orders for the parties to have equal shared parental responsibility for X and Y, for X and Y to live with her and spend time with their Father during school terms in week one from after school Friday to before school Monday and in week two from after school Wednesday to before school Friday, for half the school term holidays, week about in the long summer vacation and on special occasions.
The Father is seeking orders that the existing shared care arrangements set out in the current interim orders continue whereby the parties have equal shared parental responsibility for X and Y and X and Y live equally with the parties as follows:
(a)with the Father from Sunday to Wednesday;
(b)with the Mother from Wednesday to Saturday;
(c)with the Father from Saturday to Wednesday; and
(d)with the Mother from Wednesday to Sunday.
It is the Court’s understanding the parties are in agreement in relation to the Mother’s proposal for school holiday time and special occasions.
The Father is seeking a continuation of the current orders which provide for X and Y to telephone or FaceTime the parent they are not with on a daily basis. The Mother proposes that X and Y communicate with the Father twice when in her care and otherwise each parent facilitate X and Y calling the other parent upon their reasonable request to do so.
The Mother is seeking an order she be permitted to change X’s school in 2022 from his current school, E Primary School, to C Primary School. She also seeks orders she be permitted to enrol Y at C Primary School when he starts school. E Primary School is very near to where the Father lives with his Mother and C Primary School is located close to the former matrimonial home which the Mother retained pursuant to final property orders.
The Father is seeking an order that X remain at E Primary School and that Y too attend that school in due course.
BACKGROUND
The Mother was born in 1984 and is aged 36 years. She is employed as a health care worker at the Employer F on a permanent part-time basis working six day/afternoon shifts a fortnight. The Mother resides in the former matrimonial home at G Street, Suburb H, which she retained pursuant to the property settlement reached between the parties. The Mother has not re-partnered.
The Father was born on in 1985 and is aged 35 years. He is a stay at home parent. He is living with his Mother. The Father has not re-partnered.
The parties commenced cohabitation in 2011 and married in 2013. At the commencement of co-habitation both parties were in full-time employment, the Mother as a health care worker and the Father as a transport worker with Employer J.
Three months after X was born the parties agreed that the Mother would return to full-time work and the Father would stop paid employment and assume full-time home duties.
After X was born the Mother suffered post-natal depression for which she received treatment. It is the Mother’s evidence the Father used this diagnosis to continually criticise her parenting of X and then Y after he was born.
It is the Mother’s evidence that whilst the Father cared for X and Y when she was at work she was involved in their care when she was home. In addition she was responsible for all the organisational tasks for the boys including making medical appointments, appointments for vaccinations and day care for X. It is the Mother’s evidence she also did all the grocery shopping, bought the children’s clothes and toys and was responsible for most of the domestic chores.
The parties separated on 10 December 2019. It is the Mother’s evidence that on this day she and the Father argued. The Father became particularly aggressive and ordered her out of the former matrimonial home without the children. The Mother went to her parents’ home at Town K and the Father remained in the former matrimonial home with X and Y.
It is the Mother’s evidence that shortly prior to separation she had, with the Father’s consent, enrolled X at C Primary School which is 3 kilometres from the former matrimonial home. On the day of separation X was at C Primary School for a “come and try day”.
It is the Father’s evidence that the parties agreed the Father would do a tour of a number of primary schools including C Primary School, E Primary School, L School and M Primary School. Whilst X was at the “come and try day” at C Primary School on the day the parties separated, he had not been enrolled there as the parties had not settled on what school X would attend. The Mother disputes that she and the Father discussed X attending other schools or that the Father would look at other schools, saying that if the Father toured other schools she know nothing of it.
After separation the Mother arranged for the parties to attend mediation with Mr N on 15 December 2019 to try and agree to a parenting plan for X and Y. No long term agreement was reached on that day but the parties agreed to interim arrangements for the Christmas period. The parties returned to Mr N on 6 January 2020 but no agreement was reached.
In early to mid-January 2020 (the Mother’s evidence) or late January when the Mother changed the locks at the former matrimonial home (the Father’s evidence), the Father, X and Y moved to live with the Paternal Grandmother.
The Mother moved back into the former matrimonial home on 30 January 2020 and changed the locks on that day.
The Mother filed an Initiating Application on 29 January 2020 in which she sought, inter alia, that urgent parenting orders be made for X and Y to live with her and spend time with the Father. At that time X and Y were living with the Father and not spending any time with the Mother.
In January 2020 the Father enrolled X to start school in 2020 at E Primary School without consultation with the Mother.
On 18 February 2020 Judge Baker ordered a s.11F Child Inclusive Conference to take place on 19 February 2020.
In her Memorandum to Court dated 19 February 2020 under the sub-heading “Family Violence”, Family Consultant Ms O stated the following:-
•Ms Walters alleged the Father was extremely controlling saying “he controlled how I looked after the boys”.
•Ms Walters identified the Father would denigrate her, constantly calling her a bad Mother and saying “I couldn’t do anything right”.
•Mr Hannigen denied all allegations of family violence.
•Mr Hannigen verbalised he was concerned for the children’s emotional and physical safety in the Mother’s care. He alleged the Mother would smack and shake X and Y. The Father said “this is the worst I’ve seen her [mental health]” and worried about the impact the Mother’s mental health would have on the children.
Under the heading “Mental Health” Ms O reports at paragraphs 15 – 18:
15.Ms Walters reported she was diagnosed with post-natal depression in 2016, and was prescribed anti-depressants to help her manage. She reflected she had suffered from suicidal ideation, but never had a plan. She expressed that this was a result of the verbal denigration from Mr Hannigen regarding her mothering, “I would think, would X be better off without a mum if I’m such a bad mum.”
16.Following the relationship breakdown in December 2019, Ms Walters verbalised she obtained a mental health care plan from her GP, and is receiving case management support from The Centre of Non Violence in City B. She commented that her mental health had been very good recently, “It’s amazing how good you feel waking up each day not being told how pathetic you are.”
17. Ms Walters did not raise any concerns regarding Mr Hannigen’s mental health.
18.Mr Hannigen confirmed he did not suffer from any mental health issues. He stated that Ms Walters was diagnosed with anxiety and post-natal depression, and was concerned that her mental health was worsening.
Ms O observed very positive interactions between X, Y and the Mother. They had not spent any time together for some weeks prior to the child inclusive conference.
Under the heading “Future Directions” Ms O made the following recommendations at paragraphs 37 – 40:
37.Given the previous arrangements before separation, where both Ms Walters and Mr Hannigen cared for the children, it is recommended that an equal shared care arrangement be put in place. Given the young ages of the children, the court may consider an arrangement of three days one week and four days the alternate week for each party, so equal time is spent with both parents.
38.Given the allegations of family violence, changeover between parents to occur in a neutral public location such as X’s school. It would also be best if the contact between the parties were limited during these changeovers, given the family violence allegations.
39.A copy of this memorandum to be released to the Parenting Orders Program both parents are currently attending.
40.Ms Walters to continue to engage with health care professionals regarding her mental health treatment. The court may wish to obtain a report from Ms Walters’ psychologist to provide an update of Ms Walters’ treatment and progress.
On 20 February 2020 Judge Baker made interim parenting orders that provided inter alia:-
•The parties have equal shared parental responsibility for X and Y.
•X and Y live with:-
(a)the Mother from 9:00am Wednesday to 12:00pm Saturday;
(b)the Father from 12:00pm Saturday to 9:00am Wednesday;
(c)the Mother from 9:00am Wednesday to 12:00pm Sunday; and
(d)the Father from 12:00pm Sunday to 9:00am Wednesday.
•X and Y communicate by Face Time between 6:30pm and 7:00pm each day with the parent with whom they are not living.
•Changeover not at school or childcare to take place in the foyer of the City B Police Station.
•The Mother continue to engage with her mental health practitioners.
•The Mother to not work night shift when X and Y are in her care.
•Mutual non-denigration orders.
Of the orders made 20 February 2020, all were by consent save for the order with respect to the time X and Y live with each parent, which was an order of the Court.
On 25 May 2020 Judge Curtain listed the matter for final hearing in the City B Circuit commencing 16 November 2020, ordered a Family Report and referred property matters to a Conciliation Conference.
On 1 October 2020 the parties resolved property matters at the Conciliation Conference. Registrar Moser made orders for the Mother to pay the Father $36,000, for the Mother to retain the former matrimonial home and for each party to otherwise retain all assets in their possession, including superannuation and motor vehicles, save for some named chattels which the Father was to collect within 21 days of the orders.

Ms P prepared a Family Report dated 15 September 2020 (“the first Family Report”).
Under the heading “Evaluation” Ms P noted “there remains substantial mistrust between the parties with openly expressed critical comments in respect to parenting of the children”.[1]
[1] Paragraph 39 of the first Family Report.
Ms P stated “there were maternal descriptions of long term paternal abuse and controlling behaviour” and that the Father “emphasised the Mother was personally challenged pre-separation by post-natal depression and anxiety, struggling to meet the needs of the children, she perpetrates physical and verbal abuse of the children and that these concerns are current describing various incidents of poor maternal care including allegations of physical harm.”[2]
[2] Paragraph 40 of the first Family Report.
In paragraph 45 Ms P set out a summary of her recommendations for X and Y’s care at that time as follows:
45.The current arrangements have provided X and Y with the opportunity to maintain a parenting relationship with both their mother and father. Given their young ages caution is required in changing the share care arrangement substantially at this time to either longer or shorter blocks of time in parental care. It is considered that the children are now in an established and consistent pattern and routine, this important for young children. Caution is also required in respect to changing X’s current primary school given that he has already experienced disruption in his Prep year given Covid-19. Given the challenges identified in in (sic) this matter, caution is also required in relation to changeover arrangements that limit the possibility of conflict, this including neutral locations such as at school/child care and that the involvement of other adults be restricted. Parental communication needs to occur in relation to the children only and not reflect critical or negative views of the other party. Should the children live in the primary care on (sic) one parent, there exists the possibility of the children’s relationship with the other parent not fully supported, facilitated or accepted.
Because of COVID-19 restrictions, the interviews for the first report were conducted via video and Ms P was unable to observe X and Y with each of their parents.
When the matter came before the Court in the November sittings of the City B Circuit 2020, it did not resolve and was unable to be reached. The matter was adjourned to the May sittings of the Federal Circuit Court in City B in 2021 and orders were made for an updated family report by Ms P with a request the interviews and observation be face to face if possible.
The parenting arrangements for X and Y as set out in the orders of 19 February 2020 have continued since that date.
THE EVIDENCE
The Mother
The Mother relies on her trial affidavit affirmed on 3 May 2021. The Mother also gave vive voce evidence at the Final Hearing.
It is the Mother’s evidence that during her relationship with the Father she was subjected to ongoing and escalating family violence at the hands of the Father, which included verbal, physical and sexual abuse and in particular constant denigration of her as a Mother.
The Mother agrees that the Father was the stay at home parent from shortly after X’s birth but refutes his evidence that he was the boys’ primary carer. It is her evidence that she was actively involved in the boys’ care when not at work, that she did the majority of the housework and that she was the parent who was responsible for making all of the appointments for the boys’ medical and other care requirements as the Father struggled with this task given on her evidence he is semi-literate.
It is the Mother’s evidence that post-separation the Father’s and the Paternal Grandmother’s denigration of her as a parent has been constant and ongoing. The Father and Paternal Grandmother constantly criticise her parenting of X and Y and are continuously making allegations that have no basis in fact. The Father and Paternal Grandmother allege that the boys are at risk in the Mother’s care, that they suffer injuries that are reflective of poor parenting, that she does not feed them nutritious and wholesome foods, that she leaves them in the care of her parents as she is more focused on her career than she is on the care of the boys and that she continues to have mental health issues that impact on her parenting capacity.
It is the Mother’s evidence, confirmed by the Father, that he and/or the Paternal Grandmother continually report the Mother’s alleged negligent parenting to the Department of Families, Fairness and Housing (“the Department”) and the Police and that they continue to do so despite the Department and the Police investigating their allegations and finding X and Y are not at risk in her care.
The Mother acknowledges that after X was born she suffered post-natal depression. It is her evidence this was appropriately treated at the time and was resolved long before the birth of Y. It is the Mother’s evidence that post separation she sought assistance and counselling from the Centre for Non-Violence and that she benefited from regular counselling with them until June 2020 when both she and her counsellor were satisfied that their assistance was no longer needed.
The Mother readily acknowledges that X and Y have a close and loving relationship with their Father and they enjoy their time with him and the Paternal Grandmother. The Mother makes no criticism of the Father’s day to day care and parenting of X and Y. She does note that the Father is very reliant on the assistance provided to him by the Paternal Grandmother in the care of X and Y.
The Mother’s concern in relation to the Father’s parenting is his complete lack of respect for her as a mother and his failure to acknowledge or recognise the importance of X and Y’s relationship with her. The Mother believes that X and Y are exposed to the Father and Paternal Grandmother’s negative views of her as a mother and it is for this reason she argues that it is in X and Y’s best interests that they live 9 nights a fortnight in her care and 5 nights a fortnight in the Father’s care. This will give them respite from the negative views of her in the paternal home whilst ensuring that X and Y continue to spend significant and substantial time with their Father so that their close and loving relationship with him continues.
It is the Mother’s evidence that she and the Father are unable to communicate in a positive and child focussed manner and that their conflict and lack of respectful communication is also why a continuation of the current shared care arrangement is not in X and Y’s best interests.
It is the Mother’s further evidence that the Father has failed to include her in decisions pertaining to the care of X and Y. By way of example the Mother highlights the Father obtaining a referral for both X and Y to see a Paediatrician and only advising her of them attending upon that Paediatrician after the event. She also highlights the Father’s unilateral enrolment of X at E Primary School without consultation with her. It is also her evidence that it was only after X had attended several appointments with a counsellor that the Mother discovered that the Father had been taking X to counselling.
When giving her vive voce evidence the Mother made the observation that she doesn’t criticise the Father’s parenting but rather his communication and the lack of respect that he shows her. She said “I just wish he’d treat me better”.
It is the Mother’s evidence that if the Father and the Paternal Grandmother respect that she is X and Y’s Mother and the importance of their relationship with her, and if they were able to communicate in a positive and genuinely child focussed way instead of using the communication book that the parties currently have as a tool to criticise her, long term she would like to see the parties return to equally sharing the care of X and Y. It is the Mother’s evidence however that she believes at this time the arrangements that she is proposing will enable her to better parent X and Y and will reduce the conflict that currently exists between the parties which can only be in X and Y’s best interests.
The Mother is seeking an order that if she is successful in her application that X and Y live in her primary care, she be allowed to enrol X at C Primary School which is much closer to her home. E Primary School is located approximately 30 minutes from her home. It is close to the Paternal Grandmother’s home. The Mother notes that Y will be starting school in 2023 or 2024. She wants Y as well as X to be attending a school closer to her home if they are primarily living with her.
It is the Mother’s evidence that she understands X is well settled at his current school and that if there is a change in his care arrangements it will be important to give him some stability whilst he adjusts to those changes. In order to ensure the change in X’s living arrangements is made as smoothly as possible and to not impose too many changes in a short period of time on X, the Mother suggests that the change of school from E Primary School to C Primary School take place at the beginning of the 2022 school year.
It is the Mother’s evidence that the current arrangement whereby the parent that X and Y are not with rings them each day is not in X and Y’s best interests. It is the Mother’s evidence that the calls are disruptive, X and Y often don’t want to speak to the other parent and it is a further cause of friction between her and the Father, as the Father will become aggressive towards her if a call is missed or X and Y don’t want to speak to him.
It is the Mother’s evidence that given X and Y see each of her and the Father in every week, two calls to the parent they are not with is much more child focussed and allows X and Y to settle in each of their parent’s homes. The Mother also proposes that each parent should facilitate X and Y speaking to the other if X and Y reasonably ask to do so.
The Father
The Father relies on his trial affidavit sworn 17 November 2020 and his updating affidavit sworn 20 May 2021. The Father also relies on the affidavit of the Paternal Grandmother sworn 10 May 2021. The Father gave vive voce evidence at the final hearing.
It is the Father’s evidence that he has been X and Y’s primary carer since they were born, he having assumed the role of home parent very shortly after X’s birth.
It is the Father’s evidence that during the relationship the Mother was focussed on her career, working long hours, rather than on the parenting of X and Y. It is his evidence that the Mother often worked night shift at a hospital which was some considerable distance from the former matrimonial home. The Mother’s parents’ home is only 10 minutes from this hospital so the Mother would often stay with them rather than travelling the long distance back to the former matrimonial home at the end of her shift. The Mother agrees she did stay at her parents’ home after a late shift rather than drive home but this occurred no more than once a fortnight.
It is the Father’s further evidence that when the Mother was home she was often very tired from work and therefore her level of interaction with X and Y was limited. It is the Father’s evidence that the Mother suffered post-natal depression after the birth of both X and Y and that she was prescribed anti-depressants to deal with these issues. It is the Father’s evidence that because of these factors the Mother was often short tempered and impatient with X and Y and would physically discipline and yell at them.
Whilst he agreed that it was the Mother who would make the arrangements for X and Y’s medical appointments and the like, it is the Father’s evidence that it was he who almost always took the boys to these appointments and dropped them off or picked them up from day care.
It is the Father’s evidence that he believes the Mother’s parenting of X and Y post-separation continues to be sub-standard. In both his trial affidavit and his updating affidavit the Father sets out in considerable detail the many supposed inadequacies of the Mother’s parenting. These include:
•X was returned from the Mother’s care on 14 March 2020 with two black eyes.
•X is reluctant to spend time with his Mother.
•When X was diagnosed with a penis infection and prescribed medication the Mother made X apply the cream himself rather than applying it as the adult in the household.
•On 13 December 2020 Y was returned to the Father’s care with an ear that was red and inflamed.
•The children, and in particular Y, are commonly returned to his care with bruises after being in the Mother’s care.
•The children commonly return to the Father’s care dehydrated and exhausted.
•The children are returned to the Father’s care complaining of being hungry.
•The children are commonly returned to the Father’s care constipated.
•X has walked into the Mother’s room and discovered her in bed with a naked male.
•The Mother’s work commitments interfere with her ability to care for the children, with the Mother often dropping X to school earlier than the time the school allows.
•In 2020 and 2021 the Mother went to work rather than having X and Y for Mother’s day.
•The Mother takes no interest in X’s education, alleging X missed the last day of term 1 in 2021 and that X’s teacher has told him that X is not completing his reading when in the Mother’s care.
•The parties use a communication book to exchange information in relation to X and Y. Whilst the Father provides full and proper details relevant information in relation to the children the Mother fails to do so.
The Father was also highly critical of the Mother and her parenting of X and Y when giving his vive voce evidence.
The Father was questioned whether he still believes the Mother is unable to control her temper and physically disciplines the boys. He responded “I have no evidence to say otherwise.”
When questioned about his allegation that the Mother is “not interested” in X and Y, the Father stated that this was an accurate description of the Mother’s parenting during the relationship though “she is clearly more interested now given she is wanting more time with them.”
When X allegedly returned from his time with the Mother on 14 March 2020 with two black eyes the Father reported the incident to the then Department of Health and Human Services and made application for an intervention order for the protection of X and Y with the Mother named as the respondent. The Father’s evidence is that he did not ask the Mother about X’s black eyes. He was unable to speak to his solicitor at that time as he was unwell and didn’t want to prejudice any investigations being undertaken by the authorities. It is noted the Mother denies X had two black eyes when he returned to the Father’s care on 14 March 2020. The Department took no action in relation to this alleged incident and the Intervention Order was dismissed.
The Father confirmed that he has made multiple reports to the Department raising his concerns about the Mother’s alleged poor parenting of X and Y. It is the Father’s evidence he documents and photographs any bruises, knocks, bites or scratches that he observes on X or Y when they return from their Mother. He explained his doing so because he had been advised that he should record his concerns.
The Father conceded that the Department have advised that they have no concerns in relation to X and Y being at risk in the Mothers care but observed that “they are not able to see what goes on behind closed doors.”
It is the Father’s evidence that when Y is collected after spending time with their Mother, he or the Paternal Grandmother will bathe Y and put him in clean clothes before giving him something to eat and putting him down for a sleep. The Father explained this is necessary because when Y returns from his time with the Mother, he is dirty, his clothes are filthy and his nappy needs changing.
The Father continues his complaint that the Mother puts her work before X and Y. The Father was highly critical of the Mother that she chose to work on Mother’s Day rather than spending time with X and Y despite there being court orders that allowed her to do so. When it was suggested to him that the Mother was rostered to work on the Mother’s Day weekend and therefore had little choice in the matter he responded “I’m of the opinion that knowing well in advance (when Mother’s Day is) she could have made a change if she really wanted to have them.”
The Father was questioned in relation to the difficulties that the parties have in communicating with each other. In paragraph 24 of his affidavit sworn 10 May 2021 the Father describes his communication in the following terms:
“at all times my communication with the Applicant has been civil, respectful and appropriate. I have only communicated with the Applicant issues in relation to the children. I have kept the Applicant fully aware of the issues in relation to the children and of the children’s appointments with professionals and how the children have been progressing educationally and generally in their lives by use of the communication book as well as text messages.”
Tendered into evidence were copies of various entries in the communication book from February 2020 to the current time.
An early exchange of communication between the parents is as follows:
18^th – 22^nd March 2020 (Mother)
Both boys had a great time nil issues.
Could you please include a jumper for both boys next time and I will return them.
As well as pants for X.
Ms Walters”
22^nd – 25^th March 2020 (Father)
“Boys had a lovely time.
With regard to the coronavirus please be aware that in order to keep the boys safe, we have been self-isolating and avoiding shops and playgrounds and any unsafe environment. As X came home with a runny nose, temperature and headache, he was taken to the doctors on Monday 23/3/20. He was prescribed Zyrtec as per dosage on package. The examination was conducted in the care and X did not attend the last day of school. Please continue the medication as required. Y has the same systems (sic), however he is too young for Zyrtec and will need Panadol.
We are obviously concerned with you and your families’ occupations. We are doing everything to protect the boys, ourselves and the community during this coronavirus and trust you will be practicing the same precautionary measures. We would be happy to have the boys at any time you or your family are required to work or are considering leaving the boys in any vulnerable situations.”
25^th – 28^th March (Mother)
“Y and X have had a wonderful time.
No medical issues for X. Y has had a small cough treated with Vicks VapoRub (children’s) baby rub.
Thank you for your concern regarding the coronavirus, we are currently strictly adhering to the protocols issued by the national cabinet and to the additional requirements requested by the Victorian Premier.
The children have stayed at the house at G Street and have not left the property.”
Ms Walters.
More recent entries from the Father read as follows:
10/04/21 – 14/4/21 (Father)
“Y returned with infected mozzie bites on his legs that were huge and a sore bottom. Bites improving and bottom better after treatment. No medication given today. X has a sore foot and has had panama 8am. He has a bruise on his leg. Both boys had a great time and both attended their doctors’ appointments yesterday.”
8/5/21 – 12/5/21 (Father)
“As you asked Y via FaceTime “How is your head?” we assume another head injury without a note in this book. He appears to be ok but was pointing to his head and saying it hurt.
Y up early this morning, bathed and had breakfast and his bottle and a snack at 9:30. X had a fall at school this morning and may have bruising and scratches as a result. Big brave boy still went off to school.”

Examples of the Mother’s messages are as follows:
15/1/2020
Y was taken to the doctors on the 14/1/2020. Just has mild asthma. To give Ventolin as needed.”
It is the Father’s evidence that it is his mother who makes the entries in the communication book on his behalf. He explained that the entries are made in the morning before changeover and that he tells his mother what to put in the communication book and she does so whilst he is attending to the boys and getting them ready for school/changeover.
When asked why he puts such detailed messages in the communication book the Father explained it is because the Mother fails to provide him with any detail in relation to what happens with X and Y when they are in her care. He succinctly described their communication as follows:
“I communicate more because she communicates less and she communicates less because I communicate more.”
The Father was asked what X likes doing with his Mother. The Father responded “he likes dancing with his mum”. The Father was unable to name anything further.
When asked “what the Mother brings to X and Y” the Father replied that when they were together the Mother was the breadwinner and brought the money into the house so that they could have what they needed. The Father then said that most of the time it was he who did the parenting and whilst the Mother would play a few little games with X and Y, have a cuddle on the couch and rock Y to sleep, she did this very infrequently because of her work commitments.
In cross examination the Father agreed that he did not consult the Mother before he enrolled X at the E Primary School. He explained it was a decision he had to make quickly and he chose the school on the basis that it was close to his Mother’s home where he was living with the X and Y.
The Father also conceded in cross examination that he had not advised the Mother of the appointments made with Paediatrician Dr Q for both X and Y until after those appointments had taken place.
The Father was asked why, given his evidence of the Mother’s poor parenting, he was proposing that the current shared care arrangements for X and Y continue. The Father responded that he thinks the routine he and the Mother have is working and to interrupt that routine would not be in their best interests.
The Father was asked what he would do in the future if he considered that X and Y were at risk in their Mother’s care. He responded:
“If something happens and things get worse, I have the option of going to the authorities, going to the doctors, starting this thing all over again.”
In relation to X’s school, it is the Father’s evidence that X is very settled at E Primary School and is progressing very happily there. It is his evidence that he believes it would not be in X’s best interests to require him to change schools and disrupt the stability, security and friendship group he has at the school.
The Father seeks orders that the current arrangements continue whereby X and Y speak to the parent they are not with on a daily basis, including changeover days. In paragraph 31 of his updated trial affidavit the Father deposes that he communicates with X and Y every day but complains the Mother interferes with his calls by distracting the children, having the TV on and being in areas of poor reception. The Father deposes that on all occasions he speaks or FaceTime X and Y are excited to speak to him and there are “no awkward gaps”.
The Father is critical of the Mother for not always contacting X and Y as provided for in the current orders. It is his evidence the Mother also cuts her calls short and X is very disappointed when she does so as he hasn’t got to tell or show her the things he wants to.
The Mother agrees she does not ring or FaceTime X and Y every day they are in the Father’s care. It is the Mother’s evidence that she does not contact X and Y on changeover days as X and Y have already been with her and she believes they need to settle with the Father. It is her evidence she doesn’t ring X and Y every day they are in the Father’s care as she does not believe it to be in X and Y’s best interests that their time with the Father be disrupted by her calls and because they are with her so regularly.
Ms R
Ms R is the Paternal Grandmother. She swore an affidavit on 10 May 2021 and gave vive voce evidence at the final hearing.
Ms R spoke glowingly in her affidavit of the Father’s care of X and Y. Ms R then deposed to the concerns she has in relation to the Mother’s parenting in paragraph 23 of her affidavit as follows:
“23.That I am concerned whilst the children are in the care of the Applicant that the children are not being properly cared for. From my observations, the children regularly return from being in the care of the Applicant tired, dehydrated, hungry, constipated and with unexplained bruises all over their body. Y commonly comes back with nappy rash after being in the care of the Applicant. The children commonly return to the Respondent’s care unbathed.”
When cross examined in relation to the criticisms of the Mother as set out in paragraph 23 of her affidavit, the Paternal Grandmother stated that the issues she identified in her affidavit continue and that the “horrible part is it’s week after week after week. There has only been 3 times the boys have come back without injury.”
The Paternal Grandmother gave evidence that X tells her and the Father that all he gets to eat with the Mother is chicken nuggets and that the boys are constantly coming home from the Mother’s constipated as they are not fed a healthy and balanced diet while in her care.
It is the Paternal Grandmother’s evidence that X and Y are not the Mother’s priority as work has always been, and continues to be, her priority.
By way of example of the Mother’s poor care of X and Y the Paternal Grandmother told the Court that when Y returned from the Mother’s care this week, he hadn’t had a bath, his neck was dirty, his hair was dirty and he had a dirty nappy.
It is the Paternal Grandmother’s evidence that when Y returns from the Mother’s care, Y often falls asleep because he is so exhausted. If he does not fall asleep she and the Father give him a bath, something to eat and put him down to sleep. If Y is so tired that he falls asleep as soon as he gets home, she and the Father put him to bed and when he wakes up they give him a bath and then change his sheets. She observed this is something they do almost every time Y returns from the Mother’s care.
The Paternal Grandmother said she is “sorry the Mother has to hear this; that she doesn’t want to insult her but it is what happens.”
The Paternal Grandmother stated that she doesn’t believe the Mother can meet X and Y’s basic needs given the state they come home in.
The Paternal Grandmother confirmed that it is she who writes in the communication book. The Father dictates a text message and sends it to her and she writes what he has dictated in the book.
Ms P
Ms P is a Regulation 7 Family Consultant with the Federal Circuit Court. Ms P prepared two reports in this matter, the first report dated 15 September 2020 and the second updated Family Report dated 19 April 2021 (“the second report”).
Ms P gave vive voce evidence at the final hearing.
Ms P’s first report is discussed in paragraphs 30-34 of this judgment.
In the second report Ms P sets out that the Mother’s proposal is for X and Y to live in her primary care and spend a 5 day overnight block period in each fortnight with the Father. The Mother also proposed that X and Y speak to their Father every second night and not on the day that they return to her care.
In contrast to his proposal at trial that there be a continuation of the current shared care arrangement, Ms P reports that the Father told her his proposal was for X and Y to live in his primary care and spend only alternate weekends from Friday to Sunday afternoon and some additional holiday time with the Mother.
When discussing X Ms P described him has a quietly spoken child, willing to engage in both observation periods and with the report writer.
X told Ms P that he would like to stay at his current school stating “I’ve been there since prep. I have fun there, I have friends, my teacher is nice, her name is Ms S.”
X described both his parents positively, his Father being “a good dad” and his Mother being “a good Mum”. X told Ms P that his Father “has Nanna to help him” at the paternal home and that his Mother is “mostly at work, I go to grandma and grandpa’s house when mum is at work, it is a nice house but a bit boring.”
Ms P’s observations of X and Y with both parents were positive with the boys happily engaging with both their parents.
Under the heading “Evaluation” Ms P made the following observations in paragraphs 40 – 42:
40.Parental love for the children is acknowledged with a strong individual desire to assume primary care. Ms Walters impresses as continuing to experience significant personal distress in response to both post separation events and described aggressive and controlling paternal behaviours during the relationship and following separation. Despite these challenges, Ms Walters stated that she is accepting of the children spending planned time with the father and maintaining this parenting relationship. Mr Hannigen impresses as highly judgmental and critical of the mother, appearing unrelenting in his endeavour to prove that the children are not adequately cared for during maternal care and are subject to possible abuse. Concern is expressed in relation to the father making the unilateral parenting decision to engage in paediatric review of the children without consulting with the mother. Doubt is therefore raised in respect to the father accepting the maternal role with the children and the importance of this parenting relationship.
41.Given the young ages of the children, it is considered that the current parenting arrangements have provided X and Y with the opportunity to maintain a parenting relationship with both their mother and father post separation. Consideration is indicated if the current parenting arrangements are affected to such an extent by parental conflict and mistrust that an alternative is warranted. Both parties indicated a dis-inclination to continue to the current shared care arrangement. Without parental agreement, good-will and an ability to communicate in a reasonable manner free of openly held negative views of the other parent, the current shared care arrangement appears seriously compromised.
42.Care is required in respect to the particularly young age of Y and X’s indicated desire to remain at his current primary school. On balance, at this time it appears that the mother may be more accepting and wiling to facilitate a continuing meaningful parenting relationship between the children and their father with the maternal proposal appearing to acknowledge the paternal parenting relationship with the children. However, it is also acknowledged that the children are accustomed to spending regular weekly time in paternal care with any changes in parenting arrangements likely to have an impact upon them. Unfortunately, it appears that the parties may not be prepared or willing to reach or consider parental agreement in relation to future parenting arrangements, this being to the detriment of X and Y.
Under the heading “Recommendations” Ms P respectfully proposed for consideration the following matters:
43.That the parties have equal shared parental responsibility for X and Y.
44.That X and Y continue to have the opportunity of spending block periods of time in the care of each parent in a fortnightly cycle. Consideration to be given to parental block periods occurring over alternate weekends in each parent’s care.
45.Consideration to be given to telephone/video/FaceTime contact with the other parent every second day. Further consideration to be given to only the parties attending changeovers.
46.That the parties communicate via a dedicated parenting app in relation to X and Y.
47.That both parties receive information directly from the children’s school/child care, medical practitioners and other treating health specialists including counsellors.
48.That X and Y not be exposed to family violence, parental conflict, expressed negative comments in relation to the other parent or extended family members or emotive parental responses.
49. That consideration be given to X remaining at E Primary School.
50.That both parties attend recommended individual counselling and parenting programs as offered by D Counsellors, City B.
51.That an up to date report be obtained from the Department of Health and Human Services.
52. That a paediatric report be provided to the Court by Dr Q.
When giving her vive voce evidence Ms P was asked:
Question: “Can these parents continue a shared care arrangement given the reality that they cannot communicate and given the unrelenting negativity of the paternal family towards the Mother which she is finding genuinely distressing and really confronting.”
Ms P: “I think in short, the answer is no. I think the shared care proposition is severely compromised.
Question: “This means that X and Y need to live with one parent more than the other?
Ms P: “That’s correct.”
Question: “Do you have a view on which parent that should be?”
Ms P: “I think it is going to be difficult no matter what the decision is, but from my observation and the information I have to reflect upon, from the April interviews, I think that consideration could be given probably more to maternal care. Just given my concerns of the behaviour of the Father in holding very critical views of the Mother; and the children, particularly X, becoming increasingly aware of that and caught in the middle of – of unilateral decisions, particularly taken by the Father.”
Ms P had put to her a summary of the Paternal Grandmother’s evidence of what she says occurs in the Father’s home when Y returns from his Mother’s care. Ms P was asked whether that scenario caused her concern. She replied as follows:
“Yes it does. I think it’s extremely damaging practice for both children to be exposed to. The other issue that I was aware of was not only the Father being very critical of the state of the children when they return to him, but also the issue of taking to doctors and sending photographs to the Department of Health and Human Services. It is a practice that I think – that is not in the best interests of these two children. And if there were significant concerns about neglect of the children in the Mother’s care, I would have suspected that that would have been an issue that had been taken up at this time but the Department of Health and Human Services.”
Ms P was asked about her observations in the Family Report that X was becoming more aware of the conflict and tensions between his parents. Ms P replied:
“When I talked to him, he was a child that was able to describe some of the thoughts and feelings about his family circumstances. He impresses to me as a thoughtful child who has some awareness of what is happening post-separation between his parents and is causes him concern. It causes him worry. X was a child that talked about the importance of both relationships with his Mother and Father as being important to him. He also mentioned grandparents as being important to him. So this is a child who is capable of witnessing, experiencing and processing some of the things he is confronted with, both at time of changeovers and being increasingly aware of the views held by the paternal household and the maternal household.”
In relation to the communication book and the manner in which it is currently being used by the parties and the Father in particular, Ms P made the following observations:
“The aim of the communication book is…in cases where parties are finding it difficult to either verbally exchange practical information about the children, it gives them another strategy in which to do that. The difficulty with communication books is that it relies upon both parties to simply record the most important pieces of information that the other party needs to be aware of. It is not meant to be a venue where there is constant questioning or recording of every incident that happens for a child. It is meant to cover the most significant events. So I guess what I am trying to say, if there was a major medical issue, then that’s the information you would expect to see in a communication book, not a very detailed list of everything that has been observed or seen.”
Ms P was asked about what should be the level of telephone/FaceTime communication between X, Y and the parent they are not in the care of. Ms P replied:
“These children need the opportunity to be able to settle both in mum’s care and dad’s care. It’s not like there are at the moment big gaps of time where they are not seeing the other parent. I think daily contact by FaceTime or telephone call is often for the parent’s benefit and not for the child. So I think we need to be mindful of that and we need to give these children the opportunity just to be able to focus on being in mum’s care or in the reverse being in dad’s care without the added stress, tension, expectation of having daily telephone contact.”
Ms P was asked whether she had formed the impression the Mother prioritised her work over the children as is the evidence of the Father and Paternal Grandmother. Ms P replied:
“No it wasn’t. And one of the issues that the Mother raised with me that she is mindful of her working hours. She has adjusted her working hours…it wasn’t a concern that I had. I felt that she needs to have some employment. She needs to have some income. But it’s not to the detriment of the children. And she has adjusted, it is my understanding, the shifts that she will and won’t work.”
Ms P was asked the question that if the parties communication were to improve would she advocate that the children continue in an equal shared care arrangement Ms P responded:
“One can be hopeful that over a period of time following separation perhaps the issues become less difficult, less emotional, and more manageable. These two have been to a parenting orders program so they’ve had that kind of practical information about how to make the situation work. The impression that I had in April is that both parties have really strengthened in their own individual views. They had progressed further apart, not closer. So…September last year to now, if you could see that there had been some improvement, there may be some room to consider a continuation of the current arrangement. But that’s not what I saw, and it doesn’t reflect the concerns that I had about what was happening in terms of unilateral decisions, the kind of tension that happens between these parties at changeover, and the strongly held views of the father.”
Ms P was asked about the Mother’s proposal that X change schools to one closer to her. Ms P responded:
“I think it is difficult. If you listen to X, he is now accustomed to being at a particular school. He likes that school. That school is important to him. He has made friends there, and X voiced his preference to be able to stay at the school where he is currently enrolled. But yes, I am aware that the school involved greater geographical for the Mother than it does for the Father, and it probably does reflect a paternal decision in terms of choice of primary school. Ms P made the observation that if the school was to be changed next year would be preferable but that this would not be an easy situation for X and it would have to happen in a planned way with X being supported in that change of school.”
When discussing the Mother’s 9/5 proposal, Ms P observed that given the ages of X and particularly Y it would not be in their best interests at this time for that period to be in a single block. This particularly so as Y has been accustomed post-separation to spending time with each of his parents every week.

Ms P was asked whether the parties would benefit with counselling to assist their communication and to develop greater insight into how the current conflicted relationship is so damaging for X and Y. Ms P confirmed the recommendation in her updated Family Report that the parties attend D Counsellors in City B for one on one counselling and she reinforced that recommendation.
Ms P expressed a real concern that the Father’s negative attitude of the Mother seems to have hardened between September 2020 when she first saw him and when she saw him for the second time in April 2021. Ms P reiterated that counselling at D Counsellors would be important for the Father “because the counselling that they would provide would be very practical and supportive, with a focus on what is the best outcome for these two children.” Ms P said “I would encourage the Father and the Paternal Grandmother – they obviously love these two children. If they want to act in their best interests then it is the acceptance of the importance of a relationship with the Mother that is not overly judgmental, critical and damning.”
THE LAW
Best Interests of the Child
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
“1.The objects of this Part are to ensure that the best interests of children are met by:
(a)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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the Court must consider the matters set out in s.60CC(2) and s.60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
X and Y have a close and loving relationship with both their parents. They were cared for by both their parents prior to separation with the Father being the stay at home parent and the Mother the income earner. Post-separation X and Y have lived in a shared care arrangement with both their parents which has solidified their meaningful relationship with both of them.
The proposals both parties have before the Court will ensure that X and Y’s meaningful relationship with both their parents will be maintained.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The Father and Paternal Grandmother’s unrelenting criticism of the Mother’s parenting of X and Y is set out in detail in this judgment.
The Paternal Grandmother believes the Mother is not able to meet the most basic needs of X and Y when they are in her care as she does not meet the basic standards of hygiene, nutrition and physical care.
The Father complains that X and Y return to his care from time with their Mother dirty, hungry, tired and injured. Despite the Father’s litany of complaints of the Mother’s substandard parenting, he is proposing orders be made that the current shared care arrangements for X and Y continue.
The Father has made multiple reports to the Department alleging the Mother X and Y are at risk in the Mother’s care.
In the response to an order made by the Court pursuant to s69ZW of the Act, the Department stated under the heading “Protective Assessment”:
“Follow up with the professionals involved with the family have raised no concerns for the children in the care of either parent. Reports have closed at the intake phase. Matters of contact and residency are appropriately managed via the Federal Circuit Court with no role for child protection identified.”
The Mother is a health care worker. She is working on a permanent part-time basis in order to support her family and to meet the costs of the home in which she, X and Y live. It is possible that like most working parents there are aspects of her parenting of X and Y which are not optimal as she balances the demands of two lively young boys with the realities of work and home care. There may be occasions when the boys do get dirty, her house is not spotless and that she does not meet the very high standards set by the Father and the Paternal Grandmother.
In contrast to the Mother, the Father is a stay at home parent who has the ongoing hands on support of the Paternal Grandmother with whom he lives. The demands he faces in parenting X and Y are perhaps a little less challenging than those of the Mother.
There is no evidence before the Court that X’s school has any concerns in relation to X’s presentation when he comes from either of his parents. Y’s child care, which he attends when with the Mother, have no complaints about Y and his presentation.
As noted, the Department have no concerns about the care of X and Y by either of their parents.
I am therefore satisfied that X and Y are not at risk when cared for by their Mother and that she meets all their needs in a safe and loving environment.
X and Y also receive appropriate, loving and safe care when with their Father.
The risk to X and Y is their exposure to the acrimony and conflict between the paternal home and the Mother’s home. The unrelenting criticisms of the Father and the Paternal Grandmother of the Mother is understandably wearing her down and has created in her a defensiveness and resistance to communication with them and a belief that there is nothing she can do that is right in their eyes.
Most concernedly X is becoming increasingly aware of the conflict between his parents and this is already starting to cause him considerable distress.
X and Y love both their parents and make no complaint whatsoever about their care when with either of them. They need to be able to continue to love both their parents and not be exposed to this conflict.
It is important that the parents improve their communication and co-parenting. It is particularly important that the Father and Paternal Grandmother’s unrelenting criticism of the Mother stops and they recognise that they need to respect the Mother as a parent and the importance of her role in the lives of X and Y. A failure to do so will have long term and lasting negative effects on the emotional and psychological health of both X and Y.
Section 60CC(3)
S60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interests. Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Given X and Y’s young ages, their views in relation to their living arrangements were not canvassed or explored by the report writer.
X did tell Ms P that he did not want to change his school as he is settled there, has lots of friends and likes his teacher.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparents or other relative of the child)
As has been set out in this judgment, X and Y have a loving relationship with both of their parents.
X and Y have a loving relationship with both the Paternal Grandmother and the Maternal Grandparents. This is understandable as all grandparents assist in X and Y’s care.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
There is a justifiable concern raised by the Mother and the report writer about the Father making unilateral decisions in relation to X and Y without consultation with the Mother. For example the Father enrolled X in E Primary School without consultation with the Mother and has taken both boys to appointments with paediatrician Dr Q without first consulting or advising the Mother of him so doing.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The Mother pays child support to the Father as assessed by the Child Support (Assessment) Act 1989 (Cth) despite the current shared care arrangement. This reflects the Mother being in paid employment whilst the Father is currently a stay at home parent.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his parents; or
(ii)any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Mother’s evidence is that the orders she proposes will not diminish the meaningful relationship that X and Y currently share with the Father. She argues her proposal will maintain their relationship with the Father but will alleviate many of the tensions that currently exist between she and the Father arising from the parties’ inability to co-parent cooperatively and the unrelenting negativity from the paternal family directed at her in the context of her parenting to which the boys are now being exposed.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This consideration is not relevant to this matter.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
As has been set out in this judgment, I am satisfied that both parents are able to appropriately care for X and Y and attend to their needs.
The concern for X and Y is their exposure to the conflict between the parties and in particular to the negativity displayed by the paternal family towards the Mother and her parenting as displayed by their constant criticism of her, the tenor and tone of their communication as set out in the communication book and their continuous complaints to the Department and the Police. X in particular is becoming aware of this and there is no doubt Y will too as he gets older unless the paternal family realise that it is okay that X and Y are parented somewhat differently in each of their parents’ households. The Paternal family need to realise it is important they respect the Mother both as a parent and in her role and relationship with the boys. A failure by them to do so can and will impact on the emotional wellbeing of both children.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Father and Paternal Grandmother are highly critical of the Mother because she works. They allege the Mother prioritises her work over the care of the boys.
During the relationship the parties made the decision that the Father would be the stay at home parent and the Mother would work to support the family. It is concerning that in fulfilling this agreed role both the Father and Paternal Grandmother are critical of her.
Post-separation the Mother has needed to continue to work to support herself, X and Y and keep a roof over their heads. Unlike the Father, the Mother does not live in her parents’ home and does not have their undivided support to assist in the care of X and Y.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that both parents are competent, caring and responsible parents who genuinely have the best interests of their sons at heart and that they try to parent accordingly.
Whilst repeating myself, the negativity of the paternal family towards the Mother and her parenting, whilst perhaps in part as a result of the current litigation and their understanding of what they have been told to do by the Department and legal advisors means that they are being over-vigilant in relation to recording every single bump, bruise and scratch. This is not in X and Y’s best interests.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
It is the Mother’s evidence that the Father was both physically and emotionally violent towards her during the relationship and that his intimidation and control of her has continued post-separation.
An interim intervention order was taken out by the Mother on 3 February 2020. It is unknown whether it remains in place.
The Father alleges the Mother physically disciplined X and Y during the relationship and that this has continued post-separation.
Both parents adamantly deny the allegations made against them by the other.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
When giving his vive voce evidence the Father said on more than one occasion that he believed the parties’ ongoing litigation had contributed to their poor communication and their lack of trust in each other. The Father told the Court he believed it was necessary for him to record and photograph every bump, scratch, bruise, bite and complaint that he alleges X and Y had upon their return to his care after being with the Mother because he was advised to do so by the Department and his legal advisors.
The Father raised the hope that the cessation of litigation between him and the Mother would take that pressure off them and assist them to improve their parenting relationship. He suggested the parties should engage in counselling to help them to improve their communication and the other aspects of their parenting.
The Mother raised concerns that X may have some behavioural issues which need to be investigated professionally. It is her evidence that when the litigation finishes she will be able to focus on those concerns and have those investigations undertaken.
It is therefore very apparent that these parties need these proceedings to be over. They need to be out of the court system and not have the threat of litigation hanging over their heads.
Most importantly, X and Y need their parents to focus 100% on their care and not on litigation.
The Father’s evidence that if he formed the view that the Mother’s parenting was substandard he would again report those concerns to the Department and institute fresh Court proceedings is very concerning. It is hoped that the Father will learn through counselling that any concerns he has can and should be worked out in a sensible manner with the Mother and not through litigation.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
The Mother is seeking orders that in 2022 there be a change of school for X from his current primary school, which is near the Father’s house, to C Primary School which is much closer to her home.
It is the Mother’s evidence that it currently takes her 30 minutes to get X to school. The Mother argues that the distance and time it takes her to get X to school when he is in her care makes it extremely onerous on X. It is also an impost on Y as he must come with her when she takes X to school.
The Mother argues that if X and Y are to be living with her for 9 nights each fortnight it is in their best interest that they attend a school that is close to her as it will reduce travel time and allow them to live close to where their school friends are which will enable them to more easily have play dates and participate in after school activities.
The Father argues that X is well settled in his school, is progressing satisfactorily, has many friends and has told Ms P that he wants to stay at his current school.
The current interim orders provide for the parent X and Y are not with to FaceTime X and Y every day they are not with them including changeover days.
The Mother is seeking this order be varied so that when X and Y are with her, the Father speaks to them on two occasions and when they are with the Father she speaks to them on one occasion. The Mother argues her proposal allows X and Y to settle in the care of the parent they are with. She argues this will be much less disruptive for them and the parent they are with.
The Father is seeking the current orders for communication remain in place. It is his evidence X and Y enjoy speaking to the parent they are not with on a daily basis and they would miss doing so.
Presumption of Equal Shared Responsibility
Section 61DA of the Act provides that 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.

This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
Both parties ask the Court to make an order that they have equal shared parental responsibility for X and Y. Such an order is supported by the family report writer.
The Father making unilateral decisions in relation to X and Y without consultation with the Mother and the parties’ real difficulties in communicating in an appropriate and meaningfully way is well highlighted in this judgment. Despite this it is apparent that X and Y are best served if both their parents are jointly making the decisions in relation to their long term care in a child focussed way.
X and Y are young boys. There are many decisions that will need to be made for them by their parents as they get older. If both parents contribute to those decisions it will be in X and Y’s best interests.
Accordingly, orders will be made for the parties to have equal shared parental responsibility for X and Y.
Consideration of Equal or Substantial and Significant Time
Where parents have equal shared parental responsibly for a child, s.65DAA of the Act requires the Court to consider the child spending equal time, or substantial and significant time, with each parent.
The Father seeks orders for a continuation of the current arrangement which sees X and Y spending equal time with both of their parents. The Mother seeks an order that the current living arrangements for X and Y be varied such that they live with her and spend substantial and significant time with the Father
The Father argues that the boys are settled and thriving in the current arrangements and it is therefore in their best interests that those arrangements continue.
It is the Mother’s evidence that the shared care arrangement is not in X and Y’s best interests as it is becoming increasingly unworkable as a result of the Father’s unrelenting negativity towards her and the parties’ inability to communicate effectively or co-parent cooperatively in any way.
Ms P expressed the view that a shared care arrangement on an ongoing basis is not viable for these parties and more particularly for X and Y. This is because of the highly dysfunctional parenting relationship to which X and Y are exposed. She expressed the view that because of the Father’s increasingly entrenched negative view of the Mother to which X in particular is becoming sensitive, the best outcome for X and Y is to live with the Mother and spend substantial and significant time with the Father in accordance with the Mother’s proposal.
CONCLUSION
This is a very sad matter. X and Y are the much loved sons of their now separated parents. Ideally they should be able to continue to live in a shared care arrangement having the benefit of the input, love and care that both their parents can provide.
Shortly after separation in December 2019 the parties put in place a shared care arrangement that saw X and Y living with each of their parents in a 4/3/3/4 arrangement each fortnight.
The Father is seeking orders that this arrangement continue arguing that both X and Y are well settled in this routine, it is working well for both of them and it cannot be seen to be in their best interest to disrupt the arrangement.
The Mother is seeking orders that X and Y live with her and spend five nights a fortnight with the Father, from Friday to Monday in week one and Wednesday to Friday in the week two.
The Mother argues that this change in the boys’ living arrangements is necessary as the shared care arrangement is not working because of the Father and Paternal Grandmother’s unrelenting negativity and denigration towards her as a parent to which X and Y are exposed and because of the parties’ ongoing highly conflicted relationship and the parties’ inability to communicate and to co-parent in a cooperative way.
The Father’s evidence to the Court was unrelentingly negative of the Mother and of her parenting of X and Y. He alleges that whilst in the Mother’s care X and Y sustain multiple unexplained bruises, insect bites, scratches, black eyes and bumps on the head, she doesn’t feed them properly, she doesn’t attend to their hygiene, they became overtired, she is disinterested in X’s schooling, she is negligent in attending to their medical needs, she fails to explain and communicate fully with him so that he understands what has occurred when the boys are in her care and she prioritises her job ahead of X and Y.
The communication book used by the parties in relation to X and Y show that the entries from the paternal family, in the Paternal Grandmother’s handwriting, are unrelentingly critical. They highlight every scratch and bruise that the boys arrive with when returning from the Mother and contain not a single positive word about the Mother.
The Mother’s initial communications with the Father were chatty and polite but became increasingly short and restricted as the unrelenting criticisms of her continued.
The Father succinctly observed that the more he writes in the communication book the less the Mother writes and the less the Mother writes the more he writes.
The Paternal Grandmother with whom the Father, X and Y live was even more negative of the Mother and her parenting. Her evidence was really disturbing in its unrelenting criticism of the Mother. She described in some detail how when Y returns from the Mother he is immediately bathed and his clothes changed because he is so dirty. She gave evidence that if Y is so exhausted when he returns from the Mother that he immediately falls asleep he is put to bed. When Y wakes up her and the Father bathe and change him and wash his sheets.
The Paternal Grandmother gave evidence that she believes the Mother isn’t capable of meeting X and Y’s basic needs.
The Father has made multiple reports to the Department as well as to the Police and X and Y’s medical practitioners that X and Y are at risk in the Mother’s care. In response to the s.69ZW order made by the Court, the Department advised that they had followed up with the professionals involved with the family and they raised no concerns for the children in the care of either parent. The Department holds no concerns that X and Y are at risk when in the care of either parent.
There is no evidence before the court that X’s school has raised concerns about X’s presentation when he comes from the Mother. There is no evidence from Y’s child care centre that they have concerns about Y’s presentation when he comes into their care when with the Mother.
The Mother is a “working mum”. She has to balance the care of her children with her work commitments in order to be able to support herself, her children and put a roof over their head. Whilst there are probably times when her parenting is less than perfect, the Court is satisfied that X and Y are not at risk in the Mother’s care and that the complaints and allegations made by the Father and Paternal Grandmother are a reflection of their very high standards and their lack of respect for the Mother.
It is the clear evidence of Ms P that a continuation of the current shared care arrangement is not in X or Y’s best interests. In her vive voce evidence Ms P stated that the current shared care arrangement is severely compromised and that from her observations consideration should be given to X and Y living primarily in the Mother’s care because of the Father’s ongoing criticism of the Mother and of her parenting. Ms P is concerned that the children, and in particular X, are becoming increasingly aware of the Father’s negative views of the Mother. Ms P was also most concerned that the Father has made unilateral decisions in relation to X and Y without consultation with the Mother as evidenced by his choice of X’s school and his taking X and Y to a Paediatrician without advising the Mother until after the event.
When giving her vive voce evidence the Mother told the Court that she doesn’t criticise the Father’s parenting. It is his communication and lack of respect that the Mother finds so distressing stating, “I just wish he’d treat me better”.
The Mother said that if the Father would let up on his criticism of her and support and respect her role as X and Y’s Mother and her parenting of them, she would happily embrace a shared care arrangement for them. It was apparent she was genuine in her wish that the Father would change his attitude and behaviour towards her so that she and the Father could share the care of their sons.
It is apparent from the evidence given by the Father that his attitude towards the Mother remains very negative. Of great concern is Ms P’s evidence that she found the Father’s negative views and criticisms of the Mother to have become more entrenched in the time between when she saw the parties for the first report and the second report.
Because of the unremitting negativity towards the Mother to which X and Y are exposed when in the care of the paternal family, because X is becoming more and more aware of the paternal families’ views of his Mother and is distressed by this and because of the parties’ inability to communicate in a positive and co-operative manner it is apparent that the current shared care arrangement is not in X and Y’s best interests. I am therefore in agreement with Ms P that the shared care arrangement cannot continue at this time and it is the Mother with whom X and Y should primarily reside.
X and Y should continue to spend significant and substantial time with their Father in accordance with the proposals put by the Mother. This will enable X and Y to have the stability and understanding of the importance of the role their Mother plays in their lives and at the same time maintain the close and loving relationship they have with their Father and the Paternal Grandmother.
The next issue for determination in this matter is where X, and Y in due course, should attend school.
I accept and understand that X is reluctant to change his school. He is happy there, he has got friends there, he likes his teacher and he doesn’t want any change.
The orders being made will see X and Y living primarily with the Mother. Y will soon join X at school. I am of the view that the boys’ school should be in close proximity to the Mother’s home. She will have to balance her role as primary carer with her work and it will be more difficult for her to do so if she has to spend up to an hour a day taking X and Y to and from school. If X and Y attend a school near where they are primarily living they will be able to more easily have play dates with their school friends and be part of their school community. The significant and substantial time X and Y are to spend with their Father will ensure X can maintain his current school friendships when in his Father’s care.
It is sensible and child focussed that X’s change of school not take place until next year. His change of school will require careful and caring support from both his parents. That support should and must be given to X to assist him in making this change.
The final matter for determination is the question of the frequency of the phone/FaceTime communication X and Y have with the parent they are not living with.
Currently the orders provide for X and Y to FaceTime the parent they are not living with each day.
The Mother seeks that this order be varied so that X and Y speak to the Father twice when in the Mother’s care and with her once when in the Father’s care. She argues daily calls are disruptive, make it difficult for X and Y to settle with the parent they are with, are a source of ongoing conflict and tension between herself and the Father and are unnecessary as X and Y have and will continue to see each of their parents each week.
The Father seeks the current daily calls continue. It is the Father’s evidence that X and Y enjoy speaking to each of their parents every day and therefore the current arrangement should continue.
In her updated Family Report Ms P recommended X and Y be given the opportunity to FaceTime the parent they are not living with every second day at an agreed time. As set out in paragraph 105 of this judgment Ms P’s evidence on this issue is as follows:
“These children need the opportunity to be able to settle both in mum’s care and dad’s care. It’s not like there are at the moment big gaps of time where they are not seeing the other parent. I think daily contact by FaceTime or telephone call is often for the parent’s benefit and not for the child. So I think we need to be mindful of that and we need to give these children the opportunity just to be able to focus on being in mum’s care or in the reverse being in dad’s care without the added stress, tension, expectation of having daily telephone contact.”
I am in agreement with the Mother and Ms P on this issue. X and Y need to be given the opportunity to settle into each parent’s care without the stress, tension and expectation of daily telephone communication. Orders will be made that X and Y speak to the Father twice whilst in the Mother’s care and with the Mother once when in the Father’s care. There will also be an order that each parent facilitate X and Y ringing the other parent on X and/or Y’s reasonable request to do so as this will allow X and Y to let the other parent know of something special that might have occurred outside the usual day for their call.
It is Ms P’s evidence that the parties will benefit from counselling at D Counsellors in City B to help them better communicate. Ms P hopes that this counselling can also help the Father to understand that it is in X and Y’s best interests if he and the Paternal Grandmother accept the importance of their relationship with their Mother and to not be overly judgmental, critical and damning of her.
I agree with Ms P that the parties would benefit from counselling and orders will be made that the parties attend D Counsellors, or such other agreed organisation, for that counselling. I will direct the parties to provide the organisation they attend with a copy of this judgment so that their counsellor understand why the parties are seeking counselling.
As the Paternal Grandmother is not a party to these proceedings, the order for counselling cannot include her. However it is strongly recommended that she too participate in this counselling and I ask her to do so for the benefit of her grandsons.

I certify that the preceding two hundred and fourteen (214) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.
Associate:
Dated: 2 September 2021

File number(s):	MLC 847 of 2020
Judgment of:	JUDGE BENDER
Date of judgment:	2 September 2021
Catchwords:	FAMILY LAW – PARENTING – the parties’ applications in relation to parenting arrangements for their two sons aged 6 and 3 – Mother proposes children live with her and spend 5 nights a fortnight with the Father – Father proposes the current shared care arrangement continue – where the Father unilaterally enrolled the child at a Primary School close to his home – the Mother seeks the children be enrolled at a Primary School closer to her home – both parties seek an order for equal shared parental responsibility – children exposed to the Father’s unrelenting negative view of the Mother’s parenting – parties’ relationship highly conflicted and they are unable to communicate HELD – Orders made for the parties to have equal shared parental responsibility for the children – children live with the Mother and spend 5 nights a fortnight with the Father – children to be enrolled at a Primary School closer to the Mother’s home
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Child Support (Assessment) Act 1989 (Cth)
Cases cited:	AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238
Division:	Division 2 Family Law
Number of paragraphs:	214
Date of last submission/s:	25 May 2021
Date of hearing:	24-25 May 2021
Place:	Bendigo
Counsel for the Applicant:	Ms Mallett
Solicitor for the Applicant:	O’Farrell Robertson McMahon Lawyers
Counsel for the Respondent:	Mr Combes
Solicitor for the Respondent:	Peter Baker & Associates

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	2 SEPTEMBER 2021