Federal Circuit and Family Court of Australia
(DIVISION 2)

Mears & Hilton (No 2) [2023] FedCFamC2F 166
File number:	WOC 1213 of 2021	
		
Judgment of:	DEPUTY CHIEF JUDGE MCCLELLAND	
		
Date of judgment:	21 February 2023	
		
Catchwords:	FAMILY LAW – CHILDREN – Where the children are aged 3 and 4 and have spent limited and irregular time with the father – Where the mother proposes sole parental responsibility and no time for the father due to his lack of commitment to time with the children and the emotional distress caused to the young children – Where it is not in the best interest of the children for the parties to have equal shared parental responsibility – Allegations of family violence including coercive and controlling behaviour – Supervised time ordered for three months between the children and the father until the father completes a parenting course – Where there is a sunset clause for the spend time orders in the event that the father fails to consistently spend time with the children. 	
		
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA	
		
Cases cited:	A v A (1998) FLC 92-800; [1998] FamCA 25
Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Carlson & Fluvium [2012] FamCA 32
Cotton & Cotton (1983) FLC 91-330
Director-General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5   
G & C [2006] FamCA 994
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92  
Mears & Hilton [2022] FedCFamC2F 1793	
		
Division:	Division 2 Family Law	
		
Number of paragraphs:	188	
		
Date of last submissions:	13 January 2023	
		
Date of hearing:	8–9 December 2022   	
		
Place:	Heard in Wollongong, delivered in Sydney	
		
Solicitor for the Applicant:	Litigant in person (8-9 December 2022), GPG Lawyers (13 January 2023)	
		
Counsel for the Respondent:	Mr Blank	
		
Solicitor for the Respondent:	Culleton Lawyers Pty Ltd	

ORDERS
	WOC 1213 of 2021	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)	
BETWEEN:	MR MEARS
Applicant
	
AND:	MS HILTON
Respondent

order made by:	DEPUTY CHIEF JUDGE MCCLELLAND	
DATE OF ORDER:	21 february 2023	

THE COURT ORDERS THAT:

1.	The mother shall have sole parental responsibility for the children, namely X born in 2018 and Y born in 2019 (“the children”).  
2.	The children shall live with the mother.
3.	Within 14 days of the date of these orders, the mother is to nominate three proposed supervision services for the purpose of Orders 6, 7 and 8.
4.	Within a further 7 days of Order 3, upon receipt of the proposed supervision services from the mother, the father is to choose one supervision service from that list.
5.	For the purpose of Orders 6, 7 and 8, both parties do all necessary acts and things to promptly contact the chosen supervision service in order to: 
(a)	Make an appointment to begin the intake process; 
(b)	Upon acceptance by the Centre as suitable for change-over and/or supervised contact between the father and children, enquire with the chosen supervision service as to the availability of the supervised times and dates that will occur there, as set out in these orders; and
(c)	Attend the chosen supervision service at the times and dates set out in these orders, where these can be accommodated by the chosen supervision service.
6.	Subject to Order 12, the children shall spend time with the father as agreement between the parties in writing and in the absence of agreement as follows:
(a)	for a period of two months from the expiration of Order 4 with the father only;
(i)	each alternative weekend for up to four hours on a Saturday with such time to be supervised by the nominated supervision service at a time that can be accommodated by the service. 
(b)	after a period of two months with the father and, if he so chooses, his current partner and their children;
(i)	each alternative weekend for up to four hours on a Saturday with such time to be supervised by the nominated supervision service at a time that can be accommodated by the service. 
(c)	subject to the father completing a Parenting after Separation Course in accordance with Order 13, after a period of three months;
(i)	each alternative weekend for up to four hours on a Saturday with such time to be unsupervised save to the extent that changeover at the commencement and conclusion of such time shall be facilitated by an agreed third-party intermediary or supervised by a professional contact service selected in accordance with the following order.
7.	Changeover for the purpose of Order 6(c)(i) shall be effected through an agreed third-party intermediary or, in the absence of agreement, by way of supervision provided by a professional contact service selected by the mother. 
8.	The father shall meet the cost of services provided by the chosen supervision service and, if retained, the services to supervise changeover in accordance with Order 7.
9.	Subject to Order 12, the father shall communicate with the children by way of facetime and/or telephone as follows: 
(a)	each Wednesday between 6.00 pm and 6.30 pm; and
(b)	any other time as agreed between the parties in writing.
10.	For the purpose of Order 9, the father is to initiate such contact by calling the mother’s mobile telephone and arranging to continue to communicate with the children through that telephone connection or notifying the mother of his intention to contact the children by way of a facetime connection.
11.	To the extent that it is reasonably practicable, the parties shall ensure:
(a)	in the case of the mother, that the children and the father will be afforded privacy during such calls without interruption; and
(b)	in the case of the father, that unless otherwise agreed by the mother in writing, no other person shall be visible or audible during the communication.
12.	The mother shall not be required to comply with Orders 6, 7, 9, 10 and 11 if either of the following occur:
(a)	the father fails to attend for the purpose of spending time with the children in accordance with Order 6 on three consecutive occasions; or
(b)	the father fails to communicate with the children in accordance with Order 9 on three consecutive occasions.  
13.	In the event that the operation of Order 12 is triggered, the children shall spend time with the father and communicate with the father as determined by the mother in consultation with any therapist engaged to provide counselling to the children.    
14.	The parties be and are hereby restrained by injunction from:
(a)	Insulting, belittling, degrading, rebuking or otherwise denigrating the other party or members of their immediate family in the presence or within the hearing of the children or on social media, and from permitting any other person to do so.
(b)	Discussing these proceedings to, with, or within hearing or presence of the children and from permitting any other person to do so.
15.	Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the parties do all acts and things and sign all documents as necessary to apply for and maintain current Australian passports with respect to the children, which passports shall be retained by the mother.
16.	Within 14 days of the making of these orders, the father will forthwith enrol and participate in a Parenting after Separation course with B Counsellors and will provide a copy of the completion certificate to the mother within seven (7) days of receipt of same. 

Note:	The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mears & Hilton (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
1	This matter concerns the parenting arrangements for X, now aged 4, and Y, now aged 3 (“the children”). The parties to these proceedings, Mr Mears (“the father”) and Ms Hilton (“the mother”) were in a relatively short relationship and separated in November 2020.
2	The father has spent limited and irregular time with the children in the period since the parties’ separation and this has led to the parties’ eldest daughter, in particular, experiencing emotional distress.
3	While ordinarily it would be in the best interests of these children to have a meaningful relationship with both of their parents, I am not satisfied that is likely to occur, as a result of what I anticipate will be the father’s lack of commitment to spending time with the children on a regular and consistent basis.
4	I have nonetheless made orders facilitating the children spending time with the father and also communicating with him on a regular and consistent basis. Those orders will, however, sunset in the event that the father does not avail himself of the opportunity that has been provided in these orders.
BACKGROUND 
Relevant people 
5	The mother was born in 1990. She is currently 32 years of age and resides in Town C on the Region D of New South Wales.
6	The father was born in 1992. He is currently 30 years of age.
7	The parties have two children, X, born in 2018 and currently aged four, and Y born in 2019, who turned three shortly after the hearing.
8	The father currently resides with his partner, Ms E in Town F, a small inland town that is approximately two hours’ drive from Town C.  
9	Ms E has a daughter, G from a previous relationship. G was two years old as at the date of the preparation of the Child Impact Report in July 2022. She was three months old when Ms E and the father commenced their relationship. She lives primarily with Ms E and the father but also spends time with her father. 
10	The father and Ms E also have a son, H, who was five months old as at the date of preparation of the Child Impact Report in July 2022.  
Chronology of significant events
11	The parties commenced their relationship in 2017.  In mid-January 2018, the parties found out that the mother was approximately six weeks pregnant.
12	During the weekend early 2018, the father went away for a school reunion and had unprotected sex with another woman. The father acknowledges that, as a result, he became infected with the chlamydia virus, which was subsequently passed on to the mother. 
13	The mother became aware of that fact as a result of a phone call she received in the last week of April 2018 from the woman who had sexual contact with the father during that long weekend.
14	The mother contended that, as a result of contracting that infection in June 2018, she went into early labour which was successfully addressed by her treating practitioners with the child remaining in utero until X was born in 2018. The evidence presented is not such that I can conclude, as a matter of probability that the father’s conduct in infecting the mother resulted in that outcome.
15	The mother contends that during the course of the parties’ relationship, the father engaged in conduct that was controlling and abusive. The relevant evidence in respect to those assertions will be set out in greater detail below.
16	The parties separated on 3 November 2020 after a heated argument. I will subsequently set out my findings in respect to those circumstances.
17	In the period immediately after the parties’ separation, the children spent every second weekend in the care of the father. It appears, however, that arrangement ceased in or about January 2021 and the children did not spend time with the father again until August 2021.
18	On 7 December 2020, the father commenced a relationship with his current partner, Ms E.
19	On 14 December 2020, the father left the mother’s firearm, unsecured, on a highway and was subsequently charged with a firearms offence as a result. He no longer holds a gun licence.
20	It did not appear to be in dispute that, on 25 January 2021, Ms E moved into the residence of the father located at Town J. 
21	In March 2021, the mother relocated to Town C.
22	In April 2021, the father and Ms E temporarily separated. The father contends that the separation was for a period of approximately five days. Ms E attested to the separation being for a period of approximately two weeks. Nothing turns on the difference in that aspect of their evidence. 
23	Also in April 2021, an interim Apprehended Violence Order was entered against the father in respect to the events concerning the firearm that occurred in December 2020. The Court was not provided with a copy of that order.
24	In August 2021, the parties attended a mediation and reached an agreement regarding parenting arrangements, however that agreement was not recorded in a signed document. The children nonetheless commenced regular contact with the father by facetime and through face to face contact that was supervised by the mother.  
25	There were tensions in those facetime communications as a result of, on occasions, Ms E being in the background of those interactions and also, on occasions, making comments during the course of the interaction between the father and the children. Tensions also arose as a result of concerns expressed by the children regarding the father giving attention to H or G while he was on screen.
26	On 21 October 2021, the father filed an Initiating Application in Division 2 of this Court seeking final parenting orders, which included an order for equal shared parental responsibility and “to be able to see my children again on a fortnightly basis.” The application also indicated the father was seeking “interim orders for care arrangements.” However, those orders were not particularised. 
27	On 7 December 2021, the mother filed a Response to the father’s Initiating Application in which she sought the following final orders:
1.	That the children, [X] born [in] 2018 and [Y] born [in] 2019 ("the children") shall live with the Respondent Mother.
2.	That the parties shall have equal shared parental responsbility in the making of all major long-term decisions concerning the children’s living arrangements, education, welfare, development and any major difficulties that arise.
3.	That the parent with whom the children are living with at the time shall have responsbility for making day-to-day decisions concerning the children.
4.	That the children shall spend time with the Father as follows :
(a)	 Each alternate weekend from 5pm each Friday to 3pm each Sunday.
5.	That changeover shall occur at the carpark of [K Shopping Centre, Town C].
6.	That the children shall have telephone communication with the Father by telephone, skype, Facetime or other video chat method on a day agreed to between the parties between the core hours of 5.30pm to 7.30pm.
7.	That each party notify the other party of any serious illness or emergency concerning the child as soon as practicable to do so.
8.	That each party authorise and do all things and sign all documents and give all consents necessary to enable any relevant health or educational, professional and any school attended by the children to provide to each parent copies of reports and any other information or documentation relevant to the children’s health and education and to record each parents’ details as emergency contact persons, provided this order shall act as sufficient authority for such consent.
9.	That each party be at liberty to attend any social, sporting or educational activities involving the children to which parents are ordinarily invited to attend.
10.	That each party notify the other party of any change to their address, telephone number or email address within 24 hours of such change occurring.
11.	That both parties be and are hereby restrained from criticising or denigrating the other party and/or their family or friends in the presence of or within the hearing of the children or on any forms of social media and shall ensure that no third party does so in the presence and/or hearing of the children 
(As per the original)
28	Also in her Response filed 7 December 2021, the mother sought interim orders which were substantially the same as the final parenting orders which she sought, save to the extent that in her proposed interim orders she proposed the following spend time arrangements:
4.	That the children shall spend time with the Father as follows:
For a period of three months
(a)	Each alterate Sunday for a peirod of no less than three hours, with such time to be supervised by the Respondent Mother.
Following the cessation of the three month period in 4(a) above,
(b)	Each alternate Saturday for a period of six hours.
Following the cessation of the three month peirod in 4(b) above,
(c)	Each alteranate weekend from 5pm each Friday to 3pm each Sunday.
(As per the original)
29	On 27 February 2022, the mother met the father in City L to facilitate the children spending time with the father over lunch. The mother also joined in the lunch.  
30	On 6 March 2022, the mother met the father in Town M to facilitate the children spending time with him.
31	On 15 March 2022, X had surgery for the removal of her tonsils and adenoids.
32	On 3 April 2022, the parties met in City L to facilitate the children spending time with the father. At that visit, the father countersigned a passport application for the children.  
33	On 10 April 2022, the parties met at a play centre in Town M to facilitate the children spending time with the father.
34	On 17 April 2022, the children spent time with the father at a park in Town N. There was a significant disagreement between the parties on that occasion and it was the last time that the children spent face-to-face time with the father. Further details of events of that day will be set out below. 
35	On 27 May 2022, the matter was listed for an initial compliance and readiness hearing before me. That compliance and readiness hearing was adjourned until 28 October 2022 at 2.15 pm. Orders were also made for the parties to attend upon a court child expert for the purpose of preparing a Child Impact Report.
36	On 22 June 2022, Y was taken to hospital as a result of having a severe nosebleed.  
37	In the period subsequent to April 2022, facetime communication occurred between the children and the father, however, there were a number of occasions where the mother did not accept the father’s call in circumstances where the mother regarded the call as being unacceptably late. The circumstances in which that occurred will also be set out in greater detail below.  
38	On 5 August 2022, the father emailed the mother requesting that there be a change in facetime communication to Wednesday. The mother agreed to that request.  
39	On 1 September 2022, the father’s legal representatives filed a Notice of Ceasing to Act.
40	On 2 September 2022, the mother emailed the father asking if he wanted to see the children on 4 September 2022. The father declined the request due to not receiving enough notice. 
41	In the period subsequent to 2 September 2022, on a number of occasions, the father contacted the mother for the children to communicate with him via facetime, however difficulties continued. I will set out those occasions in greater detail below.
42	On 28 October 2022, the adjourned compliance and readiness hearing was listed before me.  There was no appearance by the father at that hearing.  
43	The matter was listed for final hearing before me on 8 and 9 December 2022 in the Wollongong registry.
44	On the last day of the hearing, the father sought to tender documents that had not been put to the mother during the course of the proceedings. In the circumstances, I permitted the tender of those documents subject to the mother having the right to provide an additional submission responding to the content of the documents. The father was given seven days to respond.  Subsequent to the conclusion of the hearing, the father engaged solicitors who, in turn, sought additional time to file the father’s response. For reasons set out in my judgment dated 23 December 2022: Mears & Hilton [2022] FedCFamC2F 1793, I granted an extension of time until 13 January 2023, at which time the father’s response was filed.  
CREDIT
45	In Carlson & Fluvium [2012] FamCA 32, Kent J cautioned about making findings of the credibility of witnesses, particularly in the context of parenting cases. In that respect his Honour stated at [165]:
As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
46	His Honour’s caution was endorsed by the Full Court in Adamson & Adamson (2014) FLC 93-622. In that respect, the Full Court said at [90]:
It follows from [the observations of Kent J] that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [by Kent J].
47	In this matter, the father contends that the mother has been obstructive in facilitating the children spending time with him. The evidence establishes that the mother declined to accept facetime calls from the father on a number of occasions when he has contacted the mother at times outside the children’s bedtime regime. To place that evidence in its context, however, requires an assessment to be made of the mother’s response in circumstances where she contends she has been the subject of a pattern of coercive and controlling conduct by the father both during and subsequent to their period of cohabitation.  
48	In circumstances where the parties give contradictory evidence regarding the mother’s allegations of the father engaging in family violence, it is necessary to make a determination regarding the credibility of their evidence.
49	In the High Court decision of Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the plurality said at [62]:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call).
50	It is necessary to recognise that the father was self-represented during the course of the hearing and some allowance must be made for the difficult position faced by a self-represented litigant in that they are both their own advocate and also a crucial witness in the proceedings. Even making some allowance for that fact, the father’s evidence was coloured by his desire to present himself in the best light and to convey a narrative that he perceived to be supportive of the case which he wished to present. The evidence of his current partner, Ms E, was also diminished by that same tendency. 
The father
51	The first concern I have with the evidence of the father is that he repeatedly elaborated on his answers beyond that which was required to provide a direct and forthright response. For instance, upon being asked by counsel for the mother as to whether he was aware that he placed the then pregnant mother in a situation of risk by having unprotected sex with another woman, the father sought to justify his conduct, stating that at the time he considered that his relationship with the mother was “on the rocks”, which he attributed to the fact that the mother was giving up smoking and that created a lot of tension in their relationship.
52	The father’s response in that respect resulted in me cautioning the father that, in assessing the credibility of the witnesses in the proceedings, I would have regard to the manner in which they responded to questions, including the extent to which their answers were responsive rather than including unnecessary self-serving content. Regrettably, the father failed to heed that caution.  His failure to do so, together with other aspects of his evidence, to which I will refer, impacted adversely on my assessment of the credibility of his evidence.  
53	The father made additional non-responsive comments that were critical of the mother, including postulating that the premature birth of X resulted from complications experienced by the mother in respect to a prior pregnancy to a previous partner. That evidence was quite unnecessary and, having regard to the manner in which the father conducted himself in these proceedings, has led me to conclude that it was intended to diminish the reputation of the mother in the eyes of the Court. 
54	Additionally, when provided with the opportunity of making a brief statement responding to questions he had been asked during the course of cross-examination in circumstances where he was a self-represented litigant, the father sought to introduce evidence imputing that the mother had failed to properly vaccinate the children and to ensure that they regularly attended daycare.  The father sought to do so in circumstances where he had not been cross-examined in respect to those issues and the evidence he sought to present was substantially irrelevant to the issues to be determined in the proceedings. Again, in the circumstances in which the father sought to present that evidence, I infer that it was for the purpose of diminishing the reputation of the mother in the eyes of the Court.
55	Those instances, regrettably, led me to conclude that the father gave evidence in a self-serving manner, rather than engaging with the questions asked of him. 
56	The father’s failure to provide directly responsive answers is also reflected in the father initially disagreeing with the proposition put to him by counsel for the mother that, during the course of spending time with the children in a park in Town N in April 2022, the father said, in response to the mother’s objection to his current partner being present, words to the effect “it’s a public place, I didn’t agree to shit!” When pressed in respect to his answer, the father acknowledged that he did in fact say words to that effect other than, according to the evidence of the father, using the word “shit.”
57	The father also gave implausible evidence as to why he failed to appear at a compliance and readiness hearing on 28 October 2022. When asked by myself why he failed to attend the compliance and readiness hearing, the father initially stated that he could not afford to attend.  When it was pointed out to the father that the hearing was conducted by way of electronic hearing, the father stated “Yes. Well, I couldn’t afford the time off work”. I find both versions of the father’s evidence to be implausible. Firstly, he appeared for the two day in person hearing as a self-represented litigant. In those circumstances, he was capable of doing this for a shorter compliance and readiness hearing. Further, his assertion that he could not afford to take the time off work, in circumstances where he is the applicant in the proceedings, is implausible. This is especially due to the fact that he could have taken at least a brief period of time off work to attend the compliance and readiness hearing, which had been listed to be conducted electronically at 2.15 pm on 28 October 2022. The context in which I have found the father’s evidence regarding his non-attendance at the compliance and readiness to be implausible is made in circumstances where the father failed to provide the mother or the Court with the courtesy of notification of his non-attendance or, alternatively, seeking an adjournment to a more convenient time.
58	The father’s implausible evidence as to the reasons for failing to attend the compliance and readiness hearing, together with the father’s failure to comply with the timetable for the filing of the parties’ evidentiary material, leads me to accept the mother’s contention that the father has been of two minds as to whether he would press for parenting orders in these proceedings, and that he only decided to do so in the weeks immediately before the actual hearing date, with the father filing his trial affidavit on 5 December 2022 rather than by the due date of 17 November 2022 as required by the trial directions made on 28 October 2022. 
59	The father’s evidence was also inconsistent with the evidence of his current partner Ms E in several respects. Firstly, the father denied that, after an angry verbal exchange between the father and the mother at the park in Town N in April 2022, he and Ms E started laughing after the mother left with the children. The evidence of Ms E was that the parties did in fact engage in laughter about the “situation”, although she contended the mother was out of sight when it occurred.
60	The father’s evidence was also internally inconsistent with objectively verifiable evidence. In that respect, the father challenged the mother’s evidence as to the extent to which she had been children’s primary carer, including denying that the mother breastfed the children beyond an initial stage of providing colostrum at birth. That evidence was contradicted by a date stamped photograph, tendered in the proceedings as Exhibit “C”, confirming that the mother was still breastfeeding on 19 December 2018, approximately three months after X was born.  
Ms E
61	Regrettably, I also make adverse findings in respect to the credit of the evidence provided by Ms E, the father’s current partner. In that respect, on two occasions, Ms E took it upon herself to object to questions asked of her by counsel for the mother on the basis of relevance, rather than responding in a direct and forthright manner to questions. I regarded the questioning as being of relevance to the issues to be determined by the Court.  
62	Ms E also engaged in argument with counsel for the mother as a result of opposition she had to questions being asked of her, which she regarded as being repetitive. That was in circumstances where the questions asked by counsel appropriately sought to clarify ambiguous answers provided by Ms E.  
63	Ms E failed to frankly acknowledge the veracity of electronic communications that she had both received and sent, despite clear evidence that she was a party to those communications. That included one instance where Ms E anticipated being asked a question about a Facebook post she had made which was critical of the father and, specifically, related to what Ms E perceived as the father’s infidelity. That message was posted at a time where the father and Ms E had separated for a period of approximately two weeks in April 2021. The question asked by counsel for the mother was entirely appropriate in circumstances where, in determining ongoing parenting arrangements, it is important for the Court to understand the potential dynamics of the household in which the children would be staying in the event that orders were made for the children to spend time, including overnight time, with the father.  
64	When asked questions concerning the approximate time and substance of a communication she had with the mother, in April 2021, to the effect that she was encouraging the father to spend time with the children, Ms E initially stated that she could not comment on information that she did not have in front of her. When I directed her to respond to the question, Ms E continued to prevaricate until she finally agreed that, in effect, it was she who was encouraging the father to spend time with X and Y.
65	Additionally, Ms E admitted that at least one part of her evidence regarding who should or should not participate in facetime communications between the father and the children was for the purpose of “advocating for [the father’s] rights”. 
66	Consistent with that position, at the conclusion of her evidence, Ms E sought to make a statement in circumstances where she had not been invited to do so by counsel for the mother, the father or myself.  
67	In summary, I have assessed the evidence provided by Ms E as being coloured by her desire to support the case of the father, rather than responding to questions in a direct and forthright manner.  
The mother 
68	Comparatively, the mother did respond to questions asked of her in a direct and forthright manner. Her oral evidence was consistent with that set out in her affidavit and with other supporting documentation that was tendered in evidence. Her evidence was plausible and its credibility was not diminished by the father’s cross-examination of her. 
69	Accordingly, for those reasons, wherever it is inconsistent with evidence provided by the father and Ms E, I prefer the evidence of the mother. 
DOCUMENTS RELIED UPON
70	The applicant father relied upon the following documents:
•	Application for Final Orders filed 21 October 2022;
•	Affidavit of the father filed 5 December 2022;
•	Affidavit of Ms E filed 22 May 2022;
•	Child Impact Report of Court Child Expert, Ms O dated 28 July 2022; and
•	Written submissions filed 13 January 2023.
71	The respondent mother relies upon the following documents:
•	Amended Response to Initiating Application filed 24 November 2022;
•	Affidavit of the mother filed 24 November 2022;
•	Notice of Child Abuse, Family Violence or Risk filed 7 December 2021;
•	Child Impact Report of Court Child Expert, Ms O dated 28 July 2022; and
•	Written submissions filed 16 December 2022 and supporting documents in relation to Exhibit “B”.
THE PARTIES’ RESPECTIVE APPLICATIONS
72	After the close of evidence, the father confirmed that he sought orders in accordance with a letter sent to the mother’s solicitors on 13 November 2022, wherein the father proposed the following orders:
Living with/Parental Responsibility 
1.	That the parties shall have equal shared parental responsibility for the children, namely [X] born [in] 2018 and [Y] born [in] 2019 ("the children").
2.	If the parties cannot agree on a medical or health decision with respect to the children, then the matter will be determined according to the recommendation(s) made by the children’s treating general practitioner which the children are seeing, except for the Covid-19 vaccination.
3.	The children shall live with the Mother.
Spend time with:
4.	That the children spend time with the Father as follows:
a.	For a period of two (2) months.
i.	Each alternate weekend from 10:00am Saturday until 3:00pm Sunday.
b.	From the conclusion of Order (A) herein:
i.	Each alternate weekend from after school/day-care Friday until 3pm Sunday 
c.	At any such other time as agreed between the parties in writing.
Changeover
6.	For the purposes of changeover, unless as otherwise agreed between the parties in writing, changeover is to occur at the children’s school or day-care on a school day and at [P Petrol Station], [Q Street, Town R] on a non-school day. 
Special occasions 
7.	That the children spend additional time with the parties over Christmas as follows:
a.	With the Mother from Christmas Eve 9am until 5pm New Year’s Day 2022 and each alternate year thereafter.
b.	 With the Father from Christmas Eve 9am until 5pm New Year’s Day 2023 and each alternate year thereafter.
8.	That notwithstanding any Order to the contrary, if the children are not already spending time with the Father pursuant to these Orders, the children are to spend additional time with the Father for the full Father’s Day weekend from 10:00am Saturday until 3:00pm Sunday. The Mother’s time with the children will be suspended if the Father’s Day weekend falls when she is due to spend time with the children pursuant to these Orders.
9.	That notwithstanding any Order to the contrary, if the children are not already spending time with the Mother pursuant to these Orders, the children are to spend additional time with the Mother for the full Mother’s Day weekend from 10:00am Saturday until 3:00pm Sunday. The Father’s time with the children will be suspended if the Mother’s Day weekend falls when she is due to spend time with the children pursuant to these Orders.
10.	That notwithstanding any Order to the contrary, on the children’s birthday from 12:00pm until 6:00pm with the parent with whom the children are not otherwise living with on that day. In the event that the children’s birthday falls on a school day, with the parent with whom they are not living with from after school/day-care until 6:00pm.
Telephone communication
13.	That the Father communicate with the children by way of Facetime and/or telephone as follows:
a.	Each Wednesday between 6:30pm and 7:00pm 
b.	At any other time as requested by the children; and
c.	At any other time as agreed between the parties in writing.
14.	For the purposes of Order 12 herein, the Father is to initiate such telephone contact by calling the Mother’s mobile telephone. Once the telephone call is connected, the children and the Father will be afforded privacy during such calls without interruption.
Restraints 
15.	The parties, their servants and agents be and are hereby restrained by injunction from: 
a)	Insulting, belittling, degrading, rebuking or otherwise denigrating the other party or members of their immediate family in the presence or within the hearing of the children and from permitting any other person to do so and on social media.
b)	Discussing these proceedings to, with, or within hearing or presence of the children and from permitting any other person to do so. 
16.	That the Mother be restrained by injunction from changing [Y] and [X]’s principal place of residence from the [Town C] region without the written consent of the other party or an Order of the Court. 
Travel 
17.	That:
a.	Pursuant to s11 of the Australian Passports Act 2005 (Cth), the parties do all acts and things and sign all documents as necessary to apply for and maintain a current Australian passport with respect to the children.
b.	Pursuant to s65Y of the Family Law Act 1975 (Cth), either party be permitted to travel overseas with the children upon providing the other party no less than 21 days’ notice of the intention to travel and the dates of the period of travel, unless in the event of a family emergency in which immediate notice will be provided to the other party upon such travel becoming known.
c.	The travelling party, no less than 21 days before departure shall provide to the other party copies of:
i.	The flight(s) itinerary;
ii.	An itinerary of destinations, including the name and address of accommodation the children will be staying; and 
iii)	The contract details, including phone number, the children can be contacted on whilst they are away.
d.	Upon the parent seeking to travel complying with Order 16(b) and 16(c), the other parent will not unreasonable without consent.
e.	The passports are to be held by the Mother, except as necessary for travel. The Mother will not withhold the passports from the Father or the children for the purposes of planned travel.
f.	Should either party wish to travel interstate with the children, the party seeking to travel must provide the other party with no less than fourteen (14) days notice of their intention to travel with the children, except for Canberra in which no notice is required to be given. The terms of the notice must include the following:
i.	The dates of the period of travel 
ii.	The flight itinerary 
iii.	Any itinerary of destinations, including the name and address of accommodation the children will be staying; and 
iv.	The contact details, including phone number, the children can be contacted on whilst they are away.
v.	That the parties do all things and sign all documents necessary to maintain a valid and current Australian passport for each of the children, and the costs of renewing the passports shall be borne equally between the parties. 
Other
18.	That within fourteen (14) days of the making of these Orders, the Father will forthwith enrol and participate in a Parenting After Separation Course with [B Counsellors] and will provide a copy of the completion Certificate to the Mother within seven (7) days of receipt of same. 
Miscellaneous
19.	That the matter be removed from the pending cases list.
21.	That there be no orders as to costs.
(As per the original) 
73	The mother sought orders in accordance with her Amended Response to Initiating Application filed 24 November 2022 as follows:
1.	That the children, [X] born [in] 2018 and [Y] born [in] 2019 (“the children”) shall live with the Respondent Mother.
2.	That the Mother shall have sole parental responsbility in the making of all major long-term decisions concerning the children’s living arrangements, education, welfare, development and any major difficulties that arise.
3.	That the Father spend no time with the children, unless otherwise agreed in writing between the parties.
4. 	That the Mother be permitted to obtain an Australian Passport for the children without the consent of the Father.
5.	That the consent of the Father to the issuing of an Australian Passport for the children be dispensed with. 
6.	That pursuant to section 68B of the Family Law Act 1975, the Father is restrained from the following: 
(a)	Approaching, contacting or coming into contact with the Mother or the children by any means whatsoever.
(b)	Attending any home, school, after school or care facility or other place where the Mother and/or children reside or are reasonably expected to attend; and
(c)	Removing, attempting to remove or approaching the children on any occasion outside these Orders.
(d)	Pursuant to Section 68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the Father against whom the injunction is directed, has breached the injunction by causing or threatening to cause bodily harm to the child, or harassing, molesting or stalking, that person may arrest the Father without a warrant.
(As per the original)
STATUTORY CONTEXT 
74	Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
•	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and 
•	protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and 
•	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and 
•	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. 
75	In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
The presumption of equal shared parental responsibility
76	Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
77	The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
78	Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
79	I have determined that the presumption does not apply in this case as a result of the father engaging in acts of family violence directed towards the mother which I will detail below.
Best interests of the child
80	Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
81	Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
•	the benefit to the child of having a meaningful relationship with both of the child’s parents; and 
•	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
82	In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
83	Additional considerations are set out in s 60CC(3) of the Act. Those considerations can conveniently be grouped under the following headings:
Issues relating to the children - their views, level of maturity, culture and relationships:
•	Sub-section (3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
•	Sub-section (3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
•	Sub-section (3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
•	Sub-section (3)(h) - issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents - decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
•	Sub-section (3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; 
•	Sub-section (3)(ca) - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
•	Sub-section (3)(f) - the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
•	Sub-section (3)(i) - the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
•	Sub-section (3)(j) - any family violence involving a child or a member of the child’s family; and
•	Sub-section (3)(k) - any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
•	Sub-section (3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
•	Sub-section (3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
•	Sub-section (3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. 
Other relevant matters:
•	Sub-section (3)(m) - any other facts or circumstances the Court considers relevant.
CONSIDERATION
Family violence
84	My consideration of this matter initially focuses on the issue of family violence (ss 60CC(3)(j) and (k)) because it provides context to the mother’s conduct which, in the absence of that context, could arguably be characterised as dogmatic and uncompromising rather than, as I have found it to be, protective of the welfare of the children.
85	Specifically, I am satisfied that the mother has been the subject of a pattern of controlling and coercive conduct by the father, both during the period of their relationship and subsequent to its termination and the father’s conduct has, in many instances been self-centred rather than child focused.  
86	Accepting the mother as a witness of truth, I accept that she was the subject of derogatory comments concerning her weight and physical appearance.
87	The mother also attested to being the subject of behaviour which she characterised as “gaslighting”, with the father saying things to her to “make [her] feel worthless and then make out everything was always [her] fault.” Evidence of the father engaging in conduct of that nature is contained in a text message and annexed as Annexure “K” of the mother’s affidavit filed 24 November 2022 that was sent by the father to the mother on 10 July 2022 at 7.00 pm wherein, in the context of an exchange between the parties regarding what the father contended was the mother’s unacceptable refusal to permit him to facetime with the children outside their bedtime routine, the father stated “[y]our [sic] refusing to communicate to deal with the actual issues. Your issues surrounding abandonment should have nothing to do with the girls. You should go speak to someone about it”.  
88	In an email dated 13 April 2022 addressed to the mother’s solicitors, the father accused the mother of “being unreasonable and acting irrationally”.
89	Further and in a similar context of imputing that the mother suffered from mental health issues, in an email sent by the father to the mother’s lawyers on 14 April 2022 concerning a dispute between the parties regarding facetime communication, the father stated “your client is unstable and I’m concerned how this is effecting the children”.
90	The father also engaged in coercive conduct in threatening the mother with orders to change the children’s place of residence. In that respect, I accept the mother’s evidence as set out in paragraph 22 of her affidavit filed 24 November 2022 that, in the context of a disagreement regarding the children’s immunisation status, on 9 February 2021 the father stated that “[Ms E] and I will enjoy watching the girls grow without you in the picture.”  
91	For reasons which I explain below, I also accept that at a contact session between the children and the father on 17 April 2022, during the course of a disagreement with the mother in respect to how the father was managing X’s behaviour, the father said to the mother words to the effect of “this is not a normal toddler tantrum [the mother], this won’t be happening when I have the children full time. I tell ya”.
92	Also in the context of threatening behaviour, in an email dated 13 April 2022 from the father to the mother’s solicitors, to which I have earlier referred, the father stated “perjury is a criminal offence and I would firmly appreciate you notifying your client about making untrue statements under oath”.
93	Most significantly, in circumstances where I accept the mother to be a witness of truth, I accept her evidence about the father’s conduct on the evening prior to the parties’ separation, which is set out at paragraph 18 of her affidavit filed 24 November 2022 as follows:
On 3 November 2020, [the father] was holding [Y]. I asked him if I could go and put a rug on my horse, [the father] began to scream at me “You’re worthless, everything you have has been handed to you on a plate, you’re going nowhere in life, you’re a failure, you can’t do anything, you’re mentally unstable, you’re a bad mum, I should take the kids off of you and you should just go jump off a bridge.” [The father] at this point was still holding [Y] with his toes on top of mine screaming at me “You’re fucked cunt look at ya you’re a mess”. 
94	Finally, I am satisfied that the father and his current partner engaged in belittling behaviour of the mother by laughing at her following an argument between the mother and the father at the contact event in Town N in April 2022. Further details of that event are set out below.
Meaningful relationship 
95	In McCall & Clark (2009) FLC 93-405 at [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests. 
Further, at [117] the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the “enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.  In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
96	In Jurchenko & Foster (2014) FLC 93-598, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests. 
97	In Loddington & Derringford (No 2) [2008] FamCA 925, Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. 
(Emphasis added)
98	In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
However, that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist. 
(Emphasis added)
99	While the father attested to wanting to have the children in his life on a regular basis, his conduct at date is such that I am not satisfied that he is committed to that occurring. 
100	In that respect, I note that the father did not spend time with the children for a period of approximately nine months between January 2021 and August 2021. 
101	Context to that hiatus in time is provided in a text message exchange between the parties that occurred on 12 February 2021. In the first text message, the father requested that the mother agree to the children spending time with him on the following weekend. The mother replied with a response that indicated that she was concerned by comments that had been made by the father which raised concerns, in her mind, as to whether the children would be returned to her on the Sunday. The mother further stated that, as a result of being informed about Ms E residing with the father, she also had “concerns around the children’s welfare.” The mother stated that as a result of those concerns “you will not be having the children in your care until we have been through mediation/court.” However, the mother offered for the father to communicate with the children by way of phone or facetime. 
102	The relevant comments made by the father which were of concern to the mother are set out in paragraph 22 of her affidavit filed 24 November 2022 wherein the mother attests that, during a facetime communication on 9 February 2021, the parties argued regarding the children’s immunisation status and that the father said to her “you’re a bad mum, the kids would be better off without you the same way as S is, [Ms E] and I will enjoy watching the girls grow up without you in the picture.”
103	While there is an absence of evidence of communication between the parties between February 2021 and August 2021, it is agreed that in August 2021 the parties participated in mediation, at which time an agreement was reached for the children to resume spending time with the father. It appears, however, that difficulties continued in respect to those arrangements, with the father commencing these proceedings in October 2021. 
104	The mother attests that, in the period subsequent to August 2021, she offered to facilitate the father spending time with the children but he did not act upon those offers. Her evidence in that respect is corroborated by an email annexed as Annexure “C” to the mother’s affidavit, sent by the mother to the father in either late November or early December 2021 offering to facilitate the children spending time with him “next Saturday, 04/12/21. From 11am – 2pm.” The mother was not challenged on her evidence and I accept that the father did not act upon that invitation until 29 December 2021, at which time he sent an email to the mother indicating that he would “love to see the children”.
105	The evidence establishes that the children spent time with the father supervised by the mother on the following occasions:
•	27 February 2022 at City L;
•	6 March 2022 at Town M;
•	3 April 2022 at City L;
•	10 April 2022 at Town M; and
•	17 April 2022 at Town N.
106	The events which occurred at Town N on 17 April 2022 are significant because the father has not spent time with the children subsequent to that date.
107	The mother sets out, at Annexure “E” of her affidavit, copies of various text messages between herself and the father in which the mother indicated her objection to the children spending time with the father in the event of Ms E being present. The mother’s objection is explained in an email which she sent to the father on 1 January 2022, wherein she raised concerns that, following a visit that occurred in late December or on 1 January, Ms E informed the children that they were soon to have a baby brother. The mother explained that she considered this to be detrimental to the children’s mental health and added: 
As I’ve stated all along supervised visits are not forever just until they understand their father is back in their lives and it is consistent contact. I’ve also always stated you need to give their minds time to adjust to having a relationship with you their father first and foremost. You are failing to look out for the impact this massive change is having on their little minds. 
108	The mother contends that the father agreed that Ms E would not be present during the contact session between the children and the father at Town N in April 2022. The father does not make that concession. The text message exchange attached to the mother’s affidavit is perhaps ambiguous in terms of whether the parties did in fact agree to the mother’s request.  The mother’s position that she objected to Ms E being present is nonetheless made clear in those text messages.  
109	The parties agree that at the contact session in Town N on 17 April 2022, X had what was described as a “tantrum.” The father was not challenged on his evidence that this occurred in circumstances where he asked X to get off a swing in the playground in order to facilitate other children having a turn. The mother’s account, as set out at paragraph 79 of her affidavit, is that she expressed her concern to the father that he was restraining X in circumstances where a counsellor to whom the mother had taken X had advised the mother that the best approach was to give X some “space” to settle down. The mother indicated that she was concerned for X’s welfare because it was putting “stress on her adenoids” after recent surgery that occurred on 15 March 2022.  
110	The mother was not challenged on her evidence that the father stated “this is unacceptable behaviour [the mother]” to which the mother states she replied “she’s a toddler [the father], you’ve told her no she doesn’t like it but let her have space for a minute and she’ll be fine.” While not acknowledged by the father, I accept the mother’s evidence that the father also stated “this is not a normal toddler tantrum [the mother], this won’t be happening when I have the children full-time I tell ya” and “everything was fucking fine until you fucking got here just fuck off and leave me alone or I swear to God”.
111	Despite post-dating the mother’s affidavit, the father does not address the mother’s evidence in his affidavit filed on 5 December 2022. The father nonetheless disputed the mother’s account of the event when cross-examined by counsel for the mother. In preferring the mother’s evidence of the events to those of the father, I have previously explained why I have found the mother to be a witness of truth and I have concerns regarding the credibility of evidence provided by the father. In that respect, I note the less than complete evidence provided by the father as to comments he made to the mother regarding the mother’s objection to presence of Ms E at the contact session at Town N on 17 April 2022. In that respect, I have noted above that the father initially denied saying to the mother words to the effect of “it’s a public place, I didn’t agree to shit”. Upon further questioning, the father acknowledged that he did in fact say words to that effect, although he denied using the word “shit.”
112	Accordingly, for those reasons I accept the mother’s account of what occurred at the contact session at Town N on 17 April 2022.
113	The father agreed with the proposition advanced in a question from counsel for the mother that, since April, he had “not made any arrangements or made any effort to make arrangements to spend time with the children.”
114	In circumstances where he was self-represented, the father was afforded the opportunity of providing a statement in reply in circumstances where he would otherwise have had counsel asking him questions in response to cross-examination by counsel for the mother. In that reply the father stated:
I guess what I’ve been up against in regard to access with the children, with the stalling of it, is more self-preservation in regards to being able to access the children through these means.  So, yes, the stalling was intentional, and I - in the questioning I did agree to that, but it was in regards to some subsequently overturned proceedings, and the overarching threat of that potentially being an ongoing thing, whether that be police intervention, court proceedings outside of these ones.
115	The difficulty I have with that response is that any concerns that the father may have had about the prospect of confronting police intervention or other court proceedings outside of these family law proceedings could have been addressed by the orders of this Court. This is in circumstances where the father is the applicant in the proceedings and he failed to prosecute these proceedings, with appropriate diligence, by his non-attendance at the compliance and readiness hearing on 28 October 2022.
116	In assessing the father’s conduct, I note that by email sent to the father on 2 September 2022, the mother offered to facilitate the children spending time with the father at Town F on the following Sunday, 4 September 2022. The father replied on the following day, stating that unfortunately he could not take up that opportunity as he was visiting family in Region T, New South Wales. It is entirely understandable that, given the short notice, the father was not able to accept that invitation. However, it is of significance that the father did not suggest a counterproposal for him to spend time with the children, but rather proposed an additional facetime communication that was agreed to by the mother.  
117	I further note that by correspondence dated 8 September 2022, the solicitors for the mother submitted a proposal to the father which would facilitate the children spending time with the father. The father had not replied to that correspondence by the time a follow-up letter was sent from the mother’s solicitors to the father on 28 September 2022.
118	There is no evidence of the father responding to that offer by the mother for an arrangement whereby the children would spend time with the father prior to this matter being listed for a compliance and readiness hearing on 28 October 2022.
119	For reasons which I have earlier set out, I find the father’s evidence as to why he failed to attend that compliance and readiness hearing as being implausible. It was clearly an opportunity for the father to take steps to regularise arrangements for the children to spend time with him by prosecuting the proceedings which he himself had commenced in this Court.  
120	Additionally, I have had regard to the fact that the father failed to comply with the timetable set for the filing of evidence in these proceedings. His eleventh hour filing of evidence and a case outline document, outside the specified time frame, in circumstances where he is the applicant in the proceedings is consistent with the mother’s contention that the father lacks a genuine commitment to pursuing orders that would provide for the children to spend regular and consistent time with him. 
121	For all of these reasons, I believe it is more likely than not that the father will not avail himself of the opportunity to spend regular time with the children in accordance with orders that I nonetheless intend to make in these proceedings.  
122	I have formed that view despite evidence that establishes that the father has frequently engaged in facetime communication with the children, particularly in the period since April 2022.  Nevertheless, there has been considerable tension between the parties in respect of those communications occurring in circumstances where, on a number of occasions, the father sought to communicate at or around 7.00 pm of an evening. This was in circumstances where, by text message sent to the father on 24 March 2022, the mother requested that the father communicate between 6.00 pm and 6.30 pm in order to assist the mother to get the children back into a bedtime regime. That request was also communicated to the father by text message exchange on 31 May 2022.
123	It is to be noted that in the text message exchange between the parties on 31 May 2022, the father stated that he did not return from work in time to facilitate a facetime call between 
6.00 pm and 6.30 pm. The mother in response, justifiably in my view, pointed out there were a number of alternatives that the father could pursue to enable him to communicate with the children, including potentially altering his hours of work on the one weekday that he communicated or, alternatively, telephoning on his way home in the car.  
124	Despite receiving the requests from the mother to assist her with the children’s bedtime routine, the father called outside the requested time on a number of occasions. I have also had regard to the fact that there are a number of occasions where the father did not avail himself of the opportunity of facetiming the children, including on X’s birthday.  
125	Despite concluding that it is more likely than not that the father will not avail himself of the opportunity of spending time with the children in accordance with orders that I make in these proceedings, I have nonetheless decided to make those orders effectively for the purpose of giving the father a last opportunity to establish a commitment to spend time with the children on a consistent and regular basis. That opportunity will not, however, be open-ended. In circumstances where, for reasons which I explain immediately below, I am satisfied that there is an unacceptable risk of emotional and potentially psychological harm to the children in the event of the father continuing to engage spasmodically with the children, the orders I make will provide for a sunset if that opportunity is not taken up. 
Issue of risk
126	The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. 
127	It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
128	Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child. Director-General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
129	In these proceedings, it was not contended that the children are at risk of physical harm in the care of either parent. The mother contended that the children are potentially at risk of emotional harm as a result of insensitivities in communication from the father and also his partner with the children concerning the parties’ separation and the fact that the father has now established a second family with his new partner which includes the children’s half-brother, H.  
130	While it is not a major risk to the children in terms of potential harm, I am satisfied that the mother’s concerns in that respect are justified. In so finding, I have had regard to the content of an email sent by the mother to the father and Ms E on Saturday 1 January 2022, as well as a text message exchange between the parties on Sunday, 10 July 2022. I am satisfied, however, that risk can substantially be addressed by the father’s proposal, as set out at page 5 of his written submissions filed on 13 January 2022, for the children to initially spend supervised time with him and, subsequently, on a graduated basis, Ms E and their children. Consistent with the proposal, I intend to make orders for the children to spend supervised time with only the father for a period of two months and also, for an additional month with the father, Ms E and their children. Subject to the father completing an appropriate parenting after separation program as recommended by the court child expert at paragraph 18 of the Child Impact Report dated 28 July 2022, time will then progress to unsupervised time.
131	Additionally, the evidence satisfies me that the children are at risk of being exposed to family violence in the form of verbal confrontation between the parties at the point of changeover. In so concluding I have had regard, most relevantly, to the unpleasant exchange which I am satisfied occurred between the parties at the Town N visitation which occurred in April 2022, to which I have earlier referred. Having regard to what occurred on that occasion, I am satisfied there is an unacceptable risk of the children being exposed to aggressive verbal confrontation between the parties in the future. On that basis, I am satisfied that changeover should occur between an agreed third-party intermediary or, in the absence of agreement, at a professional contact service.
132	In circumstances where I am satisfied the mother, as a single mother, has effectively been solely responsible for meeting costs associated with caring for the children in circumstances where the father has not complied with his child support obligations, with an outstanding debt of approximately $6,000, I have determined that the father should meet the costs of supervision and also the costs of a professional contact service if it is necessary for such a service to be engaged.  
133	The more significant risk to the children is the risk of emotional and potentially psychological harm as a result of the inconsistent and irregular time that the father has spent with them and the irregular time the father has spent communicating with the children.  
134	In the Child Impact Report, the court child expert acknowledged that children do better if they have an ongoing meaningful relationship with both parents that is consistent with their best interests. She cautioned, however, that in the circumstances of this case, it may not be in the children’s best interests if the nature of the children’s relationship with the father is inconsistent. In that respect she stated:
It is noted that if the parenting arrangement exposes the children to further inconsistencies, and intermittent stopping and starting, the cumulative impact on the girls’ emotional wellbeing will intensify.  [X] is currently in counselling which is considered appropriate. It is important that further exposure of the girls to intermittent parenting arrangements are avoided and if consistency cannot be obtained, there may be a need to protect the girls from ongoing emotional turmoil. This includes, if the father’s time with his children does not occur consistently, prioritising consistency in time even at the expense of limiting frequency of time.
135	While, inexplicably, the father initially opposed X being referred to counselling in respect to behavioural issues and, as a related matter, issues associated with her parents’ separation, I respectfully agree with the court child expert that the mother’s conduct in arranging for such counselling was entirely appropriate and justified.  
136	In that respect, clinical notes provided by the child’s treating therapist refer to the need for consistency and predictability in respect to the children’s engagement with the father in order to address what was considered by the therapist, based on observations provided by the mother, as X, in particular, showing signs of “emotional distress, including physically hurting herself, throwing objects, and defiance”. 
137	In giving oral evidence, the court child expert elaborated on the nature of the risk faced by the children if the time they spend with the father is inconsistent. That evidence is reflected in the following exchange between counsel for the mother and the court child expert as follows: 
COUNSEL:	Now, if the court finds that the father is not able to engage consistently and reliably and in a – and within – on the times that are specified – would that change anything for you in terms of your recommendations?
[MS O]:	I’m always really hesitant to draw a line and say no time, but I think that the girls deserve consistent relationships, and if that’s not being offered, it does appear that there’s a level of damage happening to the girls that – that their wellbeing needs to be prioritised. 
COUNSEL:	Can I ask you just to elaborate on – you say “damage”. What sort of 
[MS O]:	They’re yearning for their dad and it’s not happening, and they’re feeling a sense of rejection and internal blame for that. 
138	When asked to clarify what she meant by the expression “internal blame”, the court child expert explained that there is a risk that, in the scenario presented, the children would come to believe that the intermittent and irregular time with the father was “their fault” and that “they’re not good enough”.
139	Having regard to that evidence from the court child expert, which I accept, I am satisfied that, in the event of the father failing to commit to a regular and predictable arrangement for the children to spend time with him and to communicate with him, there is an unacceptable risk of emotional and psychological harm to the children such that orders for the child to spend time with and communicate with the father would not be in their best interests.  
140	For these reasons, the orders I make will provide for the children to both spend time with and communicate with the father on a regular and consistent basis, but will sunset in the event that he does not take up that opportunity.  
141	The orders will provide that, in the event of the orders sunsetting, the children will spend time with and communicate with the father as determined by the mother.  
Additional considerations
142	As earlier noted, s 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. I will address those under the headings to which I have earlier referred.
Issues relating to the children - their views, level of maturity, culture and relationships:
143	The children are very young and, in those circumstances, there is no evidence before the Court regarding their views save to the extent that the court child expert expressed the opinion that the children yearn for their father. I accept that is the case.
144	In that respect, the court child expert observed that:
The children, in comparison to the observation with their mother, appeared to require more of their father’s attention and they had significant difficulties separating and saying goodbye to their father at the end of the observation, requiring [the mother] to assist in containing the children. Both children cried, refused to leave and begged to stay with their father.
145	I also accept the evidence of the court child expert that, at their young ages, the children are “vulnerable in relation to seeing and separating from their father” which the court child expert regarded as being “exacerbated, if not caused, by spending intermittent time with him”.
146	I accept that the children have a close and loving relationship with their mother, who has been their primary carer and primary attachment figure since birth.  
147	The father expressed his opinion, to the court child expert, that he has forged a significant relationship with the children. I respectfully agree with the court child expert, however, that this is unlikely to have been the case. In that respect, the court child expert did not accept the validity of the father’s opinion that such a close relationship had been forged as a result of the relationship which he had with the children prior to the parties’ separation. The court child expert stated that the father’s opinion to that effect lacked insight, stating:
Given the children’s ages, the children would likely have difficulty remembering such a reported close relationship especially given the time that has elapsed since they have spent significant and frequent time with him.
148	The mother was not challenged on her evidence that the children have a close relationship with their maternal grandmother.
149	There is some evidence that the children have also, in the past, had a close relationship with their paternal grandfather. Unfortunately, however, there was no evidence presented in the proceedings in respect to that relationship. I note, however, that the mother referred to the children initially having regular facetime communication with the paternal grandfather in the period subsequent to the parties’ separation. I further note that the mother was willing to have the paternal grandfather spend time with the children when they visited the father at the park in Town N in April 2022. There is no reason why, irrespective of the orders made in these proceedings, the mother should not continue to foster the children’s relationship with the paternal grandfather. Indeed, I am satisfied that it would be in their best interests for that to occur.
Issues relating to the parents - decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
150	I am satisfied that the mother has admirably discharged the obligations of caring for the children, making decisions that are in their best interests and providing a consistent loving, nurturing and secure home that is conducive to their physical, emotional and intellectual development. 
151	I am satisfied that during the period of the parties’ relationship, the father assisted the mother in that respect. 
152	Regrettably, for reasons which I have earlier explained, I am not satisfied that the father has taken every reasonable opportunity to spend time with and communicate with the children.  
153	Further, while the father has expressed a desire to be consulted in respect to the making of decisions impacting upon the long-term welfare of the children, I am not satisfied that his interventions to date have been constructive.  
154	In that respect, the father prioritised what he described as his own parenting style over and above the recommendations of the child’s treating therapist, who recommended that, in circumstances where X became dysregulated, she should be given a little space and time to address her emotionality – effectively, to cool down from any tantrums.
155	As earlier noted, I found the father’s objection to the mother arranging for X to consult a therapist to be perverse. It can sensibly be expected that young children experiencing the breakdown of their parents’ relationship would be distressed and potentially suffering trauma.  Obtaining therapeutic assistance for a child in those circumstances is entirely understandable and responsible. Rather than supporting the mother in respect to that endeavour, the father essentially sought to cross-examine her, by way of message exchange, as to the basis upon which she had been referred to such a therapist.  
156	Similarly, rather than accepting the mother’s request that the father cooperate in assisting the mother to achieve a regular bedtime routine for the children, the electronic communication between the parties again shows the father seeking to argue the validity of the mother’s decision. In that respect, I accept the merit of the opinion of the children’s treating therapist and the court child expert that the mother was acting entirely appropriately and responsibly in attempting to establish such a routine. It is regrettable that, at least until August 2022, the father failed to cooperate with the mother in achieving that.  
157	Finally, it was not until the concluding stages of his evidence that the father accepted that, in the circumstances of the children’s young ages, they would have difficulty in comprehending the fact that the father does not live with the mother and that he has established a new family, including with their half-brother H. The father’s reluctance to accept the benefit to the children of having his undivided attention without being distracted by the presence of anyone else during facetime calls was regrettable. Fortunately, the father finally accepted and acknowledged that, going forward, he would ensure that occurred.  
Issues of family violence
158	I have earlier addressed the issue of family violence. 
Effect of change
159	The orders which I propose making in these proceedings will not result in substantial change for the children. They will continue to reside with their mother and will spend time with the father on a fortnightly basis and communicate with their father on a regular weekly basis.
Practical difficulty of implementation
160	I acknowledge there are practical difficulties associated with the implementation of the orders which I propose making in these proceedings as a result of the distance between the parties’ respective residences. In that respect, the mother was not challenged on her evidence that her relocation from Town J to Town C in April 2021 resulted in a travelling time between the parties’ respective residences of one hour and 20 minutes. The parties appeared to be in agreement that, subsequent to the father’s relocation from Town J to Town F, the travelling time between the parties’ respective residences is now approximately two and a half hours. 
161	The orders which I make for the children to spend time with the father on a fortnightly basis are based on the recommendations of the court child expert. In circumstances where the orders will provide for the father, only, to spend time with the children for a period of two months, this will likely result in the father being required to leave his current partner and their two children while he travels the distance required to spend time with the children. In that respect, I have accepted the merit in the submission by the father as set out in his submission dated 13 January 2023 that the time should be supervised at a nominated supervised contact service.
162	While it may not be possible for the service to facilitate the children spending four hours with the father on each occasion, the orders I make will provide for that to occur.  In doing so, I have again had regard to the recommendation of the court child expert. This will mean that the father would have a long day on those days that he is spending time with the children, which would involve two hours travelling each way between Town F to a centre that is located in the vicinity of Town C and, potentially, up to four hours with the children. 
163	However, in circumstances where, with respect to the father, for the reasons I have earlier set out, I am satisfied that he has shown less than adequate commitment to spending time with the children it is, in my view, important that the father now avails himself of the opportunity, including taking on that travel burden. 
164	The disruption in time that he would otherwise spend with Ms E and their children will, pursuant to the orders I make, be of two months duration. After such time, the orders provide for Ms E, H and potentially Ms E’s daughter, G, to also be in attendance.
165	Additionally, in providing for the father to incur the expense of travel, I have had regard to the fact that he is in arrears in respect to satisfying his child support obligations. This has resulted in the mother substantially incurring the expenses in respect to the day to day care of the children.
166	As an associated issue, in circumstances where the financial cost of providing for the children’s needs has fallen upon the mother, for similar reasons I am satisfied that the father should be solely responsible for the cost of the supervision and changeover services. 
Avoiding further proceedings
167	Having regard to the evidence of the court child expert and the objects of Part VII of the Act, I am satisfied that in the event of the father committing to spending regular and consistent time with the children and communicating with them on that same basis, it would be appropriate for the amount of time that the children spend with the father to be increased on a graduated basis such as that recommended in the report of the court child expert.  
168	The difficulty I have, however, is that, for the reasons I have earlier explained, I am not satisfied that is likely to occur. There is an unacceptable risk of making orders at this point in time for such a graduated increase in time to occur irrespective of whether the children have had the opportunity of establishing a closer relationship with the father and also Ms E. In those circumstances, I have not made orders for such a graduated increase in time.
169	I recognise that in omitting to do so at this point in time may well result in a future application by the father if it is the case that, contrary to my expectation, he does commit to spending regular and consistent time with the children.  If the father does, however, commit to that course of action he would, in my opinion, be justified in seeking a graduated increase in the amount of time that the children spend with him.  
170	I appreciate that such an outcome would result in further proceedings. In the circumstances that I have outlined, that potentiality is, however, unavoidable in circumstances where the alternative would be to make orders that potentially place the children in a situation of unacceptable risk of emotional harm by compelling that they spend increased time with the father, in circumstances where they have not had to opportunity to establish a sufficiently close relationship with him and Ms E.  
Other relevant matters
171	There are no other relevant considerations that have influenced my decision in this matter.
Parental responsibility
172	In circumstances where I have found that the presumption of equal shared parental responsibility does not apply as a result of the father engaging in acts of family violence directed towards the mother, it is, nonetheless, necessary for me to consider whether such an order should be made.
173	I am satisfied that the nature of communication between the parties in the period immediately prior to and subsequent to their separation is such that they are incapable of communicating in an appropriately child focused manner. This appeared to be conceded by the father, who responded to questions asked of him by counsel for the mother as follows:
COUNSEL:	I want to suggest to you that your capacity to communicate with [the mother] is poor?
FATHER:	That’s correct.
COUNSEL:	And I want to suggest to you that you and [the mother] would not be able to have a civil communication around any significant issues for these children?
FATHER:	That’s correct.
174	Having regard to those answers which are consistent with the evidence before the Court, I am satisfied that it would not be in the interests of the children for an order to be made for the parents to share parental responsibility in respect to making decisions regarding major long-term issues impacting upon the children.
175	In those circumstances, it is unnecessary to consider whether the children should spend equal and/or substantial and significant time with the father and the role of the Court is to make an order that the Court considers to be in the best interests of the children.
ORDERS
176	For the reasons which I have explained, I am satisfied that orders should be made providing for the children to spend time with the father for up to four hours per fortnight.
177	To eliminate the chance of conflict and to allow for the father to engage in the process of choosing his preferred contact service from a list provided by the mother, I will order for the mother to provide three options for proposed supervised contact services, with the father to decide from those options as to the appropriate contact service in order to facilitate time with the children. Both parties will be required to engage in intake with the service to ensure that the children can spend time with the father as soon as reasonably practicable. 
178	After the expiration of that supervised time and subject to the father completing an appropriate parenting after separation program, the children should spend unsupervised time with the father and, if he so chooses, with Ms E, H and, if considered appropriate, Ms E’s daughter.  
179	For reasons which I have explained, however, I am satisfied that the children would be at risk of being exposed to family violence in the form of verbal confrontation between the parties at the point of changeover if it occurs in the physical presence of both parties. For that reason, I am satisfied that there is a need for changeover to be conducted through a mutually trusted third-party intermediary and, in the event that agreement cannot be reached regarding the identity of that person, changeover should be supervised by a professional contact service. 
180	In circumstances where the parties have had difficulty in reaching agreement on significant issues and in circumstances where, having regard to events which occurred in Town N in April 2022, it would, in my opinion, be more likely to be the case that the father would be the aggressor in respect to such a verbal exchange, in the event that the mother is not satisfied with the contact service chosen by the father for the purpose of Order 6, it is appropriate that the mother chooses a service that she is comfortable with to supervise the changeovers.  
181	In circumstances where the mother proposed that the children spend time with the father, the orders proposed by the mother did not expand upon other related issues, save to the extent that she sought an injunction in respect to the father approaching herself and the children. In those circumstances, the ancillary orders to the spend time orders are, in large part, based upon the orders proposed by the father.
182	In respect to electronic communication, I propose drawing upon orders 13 and 14 as proposed by the father but providing that the time will be between 6.00 pm and 6.30 pm and any other time as agreed between the parties in writing. Further, I will amend proposed order 14 such that it recognises the practicality that the children may require assistance during a facetime communication with the father which necessitates the mother being in relatively close vicinity to the children. The orders will also provide that, until such time as it is otherwise agreed by the mother, the father shall use his best endeavours to ensure that no other person is present during those times that he is communicating with the children.  
183	The restraints proposed in paragraph 15 of the father’s minute of order are consistent with restraints that are often included in parenting orders and are intended to ensure, to the extent that it is reasonably practicable, the children being protected from the parties’ dispute.  
184	The father has failed to present evidence that justifies proposed order 16, which would restrain the mother from moving from the Town C region.  
185	Equally, the mother has failed to present evidence that justifies the restraint she proposes on the father approaching her or the children. The imposition of such a constraint is potentially a significant limitation on a party’s freedom of movement and could be at potential pain of contempt proceedings. The prospect of such an order would require more detailed consideration with assistance from adequate submissions regarding the issue. That is not to say, however, that the Court would regard conduct, by either party, that is in any way threatening or coercive or controlling as being abhorrent and requiring sanction.  
186	I note the evidence is that the father has, to his credit, cooperated in respect to the children obtaining a passport and the mother has not established a case as to why that power should be given exclusively to her.  
187	To his credit, the father proposes in order 18, that he forthwith enrol and participate in a parenting after separation course with B Counsellors and that he will provide a completion certificate to the mother within seven days of receipt of same. I will make an order in those terms. 
CONCLUSION
188	For all these reasons, I make orders in accordance with those set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland.	

Associate: 
Dated:	21 February 2023