Bondelmonte v Bondelmonte

1. Neither parent change X's school enrolment without the written consent of the other parent.
2. Within seven (7) days of the date of these Orders each parent will subscribe, at their own expense, and remain subscribed, to the OurFamilyWizard parenting App ('the parenting App') or similar App and shall utilise such App to communicate and consult with each other in relation to X's care, welfare, and development.
3. Both parents be and are hereby restrained from using X to deliver messages to the other parent, with any message is to be delivered to the other parent via the parenting App.
4. Notwithstanding any other order, X will be in the care of the Father on Father's Day from 9:00am until 5:00pm, unless otherwise agreed.
5. Notwithstanding these orders, at Christmas as follows:

(a) In 2025 and each alternate year thereafter X shall be in the care of the Father from 4:00pm on 24 December until 11:00am on 26 December and the Mother from 11:00am on 26 December until 11:00am on 27 December.

(b) In 2026 and each alternate year thereafter X shall be in the care of the Mother from 4:00pm on 24 December until 11:00am on 26 December and the Father from 11:00am on 26 December until 11:00am on 27 December.

1. There be such other or varied arrangements as agreed between the parents from time to time.
2. Changeover occur at the conclusion of school, or otherwise at an agreed location at a halfway point between each parent's residential address and IT IS NOTED that at the time these Orders were made, the Father had residences both at Town C and at Town D and as such:

(a) Where the Father's residence for his time is Town C, handover shall occur at an agreed location in City E, and in default of agreement, at the BP Service Station in the City E Shopping precinct;

(b) Where the Father's residence for his time is Town D, handover shall occur at an agreed location in Town F, and in default of agreement, at the Town F Bus Stop in G Street; and

(c) Prior to commencement of each period in which X lives with the Father, but at least 7 days where possible, the Father will advise the Mother of his residential location for the purposes of his time with X, such advice shall be communicated via the parenting App.

1. X have telephone communication with the parent with whom he is not living:

(a) on his birthday; and

(b) at any other reasonable time that X requests.

AND for such communication each parent must ensure that:

(c) X has privacy during such communication; and

(d) Neither parent will interfere with such communication.

1. In the event of a family member's significant event, such as but not limited to, a family wedding, ailing relative (for a visit prior to expected death), or family funeral, each parent be at liberty to have X for a reasonable period to facilitate X attending that event provided the parent attending the event forward to the other parent the date and time of the event as soon as practical, and that:

(a) Where such time occurs within the State of Tasmania, for a period of no less than four (4) hours and not more than 48 hours; or

(b) Where interstate, for a period of not less than 3 days, and no more than 7 days.

1. Both parties are at liberty to enrol X in any extra-curricular or sporting activities where prior written consent is given to the enrolment by the other parent AND each party will ensure X attends such extra-curricular or sporting activity during their time with X.
2. In the event either parent wishes to travel internationally with X:

(a) The travelling parent must provide the other parent with a minimum of twenty-eight (28) days written notice of the intended travel;

(b) Unless agreed, the travel will coincide with when X lives with that parent seeking to travel;

(c) X's Passport must be given to the travelling parent upon clarification of the travel dates;

(d) The travelling parent has provided to the other parent a travel itinerary including accommodation, location, and flights (if applicable) 28 days prior to the travel; and

(e) During the period of travel X will communicate with the non-travelling parent, by telephone, messenger or other video platform, for at least 5 minutes per call, twice a week during the period of travel, at the cost of the travelling parent.

1. If either parent wishes to travel interstate with X the following shall apply:

(a) Unless agreed, the travel will coincide with when X lives with that parent seeking to travel;

(b) The travelling parent must provide the other parent with a minimum of four (4) days written notice, unless in urgent or extenuating circumstances warranting less, of the intended travel;

(c) The travelling parent has provided to the other parent a basic travel itinerary including accommodation, location, and flights (if applicable) eight (8) hours prior to the travel; and

(d) During the period of travel, X will communicate with the non-travelling parent in accordance with Order 10 herein.

1. Each party must advise the other as soon as practicable in the event X has an attendance or admission to hospital.
2. The parties shall ensure all items including but not limited to clothing, uniforms, shoes, electronic devices and toys that X brings to his time with that parent are returned with X to the other parent at the conclusion of each time.
3. Neither party communicate with X about any matter concerning the conduct of family law proceedings and related negotiations, save to explain to X the care arrangements as agreed.
4. During any period when X is in the care of either parent, that parent shall not denigrate or undermine the other (or the other's partner) in the presence or hearing of X nor permit any third parties to do likewise.
5. The Father be and is hereby restrained from permitting or causing X to come into contact, directly or indirectly, with Mr H.
6. Save for these Orders, all extant parenting Orders are discharged.
7. All extant applications are dismissed.

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).

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are parenting proceedings concerning X, born in 2015 ('X'), who is 10 years old. X is in grade 4 at J School and loves to read, watch rugby league, and play games on his Nintendo. He has also started sports with his Father and takes martial arts sports classes.
2. X was described as a polite and intelligent child who is mature for his age. X was, however, impacted by his parents' separation. He stated to Ms K - the Court Child Expert ('the CCE') - that he missed both his parents when in the other's care, and both parents noticed that he was often anxious and upset, particularly around the time of separation and during changeovers. X has also exhibited behavioural issues and had acted violently at school towards his classmates and his stepsibling, L, resulting in him not being allowed to attend his martial arts sports classes for a period.
3. X currently lives with his Mother and spends time with his Father for two blocks of eight days in his Father's 28 rostered days off.

1. These parenting proceedings were initiated by Mr Blakewell ('the Father') against Ms Blakewell ('the Mother').
2. The Father is 58 years old and is employed as a professional with the public service, working a rolling roster of 28 days on, then 28 days off. The Mother is 48 years old and is currently employed as an educator.
3. The parties commenced their relationship in late 2009 and were married in 2011. During the marriage the Father worked, and continues to work, with the public service on a 28 day on, 28 days off roster away from home. During this time the Mother also worked away from home, as a tradesperson.
4. X was born in 2015 and is the only child of the relationship. The Mother ceased her employment and became a full-time parent for X at that time.
5. The parties separated in August 2020 with the Mother leaving the former matrimonial home in January 2021. Post-separation the Mother gained employment with the public service.
6. Post-separation, the parties entered into an informal agreement, whereby X lived with the Mother and spent two periods of eight nights with the Father during his 28 days off. The Father rented a house at Suburb N, where he spent time with X on school nights.
7. In 2021 the Father re-partnered with Ms O ('Ms O'), who has a 7-year-old daughter - L - from a previous relationship. The Mother has not re-partnered.
8. The Father filed his Initiating Application on 5 October 2023 and initially sought for X to spend 24 out of 28 of his scheduled days off from work with him. The Mother responded by seeking a reduction in his time to two seven-day periods during his days off work.
9. In early 2024 X was diagnosed with Encopresis.
10. In the middle of 2024, the Father entered a long-term lease on a property at Town D - some 4 minutes from X's school.
11. On 19 November 2024, several interim orders were made by consent ('the agreed orders'). It is intended that those orders be incorporated into the final orders I will ultimately make. The agreed orders essentially provided that:
    • The parties have joint parental responsibility for major decisions impacting X;
    • X live with the Mother when not living with the Father;
    • The parties not to change X's school enrolment without the written consent of the other parent;
    • The parties will use OurFamilyWizard App to communicate;
    • Neither party use X to communicate messages to the other parent;
    • X spend Father's Day in the Father's care;
    • X spend each alternate Christmas with each parent;
    • There be telephone communication between X and the parent he is not living with on his birthday and when he otherwise requests; and
    • Each parent can take X interstate and outside of Australia for holiday periods.
12. In February 2025 X was referred to Ms P ('Ms P'), a registered psychologist, by his Paediatrician, Dr Q ('Dr Q'), because he was having difficulty regulating his emotions. Dr Q believed that X had characteristics of ASD and ADHD. Ms P concluded that X fitted the criteria for Specific Learning Disorder with impairment in written expression, also known as Dysgraphia.
13. Throughout 2023 to mid-2024, X attended counselling sessions with R Centre, focusing on his self-confidence, and helping him to regulate his emotions and behaviours as identified in Ms P's report.

1. The only issue for determination was whether X's time with the Father should increase and if so, how this should occur.
2. The Father sought a build his time with X over three years:
   • In the first 6 months, X to spend 9 days with the Father, then 5 days with the Mother then 8 days with the Father;
   • In the second block of 6 months, 10 days with the Father, 4 days with the Mother and 8 days with the Father;
   • In the third block of 6 months, 10 days with the Father, 3 days with the Mother and 9 days with the Father;
   • In the fourth block of 6 months, 10 days with the Father, 2 days with the Mother, and 10 days with the Father;
   • In the fifth block of 6 months, 11 days with the Father, 2 days with the Mother, and 10 days with the Father; and
   • For the final sixth block of 6 months, 11 days with the Father, 2 days with the Mother and 11 days with the Father.
3. The Mother's position was that X's time with the Father should reduce to two, seven-day periods with his Father during his 28 days off.

1. The Father relied upon:
   • An Amended Initiating Application filed 12 February 2025;
   • His affidavit filed 12 February 2025;
   • An affidavit of Ms O filed 19 February 2025;
   • A Case Outline filed 4 March 2025;
   • A Child Impact Report by CCE Ms K dated 14 February 2024;
   • An Addendum Child Impact report by CCE Ms K dated 14 October 2024; and
   • Two exhibits.

1. The Father presented his evidence in a serious and formal manner - perhaps a product of his years working as a public servant. An example of the Father's more formal approach was the parties' differing views of the appropriate punishment X should receive after he behaved poorly at school. The Father, as the Mother understood, required X to write 100 lines, which was particularly difficult for him, given his Dysgraphia. The Mother, on the other hand, sought advice from his martial arts sports teacher, resulting in X being required to clean up at the end of martial arts sports sessions for six nights in a row. Neither parties' solution was wrong, but they gave example to their differing approaches.
2. The Father answered questions directly, largely in accordance with his affidavit and maintained that spending more time with X during his 28-day rostered off periods would not only satisfy X's desire for more time with him but also enable him to increase his involvement in X's social life and extra-curricular activities.
3. It is noteworthy that the Father rents a place in Town D where he spends time with X during the school week, as the drive from City S to the Town F area would be impractical. The Father intends to maintain this arrangement, and will take X to City S on weekends and during holidays. It was suggested to the Father that it was ultimately unsustainable for him to live with X in Town F during school weeks, to the detriment of his relationship with Ms O and L. The Father persuasively rejected the contention, stating that he and Ms O were able to adjust to the arrangement and that his families time together on non-school days would make up for any time apart on school days.
4. The Father came to the trial with a far more child focused proposal than he initially sought. This demonstrated a willingness to listen to the expert evidence and focus on X's needs. He also made a concession that some of his early communication with the Mother was inappropriate. He was a reliable witness.

1. Ms O is the Father's fiancée. She was cross-examined and gave her evidence largely in accordance with her affidavit. She presented as a loving and caring step-parent who understood the importance of X's parents making the major decisions for him. Ms O also confirmed that she and L would adapt to the Father spending more time in the Town F area during X's school terms.
2. Ms O does not communicate with the Mother, which is unfortunate, as a better alliance would ultimately be to X's benefit - particularly during those periods when the Father is working away.
3. Ms O presented as a loving supporter of the Father and X who will assist them both whatever the outcome of these proceedings.

1. The Mother relied upon:
   • Her Response filed 20 November 2023;
   • Her affidavit filed 12 February 2025;
   • Genuine Steps Certificate filed 20 November 2023;
   • Notice of risk filed 20 November 2023;
   • Child Impact Report by CCE Ms K dated 14 February 2024;
   • The Addendum Child Impact report by CCE Ms K dated 14 October 2024;
   • A tender bundle; and
   • Various exhibits.

1. The Mother gave her evidence in a matter-of-fact manner, answering questions directly and consistently with her affidavit. She is opposed to the concept of X spending more time with the Father, mainly because she worries that the stable arrangements that she set up for X in the Region T of Tasmania will be disrupted to his detriment. She is particularly worried about the disruption to X's social engagements and connections given his neurodiversity, given that the Father has shown little interest in pursuing those interests with X. She is also concerned that X's health condition may deteriorate if his routine is destabilised.
2. The Mother and the Father do communicate at a relatively good level but there is an underlying animosity that prevents a deeper communication. The Mother does not communicate with Ms O, which, for reasons stated, is unfortunate.
3. The Mother put her position coherently and logically, and I accept that she genuinely believes that X's best interests will be undermined if the Father has the extended time he seeks.
4. The Mother made it clear that she has sacrificed much for X, including her preferred career, and has worked extremely hard to provide X with a settled and happy existence, which she believes to be in jeopardy if the Father's proposed time is ordered. Having observed the Mother in the witness box, and noting her important role as X's primary carer, I have little doubt that any change to the existing arrangements (if ordered) will need to be undertaken at a pace that will allow her to time to adjust.

1. Ms K produced two reports, and was cross-examined by both Mr Petersen, Counsel for the Mother, and Mr Edmondson, Counsel for the Father.
2. In her first report released in February 2024, Ms K opined:

36. [Ms Blakewell] would seem to have an advanced understanding of [X]'s need for stability and regular connections to his friends and family that he experiences in his environment and home with her. [Mr Blakewell]'s desire to have more time with X is complicated by his work roster. [Mr Blakewell] seems to have gone to considerable lengths to provide two homes for [X] while in his care so as to support [X]'s school attendance and also his recreational time with [Ms O] and [L]. He was observed to provided quality care to [X] and [X] would benefit from [Mr Blakewell] maximising his positive, meaningful parental involvement with him. [Mr Blakewell] is encouraged to focus on the quality of his time with [X], rather than on the quantity of time.

37. Generally, children of separated parents experience two different homes. In [X]'s situation he has three homes to adjust to although it would seem [X] has most of his close connected peer and family relationships around [Ms Blakewell]'s home.

...

40. [X] at eight years of age remains very dependent on the stability and continuity of care [Ms Blakewell] and her family have provided him. His time with [Mr Blakewell] has been regular and [X] values and draws benefit from the close and loving relationships he has with him, [Ms O] and [L].

41. [X] appears to have managed the current arrangements reasonably well and it is recommended there are no changes to the parenting arrangements.[1]

1. By the time of her second report, released in October 2024, the Father's proposal had changed to the staged increase of time he sought at the commencement of the trial. This led to Ms K moving her position:

48. [X] is fortunate to receive quality parenting from [Mr Blakewell] and [Ms Blakewell] and that they actively promote his relationships with each of them, that they are aware of the importance of supporting his participation in extra-curricular activities and are involved in his schooling. [X] has long-standing experience of his father's work roster and has had stable living arrangements since separation when he was three years younger.

49. [X]'s school principal, [Mr U], provided insight into [X]'s awareness of the parental conflict that was evident in the assessment of the coparenting relationship. The settling of this matter may alleviate [X] of this dynamic to some extent however, each parent is recommended to develop their knowledge and skills in coparenting by attending a post-separation parenting program. In the interim, [X] would benefit from the parents being more protective of him around their disputes.

...

53. Despite the reports of difficulties in the coparenting relationship such as decision-making and despite the presentations of each of the parents that indicated they are proud, resourceful people with a strong sense of their own value, it seems [Ms Blakewell] and [Mr Blakewell] are able to cooperate and reach agreements. The accounts of feeling dominated by each other could be symptomatic of each party's strong personalities that are unlikely to change. It is hoped that as they acquire knowledge and incorporate this into their coparenting communication, their interactions can adapt such that each parent becomes equally childfocused in their communication, can acknowledge the important roles they have in [X]'s life and acknowledge the considerable strengths they each possess and can offer to [X].

...

55. Given that [X] is doing well in the current arrangements, it could be considered these remain unchanged. However, there were reports by [Mr Blakewell] that have remained consistent throughout the assessments that [X] is asking for more time with his father, [Mr Blakewell].

...

57. It is recommended that, if the Court should determine [X] would likely tolerate with the proposed increase in time with his Father, that [X]'s time with [Mr Blakewell] progress gradually from mid-2025, in accordance with [Mr Blakewell]'s proposal. If the Court accepts [Mr Blakewell]'s presentation of the vulnerabilities displayed by [X], then the Court may wish to order arrangements in line with her proposal.[2]

(Emphasis added)

1. Under cross-examination, Ms K expressed confidence that the Father's proposal for an incremental increase in his time with X was an outcome that would meet his best interests. Ms K maintained that X desired more time with his father and would cope with an increase in time, opining that by the time of the last stage of the Father's building proposal, X will be nearly 14 and at a different developmental stage.
2. Mr Petersen put to Ms K that X's views were not examined for the purpose of her second report, and as such she could not be confident that X wanted more time with his father. Ms K did not agree, stating that she had assumed that his views had not changed, and that there was nothing he expressed when she met him on the second occasion for her to doubt the strength of his desire to see more of the Father. I accept her evidence in this regard, which was consistent with that of the Father.
3. Ms K thought deeply about the questions put to her under cross-examination, showing a willingness to consider any new information put to her, but ultimately, she maintained her opinion that X should spend more time with his Father, building as the Father suggested.
4. Ms K was an excellent witness, and I give her evidence significant weight.

1. I note briefly before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
2. Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, which remains relevant and authoritative:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

1. I must ground my findings of fact, of which I am persuaded on the evidence, on the balance of probabilities.

1. This Court must craft and consider the terms of a parenting order with regard to the child's best interests as a paramount consideration.[3] I am not bound by the terms proposed by the parties and may - subject to the pathway set out in the Family Law Act 1975 (Cth) ('the Act') Part VII, and particularly sections 65DA and 65DAB - create parenting orders as I think are proper in the circumstances.[4] What, however, guides the assessment of the child's best interests? How, once the best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
2. The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act's aspirations with respect to the child's best interests. Crucially, the underlying principles reflect and seek to acknowledge the child's human rights.[5] Part VII of the Act, to give effect to a child's best interests, carves a legislative pathway. The pathway has several substantive stepping-stones which may be legitimately and properly followed in various forms.[6] I will follow the path set out in in the recently amended legislation, in accordance with the approach directed in MRR & GR (2010) 240 CLR 461, which remains authoritative.[7]

1. Children's matters are governed by part VII of the Act. Section 60CA of the Act states that in deciding whether to make a parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration.
2. When determining the parenting arrangements, the Court must consider the factors in section 60CC(2), known as the 'general considerations' and subsection (3) if the child is an Aboriginal or Torres Strait Islander child:

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

Additional considerations - right to enjoy Aboriginal or Torres Strait Islander culture

(3) For the purposes of paragraph (1)(b), the court must consider the following matters:

(a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(iii) to develop a positive appreciation of that culture; and

(b) the likely impact any proposed parenting order under this Part will have on that right.

Section 60CC(2)(a)(i) and (ii): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not that a person has parental responsibility for the child)

1. Exposure of children to some risk is an unavoidable consequence of life, but the question is whether the risk is unacceptable. The assessment of whether a risk is 'unacceptable' does not require a court exercising jurisdiction under Part VII 'to resolve, in a definitive way, the disputed allegation ... as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence'.[8] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof - on the balance of probabilities.[9] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[10] It remains that any risk must be grounded on the evidence, which then informs a trial judge's exercise of their discretion under section 65D by reference to the child's best interests:

The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton [2019] FamCAFC 198; (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment ..., though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result .... The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[11]

(Emphasis added)

1. It is my task to ensure that the ultimate parenting orders promote the child's safety and do not place that child at an unacceptable risk of harm, including risk due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end.
2. Neither party suggested that the other posed any risk to X's safety, although each reported to the CCE that they had experienced abusive and controlling behaviour from the other during the relationship, leading the CCE to opine:

It appears likely that [X] has been exposed to the ongoing parental conflict before and post separation and each parent was observed to have strong confident capable personalities.[12]

39. There were no reports of family violence by either parent.

40. There were no issues identified around alcohol and drug misuse or mental health

conditions.[13]

1. Although the parties differ on the issue to be determined, neither expressed doubt regarding the other's care and commitment to X, although the Mother held concerns about the Father's unwillingness to engage with X's social life, and the impact of change on X's health issue.
2. The parties agreed to an order that prevented the Father from bringing X into contact with Mr H - Ms O's ex-partner - who is serving a term of imprisonment for offences against Ms O. I am satisfied, having seen and heard Ms O's evidence, that X will not be brought into the company of Mr H. With that injunction in place, I find that X will not be exposed to any unacceptable risk in the care of either parent.

Section 60CC(2)(b): Any views expressed by the child

1. There is no universal rule for the weight to be afforded to the views of a child. It is ultimately a matter of discretion and, ultimately, this factor is one of several in the overall assessment of best interests. Importantly, as stated in Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662:

The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings. Section 60CC requires that attention be given by the court to these matters.[14]

(Emphasis added)

1. The CCE met with X for the purposes of both of her reports:

[X] was observed to be kind and considerate and to also be gregarious and fun-loving. He appeared to enjoy being with each parent and seemed to be adaptable and to cope well with the considerable differences between the environments and parenting experiences [Mr Blakewell] and [Ms Blakewell] provided him.[15]

[X] presented at the Registry with [Mr Blakewell] and was observed to be polite as he moved towards this writer to shake hands during their greetings. In his interview, he was open in talking about his family circumstances, his school and friends and presented as mature for his developmental stage. [X] provided information about enjoying school because he has "more time with my friends" and outlined that they play made up games.[16]

(Emphasis added)

1. For the first report X expressed a desire to spend more time with his Father and anticipated that this would occur:

[X] stated with certainty that he wanted more time with [Mr Blakewell], strongly suggesting this was his expectation. [X] indicated no concerns in either parents' care and stated he misses each parent equally. When asked about the best things at each home, [X] spoke positively of his relationships with [Ms O] and [L] and reported that at [Ms Blakewell]'s home he enjoys "playing with the other kids who live in their Court" and that he has "lots of friends outside". He further referred to these friendships when adding he "misses everyone" while with [Mr Blakewell] and stated he does get to go to [L]'s friend 's birthday parties instead where he reported that he usually plays by himself.[17]

(Emphasis added)

1. During cross-examination, and in her report, the CCE opined that weight should be given to X's views.
2. Mr Petersen argued that X's views were not as clearly expressed in the second report, as the CCE had not directly asked whether X still wished to spend more time with his Father. The CCE disagreed, stating that her report was based on the understanding that X wanted more time, and nothing in their second meeting had dissuaded her from that view. She remained adamant that X's desire for increased time with his Father should be given weight.
3. X's desire for more time had also been expressed to his Father:

14. [X] himself has told me that he would love to spend more time in my care and in my home with [Ms O] and [L]. My observations are that [X] has a close sibling like relationship with [L]. They treat each other like brother and sister: they love each other; they disagree with each other; they love spending time together. [X] and [Ms O] have a solid, loving and confident relationship. [X] feels very comfortable in confiding in [Ms O] and seeking her guidance and support. He trusts [Ms O] and cares for her.[18]

1. The Mother held a different view. She accepted that X had expressed to the CCE that he would like to spend more time with his Father, but stated, under cross-examination, that X had not expressed that desire to her in the last 18 months. Given this, she believed that X's stated views should be given little weight.[19]
2. The CCE regarded X's views was consistent for the purposes of both of her reports. Ms K met X twice and was left with no doubt that he wanted more time with his father. I accept Ms K's opinion that weight must be given to X's expressed desire and expectation to spend more time with his father.

Section 60CC(2)(c): The developmental, psychological, emotional and cultural needs of the child

1. X is a happy and loved child. He is also highly intelligent and mature for his age. Exhibit F1, a report from Dr P, supported this - with the report indicating that X is in the 91st percentile for his IQ in his age group.[20]
2. Dr P's report also acknowledged that X has Dysgraphia and that this may have impacted his behaviour and could be an explanation as to why X had 'outbursts' in the past, was distracted in class and underperformed in relation to writing-based tasks.[21]
3. Post-separation, X continued to display behavioural issues such as pushing another student at school,[22] and being 'bad and violent' behaviour towards L.[23]
4. It seems likely that his parents' separation has created some vulnerabilities in X, to which the parties responded by engaging X in counselling at R Centre - which he no longer requires. That said, any orders the Court makes will need to be crafted in a manner that minimises the possibility of reagitating these behaviours, and, as opined by the CCE, provides X with consistency and certainty:

[X] would benefit from clarity and consistency with expectations and behaviour management strategies across different environments and for each parent to continue to work with the school around any behavioural issues such that [X] builds insight into the consequences of his choices and builds his emotional regulation.[24]

1. X has the benefit of a secure attachment with his mother. The CCE detailed the importance of this attachment, providing X with the ability to adapt to further time in the Father's care:

This primary strong attachment bond is longstanding, secure and trusting enough for [X] to misbehave in [the Mother's] care, without him having reservations that to do so may harm this critical relationship.[25]

...

From a developmental perspective, it is indicated that [X] experiences of [Ms Blakewell] as his primary carer likely means her home is perceived by him to be bis secure supportive home-base. Children of separated parents frequently crave the stability and continuity that having one home base provides them and this is critical in enabling them to then confidently and capably manage the inevitable emotional and psychological demands on them of navigating their time away from this base.[26]

(Emphasis added)

1. The Mother conceded, under cross-examination, that X's intelligence and maturity will assist him to adapt and tolerate the changes to any arrangement with his Father,[27] but remained concerned that an increase in X's time may exacerbate his Encopresis due to the change in diet as well as stress from going between the Mother and Father's care. There was, however, no medical evidence to support this claim. Further, the parties have communicated effectively in relation to X's Encopresis as shown in Exhibit M6. If there are issues, I have confidence the parties will collaborate to manage the situation.
2. X must have certainty in his life and be free of his parents' dispute. He is intelligent and has a clear view that he should spend more time with his father. The orders I make must enable X to adapt to any change and allow time for the parties to develop a level of trust to reduce X's exposure to parental conflict.

Section 60CC(2)(d): The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children's developmental, psychological, emotional and cultural needs

1. Both parties presented as highly child focused. They communicate effectively enough and seem to accept that the other as a loving and caring parent. They both can meet all of X's needs.
2. They are, however, stuck in relation to the nature of the Father's time with X. The Mother is concerned about disrupting the certain arrangements she has worked so hard to put in place for X. During cross-examination, the Mother highlighted the efforts she had made to ensure X remains engaged with his family, friends, and various social activities. She stated that she gave up full-time work and took on a role as an educator to dedicate herself to this task. She has not re-partnered. The Mother expressed concern that if the Father were to spend the amount of time he hopes for with X, X's connection with his friends and family in the Town F area may not be replaced with an equivalent level of socialisation and activity when in his father's care.
3. The Mother pointed out that X does not have a friendship group in City S, where the Father resides, and worries that this will not change. During school terms, time with the Father is currently spent at Town D in a rental property. The Father has not shown an inclination to engage with X's social networks in Town F, nor reached out to the parents of X's friends or made efforts to include himself in X's social activities. This has caused the Mother considerable concern, given the effort she has invested in developing this aspect of X's life.
4. The Mother has also worked hard to build her social connections at X's school and has been heavily involved in parent groups to encourage X to socialise with other children at his school. It is understandable that the Mother would be worried that increasing the Father's time would threaten to undo all her hard work.
5. The Father responded that, with increased time, he would be able to help X develop friendships in City S, including through his sports club and other activities in which he is already involved. He also stated that more time would allow him to engage in activities with X in the Town F area, arguing that only with increased time and space will allow him to undertake the same.
6. The CCE observed that the Father does take on board advice and is able to develop his parenting skills:

Initially, he appeared to be reluctant to consider options beyond this proposal in his amended application. However, upon further discussion and the introduction of a child-focused perspective and terminology, [Mr Blakewell] demonstrated an ability to integrate such new information whilst engaging fully in the construction of a schedule of care that was more conservative in its introduction, incremental in nature and was underpinned by his willingness to be flexible and negotiable if required to ensure [X]'s happiness. Further, [Mr Blakewell] was unequivocally supportive of [X]'s primary relationship with [Ms Blakewell] and of the imperative to maintain this. As such, [Mr Blakewell] was very cooperative in making significant changes to his proposal that is distinct from his previous proposals.[28]

1. The Father is also engaging in parenting courses to assist him, as recommended to him by the CCE - namely, the M Centre - Kids in Focus course - and is currently completing a Better Communication for Parents After Separation course.[29]
2. One issue that may have hampered the Father's to engage fully in X's life in Town F is his limited communication with the Mother, which has made it difficult to share such nuanced information regarding the nature of his relationships with other children in the Town F area. This is not to suggest that the parties do not communicate effectively about child-related matters. This was evident from the text messages exchanged, which were exhibits M2, M4, and M6.[30] Further, Mr U, X's school principal, gave insight as to the high-level of communication of the parties to the CCE:

[Mr U] spoke highly of how well [Mr Blakewell] and [Ms Blakewell] worked together whenever there has been a school-based issue around [X] making a poor choice and he outlined how they do not shy away from [X] learning from his mistakes.[31]

(Emphasis added)

1. I accept the Mother's evidence that the Father has not been as engaged as he could have been in X's friendships and activities in Town F. Greater effort will be required from the Father as X grows older and seeks more peer engagement. That said, the Father has involved X in activities such as sports in City S and has some connection with L's friendship groups through birthday parties and similar events.
2. If X spends more time in the Father's care, then the Father will be better positioned to engage both himself and X in social activities, and to participate more meaningfully in the social environment established for X in the Town F area.
3. If the Father can better involve himself in X's Town F life, the Mother's concerns regarding undoing her hard work establishing the same, may be ameliorated. With a slow development of the Father's time, he can prove himself in this regard and build a greater level of trust with the Mother.

Section 60CC(2)(e): The benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so

1. X shares a strong and loving bond with both of his parents, as well as with L and Ms O. It is unfortunate that the Mother has not had meaningful dialogue with Ms O but perhaps that is something that will occur if the trust between the parents can improve.
2. There is no doubt that X has a meaningful relationship with both of his parents and with other significant individuals in his life.
3. The Father raised that X, having such limited time in his care, has resulted in him feeling that he is 'token' in the Father's household. The Father proposed that greater time will allow him to be a more active role model in X's life, referring to a particular interaction with X on ANZAC Day:

[X] is very proud of me and the job that I do. He has mentioned several times that 'I'm pretty cool for what I do." One Anzac Day, I wore my dress uniform, with all of my awards and medals l have received over my employment. The smile of pride on [X]'s face as l explained each medal or award to him was one of the warmest moments in my life. I believe I set a really good example for [X].[32]

1. The Mother did not share the Father's view, worried about the disruption to X's busy and structured life. Further, in the witness box, the Mother raised the concern that X being able to 'cope' or 'tolerate'[33] with more time with the Father, would not be in his best interests. She stated that the Court should expect X to 'thrive', not just 'cope'.
2. The CCE opined that if X's time with the Father can incrementally increase every six months, everyone is likely to adjust. The CCE considered the Father's proposal was a child-focused one, particularly considering X's age and developmental stage.[34]
3. X benefits from the meaningful relationship he shares with his parents, Ms O, and L. Further time in the Father's care, which X expects to have, will promote those relationships. There is no evidence that X will not cope with extra time - in fact the evidence is that he expects to have more time with his Father. The Father has also adopted the building arrangement proposed by the CCE, to allow all to adapt to the same.
4. There was no evidence to support the proposition that X will not benefit if he has more time with his Father. The Mother's application, in fact, is to reduce the Father's time with X, but the evidence does not support her proposal. X wants more time and the Father's proposed increments meet with his developmental needs. The only remaining question is the pace of the build of time.

Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the children

1. In some respects, this matter is straightforward - should X's time with the Father increase, and if so, in what way? In other ways, it is complex, due to X's neurodiversity, the strained communication between the parties and their differing parenting styles. Parents having differing personalities and parenting styles is not, however, unusual, even in families that remain intact. To his credit, X has navigated these differences and based on the evidence, is doing well. It may even be said that he seeks more time with his Father, despite these differences.
2. As stated, X's views must be given weight. A gradual increase in time will allow both X and his primary caregiver, the Mother, to adapt - this is in his best interests.
3. Increasing X's time will also, hopefully, prevent further litigation. X's views are likely to become stronger as he gets older, which would inevitably lead the parties back to Court unless changes are made now.
4. The Father proposed changes every six months, with Mr Edmondson, submitting that proposal was supported by the CCE. That would result the final stage being reached in three years, when X is 13 years of age.
5. In my view, a more cautious approach is likely to result in a successful transition. The final stage of the proposal, where X would spend only two nights every 22 days with his Mother, should occur when X has the maturity to cope with such a separation.
6. The Mother was of the view that if X's time was to increase, that it be slower than the six month increments the Father proposes.[35] Mr Petersen submitted that the increases could be in nine-month blocks. This would add a further 18 months to the Father's proposal before X reached the final stage.
7. Taking a cautious approach, and to ensure that X transitions smoothly into having more time with the Father, I consider that the final stage of the Father's progression of time should be delayed by approximately a year beyond the Father's proposal, with the transitions to occur every eight months rather than every six. This slower increase in time will allow X to develop the skills to comfortably transition between the Mother and Father's care and hopefully prevent reagitating of the behavioural issues X displayed after his parents' separation.[36]
8. I accept that the eight-month progression between each stage is longer than the six months approved by Ms K.[37] Having considered the whole of the evidence, however, I am of the view that a slower progression of X's time with his father is in his best interests. Eight-month periods between each increase will allow X to better adapt to each increase, and provide some comfort to the Mother, who remains his primary carer. By the time of the last increase, X will be almost 15 years of age and may well be communicating directly with his parents as to his preferred configuration of time, as he navigates his desire to spend time with them whilst also engaging with his peers and extracurricular activities.

1. Having considered all the evidence, I am satisfied that it is in X's best interests for his time with the Father to increase during the Father's 28-days off periods in Tasmania. However, the staged increases should occur every eight months, rather than every six, to allow X and the Mother to better adapt and manage the change. That will result in the Father's time increasing to 22 days per 28-days off period when X is almost 15 years old, noting that the Mother will spend a short period of time with X during the time he spends with his father. I will otherwise largely[38] adopt the structure of the Order as proposed by the Father,
2. I make the Orders set out at the commencement of these Reasons, noting that Orders 1 and 3-19 are by consent.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

[1] Child Impact Report by CCE Ms K 14 February 2024 ('CIR') [36][37][40]-[41].

[2] Child Impact Addendum Report 15 October 2024 ('CIAR')[48]-[49],[53] [55], [57].

[3] Family Law Act 1975 (Cth) ('FLA') s60CA.

[4] Ibid s65D(1).

[5] Ibid s60B(b), to give effect to the Convention on the Rights of the Child, the Australian Government Department of Social Services has created a pamphlet titled 'Rights of Children and Families' which summarises the child's rights set out in the Convention as:

» Right to safety and protection (e.g. To be free from violence and abuse, to have a safe place to live);

» Right to be yourself (e.g. Free from discrimination on the basis of culture or religion);

» Right to health (e.g. Access to medical care, healthy food and safe water);

» Right to develop (e.g. To play and learn, to be protected from things that could harm your development or wellbeing);

» Right to privacy (e.g. A right to keep personal information private, have a say over what information is shared about you)

[6] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being 'more than one suggested pathway through the legislature'.

[7] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

[8] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198 [38]-[41].

[9] Isles & Nelissen [2022] FedCFamC1A 97 ('Isles & Nelissen') [46]-[51], [86]; Bringinshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s140 ('EA').

[14] Bondelmonte & Bondelmonte [2017] HCA 8; (2017) 259 CLR 662, 673-674.

[18] Affidavit of Mr Blakewell 12 February 2025 ('Father's Trial Affidavit') [14].

[19] Cross-Examination of Ms Blakewell by Mr Edmondson 18 July 2025.

[22] Affidavit of Ms Blakewell 12 February 2025 ('Mother's Trial Affidavit') [33].

[27] Cross-Examination of Ms Blakewell by Mr Edmondson 18 July 2025

[29] Father's Trial Affidavit (n 18), [29].

[30] Exhibit M2: text messages re X's extracurricular activities; Exhibit M4: the parties, although clear they are in disagreement, communicate; and Exhibit M6: an example of the parties communicating in relation to X's health.

[32] Father's Trial Affidavit (n 18) [26].

[33] CIAR (n 2) [55-57], CIR (n 1) [16], the CCE uses the words 'cope' and 'tolerate' in relation to how X would adapt to more time with the Father.

[34] Cross-Examination of CCE Ms K by Mr Petersen 20 May 2025.

[35] Questions asked of Ms Blakewell by Judge Turnbull 18 July 2025.

[36] CIR (n 1) [33], noting that the Mother claimed that she sees the impact the travel and separation has had on X's behaviour [22], whilst the Father did not observe the same behavioural issues, but has observed X to be, at times, 'rude' and 'forceful' [23].

[38] I have restated some of the agreed orders to improve their structure and clarity - the substance has not been changed.