Wenlack & Cimorelli (No 3) - [2023] FedCFamC1F 248

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wenlack & Cimorelli (No 3) [2023] FedCFamC1F 248

File number(s): SYC 2881 of 2013

Judgment of: HANNAM J

Date of judgment: 5 April 2023

Catchwords: FAMILY LAW – FINAL PARENTING – Where the father and ICL contend that the children have been subjected to psychological abuse by the mother – Where the father and ICL seek that orders be made for long term supervision – Where the mother contends that there is no risk of harm posed in either household – Where the mother has previously contended that the father poses a significant risk of harm – Where the mother seeks a return to an equal shared care arrangement – Where I am satisfied that the children have been subjected to psychological abuse perpetrated by the mother – Where the maternal grandparents and maternal aunt are parties to the proceedings – Where the extended maternal family poses an unacceptable risk of harm to the children– Where orders are made for the children to live with the father – Where orders are made for long term supervision of the children’s time with the mother – Where orders are made for long term supervision of the children’s time with the maternal grandparents – Where restraints are made against members of the maternal family

Legislation: Family Law Act 1975 (Cth) ss 4, 4AB(1), 60CC(2), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(i), 60CC(3)(g), 60CC(3)(m), 61DA, 68B.

Cases cited:
Cimorelli & Wenlack [2020] FamCA 615

Donnell & Dovey [2010] FamCAFC 15

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Gorman & Huffman & Anor [2016] FamCAFC 174

Isles & Nelissen [2022] FedCFamC1A 97

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

Moose & Moose [2008] FamCAFC 108

Slater & Light [2013] FamCAFC 4

Wenlack & Cimorelli [2019] FamCA 755

Wenlack & Cimorelli (No. 2) [2019] FamCA 790

Wenlack & Cimorelli (No. 3) [2019] FamCA 791

Wenlack & Cimorelli (No. 4) [2019] FamCA 854

Wenlack & Cimorelli [2022] FedCFamC1F 180

Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696

Division: Division 1 First Instance

Number of paragraphs: 529

Date of last submissions: 17 October 2022

Date of hearing: 14 – 18 February; 11 March; 21 March; 17 May; 31 May – 1 June; 14 September 2022

Place: Parramatta

Counsel for the Applicant: Ms Tabbernor (direct brief)

Counsel for the First Respondent: Mr Givney and subsequently Litigant in person

Solicitor for the First Respondent: Apex Legal and subsequently Litigant in person

Counsel for the Second and Third Respondents: Ms Reid (direct brief)

Solicitor for the Fourth Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law
ORDERS

SYC 2881 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR WENLACK

Applicant

AND:
MS CIMORELLI

First Respondent

MR C CIMORELLI

Second Respondent

MS D CIMORELLI (and another named in the Schedule)

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

5 April 2023

THE COURT ORDERS THAT:
1.The father shall have sole parental responsibility for D born in 2008, E born in 2009 and F born in 2012 (“the children”).
2.The father shall keep the mother informed in writing as to any decision he makes in respect of the children pursuant to Order 1.

Time with the parents
3.The children shall live with the father.
4.The children shall spend time with the mother for five hours each fortnight, supervised in the community by NN Contact Service or KK Contact Service (“the contact service”).
5.For the purposes of Order 4, changeover shall occur at Suburb HH McDonalds or otherwise as agreed between the father and mother.
6.The mother shall be responsible for all costs of supervision.
7.The parents are to take all steps to ensure that the contact service provides each parent a report following each occasion on which the children spend time with the mother.
8.Both parents are restrained from cancelling or changing the contact service without the express written consent of the other parent prior to the cancellation or change.
9.In the event the father proposes to take the children away on a holiday, then he is to provide the mother with at least 4 weeks’ notice in writing and the children’s time with the mother in accordance with Order 4 is to be suspended during the period the father and the children are away, such suspension to be limited to no more than three occasions each year.

Electronic communication with mother
10.The mother and father shall do all things necessary to facilitate electronic communication between the children and the mother on the following special occasions in the event the children are not otherwise spending time with the mother on these days:
(a)Each child’s birthday;
(b)The mother’s birthday;
(c)Mother’s Day;
(d)Easter Sunday;
(e)Christmas Day.

11.For the purposes of Order 10, the father is to ensure that the children initiate the calls to the mother.

Time with the maternal grandparents
12.The children shall spend time with the maternal grandparents, supervised by NN Contact Service in the community:
(a)From 10.00 am to 2.00 pm once every second calendar month as agreed with the father, other than the same day that the children are spending time with their mother pursuant to these Orders;
(b)On the following special occasions:
(i)The annual cultural community day from 10.00 am to 4.00pm, with the time to be from 4.00pm to 10.00pm if it is held in the evening;
(ii)For one day of the annual cultural festival as agreed between the maternal grandparents and the father, from 10.00 am to 6.00 pm; and
(iii)On one day of the Royal Easter Show as agreed between the maternal grandparents and the father, from 10.00 am until 6.00pm.

13.The maternal grandparents are responsible for all costs of supervision pursuant to Order 12.
14.For the purposes of Order 12, changeover shall occur at Suburb HH McDonalds or otherwise as agreed between the father and maternal grandparents.
15.The maternal grandparents may attend Grandparents Day at the children’s schools and no other member of the maternal family is to be present at these events.
16.The father shall ensure that he provides the maternal grandparents information about Grandparents Day as soon as it is known.
17.The father and maternal grandparents shall do all things necessary to facilitate electronic communication between the children and maternal grandparents on the following special occasions in the event the children are not otherwise spending time with the maternal grandparents on these days:
(a)Each child’s birthday;
(b)The maternal grandfather’s birthday;
(c)The maternal grandmother’s birthday;
(d)Easter Sunday;
(e)Christmas Day.

18.For the purposes of Order 17, the father is to ensure that the children initiate the calls to the maternal grandparents.

Injunctions and Restraints
19.Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is hereby restrained from:
(a)Allowing the maternal aunt Ms N Cimorelli to attend her time with the children pursuant to these Orders;
(b)Allowing any additional persons to be present during her time with the children pursuant to these Orders except with written permission of the father;
(c)Contacting the children in any manner except as provided by these Orders;
(d)Giving any gifts to the children during the contact except for the children’s birthdays, Christmas and Easter or with the written consent of the father;
(e)Attending upon the children’s school or home except by way of written consent of the father;
(f)Attending any of the children’s extracurricular events except by way of written consent of the father;
(g)Attending upon the children’s time with the maternal grandparents pursuant to these Orders.

20.Pursuant to s 68B of the Family Law Act 1975 (Cth), the maternal grandparents are hereby restrained from:
(a)Contacting the children in any manner except as provided by these Orders;
(b)Attending upon the children’s schools except by way of express written invitation from the father;
(c)Discussing the Orders and/or the reasons for the making of the Orders with the children;
(d)Allowing the children to communicate or come into contact with the mother or Mr JJ during their time with the children;
(e)Allowing the maternal aunt Ms N Cimorelli to be present during their time with the children pursuant to these orders.

21.Pursuant to s 68B of the Family Law Act 1975 (Cth), the maternal aunt Ms N Cimorelli is restrained from:
(a)Attending the children’s time with the mother or maternal grandparents;
(b)Approaching or contacting the children in any way including through a third party; and
(c)Attending at or within 200 metres of the children’s residence, schools or any place at which the children may attend or be at from time to time.

22.Pursuant to s 68B of the Family Law Act 1975 (Cth), in the event that the children, or any of them, come into the presence or care of the mother, maternal grandparents or Ms N Cimorelli, then whoever of the mother, maternal grandparents or Ms N Cimorelli has had that contact must do the following:
(a)Immediately contact the father and inform him where the child or children are and arrange with him for the child or children to be returned forthwith;
(b)Inform the child or children that they will be returned to the father and encourage them to voluntarily return; and
(c)Take all steps to return the child or children to the father’s care in accordance with this Order.

23.The parties are hereby restrained from:
(a)Denigrating any other party, or any other party’s family, to the children or within their presence or hearing, or allowing any third party present from doing so;
(b)Discussing these proceedings with the children, including the Reasons for Judgment; and
(c)Showing or otherwise discussing with the children the contents of any affidavit or court documents, including in relation to any allegations of risk contained therein.

Provision of information about the children
24.The mother is at liberty to receive copies of the children’s school reports and school photos of the children each year.

Therapeutic Treatment
25.The father is to ensure that the children continue to attend upon their therapist, Ms UU, in accordance with her recommendations and for so long as she deems appropriate.
26.In the event that Ms UU is not able to provide ongoing therapy to the children, the Father is to arrange for the children to attend upon another therapist nominated by the Independent Children’s Lawyer and Order 25 shall also apply to that therapist.
27.The father is to bear the costs of the children’s therapy.
28.The Independent Children’s Lawyer has leave to provide the following documents to Ms UU and any other therapist providing treatment to the children:
(a)A sealed copy of these Orders;
(b)A copy of the Reasons for Judgment dated 5 April 2023; and
(c)A copy of Dr XX’s report dated 21 January 2021.

Provision of Court Documents
29.The Independent Children’s Lawyer has leave to provide the following documents to the Department of Communities and Justice:
(a)A sealed copy of these Orders;
(b)A copy of these Reasons for Judgment dated 5 April 2023; and
(c)A copy of Dr XX’s report dated 21 January 2021.

30.The father is at liberty to provide a copy of these Orders and Reasons for Judgment dated 5 April 2023 to NSW Police.
31.The father is at liberty to provide a copy of these Orders to the children’s schools.
32.The father is at liberty to provide a copy of the Report of Dr XX prepared in these proceedings and the Reasons for Judgement dated 5 April 2023 to any of the children’s mental health treaters who they may attend upon from time to time.
33.The parties are at liberty to provide a copy of the Report of Dr XX prepared in these proceedings and the Reasons for Judgement dated 5 April 2023 to any of their mental health treaters who they may attend upon from time to time.

Other Orders
34.The mother and father are to keep each other informed as to their residential address, mobile telephone number(s) and email address, and advise the other of any change in these details within 48 hours of such change.
35.The Father is to notify the mother as soon as practicable in the event that any of the children are hospitalised or suffer a serious injury or illness.
36.The appointment of the Independent Children’s Lawyer is extended for a period of 3 months after the date of these Orders to enable the Independent Children’s Lawyer to fulfil her obligations pursuant to Orders 28 and 29 and Notation 37 to ensure that the children have appropriate therapeutic supports in place following the making of these Orders.

Notations
37.The Court NOTES that the Independent Children’s Lawyer will arrange to meet the children together with their therapist for the purposes of explaining the final orders to the children as soon as practicable after the orders are made by the Court.

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

The parents (“the mother” and “the father”) of three children (“the children”) have been in dispute about the children’s parenting arrangements for much of their lives. Their two daughters are now aged 14 (“the oldest child”) and 10 (“the youngest child”) and their son (“the son”) is aged 13. There have been numerous Reasons for Judgment delivered in the course of the proceedings and each of the judgments written[1] by me are to be read with these Reasons. Extracts from those previous judgments are also incorporated into these Reasons where indicated.
[1] Wenlack & Cimorelli [2019] FamCA 755; Wenlack & Cimorelli (No. 2) [2019] FamCA 790; Wenlack & Cimorelli (No. 3) [2019] FamCA 791; Wenlack & Cimorelli (No. 4) [2019] FamCA 854; Cimorelli & Wenlack [2020] FamCA 615; Wenlack & Cimorelli [2022] FedCFamC1F 180; Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696.
In the course of final hearing in earlier proceedings commenced by the father in 2013 (“the earlier proceedings”) final parenting orders were made with the parents’ consent. Pursuant to those orders the parents had shared parental responsibility for the children and the children spent an increasing amount of time with the father until the parenting arrangement was to reach an endpoint of equal shared care between the parents from late 2017.
For reasons which are in dispute between the parties, by April 2019 the equal shared care arrangement for the children had broken down and the father sought to revisit those parenting orders by bringing a new application. The determination of this application has been protracted and is the application now under consideration. At all times since the commencement of the renewed proceedings the father has maintained that the mother poses an unacceptable risk of harm to the children if they were to live with her or spend any unsupervised time with her. He sought in his renewed application and continues to seek orders that he have sole parental responsibility for the children, that they live with him and spend defined supervised time only with the mother.
The Independent Children’s Lawyer appointed in the proceedings (“the ICL”) agrees with much of the father’s case including his contention that the mother poses an unacceptable risk of harm to the children should they spend any time with her that is not supervised, and that it is in the children’s best interests that they live with the father and that he hold sole parental responsibility for them.
The mother’s position in the proceedings has changed over time, though she has always maintained that she does not pose a risk of harm to the children. In her final written submissions, she proposed orders that she and the father equally share parental responsibility for the children and that the children spend increasing time with her leading to an almost equal time arrangement.
The maternal grandparents have also been parties to the proceedings from November 2019. They seek orders for the children to spend time with them only in the event that the children are to live with the father pursuant to final orders. If this eventuates, the maternal grandparents propose that the children spend time with them one weekend per month, for a defined period in the holidays and on days of special significance.
The maternal aunt was added as the fourth respondent to the proceedings pursuant to the Rules on 11 March 2022. She is not seeking any orders in the proceedings but was cross-examined at the resumed hearing and the father is seeking a restraint be made against her.
It is the father’s case, with which the ICL agrees, that the children would be exposed to an unacceptable risk of harm should they spend extended unsupervised time with the maternal grandparents as they propose. The father seeks orders that the children’s time with the maternal grandparents be limited and supervised, while the ICL’s proposal allows for a slightly more liberal time regime which is also to be supervised.
The question for me to determine is which of the various proposals is proper having regard to the best interests of the children as the paramount consideration.
BACKGROUND
The parents separated in April 2013 when their six year marriage came to an end. At that time the children were all five years of age and younger. The parents have subsequently divorced.
Following separation, the father commenced proceedings for parenting orders which progressed to final hearing in August 2015. Part way through that trial the parents reached agreement about a parenting arrangement that they then considered was in the children’s best interests and final orders were made (“the August 2015 Orders”) in accordance with the parents’ agreement in resolution of the dispute. The August 2015 Orders provided for the parents to have equal shared parental responsibility for the children and for the children to spend an increasing amount of time with the father until it reached an endpoint of equal time by the end of 2017.
Throughout the course of the earlier proceedings, the mother had contended that the father posed a risk of harm to the children. However, in an affidavit filed for the purposes of the earlier trial she deposed to no longer having a belief that there is any risk of harm or danger to the children while they are in the father’s care and a notation was made in the August 2015 Orders to this effect.
Events following the August 2015 Orders

The parenting arrangements proceeded for some years in accordance with the August 2015 Orders without apparent difficulties known to the father at the time. It subsequently came to light, however, that the mother had various concerns about the father’s care of the children commencing from a time shortly after the August 2015 Orders were made.
A report from the Department then known as Family and Community Services (“the Department”) (Exhibit 15) records that from December 2015 notifications about the father’s care began to be received by the Department as had been the case for much of the time that the earlier proceedings had been on foot. Four notifications made between December 2015 and February 2016 alleged that the father engaged in excessive discipline of the children and that he had physically harmed them.
The mother also expressed concern in different settings about the father’s explanation for the circumstances in which the son broke his arm in 2016, and in March 2016 sought the assistance of police “to help her dispute the family law decision.”
From June 2016 the mother and maternal aunt moved to live with the maternal grandparents in the grandparents’ home (“the maternal family home”). When the children were in the care of their mother this was their home.
The youngest child exhibited behaviour in about 2017 that the mother considered sufficiently concerning to contact police and arrangements were made for this child to see the school counsellor.
Throughout 2018 the mother sought out various “therapeutic” programs to assist the children with various difficulties that she considered they were experiencing and that she believed were in some way connected to their parenting arrangements or the father’s conduct.
In November 2018 the mother had enrolled the children in a program (“the trauma counselling program”) run by a counselling service (“the counselling service”) which provides therapy for children who have experienced trauma and for the purposes of increasing children’s resilience. The father was not aware of the nature of the service or the enrolment of the children in the trauma counselling program and had not provided his consent for their participation in it. This program commenced in early 2019.
By late March 2019 a further six notifications about the father’s alleged conduct with respect to the children had been made to the Department and on 20 March 2019 the father was informed by Departmental staff that he should not collect the children from school for their time with him as it was to occur that day. There were a further three notifications of physical harm, neglect, sexual harm, psychological harm and excessive discipline made concerning the father in April 2019.
The April 2019 reports were investigated by the Department and although none of the allegations of abuse were substantiated, it was assessed by the Department that the risk of psychological harm was at that time “high” due to the children’s apparent distress at the prospect of spending time with the father.
For reasons which are in dispute between the parties and to which I will return, the children spent very limited time with the father from 20 March 2019 and virtually all of the time took place in the presence of the mother and often the mother’s sister (“the maternal aunt”).
The father filed an application in April 2019 seeking to revisit the August 2015 Orders. In that application he sought orders that he have sole parental responsibility for the children, that they live with him and spend supervised time with the mother. In response, the mother sought that the equal shared care arrangement be reinstated and that the father’s Initiating Application be dismissed.
Although the father was not aware of it at the time, numerous reports had been made to the police and especially the Department since August 2015 in which it was alleged that he had engaged in a range of abusive conduct towards the children. Notifications about the father’s conduct continued from May 2019 fairly regularly until October 2019 and by 8 October 2019 23 such notifications had been made since the August 2015 orders.[2]
[2] Exhibit 15, a report from the Department recording notifications in respect of the children.
Reports to the Department and police of an especially bizarre nature which assumed some significance in these proceedings were first made in June 2019. It was reported that the father placed a device on the neck of all of the children which “tracked” their movements and which the father used to administer electric shocks to the children when they were naughty.
This last-mentioned complaint, along with all of the other reports of the father’s maltreatment of the children in the proceedings, was not substantiated by the Department when it was made in mid-2019, nor did it lead to any further action by the police
The mother was unable to compel or induce the children to spend any substantial time with the father between March and October 2019 even though the August 2015 Orders provided that the children were to live with both parents in an equal shared care arrangement.
For reasons that are explained in an ex tempore Judgment delivered on 4 October 2019[3] (which is incorporated in and to be read with these Reasons) orders were made on that date recovering the children from the mother and delivering them to the father. By further orders made on 4 October 2019, the August 2015 Orders were suspended on an interim basis and the children were to live with the father who was to have sole parental responsibility for them. Orders were also made restraining the mother from taking any steps to have the children returned to her care and from contacting them.
[3] Wenlack & Cimorelli [2019] FamCA 755.
Police attended the maternal family home on the evening of 4 October 2019 but were unsuccessful in their attempts to recover the children. Police successfully recovered the children the following day and they then began living with the father, initially at the home of a paternal aunt (“the paternal aunt”) and later in separate premises with the father.
Events after the children moved to live with the father
After the children first began living with the father following recovery from the mother, the intensity of notifications about the father’s allegedly abusive conduct significantly abated. According to Departmental records, only three further reports were received alleging that the father posed a risk of psychological harm to the children and each of these were made in the days following the execution of the recovery order on 5 October 2019.
On 1 November 2019 I heard an application for orders in relation to the children’s interim parenting arrangements.
A short time prior to the 1 November 2019 court event the maternal aunt had filed an Application in a Case seeking to be joined as a party to the proceedings. At the court event two days later on 1 November 2019, the maternal aunt withdrew her application. It was noted at the time that an order had previously been made by a registrar requiring the maternal aunt to attend an assessment with a court appointed expert. The maternal aunt advised the Court through her counsel that she was unaware of the order and did not intend attending at that assessment unless she was a party to the proceedings and as noted had withdrawn her application to become such a party. The maternal aunt was advised that the Court was of the view that she should attend at that assessment as she formed part of the maternal household.
In a Judgment delivered on 20 November 2019[4], I provided Reasons for orders governing the interim arrangements for the children. Pursuant to those interim orders (“the interim orders”) the August 2015 Orders were suspended and the children were to continue to live with the father and he was to continue to have sole parental responsibility for them. Orders were made for the children to spend supervised time with the mother at a contact service as nominated by the ICL for a period of two hours per fortnight and such other time as may be accommodated by the contact service.
[4] Wenlack & Cimorelli (No. 4) [2019] FamCA 854.
In February 2020 the maternal grandparents also filed an Application in a Case seeking interim orders for the children to spend time with them.
In March 2020 the maternal grandparents and maternal aunt (“the maternal extended family”) attended the oldest child’s school sporting event. The father was not present at that event and says he was not aware at the time that the maternal extended family were there. At that event, the maternal extended family met with the oldest child and the maternal grandfather provided this child with his phone number to enter into her new phone. The father had taken the oldest child’s previous phone when the parenting arrangements changed in October 2019. The child entered the maternal grandfather’s phone number under a false name in her phone in order to conceal it from the father.
The maternal extended family also gave the oldest child the phone number of a friend from the school that the children had previously attended prior to moving to live with the father (“the old school friend”), which the child also entered under a false name in her phone.
The day after the sporting event the oldest child sent a series of text messages to the old school friend in which she complained about the allegedly abusive conduct of the father. On the same day the father of the oldest child’s old school friend (“[Mr JJ]”) attended a police station and made a report about the matters complained of in those text messages.
After school on the day after the sporting event the oldest child was visibly distressed and uncooperative with the father. In the course of a conversation with her about what had triggered this change the child told the father a false story about how she had obtained her old school friend’s phone number. The oldest child confessed that she subsequently sent text messages to this friend saying “some bad things about the father” which had caused her to feel embarrassed and sorry. Just as this conversation was ending, two police officers turned up at the father’s home unexpectedly, undertaking a welfare check on the oldest child.
After the officers spoke to the oldest child they had a conversation with the father and advised him that their visit resulted from Mr JJ taking the oldest child’s text messages to his daughter to police that day. Police also advised the father that when the oldest child was questioned about the text messages she burst into tears and immediately admitted that she had concocted the complaints about him in those messages.
The following day when the father had a further conversation with the oldest child about the events over the preceding days, she broke down in tears again and said she had lied about the circumstances in which she had received her old school friend’s phone number and told him that members of the maternal extended family had given this number to her when they had unexpectedly attended her sporting event.
The complaint by Mr JJ to police also lead to further involvement from the Department, with a case worker interviewing the oldest child at school.
The mother had filed an Appeal in December 2019 against the interim orders which was heard on 6 March 2020 and judgment delivered on 23 March 2020.[5] The mother’s Appeal was unsuccessful.
[5] Cimorelli & Wenlack [2020] FamCAFC 58.
Mr JJ attended on a police station again in April 2020 in relation to the notification he made about the text messages sent by the oldest child to his daughter. As a result, the police attended again at the father’s home to conduct a welfare check on the oldest child.
Although the mother did not contend at final hearing that the father poses any unacceptable risk of harm to the children and it is her case that she had no involvement in any notifications made to the Department after the children moved to live with the father, records of the Department[6] indicate that the mother continued to suggest in email correspondence with the father that the Department have an ongoing role with the family even after the interim orders were made.
[6] Exhibit 15.
Notifications made to the Department after the interim orders were made for the children to live with the father and the question of the mother’s involvement in them are central to the dispute between the parties and are a matter to which I will return. Of particular significance in this regard is a report to the Departmental helpline in June 2020 re-agitating the complaint about the father allegedly placing an electronic device on the necks of the children. This complaint was assessed again by the Department but not substantiated.
Later the same month, on 25 June 2020, the mother filed an affidavit alleging that the father had perpetrated family violence over many years towards the children, herself and the maternal grandparents and was physically and emotionally abusive towards the children.
From August 2020 the parents were able to secure a contact centre that accommodated the children spending five hours with the mother each fortnight and seven hours when there were events of particular significance for the family.
On 3 August 2020 another judge of the Family Court heard and determined the application of the maternal grandparents for orders providing for the children to spend time with them. Pursuant to those orders, the children were to spend time with the maternal grandparents supervised at a children’s contact service or with a community based supervision service as nominated by the ICL for three hours each month and such other additional supervised time as may be agreed to by the father and maternal grandparents in writing. The maternal grandparents were also restrained from approaching or contacting the children in any way including through third-parties except as provided for in these orders and were restrained from attending at or within 200m of the children’s home, school or place that they may attend from time to time except with the written consent of the father and upon such conditions as he may impose. It is to be noted that these orders did not provide for the children to spend time with the maternal aunt who had discontinued her previous application to join the proceedings.
From 8 August 2020 the children began spending time with the maternal grandparents for three hours on each occasion supervised by a community supervision service. Matters relating to the conduct of the maternal grandparents when the children spent time with them and more generally in the proceedings are a matter of great significance in the proceedings and will be considered at greater length later in these Reasons.
On 12 August 2020 orders were made for the appointment of a child, family and adult psychiatrist (“the expert”) to assess the family for the purposes of providing an expert opinion to assist the Court. The family were assessed over two days in October 2020. Despite the significant role that the maternal aunt had played in the children's lives and the expert's wish to interview her in the course of his assessment, the maternal aunt declined to be interviewed by the expert.
In October 2020 the mother moved from the extended maternal family home to live alone in a property owned by the maternal aunt. The maternal aunt remained living with her parents.
The expert’s report dated 21 January 2021 was released to the parties later that month.
The expert’s report
The expert’s report is a matter to which I will return in greater detail. It suffices for the purposes of this background to record that despite having made renewed allegations about the risk posed by the father and of the harm he had occasioned to herself and the children in June 2020, when interviewed by the expert four months later the mother’s proposal was a return to the shared care arrangement between the parents (albeit on a changed “week about” basis). The mother told the expert that the shared care arrangement between the parents had been a success and said she considered it really important for the children to have a relationship with both parents. She again proposed that the current proceedings be dismissed to enable the parties to work things out together.
In summary, the expert was extremely critical of the mother and maternal extended family who he held directly responsible for repeatedly undermining the father's capacity to maintain a relationship with the children which was to the children's detriment. The expert considered the mother's longstanding focus on the father's misdemeanours as pathological and opined that this focus had undermined the children's relationships with their father and fuelled their hostility and resentment towards him which had a profound impact upon the children's emotional security.
The expert considered that the sudden change of the proposal of the mother (and the maternal grandparents' whose position has always been closely aligned to the mother's) from alleging a range of risks posed by the father to seeking a restoration of shared care was "strategic and unreliable". He considered that the mother's assertion that she totally respected the father and his role and that she would always encourage a close and continuing relationship between him and the children could be viewed as disingenuous.
In his report, the expert opined that should the mother's proposal for shared care be implemented, it is probable that the cycle of alignment with her and alienation from the father would be reinvigorated which would not be in the children's best interests. There was no indication to the expert that the mother and extended maternal family had taken responsibility for their actions and the impact of those actions on the children and given this, he considered it was likely that such patterns of behaviour would continue if orders are made as sought by them.[7]
[7] Paragraphs [54] – [56] are extracted from Wenlack & Cimorelli (No 2)[2022] FedCFamC1F 696.
The expert opined that the children will benefit from the maintenance of their current home with the father and their schools. It was his view that changes to this arrangement will re-introduce a pattern of emotional and behavioural instability and dependence on their mother and maternal extended family.
Overall the expert recommended that the father have sole parental responsibility for the children, that they live with him and continue to spend supervised time with the mother.
Recommendations of the expert also included that the children’s time with the maternal grandparents should be unsupervised (so long as they gave an undertaking to the Court to restrict the children’s contact with the mother and maternal aunt during this time) and that the children should also be permitted to attend significant cultural events associated with their maternal cultural heritage. In the early months of 2021 the father consented to the maternal grandparents’ request for the children to spend time with them without supervision on the basis that the maternal grandparents were restrained by injunction from permitting the children to come into contact with the mother or maternal aunt. It appears that despite discussions between the father, maternal grandparents and ICL about this injunction the Court was not approached to make such an order.
In March 2021 trial directions were made by a registrar to ready the matter for final hearing.
There were two occasions on which the children spent unsupervised time with the maternal grandparents, at the Easter Show in April 2021 and at the maternal family home on 9 May 2021. From the father’s perspective the children became disruptive and very difficult to manage after these events and he subsequently withdrew his consent that supervision of their time be dispensed with.
A few days prior to the father withdrawing his consent for the children’s time with the maternal grandparents to be unsupervised, the mother completed her university studies and the children attended her graduation ceremony.
The hearing

The final hearing was fixed for five days and commenced on 14 February 2022.
In his Outline of Case, the father confirmed that he sought orders that he hold sole parental responsibility for the children, that the children live with him and spend supervised time with the mother for five hours per fortnight and supervised time in the community with the maternal grandparents for a period of eight hours once per calendar month. The father also sought various injunctions against the mother and maternal grandparents restraining them from attending the children's time with other adults or otherwise contacting the children outside of the time provided for in the orders. It may be gleaned from the father's case outline that he contends if orders are made as sought by the mother, then the cycle of unwarranted reports to various authorities would cause the children serious psychological harm and would ultimately cause the children to lose their relationships with him to their detriment.
The mother in her Outline of Case sought a return to the equal shared parenting arrangement provided for in the 2015 final orders (albeit on a slightly changed "week about" basis). She also proposed an injunction restraining her from contacting any child welfare authority in relation to the children, or causing or encouraging any third-party to do so without leave of the Court or consent of the father. In support of the parenting arrangement she promoted, the mother submitted that it is the children's clear wish to spend more time with her and have a "normal" home life and that the Court should take comfort that the cycle of them being involved in enquiries with child welfare authorities would not recommence as she herself would be restrained by order of the Court from making or causing notifications of this nature to be made.
The orders sought by the maternal grandparents are not contained in their Outline of Case. The grandparents' counsel on their behalf indicated that they sought orders as contained in their Amended Response to Final Orders filed 8 July 2021. Those proposed orders provide that the children spend time with the maternal grandparents for two nights each alternate weekend, defined time in school holidays and defined time to attend certain cultural festivals. Counsel for the maternal grandparents made it clear that they did not seek any positive orders if the mother were successful in her application and equal shared care resumed as the grandparents would then be free to spend time with the children whenever they are in the mother's care.
At final hearing the father relied upon affidavits filed by himself and the paternal aunt, both of whom were cross-examined.
At final hearing the mother relied upon affidavits filed by herself and her treating psychologist who was not cross-examined. No affidavit was filed by the maternal aunt in the proceedings.
The maternal grandparents relied upon an affidavit of the maternal grandfather, who was cross-examined in the proceedings. They also relied upon an affidavit of the maternal grandmother though she was not cross-examined.
The expert’s evidence
The expert was cross-examined by each of the legal representatives on the fifth day of the hearing. He remained firm about his overall recommendations that the father hold sole parental responsibility for the children and that the children live with the father and continue to spend defined supervised time with the mother.
When cross-examined by the ICL the expert was firm in his recommendation that the children’s time with the mother be professionally supervised, explaining that if the time is unsupervised the mother will likely support and amplify any negative experiences about the father that the children report to her. It was the expert’s view that “wittingly” or “unwittingly”, the mother has reinforced the children’s complaints about the father resulting in ongoing disturbance for the children emotionally and behaviourally which has been to their detriment. The expert opined that if the Court were to find that there have been occasions in the past where the mother has repeated the children’s allegations to services and third-parties and not informed those third-parties that she did believe the allegations were untrue, such action would not only reinforce the children’s beliefs but would go further and amount to recruiting others to propagate such concerns.
The expert accepted that it is possible that the risk posed by the mother to the children has diminished over the time the children have been in the father’s care. He opined this may be signified by an acknowledgment (by the mother) of past mistakes and by her having the capacity if the children made further allegations to ignore them, move on and not repeat those statements.
When cross-examined by counsel for the father, the expert opined that the maternal grandparents showed no insight into the risks posed to the children or any understanding of the damage that had been occasioned to the children by the recurrent notifications to the Department. The expert repeated that it was his opinion that the maternal grandparents were either very naive or disingenuous in terms of how they addressed the issues before the Court. The expert maintained the recommendation in his report that the children should have monthly unsupervised time with the maternal grandparents without the mother or maternal aunt being present and if the maternal grandparents were unable to adhere to this requirement, the children’s time with them should cease.
The expert opined that he did not get any impression in his interview with the mother that she understood the negative impacts or psychological harm that the children were subjected to in being taken to therapeutic interventions to explore allegations that were not true. Further, he opined that the mother had no insight into the psychological harm to the children in being repeatedly interviewed by police and Departmental officers about allegations that were not true and the potential harm to the children and to the father in not disavowing people who may have cause to believe the allegations to be true. The expert opined that he did not believe the mother’s lack of insight was an issue that he expected to be addressed in therapy as he considered that it was not a matter on the mother’s radar that she felt needed to be addressed.
Under cross-examination by counsel for the mother, the expert did not agree with the proposition that if the mother complies with an order that she not report or encourage other people to make reports to the Department for a period of six months that it would be in the children’s interests to then commence spending unsupervised time with her. The expert opined that he would not be confident that adherence to such an order for this period of time would reflect how things would proceed beyond that period. The expert reiterated that if it were accepted by the Court that the mother had insight into her behaviour, had changed her perception and approach to the children’s experience together with their father, there was no indication that she would support any further undermining of the importance of maintaining the children’s relationship with him and there was an atmosphere of respect moving into the future, that he would then support a transition from supervised to unsupervised time.
When cross-examined by counsel for the maternal grandparents, the expert accepted that with counselling it would be possible for the children to adjust to a regime of spending one weekend a month with the maternal grandparents, and if there were a restraint on the maternal aunt being present, it could be a very positive experience for the children.
The expert opined that there would be less harm posed to the children if time with the maternal grandparents were to be maintained in a manner which was regular, safe, contained and supported by the father. The expert expressed concern that if the children’s time with the grandparents were to extend to the regime sought by them, that there would be potential for further problems. However, if there was no indication of further problems and the father was supportive of the extension of the children’s time with the maternal grandparents then the expert would strongly support that.
At the conclusion of evidence on the fifth day of the hearing, counsel for the father made application under s 69ZW(6)(b) of the Family Law Act 1975 (Cth) (“the Act”) that the Department produce an un-redacted version of Exhibit 25, being a Departmental helpline report dated 12 June 2020. In order to afford procedural fairness to the Department it was notified of the application and the proceedings were subsequently fixed for hearing via video link on 11 March 2022 in relation to that application. No other party wished to be heard in relation to that application and orders were made for the parties to each file written submissions in relation to the substantive proceedings after the father’s application under s 69ZW(6)(b) had been determined.
Events leading to reopening the proceedings
On 11 March 2022, prior to the commencement of the court event in relation to his s 69ZW(6)(b) application, the father filed an urgent Application in a Proceeding seeking a recovery order for the oldest child, the parties’ daughter (“the child”) then aged 13.
There was no dispute that the child had not returned home following school the previous day (10 March 2022) and had found her way to the maternal aunt who had then taken her to the extended maternal family home.
At the commencement of the court event on 11 March 2022 (which was conducted by video link) the father sought a direction that the child be delivered to Court Children’s Services to ensure so far as possible that police need not become unnecessarily contacted given the experience in October 2019 when the police were involved in recovering the children. An order was made requiring that the parties do all things required of them for the child to be delivered to the Court at 11.30am and in the event that the child was not delivered by that time, the father’s application for a recovery order would be listed and heard at 12pm.
The father’s application pursuant to s 69ZW(6)(b) was subsequently heard and judgment was reserved in relation to that application.[8]
[8] This application for orders was subsequently granted on 21 March 2022 and Reasons published on 28 March 2022: Wenlack & Cimorelli [2022] FedCFamC1F 180.
At 12 noon the Court resumed and was informed that the child had been delivered to the Court by the maternal aunt but the child was said to be resistant to passing into the care of the father. In those circumstances the father sought a recovery order which was supported by the ICL and opposed by the mother. Counsel for the maternal grandparents indicated to the Court that she was unable to obtain instructions from her clients at this time and consequently their position in relation to the application for recovery order was unknown.
Prior to commencement of submissions in relation to the recovery order, the maternal aunt was joined to the proceedings. The ICL had tendered an email sent by the maternal aunt to the ICL the previous day in which the maternal aunt made it clear that the child was then currently in her care. No submissions were made by any other party in relation to this issue. After the maternal aunt was joined as a party she was notified by email by the Court that this had occurred and a video-link was sent to her to enable her to join the court event.
During the course of submissions in relation to the recovery order, the Court was informed that the child had passed into the care of the father at Court Children’s Services and the application was withdrawn. The father then pressed for a change in the interim arrangements and for additional orders including injunctions restraining the maternal aunt from being present at the children’s time with the mother or maternal grandparents. He also sought an injunction requiring the mother, maternal grandparents and maternal aunt to return any one of the children if they were to come into the care of any one of those maternal family members in the future. The parties were put on notice that I was also considering the possibility that the children’s time with the maternal grandparents take place at a supervised contact centre and that the orders be varied so they no longer provided for further time to take place by agreement with the father. The proceedings were then stood down prior to submissions concerning the application to vary the interim arrangements.
When court resumed following a short adjournment, the maternal aunt had joined the court event. Prior to hearing submissions in relation to the father’s application to vary the interim arrangements, I expressed the view that particular care must be taken in relation to varying the children’s interim arrangements and more information was required in relation to the events of the previous day as the only evidence available at that time was an untested affidavit filed by the father. I raised the possibility that the children’s time with the maternal family be suspended until the evidence in respect of the events of March 10 2022 (including further cross-examination of the expert) was complete and at that time the interim arrangements could be revisited in light of all the evidence.
The proceedings were then reopened in relation to the events of the previous 48 hours and listed for a further two days hearing on 21 and 22 March 2022. Orders were made providing the parties an opportunity to file affidavits (should they wish to adduce any further evidence concerning the relevant events) and for any such affidavits to be provided to the expert who had been arranged to attend the reopened proceedings on 22 March.
Counsel for the ICL and counsel for the mother expressed particular concern about any suggestion that the children’s time with the mother be suspended.
Counsel for the father shared the concerns of the other parties in relation to a suspension of the children’s time with the mother and contended that it would be more appropriate to suspend the children’s time with the maternal grandparents.
I was then informed that under the current orders, the children were not due to spend time with the maternal grandparents until after the dates allocated for further hearing. In circumstances where there would be no practical effect to the suspension of the children’s time with the maternal grandparents, while not consenting to the suspension, counsel for the maternal grandparents did not oppose that time being suspended. Orders were then made suspending the children’s time with the maternal grandparents.
I then heard submissions from counsel for the father in support an injunction restraining the maternal aunt attending the children’s time with the mother and from approaching or contacting the children in any way, including restraining her from attending at or within 200 metres of the children’s residence, schools or any place at which the children may attend or be at from time to time.
The father also sought a positive injunction requiring the mother, maternal grandparents and maternal aunt to return the children to him in the future in the event that any of the children leave his care.
The ICL supported the foregoing injunctions sought by the father.
The injunctions restraining the maternal aunt being present at the children’s time with the mother and from contacting or approaching the children were opposed by the mother and maternal grandparents.
No submissions were made by the maternal aunt as she had by that time left the court event for reasons which were not explained.
For ex tempore Reasons given at the time, I accepted that it was appropriate to make the injunctions sought by the father restraining the mother from bringing the children into contact with the maternal aunt and restraining the maternal aunt from attending the children’s time with the mother or approaching or contacting the children.
A positive injunction was made in the terms sought requiring that the mother, maternal grandparents and maternal aunt return the children or any one of them to the father if one or all of the children were to come into the care of those maternal family members in the future.
21 March adjournment application
At the commencement of the reopened hearing on 21 March 2022 in relation to the events of 10 and 11 March 2022 there was no appearance by or on behalf of the maternal aunt nor had she filed any affidavit as directed. Counsel for the mother made application that the proceedings be adjourned to allow the maternal aunt a further opportunity to adduce evidence and to ensure procedural fairness if it were the case that the father was seeking orders against the maternal aunt on a final basis. The mother’s adjournment application was not opposed by any party and consequently the proceedings were adjourned until 31 May for two further days’ hearing.
The injunctions and the order suspending the children’s time with the maternal grandparents made on 11 March 2022 were made pending further order as I was no better informed about the events of 10 and 11 March 2022, and was thus not in a position to reconsider those orders.[9]
Final hearing days-31 May and 1 June 2022
[9] Paragraphs [79] – [99] are extracted substantially from Wenlack & Cimorelli (No 2)[2022] FedCFamC1F 696.
When proceedings resumed on 31 May 2022, the first of the final two days of hearing, the maternal grandparents made application through their counsel that I recuse myself from further hearing on the ground of apprehended bias. I dismissed that application and subsequently published Reasons for doing so.[10] The maternal aunt was represented by counsel on this day and she, the mother, maternal grandfather and father gave further evidence about the events of 10-11 March and were cross-examined. I will return to these events and the additional oral evidence of the expert when considering the matters in dispute between the parties.
[10] Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696.
On 1 June 2022 the maternal aunt was not present and counsel who appeared for her on the previous day indicated that he was no longer instructed and with leave withdrew from the proceedings. This counsel also informed the court that the maternal aunt no longer wished to participate in the proceedings and was aware that orders could be made in her absence.
On 1 June 2022, after further cross-examination of the expert, I made directions for the filing of a final proposed Minute of Order by the ICL and for each party to file submissions in relation to final orders. On that day the mother tendered her proposed Minute of Order (Exhibit 48) which provided that the father have sole parental responsibility for the children and that the children live with him. She proposed in Exhibit 48 that the children’s time with her be initially supervised and then increase in a graduating fashion reaching an endpoint of five nights per fortnight, half school holidays and special days in her care. The proposed Minute of Order also included an injunction restraining the mother herself from making any reports of statements made by the children to the Department, medical practitioners or counsellors without the written consent of the father.
On the last hearing day the orders of 11 March 2022 suspending the children’s time with the maternal grandparents were discharged and the children’s time with the maternal grandparents was reinstated.
A final court event- 14 September 2022
When written submissions were received as directed it was observed that the mother and maternal grandparents proposed a number of orders that had not been canvassed at the final hearing and the mother sought to “withdraw” Exhibit 48. So as to afford the other parties procedural fairness (as they had each prepared their final submissions on the basis that the mother and maternal grandparents sought the orders as set out in Minutes admitted into evidence rather than in their respective written submissions) a further opportunity was given to the ICL and father to respond those final amended proposals. When those additional submissions were received on 18 October 2022, judgment was reserved.
THE MATTERS IN DISPUTE

Prior to the commencement of the father’s case, the mother’s counsel had objected to all of the father’s evidence dealing with the earlier proceedings on the basis that it is not relevant to the application now under consideration. It was contended on the mother’s behalf that the only relevant evidence in the current proceedings relates to matters after the August 2015 orders. The objection was also made on the basis that the time allocated for the final hearing would not allow for the father’s evidence as to these matters to be tested by cross-examination. It was the mother’s contention when that objection was made that the parties had “swept all that (the issues raised in the earlier proceedings) away” with the making of the final orders with their consent in August 2015.
The father took issue with the mother’s submissions about relevance of the events prior to August 2015 when they were made. It is his central contention in these proceedings that the mother has engaged in a consistent pattern of behaviour throughout both sets of proceedings which gives rise to an unacceptable risk of harm to the children if orders are made as she seeks and sought to rely upon the evidence objected to on this basis. The ICL also submitted that evidence of the history of the proceedings prior to 2015 is relevant as it forms part of the father’s contention as to the risk posed by the mother and is relevant to the Court’s determination of unacceptable risk. The ICL’s counsel also observed that the history of the dispute is a matter that the expert had taken into account. For Reasons given ex tempore I determined that the evidence of events prior to August 2015 was highly relevant to a number of the considerations required to be taken into account pursuant to s 60CC of the Act.
In her final written submissions the mother not only attempts it would appear, to revisit my ruling with respect to the relevance of evidence dealing with any event in the earlier proceedings and prior to the August 2015 orders, but goes further to suggest that the Court is in some way prevented from making findings about the earlier proceedings. The basis for this last-mentioned contention is unclear from the mother’s written submissions.
There are two central factual matters in dispute between the parents which both relate to reasons why the children present as rejecting their father. The first relates to whether the mother had any involvement in complaints made by the children about the father’s conduct and care provided to them. Second, there is the question of whether the mother has supported or failed to support the children’s relationship with the father and the father’s role as a parent.
It is the father’s position (with which the ICL agrees) that the entire history of the parenting litigation in relation to the children (including the earlier proceedings) must be considered to make findings about these two central matters and in order for the Court to determine the best interests of the children.
The father contends that since 2013 the mother has made allegations about his conduct including physical and sexual abuse and neglect of the children and his perpetration of family violence against her. It is his case that the mother only desisted from making allegations about his conduct and care of the children in the earlier proceedings when it became untenable for her to continue to do so. He submits that despite resiling from any allegations of risk against him in her trial affidavit in the earlier proceedings and resolving the parental dispute by orders made with both parents’ consent, the earlier proceedings did not bring an end to the dispute or to the mother’s belief about the risk he poses to the children. For this reason, the father also seeks findings about the events following the making of the August 2015 orders up until the interim orders made on 4 October 2019 which brought about a change in the children’s care arrangement such that the children live with him and spend limited supervised time with the mother.
There was no objection made to the father adducing evidence concerning events between the August 2015 orders and the interim orders made on 4 October 2019 and the mother deposes to these matters herself in her evidence. However, the tenor of the mother’s final written submissions appears to be that the relevant factual disputes to be resolved by the Court date from 4 October 2019, the date which she says the children were “removed” from her care. As evidence related to events between August 2015 and 4 October 2019 was not objected to at final hearing and the mother challenges the father’s version about many events in this period, those factual disputes must also be resolved.
The parties are also in significant dispute in relation to the reasons for the children making ongoing complaints about the father’s care (even after they moved to live with him), the role of the mother if any in these complaints being reported to authorities such as the Department and police and the actions of maternal family members in the events of 10 and 11 March 2022 when the oldest child ran away from the father which caused the proceedings to be reopened.
There is no reason that findings cannot or should not be made in relation to all of the events that are relevant to determining the best interests of the children. It is the father’s contention and the assessment of the expert that there has been a pattern of behaviour engaged in by the mother since the parents separated and that over time the children have come to complain about him in a range of settings about matters that are demonstrably false. In support of the orders that she seeks, the mother advances the contention that she played no role in the children’s complaints about the father’s allegedly abusive conduct and care and has at all times supported the father’s role as a parent and the children’s relationships with him. Findings as to these matters are central to the orders proposed by each of the parties. Accordingly, it is necessary for findings to be made about these matters in relation to the entirety of the parties’ parenting dispute.
So far as the maternal grandparents are concerned, there is also significant dispute about the actions of them and the maternal aunt in disrupting the children’s relationship with the father. There is also the question of the role of the maternal extended family in the oldest child leaving the care of the father and finding her way to their home in March 2022. Resolution of these matters is central to the orders proposed by the maternal grandparents in the event that the children are to remain living with the father.
In summary, the following factual disputes between the parties require resolution for the purposes of these proceedings:
·The approach taken by the parties and contentions made in the earlier proceedings;
·Events following the August 2015 orders leading to the children spending limited time with the father from 20 March 2019 to 4 October 2019;
·Notifications and complaints made to police and the Department after 4 October 2019 and the question of the mother’s involvement in them (in particular the June 2020 helpline report);
·The March 2022 incident when the oldest child ran away from the father to the maternal family.
The earlier proceedings
The father commenced proceedings for parenting orders in relation to the children in May 2013. Interim orders made in September 2013 (“the September 2013 orders”) provided for the children to spend time with him on three occasions each week, being Wednesday afternoon, Friday afternoon and each Sunday, as well as on special days.
According to the father’s affidavit, the trial judge’s Reasons in relation to the September 2013 orders foreshadowed an increase in the children’s time with him and for this reason in November 2013 he filed an application seeking a gradual increase in that time which was listed for hearing on 21 January 2014.
According to a report about the Department’s involvement with the family,[11] the first complaint in relation to the children was made on 10 December 2013.
[11] Exhibit 15 - Report form the Department.
The father’s solicitor received a letter from the mother’s solicitor on 19 December 2013 in which the mother’s concerns are outlined about the oldest child engaging in allegedly sexualised behaviour and matters of concern that suggested to the mother that the father may have been behaving in a sexually inappropriate manner. According to this letter the mother had taken the oldest child to a general practitioner who suggested that the mother contact the Departmental helpline which she did. It is recorded in the letter that a caseworker at the Department confirmed to the mother that the oldest child should urgently be seen by an appropriately qualified psychologist as she was exhibiting signs of “sexual misconduct”. The mother’s solicitor then advised that the child’s disclosures and behaviours required proper and careful investigation and that while that investigation was taking place the mother was of the view that the children should not spend time with the father. According to Exhibit 15, no Departmental investigation was undertaken at the time.
The father also deposes that the mother also raised allegations of physical abuse and/or neglect of the children when spending time with him.
According to the father’s affidavit the mother refused to allow the children to spend time with him from mid December 2013 despite the interim orders in place at the time. He says that the parties then attended upon an expert psychiatrist appointed in the earlier proceedings (“the psychiatrist”) so that a report could be obtained for the purposes the interim hearing scheduled to take place on 21 January 2014.
The father deposes that after the interim hearing on 21 January 2014 and as a consequence of the recommendations made by the psychiatrist, the children’s time with him was reinstated and the final hearing expedited.
According to the father’s affidavit, after the children recommenced spending time with him in late January 2014, the mother continued to make allegations through correspondence from her then solicitor about his alleged inappropriate conduct towards the oldest child on the basis of matters said to have been reported by this child. Records of the Department indicate that ongoing reports continued to be received about the oldest child being at risk of sexual harm in the father’s care. Records of this nature were received in February 2014 and March 2014. In May 2014 a report was received about concerning behaviour of a similar nature involving the oldest child and the son.
In his affidavit, the father sets out details of seven occasions on which the oldest child was subjected to investigations and samples were taken for pathology testing between August 2013 and March 2014 including testing for sexually transmitted diseases with swabs taken from the child’s vagina and anus.
In correspondence between his solicitor and the mother’s solicitor, the father attempted in vain to have the mother agree to cease subjecting the oldest child to intrusive medical procedures especially given that none of the tests indicated any matters of concern. The mother was not prepared to consent to any order or undertaking in relation to the oldest child’s future medical treatment. Rather, after the time the father first raised his concerns about such examinations, the oldest child was subjected to a further gynaecological examination and it was again concluded that there was no abnormality.
The father deposes that the mother’s concerns about his conduct then extended to concerns in relation to the youngest child. In his affidavit he denied all of the allegations of sexually abusive or inappropriate conduct as alleged by the mother at the time.
The father deposes that having reviewed the documents produced on subpoena it also came to light that around this time all of the children were subjected to an intrusive blood test without any clinical indication and that these tests were ordered without prior consent or discussions with him. The father, who is a medical professional, also examined the notes of the general practitioner to whom the oldest child was referred at the time and observed that these notes raise no concerns held by the doctor about sexual abuse. Similarly, the gynaecologist who reviewed the eldest child detected nothing abnormal. The father also refers to the following in the general practitioner’s clinical notes about the attendance by the mother upon that doctor in March 2014:
Mother reported concern about behaviours of all children when they visited their father. She was worried about their physical, mental and emotional issues of the children and requested me to report the concerns to Family and Community services. As per her request and the mandatory requirement a reporting was done on 28 March 2014.
The father relies in these proceedings on a letter of May 2014 from the mother’s then solicitor which outline the mother’s ongoing concern about alleged sexualised behaviour and that notifications had been made to the Department.
The father also deposes that the various notifications to the Department led to the older two children being interviewed by Departmental officers or JIRT,[12] a matter confirmed by Departmental records. In relation to the oldest child’s interview which took place in May 2014, it is recorded that the child made no complaints that the father had touched her inappropriately and that although each of the allegations in question were put to her she denied them all.
[12] The Joint Investigation Response Team is made up of officers from police and the Department of Communities and Justice and the Department of Health and investigates allegations of serious child abuse.
A further notification in relation to the father’s conduct with respect to the children was made on 6 August 2014. The father and children were interviewed by a case officer at the Department on 29 August 2014 which required the children to be withdrawn from school and day-care on that day. The father deposes to being later informed that the Department had completed a safety assessment and concluded that there were no safety issues so that the file was closed.
The father deposes that the psychiatrist then prepared an updated report in which a change in residence was recommended which would see the children come to live with the father. The father says that the updated report from the psychiatrist was released in September 2014 and that in an interim hearing in the same month orders were made for a further increase in the children’s time with him and the final hearing in the earlier proceedings was expedited, though this did not take place for almost another 12 months in August 2015.
Between the release of the psychiatrist’s second report in September 2014 and the final hearing, the father deposes that he believes no further notifications were made and that in general no concerns were raised by the mother regarding his care of the children. He also deposes that during this time the parents were engaged with a psychologist for family therapy.
Departmental records confirm that after August 2014 there was a single notification of sexual harm made in December 2014 which did not lead to any investigation and otherwise there was no complaint in respect of the children for another 12 months.
The father sets out an extract in his affidavit from the mother’s affidavit filed just prior to the final hearing on 11 August 2015 in which she deposed “I do not believe that there are any risks of harm or danger to the children while they are in [the father]’s care”.
According to the father’s affidavit, during the first week of the final hearing and just prior to the mother being cross-examined, he was informed that the ICL was to propose a shared care plan in resolution of the dispute. The father deposes to the mother’s behaviour having improved substantially in the previous 12 months and to believing that many days of cross-examination would have a detrimental effect on the parental relationship as it was likely to be very traumatic on the mother and that he felt under pressure. He says that in this context he, the mother and the ICL agreed to parenting orders which finalised all matters before the end of the first week of the two weeks allocated for final hearing. He deposes in summary “I had faith that things would settle down and signed the consent orders on that basis. I was wrong”.
There was no cross-examination of the father challenging his version of the foregoing events up until the August 2015 orders.
The mother’s only evidence in relation to the period prior to August 2015 relates to the older two children’s time with the father and two occasions in May 2013 where she appears to describe two incidents of alleged violence perpetrated by the father against her.
According to the mother’s affidavit, after these two incidents she made an application for an Apprehended Violence Order (“AVO”). The mother does not depose to police making this application on her behalf or to any provisional order being made by police. She deposes that in June 2013 when she and the father attended at a Local Court she agreed to withdraw her application on the basis that the father gave certain undertakings which were made without admissions.
The mother was cross-examined at some length about the allegations she raised in the earlier proceedings of harm said to have been perpetrated by the father against the children and to the alleged risk of harm arising from sexual abuse towards the oldest child. She agreed that those allegations centred on a risk of sexual harm towards the oldest child who was about four years old at the time they were first made. The mother also agreed that in the context of those allegations made against the father the oldest child was subjected to genital examinations and testing including for sexually transmitted diseases though in respect of the last issue the mother said that she was not aware of that at the time.
When further cross-examined about her earlier concerns the mother initially insisted that while she was concerned about the oldest child’s behaviours she did not suggest through correspondence sent by her solicitor that this child may have been subjected to sexual harm by the father. Even after the mother was shown letters written on her behalf from December 2013 she was highly resistant to agreeing that the letters suggested that the father was a sexual risk to the oldest child but ultimately when directed to answer the question finally agreed that the letters suggested that this was the case. The mother then returned to denying it was her belief that the father was a potential sexual risk to the child at the time.
Discussion and findings
I am easily satisfied to the requisite standard[13] that for the reasons which follow the mother’s position and contentions raised in the earlier proceedings are as deposed to by the father.
[13] S 140 of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
The father was not challenged about his version of any of the events that occurred prior to August 2015 and the limited cross-examination concerning this period focused on his view about the mother’s allegations. In her evidence the mother does not address any matters related to the earlier proceedings including the position that she had taken to the orders sought by the father and the allegations she had made about the father’s treatment of the children at that time.
Records from the Department adduced in the proceedings confirm that between 2013 and 2015 there were 16 unsubstantiated notifications made about concerns for the children’s welfare when they were in the father’s care and virtually all related to a risk of sexual harm.

The relationships between the children and each of their parents is an extremely important consideration in these proceedings. As has been explained at length, the children’s relationships with the father have been placed under extreme strain and at times have been very tenuous. It is my view based upon all of the evidence to which I have referred including the expert’s opinion that any arrangement for the children other than one in which they are in the primary care of the father puts their relationships with him at risk.
The salience of the children’s relationship with the mother and maternal grandparents can be seen in the expert’s consistent recommendations. The expert at all times has remained of the view that the children should continue to spend time with their mother quite regularly and that their relationships with their maternal grandparents should also be supported despite holding serious concerns about the nature of the children’s experience in the maternal family’s care.
The expert when recalled was so concerned about the actions of the mother and the maternal extended family in the events of 10 and 11 March 2022 that he seriously reconsidered the viability of the maintenance of those relationships. He reiterated that although ideally he did want to support the children having a relationship with their mother and maternal extended family, he was very concerned about the lack of capacity in the extended maternal family to act in an effective manner to support the children’s primary residence with the father and manage the limitations around contact. Ultimately, despite considering the viability of the children’s contact with their mother the expert ultimately recommended a continuation of that regular supervised time based on the strength of the relationships between the mother and the children, the benefits they will receive from those relationships and the risks to the children if those relationships were to be lost.
Although the expert made no further recommendations in relation to the children’s time with the grandparents he did not resile from his assessment of the importance of these relationships to the children and the benefits that they receive from them. The expert was unable to assess the maternal aunt even though he had requested that she make herself available for that purpose. Nonetheless the expert identified the maternal aunt’s role in the maternal family constellation as significant.
None of the parties including the maternal aunt herself seek orders to foster the relationships between her and the children. The only issue to be determined concerning the maternal aunt is whether she should be permitted to be present when the children are spending time with the maternal grandparents or the mother. The expert’s view in relation to the maternal aunt’s presence during the time the children spend time with the maternal grandparents has been consistent from the outset. His firm view that the maternal aunt should not be present, expressed in his report and twice in oral evidence, has been dealt with at length in these Reasons.
Under cross-examination, the expert agreed that the children would be “triggered” emotionally by the presence of the maternal aunt when spending time with the mother. He also expressed the view that the children’s time with the mother should continue to be supervised in the future and that the maternal aunt should not be present during that time. The father accepts that the maternal aunt is an important person to the children and prior to the events of 10 March 2022 supported her attendance at the children’s time with the mother. The father’s position that he no longer supports this in light of the maternal aunt’s actions on 10 and 11 March 2022 and her lack of insight into the effect of her actions on the oldest child is consistent with the views of the expert.
The ICL proposes some limited contact between the children and the maternal aunt in recognition of the importance of that relationship. This proposal is at odds with the evidence of the expert as to this matter. I see no reason why I should make an exception in relation to the otherwise significant weight I attach to the evidence of the expert, especially as it relates to the maternal aunt, given the high level of concern about her actions in the family generally over many years and her problematic approach to engagement in these proceedings.
Each of the parents have been highly committed to being involved in their children’s lives through taking the opportunity to participate in long-term decision-making regarding the children and seeking an arrangement in which the children spend time with and communicate with each of them. It has been to the great detriment of the children that the arrangement pursuant to the August 2015 Orders for shared parental responsibility and equal shared care was effectively sabotaged by the mother through her unilateral exercise of parental responsibility. This is especially the case when the mother enrolled the children in therapeutic programs to address trauma and harm that she represented arose from events and circumstances that did not exist and undermined and damaged the children’s relationships with their father to such an extent that they did not receive the benefit of his involvement in their lives as had been envisaged in the previous arrangement.
In the renewed application for parenting orders, the actions of the mother herself have meant that her participation in long-term decision-making regarding the children and spending time with and communicating with them must be curtailed for the children’s benefit.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
This is not a matter of particular significance in this parenting dispute, though it is to be noted that since the children moved to live with the father he has alone fulfilled all financial obligations in relation to them including bearing the costs of their private school education, extra-curricular activities and therapy. There is no evidence that the mother has made any financial contribution of this nature in respect of the children.
I am not critical of the mother’s actions in this regard up until May 2021 as prior to that time she was a full-time student with limited financial resources. However, the mother has not explained why she could not make a financial contribution to the children after she completed her studies almost two years ago and secured full-time employment.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
If orders are made as sought by the mother there will be no significant expense arising from such an arrangement. Although she had originally proposed that her time with the children be supervised, the mother’s final proposed orders do not include any supervision of that time.
If orders are made as the mother seeks I anticipate that practical difficulties in having the children maintain their residence with the father for eight nights each fortnight are likely to quickly arise. The mother was unable to exercise sufficient authority over the children when they were much younger to ensure that they lived with the father in an equal shared care arrangement and the children were emboldened and empowered to take matters into their own hands and refuse to spend time or live with him. There is no evidence to suggest that the mother has insight into her role in this regard and given that the children are now much older and have learnt manipulative ways to get what they want, I have little confidence that they would remain living primarily with their father in any shared care arrangement if it were to be ordered.
There is some expense involved in the orders proposed by the ICL and the father which will see the children’s time with the mother remain supervised. I accept the submissions of the father noting that he is responsible for all the costs to support the children, that it is appropriate that the mother cover the costs of supervision. The mother does not address this matter in her written submissions and although there was reference earlier in the proceedings to her limited income, by the time it came to final hearing she had graduated and was in full-time employment. The mother makes no contribution to the costs of supporting the children and lives in a property owned by the maternal aunt. In these circumstances I am of the view that she has the capacity to bear the costs associated with supervision and that it is appropriate to make such an order.
The undesirability and practical difficulties associated with long term supervision of a child’s time with a parent at a contact centre is well-documented in the authorities[38] and the Court’s obligation when considering an order for indefinite supervision of time is clear. The Full Court in Gorman & Huffman and Anor [2016] FamCAFC 174 said at [297]:
The guideline would appear to contain four components. First, while a failure to limit supervision is not itself an error, the failure to consider a limitation upon it may constitute an error in the exercise in discretion. Second is the necessity to give "cogent" reasons. Thirdly, and in practical effect alternatively, is the apparent necessity for the orders to "allow for some review of the situation in the future". Fourthly is the need to give reasons reflective of the consideration of those issues.
[38] See Moose & Moose [2008] FamCAFC 108 at [119]; Slater & Light [2013] FamCAFC 4 at [40] and Gorman & Huffman & Anor [2016] FamCAFC 174.
The need for an order for indefinite supervision of the children’s time with the mother in these proceedings is clear having regard to my findings and to the expert’s unshaken evidence about the identified risk of psychological harm posed by the mother which he opined could only be mitigated by ongoing professional supervision. In this regard I attach particular weight to the expert’s opinion summarised at [439], [459] and [463] of these Reasons.
The expert had not initially recommended that the children’s time with the maternal grandparents be supervised so long as the maternal aunt and mother could be excluded from being present during this time. After becoming aware of the maternal aunt’s ongoing role behind the scenes and the maternal grandparents’ willingness to let the aunt take the lead the expert reiterated his opinion that unless the maternal grandparents could adhere to his recommendations then the children’s time with them should cease.
As explained when considering other matters related to the children’s best interests, I am not of the view that it is in the children’s best interests for their time with the maternal grandparents to cease and am satisfied that the children do receive considerable benefit from having relationships with their maternal grandparents. Having determined that it is in the children’s best interests to foster their relationships with their maternal grandparents I am of the view that the only way to protect them from the risks of coming into contact with the maternal aunt or mother and the harms associated with the maternal family dynamic is through supervision of this time.
Although the father and ICL propose orders that if made would restrain the maternal aunt and mother from coming into contact with the children during their time with the maternal grandparents, I cannot be confident that such a restraint if made would be adhered to. Despite a restraint on the grandparents spending time with the children outside the court ordered time being in place, as at March 2022 the maternal grandparents followed the lead of the maternal aunt and allowed the oldest child to spend the night in their home on 10 March 2022. The maternal aunt was also in the process of bringing the oldest child to the mother at this child’s request on 10 March 2022 and both she and the mother were only dissuaded from this plan by the mother’s solicitor. There was also an occasion early in the proceedings when the maternal grandparents brought the children into contact with the mother contrary to the court orders.[39]
[39] On 26 December 2019 – Paragraph [25] of Cimeorelli & Wenlack and Anor [2020] FamCA 635 (Exhibit 9).
In my view there is no realistic possibility of either the mother or maternal grandparents gaining insight into the psychological harm occasioned to the children through their actions, or the ongoing risks of psychological harm they continue to pose to the children. The expert made it clear that he would support the children transitioning to unsupervised time with the mother if she showed any signs of change in her harmful conduct over the years this litigation has been on foot but he did not see any such sign. He was also concerned that the maternal grandparents had not fully understood the import of his recommendations and expressed particular concern about their actions and the maternal family as a whole in the events of 10 and 11 March 2022. In short, the expert made it abundantly clear that ongoing supervision of the children’s time with the mother was the only safe way to support those relationships and could offer no other alternative in relation to the maternal grandparents other than that the contact cease.
In the circumstances of this case it is not appropriate or proper to provide a mechanism for review of the need for supervision having regard to the expert’s view that the mother and maternal grandparents have no insight into the psychological harm their actions have caused to the children and no awareness of the need to address these matters, as set out earlier.[40] It is clear in these circumstances that this is an unusual case where it is appropriate for there to be an order for long term supervision of the children’s time with both their mother and maternal grandparents.
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs
[40] Paragraph [74] of these Reasons.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
There is considerable overlap between these matters and those previously considered.
The expert gave unchallenged evidence that both parents were observed to have the capacity to attend to the children’s developmental needs and that each parent was well supported by other extended family members. However, the serious shortcomings in the capacity of the maternal family to support the children’s needs to have a close and continual relationship with their father is the most significant matter related to their capacity and has been discussed at length.
Each of the father, the mother and maternal extended family members undoubtedly love the children and want the best for them. However, my findings in relation to the mother’s “witting” or conscious amplification of the children’s complaints about the father, her failure to support the children in reality-checking those complaints and recruiting others to propagate them on her behalf, knowing the impact that these actions have on the children’s relationships with the father has been profoundly damaging to the children. These matters which the mother has failed to recognise or attempt to remedy reflect very poorly upon her attitude toward her responsibilities as a parent.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Any other relevant fact or circumstance
Matters related to the culture and traditions of the children are significant in this dispute given the evidence of them having been raised in an environment imbued with their European heritage on their maternal side which appears to define their experience within the maternal family. This matter is particularly significant when considering the maternal grandparents’ proposal for the children’s time with them. It is the grandparents who have played an active role in ensuring that the children receive the benefits of their European cultural identity through engagement in events, activities and traditions of this culture when in their care.
There are some other matters related to the maternal grandparents that were unable to be considered previously as the relevant s 60CC consideration relates to such matters only with respect to parents. As previously explained, in accordance with authorities such matters may be considered under s 60CC(3)(m).
Pursuant to this subsection I take into account when considering the respective proposals for the children’s time with the grandparents that the children undoubtedly receive a benefit from having a meaningful relationship with their maternal grandparents.
I also take into account that there will be some expense for the grandparents involved in the children spending time with them if orders are made for that time to be supervised and that the grandparents bear the cost of supervision. I do not accept the submission made on their behalf that the cost associated with supervision is unaffordable. Apart from an assertion that the maternal grandparents are “old aged pensioners” there is no evidence that supports the submission that they cannot afford the costs of supervision. There is evidence that the maternal grandparents own the property in which they live and renovated it for the mother and children to live in and own a holiday home. The maternal grandparents were privately funded for this litigation. I am not satisfied that they cannot continue to fund supervision in the future as they have done in the past.
The orders sought by the maternal grandparents in the event the children live primarily with the father, if made, would enable the children to receive the benefit of the rich expression of their cultural heritage available in the maternal grandparents’ care from which the children undoubtedly receive a benefit. However, even though cultural matters relating to the children are significant in this dispute they must be given less weight than other considerations such as the benefit to the children of having a meaningful relationship with both parents and the need to protect them from harm.
The maternal grandparents’ proposed orders would see the children spend one weekend each calendar month in their care and six and a half hours with them on Easter Sunday and Christmas Day. They also propose that the children spend between six and twelve and a half hours as specified on three specific days of cultural significance as well as four nights during the Christmas holiday period. The maternal grandparents’ proposed orders would also see the father be required to notify them of school related events and extracurricular activities which it may be implied, they propose to be permitted to attend. Finally, the maternal grandparents’ proposal includes orders for regular electronic communication between themselves and the children.
The grandparents propose that all of the children’s time with them be unsupervised and they do not consent to any of the injunctions in relation to restraining the mother and the maternal aunt being present at the children’s time with them. There is also no indication that they consent to other restraints on their conduct with respect to the children as sought by the father and ICL.
The maternal grandfather’s evidence and submissions made on behalf of the maternal grandparents do not grapple with any matters identified by the expert about the risks posed to the children in their household. Rather, the maternal grandparents focus on criticisms of the father’s response to their requests for unsupervised time with their grandchildren. The final submissions in particular are critical of the father generally and reinvigorate matters related to alleged shortcomings in his parenting capacity, such as that the oldest child’s behaviour relates to this child’s need to assuage the father’s anger, that the father in the past has demonstrated no regard for the children’s feelings and that the father’s concern about unsupervised contact with the mother and maternal family is not genuine and arises out of his need to control any situation regarding the children. The submissions also extraordinarily challenge the expert’s opinion as one which is “largely coloured by the evidence of the father”. The maternal grandparents fail completely to address any of the concerns about their conduct and the role they have played in bringing about the circumstances faced by the children.

The maternal grandfather’s evidence and submissions made on behalf of the maternal grandparents are that they were in no way responsible or can be validly criticised for their conduct in the events of 10 and 11 March 2022. The focus of these submissions repeats questions put in cross-examination of the father to the effect that he should be criticised for his conduct during these events in not attempting to contact the maternal grandparents by their landline. The attitude of the grandparents about their own conduct and that of the father in these events is summarised in the following submission made on their behalf:
In our submission, the maternal grandparents cannot be held responsible for what happened on this occasion. The father seeks to apportion some blame to them…in our submission, wrongly so.
(as written)
It is said later in a concluding submission:
The cause of concerns expressed by the father have been exaggerated & contrived to allow him full control over the children.
I disregard the criticisms of the father in submissions made on behalf of the maternal grandparents in their entirety as they are completely at odds with my findings, the opinion of the expert, some undisputed facts and to some extent the case that the grandparents themselves ran at final hearing. These criticisms and contentions about the way in which the father’s actions should be treated cast doubt on the maternal grandparents’ alleged support for the father’s role as a parent which in the main was a feature of their case. The tenor of the submissions made on behalf on the maternal grandparents is completely consistent with the views of the expert about their inability to support the children’s primary residence with the father and the limits imposed around their contact with the children.
Another relevant matter that the father contends should be taken into account, with which I agree, relates to the period of time that the children are to spend with the mother and maternal grandparents under each of the respective proposals. I accept the father’s submission that as the children mature they are likely to spend more time with their peer group. I attach weight to this matter in assessing that the father’s proposal for five hours each fortnight in the community is an appropriate balance with the importance of spending time with the mother. I also consider that the father’s proposal for the children’s time with the maternal grandparents to occur bi-monthly appropriately balances the children’s likely need to spend more time with their peers with the importance of participation in significant cultural events. Finally, in relation to these orders I take into account that if the more extensive orders sought by the ICL were made the children would be spending supervised time with members of the maternal family in three out of every four weeks and that an appropriate balance with weekend time with the father and paternal family must also be considered.
I also accept the father’s submission in relation to the nominated supervisors of the children’s time with the maternal family that an alternate supervisor should only be provided for in orders relating to the maternal grandparents. I agree that it is not appropriate that there be an alternative supervisor “as agreed” for the children’s time with the mother in light of the evidence discussed earlier relating to pressure from the maternal family where orders allowed for some flexibility.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
The need to bring ongoing litigation concerning the children to an end is highly significant in this dispute as the parental dispute has been on foot in one way or another for much of the children’s lives. Further, the harm occasioned to the children as a result of the mother’s encouragement for them to complain about the father’s maltreatment and the ensuing investigations by authorities has been directly related to the ongoing parenting litigation.
In my view the suite of orders ultimately proposed by the mother and in particular the order she seeks for equal shared parental responsibility is the most likely to lead to further litigation. The mother has demonstrated through her actions when a previous order for equal shared parental responsibility was in place between August 2015 and 4 October 2019 that she unilaterally exercised parental responsibility on numerous occasions to the detriment of the children. Further, despite the mother’s assertions, there is simply no evidence that the parents can communicate effectively and negotiate in a respectful manner in order to make important joint decisions about the children. The expert considered the mother’s representation of the parent’s capacity to communicate and problem solve as a “misrepresentation of the parental relationship despite there having been some civilised dialogue”, a matter with which I agree. The expert also shared the father’s view “that there was no basis for trust and goodwill given the mother’s actions” and opined that “such behaviour occurred within the context of her enmeshed relationship with her extended family” and that “there was no evidence this was likely to change”.
Other evidence from the expert in relation to pressure placed on the father by the mother and maternal family in relation to the children’s contact with them especially since October 2019 is inconsistent with the mother’s contention that equal shared parental responsibility is in the best interests of the children. The father gave unchallenged evidence of feeling overwhelmed, worn-down, and pressured to agree to the mother’s ongoing requests and the expert noted the importance of the father’s experience in this regard in the context of the children living with him.
Finally, the mother has not explained the basis for her change in position. At the completion of the evidence she proposed an order that the father have sole parental responsibility for the children which appeared to be a realistic and child focused recognition of the overwhelming evidence that such an order is the children’s best interests. In final written submissions, without any submissions about the reason for her change in position, the mother now seeks an order for equal shared parental responsibility.
The mother’s proposal in respect of other orders which can be summarised as amounting to shared care is also the most likely to lead to further litigation. For the reasons given, I consider it highly unlikely that the mother will have the capacity to ensure that the children live with the father for slightly more time than they live with her each week (eight out of 14 nights) given her demonstrated incapacity to facilitate a similar arrangement in the past, the children’s current ages and pattern of behaviour in order to have their wishes met. This is likely to lead to ongoing contravention applications by the father in an effort to have the children receive the benefit of a parenting relationship in which he plays a significant role in the children’s lives.
The proposal of the father supported by the ICL will circumscribe the children’s living arrangements more effectively and provide for supervised time with the mother. Such orders in my view, together the restraints I will shortly discuss are likely to bring about a more stable arrangement for the children in which there is less likelihood of ongoing litigation.
Restraints
The father and ICL seek various injunctions including a restraint on the actions of the maternal family. Section 68B(1) of the Act provides that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(1)(a) provides that such injunction can be made for the personal protection of a child.
The first injunction sought by the father (and ICL, albeit with some exceptions) if made will restrain the maternal aunt being present when the children spend time with the mother and the maternal grandparents. The rationale for this restraint, being the impact of the presence of the maternal aunt upon the children has been discussed at length earlier in these Reasons.[41]
[41] Including but not limited to paragraphs [398] – [402]; [411] – [415] and [444] – [445].
The father also seeks to restrain the mother:
·having other people present when the children are spending time with her without his written permission;
·contacting the children electronically except for as provided by the orders;
·giving gifts to the children other than those specified in the orders;
·attending upon the children’s school or home except with his written consent ;
·attending any of the children’s extracurricular events except with his written consent and;
·attending upon the children’s time with the maternal grandparents pursuant to these orders.
There was evidence about the way in which each of the matters covered by these restraints had adversely affected the children. The impact upon the children and parental communication that arises from gift giving except on special occasions and of the mother’s presence when spending time with the maternal grandparents was dealt with in the expert’s evidence as discussed. I agree that the mother’s attendance at an extracurricular activity of the oldest child (a performance) when the orders only provided for supervised time, demonstrate her lack of insight into the difficult position that the child could have been in if she had seen the mother and the consequences for the father of dealing with the child’s dysregulation if that had occurred.
There are other restraints sought as against the maternal grandparents which also seek to remedy harms that were occasioned to the children and interfered with the father’s parenting in the past. Difficulties for the children and father of this nature occurred in particular as a result of the maternal grandparents contacting the oldest child electronically, attending upon this child’s school events without the knowledge of the father, discussing matters related to the orders in these proceedings with the children and allowing the children to communicate or come into contact with the mother, maternal aunt and Mr JJ. I accept the contentions of the father for the necessity for these restraints in the foregoing circumstances and note that neither the mother nor maternal grandparents make any submissions to these proposed restraints.
There are also a number of positive injunctions sought by the father in the event that any of the children come into the presence or care of the mother, maternal grandparents or maternal aunt otherwise than in accordance with the parenting orders. These injunction require that these nominated maternal family members immediately contact the father and inform him of the child’s whereabouts in such a circumstance and require that they immediately arrange for the child’s return, inform the child that they will be returned to the father, encourage them to voluntarily return and take all steps to return the child to the father’s care.
There is cogent evidence from the expert about the need for these orders and benefits for the children if they are followed. If such orders are in place, the detrimental impact experienced by the oldest child as a result of the maternal family’s response to her coming into their care on 10 and 11 March 2022 will be avoided.
CONCLUSION
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[42] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[42] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
I agree with the final submission made on the behalf of the father that it is arguable that the presumption does not apply in this case as the conduct of the mother falls within the definition of family violence.[43] However, as the father’s case was not run on this basis I do not make such a finding and proceed on the basis that the presumption of equal shared parental responsibility does apply.
[43] Family Violence is defined in the Act at s 4AB(1) and examples of family violence are set out at s 4AB(2). Relevantly, one example is s 4AB(2)(i) “preventing the family member from making or keeping connections with his or her family, friends or culture”.
For the foregoing Reasons and especially those discussed at paragraphs [506] – [508], in my view the presumption is easily rebutted in the circumstances of this case. I am easily satisfied that it is in the best interests of these children that the father exercise sole parental responsibility for them.
Other parenting Orders
The circumstances for the family under consideration are particularly complex. However, in my view for all of the Reasons given there is strong and cogent evidence on the basis of facts I have found and the expert’s opinion (much of it which was ultimately unchallenged) that it is in the children’s best interests for orders to be made as proposed by the father.
There is some evidence to support the making of orders as proposed by the mother and maternal grandparents, in particular the children’s relationship with the mother and extended maternal family and the children’s strongly expressed and repeated views about their parenting arrangements. However, the balance of the evidence overwhelmingly supports the conclusion that the mother, maternal grandparents (and maternal aunt) pose an unacceptable risk of harm to the children and that the only way to protect them from such harm and bring about an arrangement which is otherwise in the children’s best interests is through the making of orders as proposed by the father.
While the position of the ICL and father in these proceedings is very similar there are some minor differences between orders as to some matters in their respective proposals. In some cases the father has changed his position and adopted the proposal of the ICL. With respect to other differences, my reasons for preferring one proposal over the other are apparent from the totality of these Reasons.
For all of the foregoing reasons, I make the orders set out at the forefront of this judgment.

I certify that the preceding five hundred and twenty-nine (529) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 5 April 2023
SCHEDULE OF PARTIES

SYC 2881 of 2013

Respondents

Fourth Respondent:

MS N CIMORELLI

File number(s):	SYC 2881 of 2013
Judgment of:	HANNAM J
Date of judgment:	5 April 2023
Catchwords:	FAMILY LAW – FINAL PARENTING – Where the father and ICL contend that the children have been subjected to psychological abuse by the mother – Where the father and ICL seek that orders be made for long term supervision – Where the mother contends that there is no risk of harm posed in either household – Where the mother has previously contended that the father poses a significant risk of harm – Where the mother seeks a return to an equal shared care arrangement – Where I am satisfied that the children have been subjected to psychological abuse perpetrated by the mother – Where the maternal grandparents and maternal aunt are parties to the proceedings – Where the extended maternal family poses an unacceptable risk of harm to the children– Where orders are made for the children to live with the father – Where orders are made for long term supervision of the children’s time with the mother – Where orders are made for long term supervision of the children’s time with the maternal grandparents – Where restraints are made against members of the maternal family
Legislation:	Family Law Act 1975 (Cth) ss 4, 4AB(1), 60CC(2), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(i), 60CC(3)(g), 60CC(3)(m), 61DA, 68B.
Cases cited:	Cimorelli & Wenlack [2020] FamCA 615 Donnell & Dovey [2010] FamCAFC 15 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Gorman & Huffman & Anor [2016] FamCAFC 174 Isles & Nelissen [2022] FedCFamC1A 97 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Moose & Moose [2008] FamCAFC 108 Slater & Light [2013] FamCAFC 4 Wenlack & Cimorelli [2019] FamCA 755 Wenlack & Cimorelli (No. 2) [2019] FamCA 790 Wenlack & Cimorelli (No. 3) [2019] FamCA 791 Wenlack & Cimorelli (No. 4) [2019] FamCA 854 Wenlack & Cimorelli [2022] FedCFamC1F 180 Wenlack & Cimorelli (No 2) [2022] FedCFamC1F 696
Division:	Division 1 First Instance
Number of paragraphs:	529
Date of last submissions:	17 October 2022
Date of hearing:	14 – 18 February; 11 March; 21 March; 17 May; 31 May – 1 June; 14 September 2022
Place:	Parramatta
Counsel for the Applicant:	Ms Tabbernor (direct brief)
Counsel for the First Respondent:	Mr Givney and subsequently Litigant in person
Solicitor for the First Respondent:	Apex Legal and subsequently Litigant in person
Counsel for the Second and Third Respondents:	Ms Reid (direct brief)
Solicitor for the Fourth Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Sydney Central Family Law

SYC 2881 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR WENLACK Applicant
AND:	MS CIMORELLI First Respondent MR C CIMORELLI Second Respondent MS D CIMORELLI (and another named in the Schedule) Third Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	5 April 2023

SYC 2881 of 2013
Respondents
Fourth Respondent:	MS N CIMORELLI