Winters & Robbs - [2022] FedCFamC2F 298

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Winters & Robbs [2022] FedCFamC2F 298

File number(s): MLC 11835 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 17 March 2022

Catchwords: FAMILY LAW – parenting – child’s time with the father – weight to be given to the child’s views – father’s insight – child’s anxiety

Legislation: Family Law Act 1975 (Cth) 61DA(1) pt VII, ss 4AB, 60B, 60CA, 60CC, 64, 65D, 65DAA, 68Q .

Cases cited:
Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] 240 CLR 461

Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 160

Date of hearing: 21 and 22 February 2022

Place: Melbourne

Counsel for the Applicant: Mr Oldham

Solicitor for the Applicant: Vernon Da Gama and Associates

Counsel for the Respondent: Ms Damon

Solicitor for the Respondent: VM Family Lawyers
ORDERS

MLC 11835 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WINTERS

Applicant

AND:
MS ROBBS

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

17 MARCH 2022

THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1.All previous parenting order be discharged.
2.Parental responsibility be allocated between the parties in the following manner:
(a)The parents have shared parental responsibility for X born in 2012 (“X”) in relation to major long-term issues about:
(i)X’s name;
(ii)X’s religious and cultural upbringing.

(b)The Mother have sole parental responsibility for X in relation to all other major long-term issues, including health and education (both current and future).

3.For the purpose of order 2(b) above:
(a)before any such long-term decisions are made in respect of the X’s health or education:
(i)the Mother shall advise the Father by email of her proposal relating to X;
(ii)if the Father wishes to comment on the Mother’s proposal (or if the Father has any proposal he wishes to make relating to X on this issue) he shall, within seven (7) days after the date of the Mother’s email, advise the Mother by one email (to the email address from which the Mother sent her communication) of his views;
(iii)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to the Father’s views.

4.X live with the Mother.
5.Changeovers that do not take place at the conclusion of X’s dance class will take place outside the mother’s home.
6.Each party be permitted to have a support person attend changeover with them, however, the support person is to remain in the car or remain in the home, whichever applies, during changeover.

Restraints
7.The Father and Mother and their servants and agents be and are hereby restrained from:
(a)Denigrating the other parent or their family in the presence and/or hearing of X or permitting anyone else to do so;
(b)Using X to pass messages between the parties;
(c)Discussing these proceedings in the presence and/or hearing of X, save for explaining to X the effect of the orders and what time she is to spend with each parent.
(d)Acting in any manner towards each other or X that would constitute family violence as defined by Section 4AB of the Family Law Act 1975;
(e)Administering corporal punishment to X or permitting anyone else to do so.

Provision of Reports
8.In the event the Father or Mother attends upon a psychologist or counsellor, the Father and Mother have leave to provide a copy of the following to that treating psychologist/counsellor:
(a)A copy of these Orders;
(b)A copy of these Reasons for Judgment;
(c)The Family Report of Ms B dated 8 September 2021;
(d)The Family Report of Ms B dated 29 January 2022.

Travel
9.The Mother be permitted to provide a copy of these orders to any government or non-government agency in relation to any matters concerning:
(a)Parental responsibility;
(b)Care of X;
(c)Applying for and obtaining passports for X;
(d)X travelling outside the Commonwealth of Australia.

10.For the purposes of international travel with X the parent proposing to take X overseas must provide written notice to the other parent of the proposed travel, and provide the following information 60 days prior to the departure overseas:
(a)A copy of the return flight tickets (as relevant) for X;
(b)A copy of the itinerary; and
(c)Contact details for X during the duration of the time X is overseas.
(d)A copy of X’s travel insurance documentation.

11.The Mother be permitted to travel internationally without the permission of the Father, provided the Mother provides the Father with at least 60 days’ notice in writing of such travel.

Extracurricular Activities
12.The Father facilitate all extracurricular activities including routine dance classes, school activities and/or social engagements which may occur during the Father’s time with X such as but not limited to friends’ birthday parties, sports activities , subject to the father being able to seek a different time whilst he is only seeing X for 4 hours a fortnight.
13.The Mother be responsible for making arrangements, preparing and taking X to all dance commitments beyond her regular classes, including but not limited to, rehearsals, concerts, competitions, exams, presentations and photos sessions including any interstate or overseas travel for performances/competitions.

Information Sharing
14.The parties communicate via the parenting application AppClose in relation to parenting matters only.
15.Both parties are permitted to receive copies of school reports, notices, photograph order forms and all other school correspondence normally provided to parents.
16.Both parties be at liberty to be notified by X’s school of her progress, attendance and/or performance.
17.Both parties be entitled to attend X’s school and extra-curricular activities including but not limited to parent teacher interviews, assemblies, concerts, presentation and sports days which parents are normally invited to attend.
18.Both parties keep the other informed of:
(a)Any significant injuries or illness that X suffers whilst in their care, as soon as practicable, following such injury or illness;
(b)Any instances where X needs urgent medical attention during their time with X, immediately if possible, or otherwise as soon as practicable thereafter;
(c)Any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the party in whose care X is in to inform the other party immediately).
(d)Any general medical or health issues relating to X, including but not limited to particulars of any medication prescribed to X and name and contact details of the prescribing health practitioner and such medication must be provided to the other party at changeover, if applicable.

19.The Father be permitted to speak with X’s General Practitioner or treating medical practitioner/s to obtain any information or medical reports relating to X at the Father’s expense (if any) and these Orders are to act as authority of the same.
20.The parties notify the other of any change to their telephone contact details within 24 hours of such change and provide such note to schools, medical professionals, and the like.

THE COURT ORDERS THAT:
Spend time
21.X spend time with the Father as follows:
(a)In week one of a fortnightly cycle, on Saturday from the conclusion of dance for four hours and from 1:00pm until 5:00pm if X is not attending dance;
(b)In week two of a fortnightly cycle, on Friday between 5:00pm and 5:15pm by Facetime or telephone, with the Father to place the call and the Mother to facilitate the call and in the event X has an activity on Friday the call occur between 9:00am and 9:15am the next day.
(c)On Father’s Day from 1:00pm until 5:00pm;
(d)On the Father’s birthday from 1:00pm until 5:00pm on a non-school day, if X is not already in the Father’s care and if a school day from the conclusion of school until 7:00pm;
(e)On Easter Sunday each year from 10:00am until 1:00pm;
(f)On Christmas Day each year from 10:00am until 1:00pm;
(g)On X’s birthday from the conclusion of school until 5:30pm if the birthday occurs on a school day and from 10:00am until 1:00pm on a non-school day.
(h)at other such times as agreed by the parties in writing.

22.The Father’s time with X be suspended as follows:
(a)Each year for X’s younger brother’s birthday;
(b)On the Mother’s Birthday each year and the Father’s time occur the next day as make up time if it falls on the Mother’s birthday.
(c)On the Saturday prior to Father’s Day noting X is to spend time with the Father on Father’s Day.
(d)During any dance recital/competition/event/function/camp either locally, interstate or overseas which is scheduled during the Father’s time.

23.The parent who has X in their care shall facilitate any reasonable request by any of X to communicate with the other parent.
24.Pursuant to s.68Q of the Family Law Act 1975 (Cth) this order prevails over any family violence order to the extent of any inconsistency.

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 a pseudonym Winters & Robbs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:

X is 9 years old, born in 2012. Her parents were in a relationship from late 2008 until November 2012. X was just a few months old when her parents separated. Her parents give different accounts as to the father’s level of involvement with X until mid-2019.
Both parents have re-partnered. The father has been in a relationship with Ms C for about five years. They do not live together. The father lives with his best friend Ms D. He denies being in a relationship with her and says that they have been best friends for many years. X refers to the father as having two girlfriends and the mother also refers to them both as the father’s girlfriends.
The father says that until the mother re-partnered with Mr E in 2019, for the most part the parents had an amicable relationship and were flexible about the father’s time with X. The father referred to being able to telephone the mother to see if he could take X for lunch when his work permitted. The father also referred to being involved in taking X to her swimming lessons when she started swimming at aged 3.
In his trial affidavit, the father says that since 2012, there has been an informal arrangement with X spending time with him on alternate weekends from 5PM Fridays until 5PM Sundays and one night during the off week. He also says they reached agreement on issues such as X being baptised Catholic and her attendance at Suburb F Kindergarten and Suburb F Primary School. Both parents are long distance runners and on many occasions they travelled and stayed together. He says they also took X with them both on running and leisure trips, and were able to organise a joint fifth birthday for X.
The father says that since the mother re-partnered, she has not allowed X to spend as much time with him, and complains about several significant events in 2019 that X missed out on. The father also says he gave X an iPad with a sim card so that X could FaceTime with him when she wanted and said that prior to July 2019 they spoke via FaceTime several times a week, however after that the mother restricted the calls.
The mother disputes the level of involvement the father has had with X since they separated. She says the father chose to move 45 minutes away and was disinterested in the choice of school and told her to make the decision. The mother’s case is that the father was largely disinterested and inconsistent in spending time with X. She also says that the father was violent and controlling and she remains fearful of him.
Whilst the parents’ versions of events are very different, they agree that things changed when the mother entered into a relationship with Mr E. They have a child together G, born in 2020.
The mother lives in Suburb H. The father lives in Suburb J about a 15 minute drive away from the mother’s home and X’s school. Both parents acknowledge that X suffers from anxiety and that transitioning between households has been difficult for her. The mother also complained in her trial affidavit that, whilst the father has been critical of her for not forcing X to see him in the past when X has been unwell or distressed, the father has also agreed to not to force X to go.
The mother’s case is that X is afraid of her father and does not enjoy her time with him and that her father does not listen to her. The mother says she encourages X to go on the visits and tells her seeing her father is important and she will have a good time.
The father’s case is that the mother has taken a passive approach with X and lets her decide whether she wants to see the father or not, and does not encourage their relationship.
The parties’ positions are polarised and there is no effective communication between them.
INTERIM ORDERS
During the trial the father no longer sought a watch list order and said he would sign a passport application for X. He said he had not been asked previously to sign an application. He was also supportive of X going overseas for family holidays provided he has notice.
Ultimately, both parties sought that I make final orders rather than interim orders. As I pointed out, it is the nature of parenting matters that matters can be brought back where there are changed circumstances. Certainly, in my view, particularly when one or both parties need to undergo therapeutic work, having the proceedings remain on foot does not assist with that process as it places ongoing pressure on the parties. Additionally, given the ability to bring further proceedings, there is no particular advantage in making interim rather than final orders. This is not a case where the state of the evidence is such that the Court is unable to make final orders in X's best interests.
To the parties’ credit after closing submissions the parties further narrowed the issues in dispute.
The parties were unable to agree as to what spend time with arrangements should be in place whilst judgment is reserved. I determined that this is a case where it is in X’s best interests to make interim orders and, regardless of whether I determine there should be final orders for substantial and significant time as proposed by the father or limited daytime periods as proposed by the mother, I am satisfied that X needs a circuit breaker. It is clear that the changeovers have long been problematic and that X is under some stress.
The parties have agreed to alter the changeover arrangements so that they occur at the end of X’s dance class on Saturdays. The father will collect her from her class which will avoid the parents coming into contact with each other. At other times and at the conclusion of the father’s time changeover will take place outside the mother’s home. This was recommended by the family consultant in oral evidence. She said that she thought it was important that the parents not come into contact with each other and that X was of an age where she would be able to go from her mother’s home outside to her father’s car without assistance. Initially the mother sought to retain McDonald’s as the changeover location and indicated that the changeovers at the end of the father’s time were not problematic. That particular McDonald’s must be associated with trauma for X and in my view, it is important that there be a fresh start for X and her parents.
THE MOTHER’S HISTORICAL INTERVENTION ORDERS
The mother sought intervention orders against the father in 2013 and 2016. The father denies any allegations of family violence, and notes that the mother withdrew those applications. The mother says she withdrew those applications due to being under pressure from the father.
The mother says the father has been physically and emotionally abusive. In her trial affidavit, the mother describes an incident on 12 February 2013 where the father attended the mother’s parents’ home (where the mother and X were living at the time) to retrieve his mobile phone and he threatened to kill her. She annexes a series of text messages from the father which he sent in the lead up to the incident. The father was agitated as the mother had his mobile phone. He sent several threatening text messages to her including threats to kill her. The mother says he turned up at her home enraged and kicked the front door, damaging it. She says she came outside and gave him his phone to end the situation but he still grabbed her and threw her to the ground several times and kicked the letterbox before driving away. The mother stated in her trial affidavit that she called the police after the applicant had left. He was charged with assault. The mother says it took a year for the matter to be heard and that the father coerced her into dropping the complaint.
The father was cross-examined about this incident. The father said that incident occurred nine or ten years ago when X was still an infant. He says that on the Friday the week prior to the incident, the mother was dropping X off and she took his phone and kept it. The father claims the mother was upset that the father was going overseas for his birthday. He claims that the mother took his phone and dangled X over the staircase threatening her life. He says he called the police. The mother said that she was going to kill herself and the police then took her away. The mother then returned 15 minutes later and told him that the police let her go after she let them look up her skirt. The extent to which the father will go to avoid and deflect responsibility for himself is highly concerning and I have great difficulty in accepting his answer with any credibility. I note in particular that the father was aware that the mother annexed the text messages to her affidavit which include his threats to kill her and highly derogatory and abusive language. He did not refer to this incident in his trial affidavit.
The father acknowledged that the mother’s alleged threat to X’s life was not in his trial affidavit as the father said it was not relevant and he was trying to forget. I have difficulty accepting that if that incident really occurred, he would not have deposed to it. No police records were produced with respect to this incident. Rather, I have the impression that the father seeks to deflect and minimise responsibility from himself by referring to the mother threatening X’s life.
When asked about his threats to kill her, the father said these may have been in the texts, and the father reluctantly conceded that the mother may have been afraid when he attended the house given those threats. However, he said that those times were pretty turbulent and that the mother was not a saint. He was then squarely confronted with the text messages where the father clearly threatened to kill whoever was at the house. He also threatened to kill her and used highly offensive language. The father said he was pretty stressed at the time, however he is not making excuses and that his language was “disgusting”. He reluctantly conceded that it looked like he threatened to kill her, but continued to seek to justify and minimise his behaviour, saying he did not throw her to the ground and that she gave him the phone and he got in his car to drive off.

The father does not believe that the mother is fearful of him and said that a lot has happened since that incident.
The mother says in November 2016 shortly after the father collected X for a visit he contacted her and tried to return her. The mother told him she was not available immediately and the father threatened to drop X at the maternal grandparents’ home. The maternal grandparents were not home. The father left X alone outside the front door of the maternal grandparents’ home. The mother’s sister was home and on the phone to the mother. She could hear X crying. The mother’s sister says X was screaming and crying hysterically at the front door and she could not see the father or his car. X told her that the father had been screaming at her and said he did not want her. She says X still mentions this incident from time to time.
INCIDENT 5 JULY 2019
The father agreed that circumstances changed when the mother met Mr E and said that the mother was setting boundaries. He could no longer come and go and drop in as he did before. He denied that that made him angry and said he reached out to Mr E to meet up with him so they could get to know each other. The text exchanges between the father and Mr E are annexed to the trial affidavits. Whilst they clearly show the father inviting Mr E to meet, it quickly deteriorates when Mr E does not respond in the time frame that the father thinks he should.
On 5 July 2019, the father attended the maternal grandmother’s home to collect X. The parties agree that there was a violent altercation between the father and the mother’s partner. He said that X was initially present for the confrontation and was then sent inside but would have continued to hear it. The father says that the mother’s partner was the aggressor and that several days later, the mother attended the police station and made a complaint against him and as a result, the police took out an interim domestic violence order which was later resolved by way of undertaking.
With respect to this incident, the father said Mr E turned up at changeover unexpectedly. The father says Mr E pushed him a couple of times but it was more of a verbal altercation. The father said he was scared and was not proud of putting himself in that situation and said if there was a video of it he would not be proud of it but noted that X was inside. He conceded that X may have heard sounds of people yelling.
The mother says that the father came to her parents’ home with Ms D and Ms C. The mother says she heard X scream and when she went outside she was clinging to her uncle. She says the father and his girlfriends were the aggressors.
INCIDENT 19 DECEMBER 2020
Lead up to incident
Interim orders were made for X to spend overnight time with the father from December 2020 after several months of daytime visits. The orders required changeovers to take place at McDonald’s.
The mother says that X was very apprehensive as this was the first time she was due to spend overnight time at her father’s home in several months. She said that X kept refusing to go. The week prior to the incident, the parties attempted changeover but X was unwilling to go and the overnight time did not take place. The father’s counsel put to the mother that at the first changeover for an overnight visit neither parent forced X to go. The mother said this was after an hour of a tug of war.
The father conceded that there have been difficulties at changeovers, however said that the difficulties only really began when they initially started overnight visits and that the first visit did not take place as X refused to leave the restaurant. He said that the first week his mother came with him and his mother tried to approach X but X was reluctant to leave. He referred to the mother’s father and sister turning up and X having an audience for the next hour. He said that X was allowed to walk in and out the next hour and then they drove off. It is clear from his narrative that he is critical of the mother and her family, but does not attribute any responsibility for the difficulties to himself and he is dismissive of X’s emotions. He implied that X was putting on a performance because she had an audience. There is a real disconnect there. The father complained that the mother and her family did not encourage X to go with him and said X was almost being smart when saying she did not want to go and said that X took the opportunity to be undisciplined. This does not sit well with the distress X displayed on the next occasion. The father does not appear to be attuned to X’s emotional needs.
The mother said that X was very resistant to the idea of spending overnight time with the father beforehand and that she did speak to X positively about it and does so every fortnight. The mother said she does not tell X that she misses her or attempts to guilt trip her in any way and does not respond to her protests directly. She tells X that she will have a good time but X does not believe her because she does not. The mother said she is yelled at a lot. She said that she and her husband also avoid telling her about things they are going to be doing whilst she is at her father’s home so that she does not feel like she is missing out but their friends sometimes talk about things and sometimes she will see something on the calendar.
When asked if the mother tried to work with the father to encourage her to attend or to share those events, the mother replied that they do not have that sort of relationship. When X has dance events or parties she directs the other parents to contact him when it falls on his weekend. She also said that he has the same access to information she does through the school. The mother says she keeps communication with the father to a minimum.
The father’s counsel asked the mother what she did to prepare X for the second changeover after the first one did not take place. The mother said she did the same things that she had been doing and said it was important not to look at that incident in isolation, but that there was a six-month build-up of increasingly aggressive changeovers and the prospects of dealing with overnights. The mother went through mindfulness techniques with X, used her calming book and has also has an app. She denied allowing X to make the decision not to go if they tried for over an hour.
The mother said she thought X’s time with the father should be guided by X’s experiences. She said it is important that X spend time with her father but it is also important that that time is positive.
The mother says the father was becoming increasingly aggressive towards her at changeovers so she brought her sister and father with her for support on 19 December 2020.
The father’s description of the 19 December 2020 incident
The father does not describe the incident directly in his trial affidavit but refers to and annexes the complaint and summons he took out against the mother, the mother’s father and the mother’s sister to his trial affidavit. I note that the father made the application himself and it was not made by the police on his behalf. The father’s description of the event in that application is significant. He refers to the court order and says as follows:
“… Following the successful collection of our child, the respondent and others chased me and my child outside of the restaurant yelling abuse and making threats. 6 police were required to attend and the incident took over two hours to resolve. The respondent, despite court orders continues to expose our child to maternal isolation from me. The respondent frequently attends court ordered changeovers and intimidates me. 12 years since 2008, there has been unreported acts and threats of violence against me and our child including ongoing maternal isolation. The respondent has attempted suicide… I have fears for changeover occurring at 12 noon tomorrow…” [SIC]
The application is dated 23 December 2020 with a return date on 17 March 2021.
There is a complaint against the mother’s sister which refers to her attending changeovers despite not being a party, and refers to her chasing and abusing the father and threatening him after he collected the child. He alleges she only attends to instil fear, anxiety and intimidation in him. He complains about her filming the interactions and harassing him, creating anxiety for both him and the child. He makes similar complaints against the mother’s father.
The mother’s description of the 19 December 2020 incident
The mother says that when the father arrived, X was clinging to her for comfort. The father grabbed X without warning and carried her out. X was screaming hysterically and kicking as the father carried her across the road to his car.
The mother flagged down a passing police car. For the next couple of hours there was essentially a standoff. X remained distressed and the father held her in the front seat of his car. The mother says that after a couple of hours of unsuccessfully trying to calm X down the police told her that they were content for the mother to take her home. The mother says upon hearing that the father he took X out of his car and walked to his home carrying X. Later the police performed a welfare check and advised the mother that X was in bed. The mother says that X is extremely traumatised by this event.
The mother and her family members videoed the exchange. The mother annexed photographs taken from the video to her trial affidavit. The video was played in Court and was labelled as exhibit 1. The video was broken up into three files due to its size. It is clear that there is a section missing between the second and third part and I accept that this is a video of only part of the incident, however, the video shows a few things very clearly which are troubling.
Cross-examination about the incident and the video
Before the video was played in Court, the father was cross-examined about his recollection of the incident. His answers and views about the incident are concerning because he presents quite a distorted view of his role, X’s behaviour, and the behaviour of the mother and her family. He likened X’s upset as similar to the upset of a child being dropped off for their first day of school and that it was going to be the first time that she stayed at his house overnight in almost 2 years. He said once he picked X up she embraced him and they walked off. The fact that the father interprets X embracing him when picked up does not accord at all with the distress and resistance that X displayed in the video. Similar to the father’s answers with respect to the 2013 incident, this is another example of the father minimising and discounting X’s experience and perceptions.
When asked if on that occasion X was clinging to her mother, the father said he did not think she was. He said he walked in, acknowledged them both and picked X up and that X was trying to get away from him initially until he got a good hold of her. He then said that he would not describe her as trying to get away from him and she was initially reluctant for him to pick her up, however she then cuddled him. He criticises the mother and her family for not encouraging X to go with him. When cross-examined about the photographs he said that he was holding X in the car to try and calm her down. That is not what it looks like. Certainly it looked like X was extremely distressed.
When squarely asked about the photograph that shows X gripping his car door, the father said the photo does look like X is reaching out but it was a long time ago. He then said that X was reluctant to come as it was a busy road and the family was behind them filming her, and said that if she was distressed and wanted to get away, she could have easily done so.
The video was then played in Court and tendered as Exhibit 1. The video clearly shows X with her legs bent, resisting as the father physically picks her up and carries her out of the McDonald’s restaurant. The mother, her sister and father follow him out of the restaurant but they are not chasing the father and they are not yelling abuse. The father carries X across the road to his car. X can be heard screaming. She clearly resisted being put in the car and grabs the roof of the car. The father also restrains X in the front seat of the car. The video supports the mother’s version of events.
The video also shows X distressed and resisting her father and crying and asking to be let out of the car. The mother and her family members could be heard saying that X is traumatised and distressed and the mother refers to X’s lips being blue. They were not being abusive as claimed by the father. It is also troubling that the father continued to minimise X’s distress at that incident, though he conceded when pressed that he has not seen her more upset than that. The father did concede that the video showed X resisting him more so than he recalls. He thought that having the police conduct a welfare check afterwards was an overreaction.
The mother’s counsel asked the father to consider that if the roles were reversed, whether he would have been concerned for her welfare seeing her that distressed and that she would have been concerned enough to follow X out. He said he had not thought of it and could understand why the mother was concerned but still was critical of her following them. It is clear that the father believes that the mother and her family following him out contributed to the drawn-out incident. He takes no responsibility for his own approach. It seems pretty clear that after X did not go with him the previous time, he was determined that this time she would and that he was insensitive and even oblivious to her distress. There is a real disconnect there.
The fact that the father maintains that position even after seeing the video underscores the father’s lack of insight and inability to acknowledge X’s experiences and perceptions. Again, he continued to minimise his own conduct and continued to say that the mother and her family following him made the incident more dangerous. When it was suggested to him that the mother was concerned enough that the police need to be involved, he said that he had the same level of concern and that was because of her behaviour and her family’s behaviour.
What is also concerning is that when asked if he could go back in time would he do it differently, he said he honestly did not know and did not know what the alternatives would be. I accept that the father was sincere in this. It highlights the father’s inability to provide for X’s emotional needs. The video does not show the father embracing X. It is clear that he picked up X when she was resisting and that she was continuing to resist. When questioned about what X told the family report writer about the changeovers, particularly where X referred to the father normally pulling her off her mother and that on that occasion she had bruises all over a body, the father said he would not describe those as X’s words and they were clearly untrue. He did concede that on occasions X cries at changeovers. When asked what he does he said that he stands back and waits for her to come to him after the mother cuddles her. He then criticised the mother, saying it seems to him that the mother waits until he is inside to collect X to kiss and cuddle her making her more upset. It is likely that the father is oblivious to X’s emotional needs. It is not surprising that X would be on her best behaviour with her father, as she does not feel safe with him.
After the incident on 19 December 2020, the father attended the Magistrates’ Court and took out intervention orders against the mother, the mother’s sister and the mother’s father. On 30 June 2021 the father sought a variation of the intervention order against the mother and the order was varied to include X as a protected person and also to include restraints against the mother attending changeovers with another party and communicating with the father during changeovers. She was also restrained from remaining at the changeover location. I note that that interim variation was made without the mother being served and without the mother being present. As I commented during the trial, I was troubled by the fact that the magistrate went so far as to make an order restraining the mother from communicating at all with the father at changeover. This only would have served to cause more tension at changeovers. It is well known that children are acutely aware of the tension between their parents which X would have picked up on.
COMPLAINT AND SUMMONS AGAINST MR E
The father also took out an intervention order against the mother’s partner Mr E on 28 June 2021. In the application and summons against the mother’s partner he complains about the mother having her partner hiding in the car at McDonald’s at changeovers when she is not allowed to have somebody there and says when her partner was discovered, he threatened violence. He goes on to complain that due to a technicality with respect to the orders referring to changeovers taking place inside McDonald’s, the police refused to charge the mother of breaching the intervention order. He also complained about the mother filming the changeovers as keeping him under surveillance and he was seeking immediate protection for himself and his daughter. The Magistrates’ Court made an interim order on 28 June 2021 without Mr E being served. The order restrained him from being present at any changeovers. The father, not a police officer, was the applicant in all of the intervention order applications.
THE FATHER’S ATTITUDE AND INSIGHT
Throughout the father’s affidavit, he blames many difficulties on the mother and her family. For example, he refers to difficulties at some changeovers being caused by the mother or members of her family and that he believes that some of X’s anxiety and concerns regarding her spend time with him is due to the behaviour of the mother and her family.
The father was asked in cross-examination about the spend-time arrangements concerning Christmas day and he confirmed that the orders do not provide for X to spend time with him on Christmas Day. It is significant that the father was then quick to point out that the mother texted him the Thursday before Christmas day, after he had already celebrated Christmas with X the week before, and offered him 3 hours on Christmas day. The father’s criticism of the mother was clear when it was pointed out to him that she did not need to make that offer, as although he conceded it was probably a good gesture, it was given at short notice, and he complained the mother was aware of the expense he had gone to.
The father agreed that on Christmas Day, X asked to go home, but said that shortly after she arrived at his home, she unwrapped her presents and was settled after a few minutes.
The father denied telling X that she had to smile when taking photos and said that X has made that up as well as other things, and that she has told him she tells lies because she misses her real family. He expressed concern that she does not see his family as her real family. He said that sometimes these things come up when she is going to bed and she is upset and ask him to stay with her till she falls asleep. He said there have been 3 or 4 occasions in the last 18 months when she has asked to speak to her mother when upset and has called her at bedtime. He says other times she forgets that she changes her mind and no longer wants to call her mother because she is no longer upset.
In answer to the mother’s counsel the father said “of course” he asks X why she tells lies consistently throughout the day. He denied asking her about the family report specifically but says he has asked what time she would like to spend with him to better understand what is in her best interests, then referred to some holidays and 2 nights with him. He also thinks that she is telling people what they want to hear. It is concerning that the father answered in this manner, as it shows a lack of insight and consideration as to the negative impact that this could have on X. His answer also implicitly assumes that X is lying by assuming that she is by way of his questioning of her. In doing so, he is denying the validity of X’s experiences and feelings. It is not surprising therefore that X would be wary about how she behaves when with her father and is reluctant to tell him how she really feels.

The father said he is concerned that X will start to refuse to spend time with him and arranges his weekends with her to be full of fun activities. He bought a rabbit for her and talks about things that she wants to do around the house and engages with her about her dancing. He says he talks to her in the FaceTime calls about what to do on the weekends but X does not give away much and he has to do the planning.
He said he has not been able to have X’s friends over because of COVID-19 and then more recently he said he tried to engage K’s (X’s best friend’s) parents, but that it is awkward as K’s mother has sworn an affidavit in support of the mother in these proceedings. The father said before COVID-19 hit, he was residing in Suburb L until April 2021 which is about 45 minutes away and impeded his ability to have friends over.
The father was asked about X telling her mother that the father refused to take her to the dance Christmas party. The father said that they received an email moving the party from outside to inside and X was reluctant to attend as a result, as was he, and that they decided not to go. He said that X had been reluctant to go to indoor events due to the Omicron outbreak. When asked if he let the mother know that they would not be going the father said, “No, why would I?”
The father was asked about what he had done since the release of the first report. He said he is trying to make sure that X’s weekends with him are full of more fun activities. He further responded saying that opportunities to engage with professionals is fairly limited. The father then said he has taken on board what X said to the family consultant along with the other things X said to him, which is that she lies to her mother and others due to missing her real family. The father also said reading what X said to the family consultant raises concerns as to why X was not in counselling, He said that if the mother takes X’s comments seriously, then why has she not addressed it with a counsellor? This is another criticism towards the mother. When the mother’s counsel put to the father that the mother deposes to that in her affidavit, he queried whether that had only occurred recently. The father said that X was clearly having difficulty expressing how she feels and dealing with conflict and felt the pressure of trying to please both parents.
When asked if he takes any responsibility for the way X feels, he said he does however he is confused because he tries hard to make sure that she has fun on weekends. The father also says he is constantly looking to improve and read things and to understand the emotions that she experiences. He said he has a long-term girlfriend and a best friend who lives with him who is an educator. She supports him with these things. I have the sense from the father’s answers that he may be overly reliant on Ms C and Ms D, noting part of X’s complaints relate to the father’s two girlfriends.
The father agreed that the mother ensures that X talks to him at times outlined in the court orders. He agreed that she does so even when there is a family function and also when the mother and X are parked outside the dance studio prior to the commencement of class. The father complains that he would prefer that they made alternative arrangements so that X was not distracted. The father made it sound simple for the mother to simply text him to arrange an alternate time. This ignores the actions that he has taken with respect to making complaints to police and taking out contravention applications against the mother in that context. It is understandable that the mother has taken this approach to strictly comply with the orders except for providing the father with additional time on Christmas Day. The father’s criticisms of the mother in this regard are unfair. I have real doubts about the parents’ abilities to negotiate changes to the arrangements, particularly when seen in the context of the father’s negative criticisms of the mother and his actions with respect to the intervention orders and contravention applications.
The father said he “absolutely” has had someone with him since the incident with police at changeover, however said that with respect to the mother having somebody at changeover, it was not for him to decide. He said the Magistrate suggested that she not be permitted to have anybody with her and not speak to him. He denied asking for that condition and said to clarify that the person accompanying him stays in the car. The father claimed he did not have difficulty with the mother bringing someone if they stay in the car and said that there was not a problem until one occasion when Mr E acted inappropriately and X was upset and the Magistrate made those orders.
The father attributed the blame for difficulties at changeover to the mother and her partner and said he did not contribute to it and that he was just there to collect his child.
The agreed reading in the family report that X told the family consultant that the reason she does not cling to her mother anymore is because she does not want the father to hurt her mother. He also agreed that X expressed concerns about her safety in her father’s care to the report writer. The father said he acknowledges the concerns, but it was not the little girl that he says he knows. He says he is not required to discipline her and that in any event, his approach is always soft and loving. He says he tries to comfort her and that he does not know what else he can do.
The father was asked whether he has changed his parenting style since reading the first family report. He said that, as he said before, he ensures that their activities are planned to engage her more in things she likes such as dancing, but says that he is at a loss and is confused as the little girl who came to see him after the family report was released was the same as little girl before. The father’s answers support the likelihood that X is not heard by her father when she tries to tell him about her distress. It is also likely that X tries to fit in as best she can during those visits and expressed her real feelings about putting on a front for her father. The need to maintain that would be stressful for her and it is not surprising that she then comes home and says the things she does to mother and the report writer.
The father was asked about X’s comment to the report writer about the father saying the mother could go to jail. When asked if he ever told X the mother could get in trouble, he said that both mum and dad can get in trouble. He said he refers to the judge and that mum and dad could get in trouble if things go a certain way. When asked what he thought X’s understanding of the judge, he said he had not asked her and that he guessed it was a judge listening to stories parents tell. The mother’s counsel asked him if he thought that hearing that might worry X. He said “now that you put it that way, yes, I can” and said that in that particular instance that could be how X had interpreted it. The mother’s counsel also asked the father if he thought that X could understand that judges put criminals in jail. The father said “yes”, but clarified and said he thought X would also “understand that Judge Harland was not the kind to do that”. He referred to X talking about not wanting to spend time with the father and thus inferring that X understands that the judge is making a decision about whether or not she spends more time with her father. He thought that X understood that her parents would not go to jail. These answers are enlightening and reflect an expectation of X to have an adult understanding of the issues rather than those of a child.
The father acknowledged that X told the report writer that she was afraid of her father and scored her fear as 10 out of 10. He agreed that he does not think she has any reason to be afraid of him. Although, he said that obviously there is the 2019 incident and he imagines that she remembers that period. When asked, he said he does not discipline her at his house and is not required to and that he only has discussions with her when she gets upset about not getting things not going her way. He said he believes that X is used to getting her way.
The mother’s counsel asked the father if he was concerned that if they push too hard X might stop coming altogether. The father said his view was that if they reduce his time that the same thing might happen. He acknowledged that quality of time is more important than quantity but did not think that 4 hours was an appropriate amount of time for X.
X’S ANXIETY
In his trial affidavit the father expresses concern about X’s anxiety and says when she shows signs of anxiety he helps her with it. The father also says that he understands it is important for X to feel safe. He is willing to undergo any counselling with X “to help her feel more comfortable with me and to help her overcome any anxiety or distress that may have been caused by her exposure to the conflict between the mother, her new partner and me.” In cross-examination, the father agreed that X has some anxiety issues and does display anxiety when she is at his house. He said she is now reluctant to be part of any photographs and is restless at bedtime. The father completed a 5 hour child anxiety workshop and says he learnt that he needed to be more open to her anxiety and to acknowledge it and some strategies to employ include deflecting her attention with other activities. The father agreed that the course talked about the nature of anxiety being how what the child is worried about might not be real but that the worry is real. When asked how to reconcile X telling the family consultant that she is fearful of him and how his proposal that X spend more time with him would acknowledge her anxieties, after a long pause, the father said he guessed he did not have an answer for that.
The mother says in her trial affidavit that the father often makes demeaning comments to X about her appearance, telling her that she is too skinny and making derogatory remarks about her being Country M. She also says that during the FaceTime call, if X is not being compliant, he will call her a bully and a silly little girl. The mother says X also tells her about derogatory comments the father makes about her family members and friends including her little brother, mother and stepfather. She also says X complains that the father does not allow her to freely call the mother and is only allowed to when she has been extremely upset.
On 25 October 2021, X was in tears and distressed when the mother collected her following time with the father. X told her mother that she was messaging her best friend only through her iPad using the Roblox app and was also messaging her aunt Ms N as she wanted someone to call her due to boredom. X told her mother that when the father realised she was sending messages, he became angry and took her iPad from her and went through her messages and berated her for sending “sneaky messages”.
The mother says that X reports often being left alone with the father’s girlfriends whilst the father goes running. She says that often after X has returned home from a visit, she will be distressed, throw tantrums and have breakdowns. The mother says X’s mental health has deteriorated.
The mother was cross-examined about the changeovers and said they are hit and miss. She said that when X has been at school she has to pick her up early and settle her first. The mother said X is also reluctant about the phone calls and it is a struggle and she has to deal with behavioural issues. The mother says that transitioning in and out of the visits are difficult for X and she will be quick to grow angry. The mother said she expects “to cop it” on Mondays and Tuesdays after X has spent the weekend with the father. X has also threatened to run away on her bike and also lashes out at her. The mother says she is worried about what will happen when she grows older.
The mother says she does positively encourage X about the visits with her father. She said it is difficult because she hears negative reports from X although she also thinks X probably has fun with her father. She goes through mindfulness and coping strategies and asks X to think of things she could suggest to her father that they do together. The mother says she has sought advice from several people including X’s psychologist, the maternal health care nurse who sees G, her GP and X’s school.
The father said that he was very concerned and saddened to read X telling the family consultant that she would rather die than spend more time with the father. He says she does not exhibit that kind of behaviour with him that she engages with him, they have fun.
X is on a waiting list to see a new psychologist. In 2019 she was seeing the school psychologist but as this was sporadic the mother arranged a private psychologist, although X did not click with that person. She then engaged with O Family Therapist and is on a waiting list for a psychologist. She was seeing a psychologist about every three weeks but she has not seen anyone for 6 months. One psychologist cancelled her appointment after they had been waiting for 3 months and they had to go on a new waiting list. The mother said they have been offloaded by two clinics. It has been challenging due to COVID-19 and the number of children who need mental health assistance. The mother said she has not discussed any of this with the father as they never had that kind of relationship. The father’s counsel suggested that it would help the father to know. The mother was somewhat dismissive of this and said that she thinks she mentioned it to the father early on but he was disparaging. The clinics contacted him so she assumed he would get information from them if he was interested. She conceded that it would have probably been useful to give him that information but said he is hostile to deal with so she is apprehensive about communicating with him including by text or email.
The father’s counsel asked the mother about whether or not X had made the threat that she referred to in the family report with respect to her preferring to die than going to see her father to the mother. The mother said that she had said that 2 or 3 times before and she spoke to the Department of Families, Fairness and Housing about it. She said she also spoke to the psychologist that X had seen at the time and they just told her to listen to X, and support her through it and ensure that X was receiving plenty of attention from her. She did not relay this to the father, and I think it is unrealistic to expect that she would have done so, given the parties’ history.
DANCING
X is passionate about dancing. It is the only extracurricular activity she is doing currently. This is not surprising given she is in a dance troupe which is a significant time commitment. She has classes on Tuesdays from 4pm to 7pm, Wednesdays from 4pm to 6pm and Saturdays from 10am to 1pm. If she is in a solo dance she will have a couple of extra classes. She will also have extra classes if she is in a competition. The classes for the team she is on are fixed. The mother says she organises extra classes to occur during her time.
The mother says that when X progressed to the dance troupe she sent the father information. He did not respond. The mother acknowledged that the hours are significant for her age but says X loves dancing and it is good for her mental health. The father agrees that X is passionate about dancing and says he is proud of her.
EXPERT EVIDENCE
Child inclusive memorandum
The parents and X attended upon a family consultant, Ms P, for a child inclusive conference on 24 April 2020. The father complained that the mother was influencing X not to want to spend time with him. The mother complained that the father was manipulative and becomes demanding whenever she is trying to enforce boundaries in their relationship. The family consultant noted both parents were focusing on managing the dynamics of their hostile relationship.
The family consultant spoke to X who was almost 8 at the time, and who impressed as being confident and articulate. X described how scared she was the last time she saw her father in person when he arrived at the maternal grandmother’s home and demanded that she get in the car. She said she began crying and went inside because her father appeared really angry with her. She complained about her father often getting angry, which would cause her to feel sick or have a sore tummy and that her father would say things such as “you do not get to choose if you see me or not.” and, “you have to spend time with me.” This is consistent with the father’s evidence. One of the concerns is that the father talks to X as if she was an adult, not a young girl.
X told the family consultant that she did want to see her father but just during the day and would like someone like her mother with her because her mother makes her feel safe. She was looking forward to becoming a big sister, but was worried that the baby would become caught in conflict between her parents.
The family consultant expressed the opinion that X’s struggle with the conflict between her parents and her anxiety symptoms were likely precipitated by the aggressive incident between the father and stepfather in July 2019. She had the impression that X’s fear that she experienced during that incident was largely unnoticed for some time and that this was probably because of some positive aspects of X’s personality as well as her age and stage of development. She referred to the typical behaviour of children of X’s age, being focused on fairness and equality and actively trying to please the adults in their lives.
The family consultant observed that the father appeared to have little insight into how witnessing an aggressive incident between the father and stepfather may have affected X. The father complained that X has had ample time to recover and was critical of the mother arranging counselling and at that time, said to the family consultant that X is not suffering from anxiety as she was doing well in her school reports. The mother reported that she had not been aware of the impact of being exposed to the aggressive incident had on X at the time but now is aware that X needs to feel safe and secure in her relationship with her father, both in person and on FaceTime.
Significantly, the family consultant also said that it appeared the father was not listening to X’s wishes and views that she was feeling pressured to choose between environments that she had varying degrees of security with. She recommended that the father take a child focused approach, which would mean that reinstating time should be a gradual process to allow X to have repeated experiences of feeling safe in her father’s care and to renew her sense of security with her father. This would also be assisted by the mother actively supporting the relationship rather than X feeling responsible for making the decision as to whether to see her father or not.
The family consultant recorded that the father showed little child focus and insight and was critical of the mother throughout the assessment.
Family reports
The family reports, both prepared by family consultant Ms B, are concerning. The first report was released on 8 September 2021 and an updated report, which included observations of X with each parent, was released on 29 January 2022. She makes similar observation with respect to the father’s lack of insight and child focus in both reports.
The issues identified by the family consultant during the assessment include:
(1)X’s level of distress during changeovers to her father;
(2)The polarised accounts of X’s experiences with her father,
(3)X’s experience of being exposed to family violence and vicarious abuse; and
(4)Whether or not it is in X’s best interests to continue to spend time with her father.
The mother seeks to follow the recommendations of the family report. The father says the family report is flawed. The family consultant accepted that conducting family reports electronically are never the same as conducting them in person. I am satisfied that the reports were conducted adequately and are not flawed.

Much of the evidence of the father in cross-examination sought to minimise his role and to blame the mother and her family. The father’s counsel submitted that the two reports are limited by the fact that the consultant did not interview the mother’s partner. Whilst that is true, she also did not interview the father’s partner and I note the father’s housemate did not even file an affidavit, despite both women being significant figures in the material. Members of the household and partners, whilst often interviewed are not always interviewed in family reports. That limitation is apparent and the fact that the interviews and observations were conducted electronically does not take away from the very concerning, and consistent comments X made to the report writer in both August 2021 and January 2022.
The family consultant sets out the family history of the father he provided to her, where he described a harmonious family and childhood. His parents separated when he was 13 years old and he described living with his mother for a couple of years, then with his father for a couple of years and then back with his mother. He has not spoken to his father for a couple of years and told the family consultant that he did not know why they were not friends.
The father described X in glowing terms, saying that he “could not wish for a better child” and spoke about actively listening to X and supporting her. He acknowledged that the face time calls are problematic and told the consultant that he did not want them to stop because they gave him an opportunity to engage with X about her day-to-day activities. He said that he would be willing to consider stopping those calls if he had more face to face time with X. His perspective is very much focused on his needs rather than X’s.
It is somewhat concerning that the father described the transitions as working well and believes that X is progressing well. He expressed concerns about X overhearing things at her mother’s home and that X seems to be aware of a lot of things and is concerned about the fact that he and her stepfather did not get along. What this ignores is X’s direct exposure to the antagonism and conflict amongst the adults. He also does not identify any problems in his home.
It is also telling that the father told the family consultant that he did not believe that he contributed to the adult issues. He said the mother complained about the IVOs getting in the way, but that he was only doing it to protect X.
Unsurprisingly, the mother experiences the father’s intervention order applications and the multiple contravention applications (which were filed just a few months apart) as being ongoing harassment of her.
When cross examined, the family consultant found the photographs taken from the video of the changeover incident on 19 December 2020 disturbing. She did not see the video.
The family consultant was satisfied that X had privacy when speaking to her via video and it was clear that there are very different dynamics in the two families, where the mother is one of 9 siblings in a very close large family, whereas the father’s mother lives in Town R and his sister and father are in Queensland. It is apparent from the evidence of the parties and X’s comments that often the father has Ms C and Ms D with him, and despite the father saying that X gets on very well with both of them this is not what X expressed to the family consultant or has expressed to her mother on multiple occasions.
X told the family consultant that if she had magic she would change her father so that he would not yell at her and would be nicer to her and that she would have more of a choice of doing things with him.
She spoke about the changeovers at McDonald’s and said that normally the father pulls her away from her mother and that on one occasion he grabbed her and she had bruises mainly on her tummy and hips. The father asked denied seeing any bruises. I will set out paragraphs 115 to 119 of the first family report where the family consultant quotes X extensively.
“He normally grabs me from my Mum to make sure I am with him. A few weekends ago, I didn’t hang on to Mum anymore and just went with him because I didn’t want him to hurt my Mum.” She worries he might hurt her, “He once said to me if I don’t go, your Mum will pay, Your Mum will go to jail and you will be stuck with your dad. She cried when he said this, “but if I don’t stop crying by the time I get to his house, he says there will be consequences tomorrow.”
X is frightened of her father, “Every time he says something, it scares me and I don’t want to see him anymore. He pulls me really aggressively and hurts me and it scares me and I just want to go home. I don’t want to be here. It is a horrible feeling.”
If she does something her father doesn’t like, “he will yell and scream. He makes up lies and frightens me. He says you will never see your Mum again. Says things that scare me and I feel afraid of him and all I want to do is just go home. I don’t want to be around him or his two girlfriends.”
“One of his girlfriends is nice, but she can be a little rude sometimes, but is the nicest person there. The other one is just a girl version of my dad. One has her own bedroom. When one is not there, the other one sleeps with him, and when the other one is not there, the other one sleeps with him.”
When she is with her father, “I sit on the couch, waiting until I can go home. It feels weird because he goes on runs and leaves me with one of his girlfriends and I watch television with her. Sometimes I go into a little fairy garden and play in there, or I do crafting. I was once digging in the fairy garden and found a little turtle thing left by the previous owners.” She does craft on her own because her father and his girlfriends are usually on the phone, or texting or going for a run.
X told the family consultant that when she is with her mother on weekends she plays on the trampoline or goes to the park when she sees friends, and they also visit family and friends.
X was positive about her relationship with Mr E. She describes her mother and herself as being “like besties” but she is not really friends with her dad.
She rates her fear of the father as 10 out of 10 being afraid that the father will yell at her and hurt her or her family. She is afraid her father will make her mother go to gaol. She also said she has overheard the father and the ‘mean girlfriend’ denigrating members of her family. He says the father talks about her mother all the time and that the father mocks her. She says the father does not let her call her mother and friends which makes her miss her mother and family more. In contrast she says her mother does not talk about her father unless if it is necessary or she needs to comfort X after a nightmare. In those instances the mother assures X that her father will not do anything.
X would be “miserable and upset” if the spend time arrangements remains as they were. At paragraphs 134 and 135 she said the following:
If they agreed the time should increase, her distress would heighten "would be absolutely more than ten. I would rather die that stay longer. I would probably just run away. I wouldn't get a proper lunch for school. For me he is not responsible. Basically, he has only been in my life since my Mum got engaged."
If her parents decided it should be just one night, "it would be better, but I would rather not see him at all. Every time I see him, it just gets to me."
X also told the family consultant that her father calls her too skinny and half Country M. At paragraph 158 she said:
She wants the Judge to know that “she may think I really want to go to my dad. All I want her to know is that it is not happy there and I get stressed out so much and it is hard to even look at him, and I feel like I should have a say. It is just not fair. It is my life and it is me who is affected. When it affects me, I get grumpy and it affects my whole family. It’s not fair.”
In her evaluation she recommended the mother having sole parental responsibility as shared parental responsibility will provide further opportunities for harassment. I agree with that assessment. To the father’s credit by the end of the trial he agreed to the mother having sole parental responsibility for major issues apart from religion and culture provided the mother keeps the father informed.
The family consultant thought the mother impressed as being exasperated and overwhelmed. She thinks that the co-parenting relationship deteriorated after the mother tried to set boundaries with the father after forming a relationship with Mr E. She also believed the mother tended to abdicate responsibility to X for decisions about whether or not to spend time with father. After X was exposed to the alternation between her father and step-father the mother has taken greater responsibility for this but has struggled. X perceived that her mother wants her to spend time with her father.
I agree with the family consultant’s assessment of the father that he is engaging and keen to present himself as a loving father who has been wrongfully denied increased time with X. As paragraphs 170 and 171 she observes:
His personal functioning invites scrutiny. His parents separated when he was thirteen years old, after which he seems to have experienced a disruptive period during which he lived with either one or other parent. While he is keen to impress that his childhood was positive and that he enjoys positive ongoing relationships with his family of origin members, his account is in direct contrast to that provided by Ms Robbs. It may be that he either denies or minimises the impact of these experiences, and/or has a personal need to view both his family and personal functioning as positive. It is noted that he does not maintain contact with his father, and both X and Ms Robbs’ information indicates that his mother consumes alcohol excessively. His account of X's experiences in his home, is in direct contrast to that provided by the child, who, like her mother, describes them to be abusive. It is noted that he acknowledges the FaceTime calls to be problematic, and yet wants them to continue. It is likely that to do so will lead to further deterioration in the father daughter relationship at the present time.
For the above reasons, it is considered to be in X's best interests for him to critique his childhood experiences and to differentiate and deal with these as separate to his relationship with Ms Robbs and X. It will also be in her best interests for him to be invited to understand the impact of his current behaviours upon her. Unless, and/or until this occurs, it may not be in this child's best interests to spend any significant time with him.
The mother has always been X’s primary parent and she is strongly attached to her. Whilst both parents agree X’s relationship with her father deteriorated after the mother commenced her relationship with Mr E, both externalise responsibility for this to the other.
At 9 years of age the family consultant notes that although X does not have “sufficient maturity” to express her view independently, her views do not appear to be influenced by her mother but rather are based on her direct experiences of her father. She recommended that the father’s time be limited to a 4 hour block on alternate weekends whilst the father attends upon a psychologist to address his personal function and the impact of his behaviour on others.
The consultant strongly expressed the view that it is a matter of time before X refuses to spend time with the father altogether, unless the father is able to become more child focused.
Given the recommendations dramatically reduce the father’s time and no parent child observations had been conducted, I ordered an updated family report. At the second report interview, the father told the family consultant that he was disappointed with the first report and commented that X tells her mother one thing and him something else and that she does not behave with him in the way she describes in the family report. He says X has continued to have a good time with her father and he described their time on Christmas Day. He also referred to that as being a positive example of him and the mother co-parenting. He also said that there have been no issues with the changeovers since the first report
In contrast the mother said that X was still suffering from anxiety and was resisting to seeing her father. The drive to the changeover spot takes 45 minutes and X is in tears for much of it telling her mother that she just wants to get rid of her. The mother describes being unable to protect X as heartbreaking. Given the father’s actions in taking out IVOs and issuing contravention applications she is careful not to break the orders.
The mother said she was trying to do the right thing by offering the father extra time on Christmas Day but the father recorded her opening presents and during his FaceTime call reminded her about the money he spent on her. X also continued to report examples of the father denigrating various important people in X’s life.
The mother said she thought X could cope with shorter visits.
The mother told the family consultant that X has been accepted into the 2022 dance troupe which involves a minimum of 8 hours of dance classes a week. Her parents agree that X is passionate about her dancing and it is very important to her. Despite this, X complains about the father sleeping in so often she misses part of her classes on Saturdays. The father also did not take her to the dance Christmas party. The father claimed in cross-examination that he and X decided together not to go after the party was moved to an inside venue due to the spreading Omicron variant of the COVID-19 virus.
The mother said that X tells her she is afraid of the father and his two girlfriends but cannot speak up when with them because of they are scary and Ms D reminds her she is an educator. At paragraph 12 she records the mother saying:
In her opinion, X will be very compliant when observed with her father due to her fear of him. "After the last report, he became angry at her. Had a go at her about what she said..yelled at her in front of the two girlfriends. Said why did you lie about us and say all these things. She has been extremely stressed since, and especially since I told her she was to be observed with him... As recently as yesterday's call, he reminded her she had to say nice things and remember Dad spends a lot of money on you and things like that."
This is very troubling.
In terms of risk the family consultant identified that if the information from the mother and X is valid then X is being emotionally abused by being required to be deceitful and place her father’s feelings above her own needs.
X told the family consultant the following at paragraphs 21 to 31.
Her father told her recently during their spend time together that "there was a game" he intended to buy for her and "if I give this to you, you have to say to the lady that I buy you all these things and have to say stuff Says I have to say that I have fun there and we do all these fun things and he kept on saying that. Sometimes he said that or else. I didn't like it. It made me get really scared. I am scared he will do something now." Further, that sometimes when they communicate via Facetime, he lies to her. "Said yesterday that we went to the pool both days of the weekend, but I don't remember us doing those things. I think he is lying about that. I don't remember any of that stuff happening."
Since the last report, "it is still the same and he is getting me more stuff and doing more stuff but it is still not fun. Ms D and Ms C are always there.... It is weird because they kind of drink a lot and I want to hang out with my friends. I really just want to be at home. Most of the time I am there I miss Mum and he won't let me call her and won't let me call my friends. He just gets angry with me and doesn't let me do anything. Doesn't let me play games." When she is with him, "he is normally doing just boring stuff checking stuff on his phone and drinking beer and hanging out with his girlfriends. Ms D lives there and he says Ms C is his girlfriend, but she left for a long time and came again. She doesn't stay for the whole weekend. I don't talk to his Mum because they are fighting a lot. A real lot ....get angry at each other. When I get the phone back, he says don't say that to my daughter and is really rude to his mother. When he makes me call her, he never says Hi to her. Just rolls his eyes to her and never talks to her."
On reflection, she believes her father's failure to be nice to others is the reason he has no friends.
She recalls Christmas Day. "It was horrible. I just wanted to go home. He kept on yelling at me saying you can't go home, and if you keep acting like this you will never go home. He had a camera on the television and started being so nice and calm when he put the camera on. They were forcing me to smile and I didn't want to smile because I didn't want to be there. He said, smile, or you won't go home."
When discussing fears, X states that she is not fearful of her mother. She is fearful of her father. "He scares me. He is scary". She is fearful to a level eleven on a rating scale often. Her biggest fear is that her father will hurt her, "or won't take me home or will take me far away from my Mum. He always threatens me that I won't go home, if I don't smile or do what he wants."
When she spends time with him Ms C is not always there. "We normally go out for dinner or we have stuff he just puts in the oven or he makes Ms C Cook Sometimes he cooks but most times he buys stuff or Ms C cooks."
Whenever she is leaving her mother, she just wants to go back home, "and I just think about the car ride. I get really sad and upset, because I just hate going there. Feel so upset. I would rather be dead. I would rather die that go there. I just hate it there. On the Facetime calls he forces me to say I love you and he keeps on repeating I love you. I don't say it and he yells, say I love you and I don't and just hang up."
If the Judge said she could just have lunch with him. "That would be better. It would get it over and done with." She would not care if Ms C or Ms D were there, but would prefer Ms C because Ms D "kind of scares me when she screams out I'm an educator and she bosses me around if I say something to Dad he doesn't like."
If the Judge said things had to stay as they are, "I would rather kill myself that go there. I can't handle being there. It is ruining my life. My life would not be worth it I f I still have to go there. I miss out on everything that happens. Miss out on parties; play dates. My friends all have sleepovers and have fun and Jam stuck at his house. He didn't take me to one of my dance Christmas Parties" and they simply sat around and watched movies instead. "He didn't take me to a few of my friends’ parties."
If the Judge said, lunch on alternate Saturdays and one Facetime call on the alternate week, she would be comfortable with this to a level six. If she only had to see him once monthly, she would she happy to a level fifteen on a rating scale of ten. "It would be like giving me my life back."
Her father spoke to her about the last report. Said angrily "why did you lie about that?" and without any external stimuli, she demonstrated how he yelled at her. "Kept on yelling at me, and it made me scared. Now I am scared when I go to his house, he is going to yell at me again. I don't understand why he gets really angry at me, and tries to tell me that what I have said is fake. Sometimes it feels like he thinks I am stupid... that I am still little" and at her age she should not be doing so many activities. She hated her ninth birthday and would simply scream if she had to spend another birthday with him. "It ruined my birthday" The same thing occurred on Mother's Day when she had to wait until 4.00pm to see her mother. "If I had a choice, I would never go there."

The family consultant decided to interview X again after the observations of X and her parents because of the incongruence of her presentation with her father and what she told the family consultant. X said she was scared and stressed when being observed with her father but the father had warned her that she has to be good on the call. She said he was scary and normally the father gets bored and does not play with her. She also said that in the car on the way to his home the father, Ms C and Ms D all told her that everything X said about the father was wrong.
The family consultant’s recommendations did not change. In her evaluation she noted that if X’s experience of her father remain unsatisfying she will refuse to spend time with the father. She said there is also a risk that X’s relationship with her mother will be negatively affected if she feels her mother is not listening to her and forcing her to see her father when she feels unsafe. She criticised the father for not taking on board the comments in the previous report. She noted the father has remained focused on litigation and has not sought assistance to better understand X’s needs and continues to deny X’s perceptions of their relationship.
Whatever the reasons behind it, the comments that X makes to the report writer in both reports are concerning and unusual for a nine-year-old. It is clear that changeovers do not work, but it is difficult to see another solution unless there is professional intervention. Clearly, X feels psychologically unsafe. She was exposed to an incident and has difficulties transitioning that do have concerns as to how this situation can change X without a holistic intervention for the family.
X strongly expressed her views about finding the time with her father intolerable and being afraid of him. The father has involved her in adult issues. Even though the father told her to be positive about him she continued to express her experiences of the father and his fear of him. The father has not made any changes to his activities with X. The family consultant observed the following at paragraphs 48 to 54.
While X was observed to interact with her father in a fun-like manner; whenever she approached the video camera to adjust the screen, she looked solemnly into the camera presumably, in an attempt to indicate her true feelings. During a follow-up interview with the child following the observation, she reports having been threatened by him that she must "act as though she is happy or else," in an angry tone.
This spirited young girl who is described by her mother to be determined, appears to clearly articulate her ongoing discomfort while in her father's care. It is the Consultant's opinion that her information appears to be authentic.
It is also the Consultant's opinion, that should this child be required to continue spending time with her father in accordance with the current care regime, it will continue to impact negatively upon her developmentally in causing her to feel emotionally distressed. It will also impact negatively upon her relationship with each of her parents.
Her relationship with her mother is likely to be affected because she will continue to feel unprotected by her and therefore feel angry towards her. Her relationship with her father is likely to be negatively affected because she will feel unsupported by him and it will only be a matter of time when she will refuse totally to engage with him.
In terms of her own development, she is likely to experience significant ongoing distress that will continue to impact negatively upon her emotionally and psychologically.
In the event she spends limited time with him during which Mr Winters takes note of the assessments in both reports and engages fully with the child in fun related activities, their relationship could remain intact and she will demand more time.
Because X struggles in leaving her mother, should the Court consider it to be in her best interests to spend brief periods of time with her father, it may limit her distress if Mr Winters collects the child from her dance activity, rather than from her mother.
The father was cross-examined about the family consultant’s recommendations that he see psychologist Mr S for counselling. The father said he was concerned about the costs but conceded he has not made any enquiries and then added that he is an hour away from his home and would prefer to see someone local without cost.
In December 2021 the father approached his GP for a mental health plan. He had a first appointment with a social worker a week before the trial. He said he found the first session helpful acknowledging it was limited. He said he told her about the family consultant’s concern about that lack of congruence in the father’s experiences and how he describes them, concerns about his personal functioning and that perhaps he does not parent as well as he should and that it is alleged he drinks too much. This incongruence was evident during his cross-examination.
The family consultant said when cross-examined that X is an assertive little girl and quite strong willed. She was satisfied that X had privacy when she was interviewed and was also satisfied that X used her own words that were age appropriate. A child being assertive when they do not find things safe is a positive thing. If X’s information is correct then her reasons for not wanting to go are valid.
The family consultant explained the limits of her role which is to assess the family and not to give therapeutic advice. She said she recommended Mr S as he had been recommended in other matters and that often it is good for a dad to see a male psychologist. She was not concerned about the father seeing a different psychologist as long as they have the family reports and challenge the father during sessions.
The family consultant said that the father was given plenty of notice about the observation. He was consulted about what would be helpful and believes it was set up to occur during his next visit.
The father’s counsel questioned the family consultant about the observations. She said X appeared to be happy but would come and look into the camera solemnly and indicated through her behaviour and looks that she was fearful. Due to the incongruence of how she was acting with the father and her comments in the first interview she decided to interview X again.
In the family consultant’s opinion the mother was encouraging X to go but was struggling with dealing with X’s refusal.
The family consultant was against the alternate weekends continuing and also any increase to the father’s time as it would have a significant detrimental impact on X who would feel unheard and unable to trust adults. It would also have a negative impact on her relationship with her mother and would not have any benefit for her. If the father really wants to understand X he needs to understand that it is not about the amount of time he spends with X and communicating with her that he hears her struggles and will agree to a shorter time period. She was firmly of the view that if the time goes well, X will demand more time with her father but by just focusing on the spend-time arrangements, the father is making the child’s experiences wrong and not giving her experiences validity. In addition to the negative impact on X’s relationship with the mother it would also have a negative impact on X’s emotional well-being and she will not feel protected, the family consultant noted she does not know if it is true or not that the father lies on the couch and drinks, but that these are X’s described experiences.
At the moment, X still feels protected by her mother but the mother is really struggling to comply with the orders and would be happy to send her if X was happy and returned from visits happy.
The family consultant did not think that supervised changeovers would be helpful given X’s age and recommended that changeovers be outside the mother’s home with X being old enough to leave the front door on her own. The mother also did not think that family therapy would help as it is really about co-parenting and the only way things will change is if the father accepts that he needs to do some things differently.
She agreed with the proposition that the fact that the parties separated when X was a baby certainly had an impact on their co-parenting relationship. She also agreed that the father has always been peripheral, with her main security and trust coming from her mother and that would have precluded the father from getting as much skill as a parent. She also did not think that family therapy would help X and the father. She accepted that X was telling her truth and acknowledged that whilst at times she was dramatic, it is how she feels.
She also accepted that the incongruence in the way X has behaved with the father and then with the family consultant would be confusing for the father, but that X said she had been threatened by the father that she had to act happy in the observation. Regardless of whether that was an actual threat or whether that was X’s fear, in either case that is concerning. She thought that the father’s lack of insight might be due to his disrupted childhood experiences. She was firm that X is not making up these complaints and that unless the father is able to gain some insight and accept responsibility it cannot be changed and that he needs to reflect on how others perceive him differently to how he perceives himself. X’s experiences are based on her feelings and perceptions. X should not be challenged but accepted so that she feels heard, the amount of time she spends with each parent is far less important than the need to feel loved, heard and valued.
SUBMISSIONS
In closing submissions, the father still sought in the orders for time referred to in his minute of order but through his counsel acknowledged that time is likely to be reduced. After seeking clarification from the father’s counsel on his view, it could be seen as further evidence of the father’s lack of insight, but on another it could be that, particularly bearing in mind the somewhat confronting nature of the evidence before him, it is simply a bridge too far for him to amend his proposal and that he needs the Court to make the decision.
Both counsel sensibly made concessions with respect to the lack of evidence in support of the injunctions each were initially seeking. The father’s counsel referred to one difficulty in this case being the fact that for a lengthy period, the parties did not have good legal representation. That certainly has not assisted the parties. But what was clear from the approach that both legal teams took to the hearing was to focus on the issues that require determination and to minimise point scoring and that is to their credit. Certainly, when first reviewing this matter I had real concerns about it being contained to 2 days, given the number of witnesses. Counsel had had discussions and taken the view of relying on the supporting witnesses’ affidavits but not cross-examining them. As this is the somewhat unusual, I asked for them to turn their minds to what weight they say should be placed on those affidavits. In closing submissions the father’s counsel no longer sought to rely on the affidavit of the father’s partner, stating that much of that affidavit is looking back, which would not assist the parties. The mother continued to rely on the affidavits of her supporting witnesses and acknowledged that they are affidavits in support of the mother and to some extent contain the usual cheerleading that one would expect from those affidavits, but says that they also give evidence with respect to incidents that the mother was not present for that could be of assistance to the Court, and that that should be given some weight. The father’s Counsel submitted that little weight should be placed on those documents. Given the nature of those affidavits, little weight can be placed on them and further I note that several of them were present at the changeover incident where, as I observed, no adult was able to step in to alleviate X’s distress.
DISCUSSION OF LEGAL PRINCIPLES AND THEIR APPLICATION TO THIS CASE
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time. Neither party seeks an order for equal time.
The parties resolved the issue of parental responsibility so I will not comment on that further. The parties also agree that X should remain living with the mother. As noted above, though his counsel conceded that it was unlikely that orders for X spending time would be in the amount he sought but was not in a position to articulate an alternative position.
At aged 9, X is still young but she has consistently expressed very clear and strong views. I accept the family consultant’s evidence that if X continues to feel unheard it will have long term detrimental effects on her long term emotional wellbeing and may also have negative impacts on her relationships with both her parents as well as her trust in adults and sense of security.
X has a close and loving relationship with her mother and members of the maternal extended family. She does not have the same kind of relationship with her father and her relationship with her father is much less secure. It does not appear that she has a close relationship with members of the extended paternal family. The father appears to place much reliance on the involvement of Ms C and Ms D but X’s perception, which may or may not be exaggerated or unreasonable, is that she is left alone with them much of the time while the father does other things which she does not enjoy. It is clear that X does not feel secure with her father and does not have a sense of being heard by him and understood.
The father’s fears that if his time is significantly reduced his relationship will deteriorate is understandable. I accept again the family consultant’s evidence that there is a real risk that if the father’s time is not reduced whilst he works on his insight and personal functioning, X will refuse to see him altogether and that her relationships with her mother and other family members will be compromised as a result.
With respect to the amount of time the father has spent with X and his involvement in the decision-making for X prior to 2019, I prefer the mother’s evidence. Previously, the father has been content to leave the decision-making and thus majority of parenting responsibilities to the mother. Much of the father’s evidence gave me a sense that he struggles to see things from X’s perspective and much of his focus was on his own needs rather than X’s in this respect. The FaceTime calls are a prime example, with the father acknowledging that there are real problems with them but wanted to maintain them nevertheless.
X does not feel safe and secure with her father. She has been traumatised by both the incident in July 2019 and 19 December 2020. As challenging as it is, the father needs to accept the strength and validity of X’s feelings and perceptions. If he is unable or unwilling to do so, then his relationship with X is likely to decline further. The father may be sincere in his desire to strengthen his relationship with X and be more involved with her. In order for him to do that he faces personal challenges where he needs to confront his own functioning and interactions with X. As I have referred to earlier, there is a real disconnect in how the father perceives and recounts events and how they occurred. To date his approach has been to take a rights based, litigious approach to enforce that he sees are his entitlements and not addressing underlining issues. I find the number of intervention orders the father took out and the description of his complaints and basis for those troubling, as well as the number of contravention applications filed during proceedings. Whilst I accept that the father was not legally represented during those times, I also observe that legitimate court applications can also constitute a form of harassing and controlling violence against the respondent. It is clear that this is how the mother feels. The father feels that the mother and X should be recovered from any traumatic experiences but this is very much an individual matter.

I have no doubt that these proceedings have been confronting for the father and criticisms can be made of his failure to make inquiries with respect to Mr S and the recommendations of the family report writer prior to the trial. He is to be given credit for adjusting his position at trial and consenting to orders with respect to parental responsibility and overseas travel as the mother is from Country T and has family there. It is important that X be given the opportunity when available to experience the culture of her mother and family members.
I have given consideration as to whether or not the interim orders made at the end of the trial should be made as final orders, or whether more extensive spend time with arrangements should be made as the father seeks. The work the father needs to do is challenging, and whilst he has taken a first step in seeking assistance from a social worker, the nature of the issues of his personal functioning and insight that he needs to address are not short-term fixes. I have concluded that the limited daytime arrangements currently in place should remain as final orders. This is because it is simply not possible to know what course the father’s engagement with the social worker or psychologist will take and his success in that period. It would benefit X if that, whilst the father has that limited time with her, he uses it to demonstrate to X that she is his priority and that he not rely on having Ms C and Ms D there. I accept that this will be very difficult for the father.
I accept the family consultant’s evidence that if X experiences her time with her father as engaging and nourishing she will ask to spend more time with him. I am also satisfied that X would be comfortable in telling her mother that and that the mother would facilitate greater time with the father if X seeks that, as X would feel safe and secure in doing so. Whilst in the past the mother was somewhat passive and placed too much responsibility on X, I accept that the mother has addressed this and will continue to seek appropriate interventions and supports for X. I also accept the mother’s evidence that the spend time with arrangement is less convenient than a longer spend time with arrangement for her in terms of logistical matters and activities. I am satisfied that these orders are the least likely to lead to further proceedings whereas orders that provided for X to spend substantial and significant time with the father at this stage would likely lead to further Court proceedings and further difficulties.
The parties reached agreement on a range of parenting orders including with respect to parental responsibility, travel and other ancillary matters. I made those orders on an interim basis at the end of the trial. I will make those orders again as final orders. I am also satisfied that for the reasons I have given it is in X’s best interests to make the interim orders I made at the end of the trial as final orders. I acknowledge these orders only provide the father with limited time with X but the father has much work to do with his counsellor.

I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 17 March 2022

File number(s):	MLC 11835 of 2019
Judgment of:	JUDGE HARLAND
Date of judgment:	17 March 2022
Catchwords:	FAMILY LAW – parenting – child’s time with the father – weight to be given to the child’s views – father’s insight – child’s anxiety
Legislation:	Family Law Act 1975 (Cth) 61DA(1) pt VII, ss 4AB, 60B, 60CA, 60CC, 64, 65D, 65DAA, 68Q .
Cases cited:	Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] 240 CLR 461 Waterford & Waterford [2013] FamCA 33
Division:	Division 2 Family Law
Number of paragraphs:	160
Date of hearing:	21 and 22 February 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Oldham
Solicitor for the Applicant:	Vernon Da Gama and Associates
Counsel for the Respondent:	Ms Damon
Solicitor for the Respondent:	VM Family Lawyers

MLC 11835 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WINTERS Applicant
AND:	MS ROBBS Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	17 MARCH 2022