Cruz & Bargar [2025] FedCFamC1F 928 | Case summary

Commencing Term 1, 2026, X and Y shall spend time with the Father as follows:

Cruz & Bargar [2025] FedCFamC1F 928 | Case summary | Zoe

[31]

The parties married in 2013 and separated on a final basis on 15 January 2023 following a period of deterioration of their relationship involving dispute between them about parenting styles. The father moved out of the former matrimonial home. Initially, the children spent time with him mostly supervised by the mother for approximately three hours twice a week.
The father consented to a Final Apprehended Domestic Violence Order (ADVO) on a without admissions basis in early 2023 which expired in early 2025. During the period in which the ADVO was in place, the father was charged with offences relating to breaches of the ADVO, however, he was not convicted.
Since 4 July 2023, the father has engaged with Mr F, Clinical Relationship Psychotherapist weekly, fortnightly and then monthly at Mr F's recommendation. The father continues to regularly attend monthly sessions with Mr F which concentrate on parenting coaching.
The father commenced these proceedings on 7 August 2023 seeking parenting orders only. Interim consent orders were made for the parties to have equal shared parental responsibility pursuant to orders made 13 September 2023.
Both parties have re-partnered, although neither currently resides with their new partners.
The father completed the Men's Behaviour Change Program (MBCP) in late 2023 and the Circle of Security Parenting Program in late 2023 with Mr F.
On 3 November 2023, interim orders were made for the children to live with the mother and spend professionally supervised time with the father each Tuesday and Saturday. The father filed an Application for Review on 24 November 2023.
On 4 March 2024, a Single Expert Report prepared by Dr H and dated 1 March 2024 was released ("the first Report"). Dr H did not recommend equal or substantial and significant time with the father at that point. He recommended that time move to unsupervised and continue for three months, and then gradually increase for X to commence overnight time by Term 3, 2024 and Y from May 2025, such that the children would eventually be spending five nights per fortnight by the end of 2026. Despite his recommendation, overnight time did not commence until July 2025.
The Application for Review was successful and on 7 March 2024 supervision was removed immediately pursuant to orders made by Judge Campbell.
On 16 August 2024, the father filed an Application in a Proceeding seeking an increase in time to overnight time and the preparation of an updated report by Dr H. The mother sought an adjournment of the listing of that application because of her poor mental health. Dr B, Clinical Psychologist was appointed as a Single Expert to assess the mother's mental health ("the Mental Health Assessment"). In her Report on 6 December 2024, Dr B opined the mother suffered from PTSD.
On 17 December 2024, the second Single Expert Report by Dr H was released ("the updated Report"). In this updated Report, he referred to the recommendations in the first Report and stated broadly that his view had not significantly changed, noting those recommendations assume the safety of the children in the father's care.
Interim orders were made on 20 December 2024 for the children to live with the mother and spend time with the father in a two week cycle each Tuesday afternoon and one overnight occasion each alternate weekend from 9.00 am Saturday to 6.30 pm Sunday as well as on certain special occasions. Pursuant to those orders, overnight time with the father commenced on 26 July 2025 and changeovers were supervised at the father's expense. The interim orders of 20 December 2024 remained the parenting arrangements as at the commencement of the trial on 6 November 2025.
On the first day of the trial, the parties reached an agreement as to a number of matters and I made final orders as to joint decision making, time with each parent on certain special occasions, changeover and other ancillary matters.
On 12 November 2025 being the final day of the trial, the current interim orders were made, the majority of which were by consent. They provide that for the remainder of Term 4, 2025 and upon the resumption of school, the children are to spend time with the father each Tuesday afternoon and each alternate weekend from after school Friday to Sunday evening. As for the summer school holidays, the children are to spend time with the father on certain days (daytime only) and three block periods of overnight time, each for three nights.

[33]

The mother's case was premised on the fact that the family violence she had been exposed to (by physical and sexual violence and by coercive and controlling behaviour) created an unacceptable risk of harm to the children. If I understood her case, it was that the impact of the father's behaviour on her mental health warranted a slow increase of time both for the benefit of the children to adjust, and to enable her to seek treatment for her PTSD diagnosis, with a focus on protection of her functioning as a parent.
According to the mother, the allegations as to family violence were genuinely material to the relatively narrow parenting dispute because she said the conduct of the father and its impact on her and the children would inform the decision about the progression of time orders that are in the children's best interests. She contended the risk of harm necessitates the slow progress of time to no more than four nights per fortnight during school terms.
The father contended that findings about the allegations of past conduct could not be genuinely material to the outcome of the narrow parenting issues to be decided. Senior Counsel for the father correctly observed that judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. As observed by Austin and Williams JJ in Pickford & Pickford [2024] FedCFamC1A 249; [2024] FLC 94-230 ("Pickford") at [87]; "the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76-77) ("M v M"). So has this Court (Eastley & Eastley [2022] FedCFamC1A 101; (2022) FLC 94-094 at [18] and [31]) ("Eastley")."
The mother said the alleged conduct supports a finding that the progression of time should increase slowly because of the impact of the conduct on her parenting (and her diagnosed PTSD) and on the children. It is accordingly necessary to make findings in respect of the disputed facts thus distinguishing this matter from the facts in Pickford.

[59]

(e) explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.

Once such behaviour has been identified it is then a question of what weight is to be given to it and any impact on the orders under consideration.

The definition of family violence is necessarily broad and any interpretation that may be perceived to, or actually, create unnecessary hurdles to an alleged victim proving an allegation of family violence should be avoided.

Whilst the key feature of coercion or control is that a person is induced (many other words are also apt here) to do as the other wishes, the statutory focus is simply on behaviour that coerces or controls and not the intention of the perpetrator.

So understood, the finding that there is coercive or controlling behaviour is an evaluative one, having regard to all of the circumstances and all of the evidence before the court. Whilst patterns of behaviour may be particularly illuminative, they are not essential. Importantly, for present purposes, the trial judge does not need to spend time and trouble searching for an inference that there is an intention to coerce or control. It is sufficient simply to apply the words of the statute without embellishment and assess whether there is behaviour that coerces or controls.

It must be recognised that, particularly in parenting matters, parents will often disagree. Matters may be seen as proper or as coercive or controlling depending on the circumstances. For example, a proposal that a child be seen by a particular doctor, that changeovers take place in a particular manner or that a certain person not be alone with the children are all capable of being seen as both reasonable and proper parenting proposals or may also be examples of coercive or controlling behaviour.

[60]

The mother alleged she was subject to financial control by the father. It was submitted the Court ought to make a finding that the father had "created of feeling of financial insecurity", in circumstances where the mother is the primary carer for the children and was not working very many hours.
The particulars of the conduct complained of included the father transferring $50,000 from joint savings, the suspension of access to a credit card over some hours in October 2022 and a text message sent on 1 April 2023 requiring discussion prior to her undertaking any expenditure of over $100.
The mother deposed that the father removed $50,000 from a joint account in February 2023. She failed to depose that she also had transferred $50,000 out of the joint NAB account to her personal account in January 2023 around the time of separation. Her failure to provide the full context of the parties "tit for tat" conduct created a distorted picture of potential financial control.
I do not agree the father's conduct is an example of financial control in the context of each party having transferred funds around the time of separation and during a time where each had access to other sources of financial support and income. It is indicative of conflict over finances but not of financial control.
The father agreed that after an argument with the mother, pre-separation in October 2022, he cut her access to a NAB credit card for several hours. The mother's evidence suggested that by that conduct, the father had denied her the ability to meet her basic expenses, thus subjecting her to financial control.
The father accepted that although it was not his intention to make her feel financially insecure, it likely did have that impact. Per Pickford at [46], the intention of the perpetrator is not a necessary element to make a finding of coercive and controlling behaviour. Intention may be relevant depending on the facts of the case but is not dispositive.
On an examination of the full context of the conduct, it becomes apparent that this incidence was part of interpersonal conflict and not of alleged financial control. In oral evidence, the mother accepted that she had access to significant funds via several sources including an AMEX card in her name. The mother also had access to her own separate earnings and access to both funds from joint and individual accounts including her own business account.
Contrary to her evidence, the statements established that the AMEX card not only could be but was used by her to purchase items regularly including groceries and like purchases. The mother was not a frank witness in respect of this issue and in the face of the banking records, maintained her inaccurate complaint.
Without doubt, a party cutting off financial access in many circumstances meets the definition of family violence and is a form of financial control. However, in the circumstances of this case, with the accepted other financial options the mother had at her disposal, including her access to and use of her AMEX card, such behaviour is not.
The father agreed he sent a text message on 1 April 2023 post separation saying, "from now on, any expenditure over $100 needs to be discussed with me first." When asked in cross examination, the father said, "that did occur with some context around that, yes." The father and mother both gave evidence that at around this time, the mother had been transferring funds to her brother including a payment of $4,150 with the reference "[...]." Again, the conduct that could be indicative of coercive and controlling behaviour, but when considered in context, was reflective of financial disagreement between parties around separation.
I am not satisfied on the evidence that the father's conduct was him exerting financial control over the mother, having considered the form, intensity, context and impact of the conduct.
The behaviour of each of the parties illustrates the conflict and disagreement about issues of financial expenditure and was a source of conflict, but it does not meet the definition of coercive and controlling family violence as set out in the Act. Consideration of the conduct and the context in which it occurs must be undertaken. In considering the evidence of both parties and the source documents including the bank records, I am not satisfied that the conduct complained of was financial control or coercive and controlling behaviour as alleged.

[70]

The mother deposed that in mid-2023, Y said, "Daddy choked [X]" and X said "Daddy choked me. I don't want to talk about it". The mother recorded this conversation and later reported it to Police. The mother had been told by the supervisor that the visit that day was uneventful and there were no issues. When three-year-old Y reported that X had been "choked", the mother audio recorded the children and asked questions of them about what happened. She asked further questions and again audio recorded them two days later about the incident.
The mother said she came to accept that the father did not choke X following the reports from the supervisor the next day. Notwithstanding this, the mother took X to the GP, sent an email to X's school and reported by telephone to the school the following day that the children had reported to her that "Dad had tried to choke [X]." The school records contain details of a telephone call with the mother where she advised the school that she had reported the incident to the Department of Communities and Justice (DCJ). The mother gave more details to the police about the choking incident a three days after the incident in 2023 because she said from X's account, he could not breathe and felt choked.
The father said he had asked X to give him a handball he was playing with as it was time to eat, and he put it out of X's reach. He said X was trying to get the ball back from him and had started punching him. The father then picked X up and held him in a prone position at waist height. X started to cry saying he could not breathe and that the father "choked" him". The father said "I didn't choke you. I picked you up and held you". A supervisor was present and reported to the police she was one to two metres away and had a clear view. She corroborated the father's evidence.
When the father was asked what he would have done differently given his sessions with his psychotherapist, Mr F, he said he would say "[X], I'm sorry if you are hurt. I didn't think that I had hurt you and I certainly didn't choke you." His answer illustrated both insight and that the father is able to put into practice the strategies learned from his sessions with Mr F.
In the updated Report, Dr H stated that when asked about the incident and her response, the mother said she felt the line of questioning was "tantamount to her not being believed about what the children told her." Dr H explained in his oral evidence that he was challenging the mother about alternative explanations given the supervised visit report and observed that the mother did not seem to appreciate him putting that thought forward.
At the time of the updated report of Dr H in 2024, Dr H opined that the mother still seemed to believe "that [X] had genuinely felt he was being choked, despite written evidence that that was not the case and that he would have misinterpreted the father's actions as choking and that because he said it, it must be the case."
The father's evidence as corroborated by the supervisor is that the father was acting appropriately in a heightened and difficult situation and did not choke X as he reported.
I find the father did not perpetrate family violence against X by choking as reported and as alleged. The mother maintaining her belief about the incident in light of the independent evidence illustrates the mother's negative narrative about the father.

[73]

The father was a frank and responsive witness. The father made appropriate concessions in his cross examination and accepted the contentions put to him as to his behaviour and conduct leading up to and post separation. As I have found above, his behaviour was at times appalling. He was threatening and abusive to the mother. On a number of occasions, she felt afraid following their interactions. His behaviour was family violence, and I accept it impacted the mother as she said.
To the father's credit however, he was open in accepting and acknowledging that he had behaved poorly. It was clear from his evidence that in this case, the E Program that he undertook with Mr F has assisted the father to acknowledge his behaviour and to develop insight into its impact and strategies to change his behaviour. I am satisfied that the father has learned considerably from his engagement with Mr F given the way the father gave his evidence about his behaviour and conduct. His answers demonstrated the insight he gained.
The father accepts, as he should, that his conduct at and around the time of separation and other more recent communication was inappropriate. I find that he did perpetrate family violence.
In this context, the father has sought out, engaged and maintained engagement with a series of appropriate supports, including Mr F, with a view to recognising and addressing various issues to seek to support and develop a positive post-separation relationship with each of the children and the mother.
Mr F gave evidence that during the course of undertaking the E Program, the father took accountability as being a perpetrator of violence. Some examples given by Mr F included the father taking responsibility for shouting at the mother and sending multiple text messages when he wanted to see Y on her birthday. Mr F reported that the father was acknowledging and changing his behaviour, "tuning into his kids" and "tuning into what the mother might be going through." He expressed his belief that the father had developed an awareness that it was important for the mother to "feel okay." He stated that over the years, he is confident that the father has been and continues to be genuinely engaged. Mr F said that he would be happy to terminate therapy as he thinks the father is okay, but if the father is finding it helpful, he is happy for the therapeutic relationship to continue because they have very highly reflective sessions.
In Mr F's report, he opined that "[the father] shows considerable insight and reflection regarding past behaviours in the marriage and their impact on family dynamics. [The father] has acknowledged patterns such as withdrawal, dismissiveness and reactive behaviour." This aligns with Dr H's observations, and I give weight to both opinions.
Mr F further stated in his report that "there are no identified risk factors for physical or emotional harm in [the father's] care. On the contrary, he has demonstrated an increasing capacity to provide a secure and nurturing environment."
Mr F was an impressive witness. He was frank and direct in his evidence.
The father's recognition of his poor behaviour and its impact on the mother appeared to me to be genuine and showed insight. Mr F gave persuasive evidence as to the nature and extent of the psychological therapy he has undertaken with the father to address his earlier behaviours, lack of insight and empathy. I accept the opinion of Mr F. Further, it was also clear to me from many of the answers he gave in cross examination that the father had embraced and learned from the work he had undertaken with Mr F, showed genuine insight and remorse into the impact of his conduct and appreciated that his learning and efforts to improve the co-parenting relationship was a work in progress.
It was submitted that in the consideration of safety concerns and the father's parenting capacity and insight, the Court would be confident that he is now well-equipped and has demonstrated (when supervised and interviewed), the active deployment of such skills. I accept the submission which was further evidenced by his response to the choking incident as above.

[74]

The mother deposed to the father being largely absent from the family home during the relationship, spending minimal time engaging with the children and refusing to assist the mother with parenting. The father asserted that the reasons he was not involved in the care of the children was because the mother refused to allow him to be. The mother denied this allegation, however as referred to above, the mother accepted she had been advised about limiting the father's role in parenting.
Dr H opined that "in terms of parenting experience and responding to the children's needs, the father has comparatively less experience than the mother" but that "in light of this, [the father] appears proactive in seeking guidance... on issues that may present a challenge to him under the circumstances."
The mother maintained that the father has not taken sufficient steps to manage his anger and frustration to avoid lashing out at the children whilst they are in his care. The evidence of the father, Mr F and Dr H do not support her contention. The father has taken active steps and his commitment to improving deficits in his parenting are ongoing. As above, the evidence does not support that the father lashed out at the children as the mother contended.
The mother deposed to still having "severe concern about the children's safety and psychological wellbeing in the father's care" and deposed to having concern about their hygiene in his care.
The mother said the father inappropriately involved the children in discussions as to parenting arrangements. She said that on 24 August 2025, the children said to her "Daddy told us to tell you to let us sleep there three nights, not two. He said you don't listen, so we have to tell you... we don't want you to get in trouble". I accept there is a significant issue of the risk to children's psychological and emotional welfare if parents inappropriately involve them in their conflict.
The detailed T Family Service reports between December 2023 and March 2024 record positive, loving and engaged interactions between the children and the father. It also records positive connection and time with the paternal aunt and cousins. The handover reports from O Children's Service also record positive interactions between the children and their father. In the report of 25 October 2025, it is recorded that when the father arrived, he greeted them warmly with hugs which the children reciprocated.
When asked about the observations between the children and the father during the interviews for the reports, Dr H observed the time to have been positive, that they completed activities nicely together and that the father divided his attention well between the two children. His observation as to the positive time the children spend with their father is supported by the father's evidence, the uncontested evidence of his partner and the detailed supervision reports. In fact, the mother at the conclusion of the trial consented to interim orders for the father's time to extend to blocks of two nights during weekends for the balance of the school year and three blocks of three nights during the holiday period.
Despite the mother's steadfast concerns about the father's parenting capacity, the independent evidence and opinion of Dr H support the finding that I make that the father has a good relationship with the children and there is no concern in respect of his parenting capacity.

[79]

Dr B diagnosed the mother with PTSD but reported that "it seems likely that her PTSD symptoms, depressive symptoms and high stress have reduced her capacity to be 'present' with the children (and others) at times." However, "there seems to be no indication that [the mother's] mental health issues have impaired her parenting capacity to the extent that the children have been or are at risk of harm in her care."
In both reports, Dr H identified many positive aspects of the mother's relationship with the children. He observed that "the children appear to have a relationship marked by secure attachment to the mother and are likely to experience her as a secure base from which they explore environments and other relationships".
The mother's affidavit was replete with evidence as to the close and loving relationship she has with X and Y. She has been their primary parent and is well attuned to the personalities and needs of her children. She loves them and they love her. This was acknowledged by the father.
The father readily accepted the mother was a good parent and had much to offer the children. Subject to the impact of her negative attitude about him, he was positive about the mother's parenting. This is hardly surprising when he sought orders that the children spend half of their time with their mother.
I accept the opinion of Dr H as formed by his assessment and observations as to the secure attachment of the children to their mother reported in both reports. I need not repeat the detail of his findings where it is not in dispute that the children should live primarily (or at least half time) with the mother.
The concern with the mother's parenting capacity really centres around the impact of her pervading poor attitude toward the father. It is conceded by the mother, and appropriately so given the evidence, that the mother has "not always been positive to the children about the father." The evidence supports the finding that I make that the mother's conduct and poor attitude toward the father is a significant risk to the relationship between the children and their father for the reasons that follow.

[81]

The mother made multiple recordings of discussing with the children matters relevant to the parenting dispute from early 2023. The recordings were received into evidence. I both listened to the recordings and had the benefit a transcript of the conversations. They do not reflect well on the mother and on her attitude to the father. They show a lack of insight.
The mother through her lawyer, denied the existence of any recordings or discussions with the children about where they live or the time they spend with the other parent. Her lawyer said, "she does not talk to the children in the way my friend suggests" and "she doesn't record her discussing matters with the children about where they live or time they spent with the other party, what school they attend. No." The mother said she was "extremely overwhelmed" at the time but ultimately accepted that her conduct was "extremely inappropriate" to ask the children questions of that nature.
The mother is a highly intelligent and educated woman. Her denials as to her questioning of the children in the specific manner alleged were demonstrably false. The mother deposed that she made the recordings between January and May 2023 before the proceedings commenced. Nevertheless, a number of the recordings were made around the time of the "choking" incident in mid-2023. Again, she had not been frank in her evidence.
In the recordings, the mother asked the children leading questions in an interrogatory manner, positively raised with the children the prospect of the father harming them; asked for views and expressed hers about specific parenting arrangements for the children; asked of their feelings for the father and articulated how she misses the children whilst they were in the father's care. For example, the mother asked X "how would you feel if you didn't see daddy again? How do you think you'd feel?" in which X responded "happy". The mother said, "you spend a lot more days playing with daddy than with me and [Y]... and I love you so much I'd like to spend some time with you as well."
The mother deposed that at the time she made the recordings she had obtained advice from Ms P (her counsellor), Ms C (the children's and parent's psychotherapist), and Ms Q (the school counsellor) that she should "validate and sympathise with the children" in the way she did. It is implausible that any mental health professional would advise a parent to ask the questions and have discussion in the manner the mother did. The mother deposed to having discussed the recordings with Ms C and "my counsellor" and having worked through alternate ways to manage negative comments made by the children or reluctance to spend time with them. It is unexplained why no evidence from the mother's counsellor was then called.
To her credit, the mother acknowledged the inappropriateness of making the recordings and that by her conduct she inappropriately involved the children in the dispute and likely put them under psychological and emotional pressure. There was no independent evidence of the outcome of the professional assistance or support she says she received after she engaged in this conduct. Her own evidence about having "worked through alternate ways to manage negative comments made by the children" is vague and fails to address the core issue that the negativity and reluctance the children have expressed to her about spending time with the father may well be coming from and influenced by the mother's own narrative and the children's awareness that the mother does not support the time and does not see time away from her as fair or best for the children.
The recordings made over many months and possibly longer, and during the legal proceedings, do not support the mother's narrative that she is supportive of the father's time with the children. Indeed, the only conclusion open upon listening to the recordings are that at the time of the recordings, the mother did not support the relationship and that the children, having been aware of her views, were influenced by their mother.

[85]

Dr H further opined that "the mother is likely to require ongoing support to separate her feelings towards the father from her feelings about the children having any increased time with [the father]." There is no evidence she has had this ongoing support or that she is able to separate her feelings toward the father from her feelings about increased time.
On 13 April 2024, the father deposed to overhearing the mother say to the children at changeover "I'm sorry you have to go." The mother denied she said this. The recordings are replete with the mother expressing that she is sorry about a number of things that the children report to her. For example, X said "I don't want daddy to come in" to which the mother replied, "I'm sorry sweetie". X also said "I don't like you going" to which the mother responded "I know I'm sorry my darling. I don't like me going either. But it's just how it has to be." For this reason, I find it is more likely than not that the mother did use the words "I'm sorry you have to go."
On 6 June 2024, Y said to the father "it is very hard for mummy when you ask to see us for a long time" and on 14 July 2024 said, "it is not fair for mummy if she doesn't get to see us for the whole day." On 10 July 2025, Y said to the father "mummy says next school holidays we can't see you too many days in a row. It's too hard for mummy to not see us." It is clear from these reports that Y is acutely aware and remains concerned about the impact on the mother of the children being away from her.
The mother's trial affidavit records multiple complaints made by the children verbatim. She expressed her ongoing reservation about time and deposed "I have severe concern about the children's safety and psychological well-being in their father's care."
In cross examination, the mother was reluctant to concede the father loved the children and that the children loved their father. In her sworn evidence, she maintained the children continue to make complaints and resist spending time with the father.
It is more likely than not that given these factors, the mother still holds reservations and has a negative attitude toward time and the impact on her of separation from the children of which the children are aware.
The mother deposed that she continues to do her "best to encourage the children to have a relationship with their father" but provided no evidence of any change, any awareness of her own influence on the children, any independent evidence of therapy or strategies to reduce the influence and pressure on the children and minimal evidence of claimed strategies in dealing with the children's reluctance.
The mother's evidence about recent conduct also raises questions as to whether the mother is doing her "best" as she claims.
Y's continued difficulty transitioning into her father's care, the mother leaving the father's details off Y's pre-school enrolment in late 2024, the absence of positive encouragement for X to take his homework to complete with his father as recorded by O Children's Service in October 2025; and the mother's response to the request for the children to spend time with the paternal family in Melbourne in October 2025 do not support the mother's claim that she has become more supportive of the development of the relationship.
The circumstances surrounding the proposed October 2025 Melbourne trip illustrates the mother's recent attitude to a request for time. The father sought the mother's consent to take the children to Melbourne for a weekend from 11 to 12 October 2025 to visit the paternal family. There had been an agreement in July 2025 to swap that weekend following a request made by the mother. The mother later advised that due to an oversight, she did not agree to swapping the weekend to 10 October 2025 because the children had swimming lessons, dinner and a sleepover with their maternal grandmother that should not be missed.
The mother conceded in oral evidence that the maternal grandmother was regularly involved with the children on a weekly basis and regularly spends overnight time with them such that the swimming lessons, dinner and sleepover with the maternal grandmother were not unique. For the mother to cite that event as the basis for her refusal does not bode well for her claim of now being more supportive of the development of the relationship between the children and their father.
The mother's unwillingness to support the previously agreed weekend swap to interfere with the time with the paternal family, for the reason given, as recently as weeks prior to the final trial, illustrates the mother's rigid approach to the father's time with the children. This supports the need to have proscriptive orders for time as recommended by Dr H and to increase time to protect the children from the mother's attitudinal rigidity about their relationship with the father.
The father contended that a risk of delay in increasing time with the father is that the mother will more likely than not continue to be undermining of the children's relationship with the father.
Dr H agreed that only either attitudinal change or quantity of time can address the risk of the mother continuing to undermine the children's relationship with the father. There is no evidence the mother has had any attitudinal change through therapeutic supports.
The mother asserted that she had observed both children to resist going into the father's care. She says on 24 August 2025, Y said words to the effect that "I missed you so much I could barely do anything. I didn't mind the sleeping part [at her father's] but not the daytime. it's not the house I don't like him. It's him." The mother further asserted that X said to Y "I don't like going but we always have to so there's no point arguing... I don't want mummy to get in trouble".
The mother accepted that her own fear and communication with the children (particularly post separation) has likely influenced them making statements, but that it does not undermine the contentions regarding the father's behaviour to the children and that they might have had legitimate concerns about going into his care.
I am satisfied on the evidence that the mother has negatively influenced the children by her own conduct the outcome of which is that the mother's conduct and words influence the children which risks the children's relationship with the father being undermined.

[93]

In the Mental Health Assessment, Dr B opined that the mother meets the criteria for PTSD given that:
1. ...she reports repeated exposure to severe and chronic forms of family violence within her relationship, and endorses intrusive symptoms, avoidance, negative effects on cognition and mood, and increased arousal. The disturbance been present for more than one month. The disturbance causes her clinical distress and impairs with some mild impairment of social and occupational functioning.
Dr B opined that the mother is also experiencing sub-clinical physiological symptoms of depression and high levels of stress.
In relation to treatment of PTSD, Dr B recommended trauma informed cognitive behavioural therapy (CBT), eye-movement desensitisation and reprocessing (EMDR) and exposure therapy. As for the mother's depressive symptoms, treatment recommended included CBT, behavioural activation and interpersonal therapy. In her oral evidence, Dr B opined that EMDR would be one aspect of the mother's therapy and said that there may be different treatment modalities used for different issues in therapy such as CBT or trauma-informed processing.
It was contended on behalf of the father that the Court would be uncertain as to whether Dr B's diagnosis of PTSD remains sound given that she did not have the broader context (except the mother's) and was unable to answer whether the findings about the disputed allegations of sexual abuse, physical abuse of X and financial control, would ultimately change her diagnosis. Dr B accepted in oral evidence that it may lead to a different diagnosis and a different method of treatment rather than EMDR.
Dr B opined that the cumulative effect of the text messages and other events, such as the mother's exposure to the suicide of her aunt as a child, would be sufficient trauma underlining her finding of PTSD. Importantly, she opined that the text messages alone would be sufficient stressors to cause a reaction of an anxiety disorder such as PTSD given the mother's experience. In cross examination, Dr B did not resile from the diagnosis of PTSD she had made in her Mental Health Assessment.
The father sent a number of offensive, threatening and aggressive text messages to the mother prior to separation and for a period afterwards. The messages are a form of family violence.
On 28 January 2023 post separation, the father sent the mother threatening text messages such as, "I will come to your parents and make your life hell", "I will call the police and say you've kidnapped the kids" and "just fucking try me and see what I will do to you and your relationship with the kids".
The father used the threat of suicide to cause fear in the mother stating in a text message that "if at the end of all this you still manage to keep the kids away, I'll hang myself off the stairs so you and the kids can see me when you wake up in the morning." Dr B opined the mother would have found this a "credible threat", given her history of which the father was aware, where the mother had witnessed at a young age, her aunt's body post-suicide. Dr B said given the history it would likely have had a greater impact on the mother because of her traumatic experience as a child.
The father sent other text messages which included threats as to the mother's financial security and referred to his entitlement to have "50% custody". The father sent messages that the mother was "maybe" having "paranoid delusions", and he threatened to start "a war" and that he would "be the last person standing. The majority of the text messages sent by the father to the mother occurred over a matter of months around the time of separation.
Dr B was a frank and impressive witness who was thoughtful and considered in her responses. She explained she is always alive to the possibility that clients may exaggerate their symptoms or fake their symptoms but that she did not believe this to be the case because the mother completed three psychometric tests, two of which have inbuilt validity scales, that there were no malingering flags and that there seemed to be consistency of reports across time to various practitioners including Dr M, Dr H, Ms P (U Family Service) and Ms V. She said these factors as well as reliance on reading the text messages were the basis of her opinion.
Dr B gave evidence that the text messages stood out to her. Dr B's diagnosis of PTSD remained firm, although she was optimistic about the mother's prognosis with treatment, including EDMR as recommended.
I have carefully considered the evidence of Dr B. I put weight on and accept the opinion of Dr B that the mother suffers from PTSD. I also give weight to her optimism as to the likely positive treatment outcomes for the mother.

[97]

The mother's application is for a slow progression of time due to her mental health challenges.
Dr H opined that "while there appears to be a view (for example, as expressed by [Dr B]) that [the mother's] PTSD does not significantly impact her parenting, the fact that [the mother] reports ongoing agitation, fatigue and poor concentration is significant." He observed "it may well be that the children are reluctant to go to the father (as the mother reports) at least partly because they worry for [the mother] after they leave her." Accordingly, Dr H emphasised the importance of the mother's management of her mental health, having then recommended that "it appears imperative that the mother undertake targeted treatment as advised" noting that she had not resiled from the allegations of abuse by the father and that it would seem she would struggle to reconcile her anxieties about the children should the court make orders in line with the father's proposal. He opined that "without targeted support" the risk to the children increases.
Dr H and Dr B both gave evidence of the mother's vulnerabilities arising from her mental health. This is a matter that must be given weight in determining orders that are in the children's best interests.
Despite her claims that she has the capacity to support a relationship between the children and their father, there is no evidence the mother has done this to date. The mother called no evidence from her many treaters illustrating that she has understood the impact on the children of her conduct and other than her own claims, has no evidence that she has had education or therapy to assist her to develop insight or strategies she has developed to avoid exposing the children to her entrenched views of the father.
The father contended the mother's capacity to support a relationship between the children and their father is "significantly impaired and that she views all interactions between the children and their father with scepticism and concern."
These matters must be balanced with the impact on the mother of a transition to additional time that will impair and impact her mental health, particularly her PTSD, given her role as the primary carer of the children.

[98]

This is a matter that is finely balanced. On the one hand, the mother has PTSD and anxiety, in part at least, arising from her experience in her relationship with the father and certainly impacted by the text message communications, as opined by Dr B. The mother's vulnerability arising from her diagnosis and its potential impact on her parenting capacity and the flow on of a deterioration in her mental health is a matter to be given weight.
I accept the evidence of Dr B that various treatment modalities together with the conclusion of the family law proceedings is a significant indicator that the mother will be able to manage her PTSD. The orders made for time should as much as possible, ensure she is able to continue to provide the best environment for the children to reach their full potential as their primary carer while balancing the important relationship with the father. The mother's PTSD and vulnerabilities in providing the children the best environment where she is not exposing them or herself to anxiety lends in support of a slower progression of time as sought by her. Her evidence about her commitment to future treatment and the optimistic opinions of Dr H and Dr B are matters that I give weight to.
On the other hand, the mother has by her conduct embarked upon a course of action that has exposed the children to her very poor attitude toward their father, has exposed them to worry about how the mother will cope when they are away from her and has by her own admission been one that has not been positive to the children about the father.
The mother's conduct in audio recording her conversations with the children, the content of those conversations and her negative attitude about the father, recent conduct where she had opportunity to be more supportive of the relationship but failed to do so, and the absence of evidence of engagement with psychological supports to date all cause me to have serious reservation about the mother's capacity to be supportive of the relationship between the children and the father.
Recent experience such as the request to travel to Melbourne and her not including the father's details in Y's enrolment further illustrate the need to be cautious about her attitude toward the father. The mother's conduct together with her lack of ongoing engagement with professionals to date lean in support of more time with the father more quickly to ensure, as indicted by Dr H, the children have their own positive experience with the father free from the negative attitude of the mother (if it remains).
The evidence supports a finding that the mother's attitude to the father presents a risk to the children's relationship with the father. Dr H identified this risk. The past conduct of the mother referred to above illustrates the mother has an inability to accept the children will benefit from an increasingly independent relationship with the father.
Despite her claims that she has capacity to support a relationship between the children and their father there is no evidence the mother has done this to date and also no evidence from her many treaters that she has understood the impact of her conduct on the children.
I am comforted by the optimistic prognosis expressed by Dr B and Dr H as to the mother's capacity to engage with supports and for her previously poor attitude toward the father to be improved. I am satisfied that the mother will engage with supports as she has indicated and she now understands the potential damage of her earlier approach to the relationship. Finally, I give weight to the fact that the mother's concerns in respect of the father's prior conduct and attitude must be assuaged by the evidence of Mr F and the father himself as to his understanding and insight of the impact of his prior communication and actions.
If, contrary to the expectation of the experts and the mother's own assurances in the witness box, she does not cease her negative narrative and influence on the children, they will be able to continue to develop their positive relationship with their father through the shared school holidays and the five nights per fortnight as recommended by Dr H. These arrangements will enable the children to have their own experiences and relationship diluted from the mother's attitude.
I agree given the evidence of risk to the relationship with the father and the likely positive outcome the mother will derive from the supports she is now to commence, that progression sooner will ensure the children adjust to the routine while providing them the benefit of a positive relationship with both their parents who love and support them to the maximum extent possible.
The need for progression must be balanced with the impact on the mother of a transition to additional time that may impair and impact her mental health, particularly her PTSD, given her role as the primary carer of the children.
The orders that I make, largely in accordance with those sought by the ICL, seek to balance those competing considerations by enabling the mother time to continue engaging with her professional supports while increasing time with the father and reducing direct hand over between the parents.

[100]

When asked about increasing time to an equal time arrangement as sought by the father, Dr H did not agree that equal time was in the best interests of the children. He expressed that although the factors must be carefully balanced, the risk to the mother's mental health and the related risk on the children's development, together with lack of trust and the fraught nature of the parenting relationship outweigh the potential benefit for the children living in an equal time arrangement. This assessment forms the basis for his opinion that equal time is contra-indicated in this case.
Dr H has undertaken two detailed assessments of the family and maintained his opinion that equal time is not indicated in this instance. The evidence of both parties was replete with hostility, miscommunication, inflexibility, refusal to compromise and rigid approaches against a background with family violence and abusive messages to each other. While I accept the father has taken steps to address his previous conduct, the history does not indicate a likely success of a shared parenting regime. A share care arrangement is best assisted by capacity to communicate even if in a business-like manner. The parties lack this.
The additional factor that lends against an equal time proposal is the potential impact on the mother's mental health vulnerabilities of such an order as opined by Dr H.
Dr H's opinion that equal time was not in the best interests of the children was more swayed by his belief that the risk to the mother's mental health if such orders were made would be so deleterious to her wellbeing that this would place the children's development at a degree of risk. Dr B expressed a similar opinion in respect of the impact on the mother's psychological heath if such an order was to be made.
Having considered both Dr H and Dr B's opinion in respect of this issue, I am persuaded that the impact of an equal time order would likely be a negative one on the mother's psychological wellbeing, as any deleterious impact would likely flow onto the children, when she already has the identified vulnerabilities. I give weight to both opinions.
Mr F said in oral evidence that he sees no harm to the children in spending equal time with each parent, noting that the father can offer the children things that the mother cannot and vice versa that the mother can offer the children things the father cannot. Mr F of course did not undertake a full Single Expert Report as to parenting matters, did not assess the mother or the children and did not have access to the material provided to Dr H. I accordingly give more weight to the opinion of Dr H in this respect.
Although the matter is finely balanced, after carefully considering all of the evidence, I agree that the factors identified by Dr H outweigh the potential benefit to the children of equal time orders, such that it would not be in the children's best interest to make orders for equal time. For these reasons, I will order that the children will live with the mother and spend time with the father.

[105]

Secondly, there is no independent evidence that the increases in time that have occurred have had an adverse impact on the mother's mental health. The mother's contention that each of the increases have resulted in heightened stress and anxiety is unsupported by any evidence from her treatment providers. As referred to above, the mother was uniquely placed to call independent evidence to support her assertions, which she did not adduce.
The mother deposed that she finds it difficult and anxiety-provoking when the children are in the father's care. She told Dr B that "she acknowledged that she found it hard to send the children to someone who "abused" them all. The mother's email to Dr B said, "I don't want to miss time with the kids thinking that it could be further cut short anytime now." The mother was frank with Dr B that she does not want to lose time with or miss the children.
Notwithstanding the observation of Dr H that the PTSD and other symptoms of the mother are unlikely to abate without the targeted intervention recommended by Dr B, the mother has not yet commenced the targeted therapy recommended.
Dr B opined that "it will be difficult for [the mother] to engage fully in treatment unless and until the proceedings end, given the ongoing stress, re-triggering of trauma, and the uncertainty about the future." The mother explained this as the reason why she had not commenced EMDR, and produced some late evidence that she had an appointment booked with a clinical psychologist for mid-November 2025.
Dr B accepted the proposition that having a period of stability, particularly in the early EMDR phase of the therapy would be beneficial for that therapy to work, noting that anything that reduces her general level of stress would likely lead to a better outcome and prognosis. I accept this opinion as relevant to the exercise of discretion as to the progression of time with the father.
Dr H and Dr B both opined that the certainty that will attend the finalisation of these proceedings will go some considerable way to addressing the mother's anxiety and she will then be able to engage with recommended treatment for her PTSD diagnosis.
Importantly, the mother had an appointment scheduled with her new psychologist for November 2025 and will have had several months of regular engagement with that therapist prior to any increase in time in Term 1, 2026. Additionally, she will have commenced her EMDR therapy as recommended upon the conclusion of the proceedings and will have had a period of stability in the early EMDR phase of therapy, as recommended by Dr B. Since the conclusion of the trial, consent arrangements have been in place for two overnight blocks with the father for the balance of Term 4, 2025 and for the mother's preferred time of three blocks of three days of the summer school holiday time.
Given the consent position for a slow progression of time that commenced after the trial concluded, the mother's general level of stress should have been reduced. Dr B opined a lower stress level for her would likely lead to a better outcome and prognosis in her treatment. It is also significant the parties reached a consent position in respect of their financial matters in October 2025, thus also removing financial stress and again likely assisting with a better outcome and prognosis.

[109]

I am satisfied that an increase initially to three nights per fortnight from Friday after school until Monday after school should occur at the beginning of Term 1, 2026. It was contended that with Y commencing kindergarten in late January 2026, that a further change could be difficult for her.
Y will be going from two days of preschool a week to a full five-day attendance at school which is a change in circumstance particularly for Y. Taking this into account and given her age and the changes, it was contended that continuing the two nights with changeover at 6.30 pm on a Sunday will provide for stability prior to having a full weekend as sought by the mother commencing Term 3, 2026.
There is some merit to the argument that increasing time to include drop off on Monday morning should occur only after Y has had a settling in period into her new primary school routine for the first term without an additional change to her routine. The mother contended that this change plus the mother's need to engage with her EMDR support not making such a significant change in Term 1, 2026.
I have carefully considered the submissions in light of the evidence in this matter. However, the evidence supports that commencing school to school alternate weekends immediately is in the best interests of the children in this case for the reasons that follow.
Firstly, Y and X will have had the experience from mid-November 2025 of blocks of two and three overnights with the father. Accordingly, to start a regime of Friday to Monday each alternate weekend from February 2026 will not be a significant increase in terms of nights they will spend in the father's care.
Dr H, having met and assessed Y was aware of her maturity, intellect and ability to cope with such increases at the time he assessed her. There was no evidence that Dr H was of the view that either of the children would not cope with such time.
Secondly, the arrangement has significant benefit of being from school to school which will avoid the parents having to have contact with each other for handover (which will reduce the children being exposed to conflict and anxiety).
Dr B opined that anything that would reduce direct contact between the parents would be of benefit to the mother's mental health. Similarly, Dr H observed the benefit of the parents avoiding conflict. The children doing handover directly from school without them being exposed to tension between the parents reduces possible exposure to conflict and removes the stress for the mother of direct contact with the father.
Thirdly, it is also significant that school to school will avoid the stresses for the mother and Y of negotiating with Y for up to 30 minutes, given her expressed reluctance to leave her mother. On 17 June 2025, Y repeatedly clung to her mother and refused to go to the visit. On 12 August 2025, it took over 30 minutes for Y to leave her mother, however as soon as she saw her father she transitioned happily to his care. School to school pick up and return avoids these stressors.
As mentioned above, Dr H observed that in the absence of attitudinal change by the mother, only quantity of time can address the risk of the mother's poor attitude to the relationship between the children and the father. There is no evidence that the mother's resistance to increasing time, which has been steadfastly maintained by her, will change. As recently as 25 October 2025 when handing over the children with the assistance of O Children's Service, she told the children she would "see them soon and miss them."
The mother sought orders which required multiple handovers between the parents. The negative impact on the mother and the children of exposure to the anxiety that the handovers has caused is not in the best interests of the children.
For these reasons, the increased time of alternate weekends from Friday after school until Monday before school are on balance, in the best interests of Y and x.

[112]

The parents agreed that the time should progress to equal time in the school holidays. They disagreed about the progression. The mother sought that the children always have alternating blocks of seven days during the long school holidays while the father sought equal block time from Term 1, 2027.
The result of the mother's orders sought for the long holidays is that the maximum number of nights proposed for each spend time occasion is limited to seven days because of the young ages, particularly of Y and her limited experience with overnight time away from her mother. Senior Counsel was frank in her submissions that the mother herself had difficulty conceiving when it would be in Y's best interest to move between the parents for longer than a week.
Dr H recommended equal time during the school holidays commence from 2028 onwards, given Y's relatively young age. It was not suggested to Dr H when he was cross examined that there was any impediment to the children spending time with each parent in larger blocks as sought by the father.
Dr H was aware of X and Y's developmental needs, attachment to their mother and limited time they have spent with their father when he recommended a progression to half school holidays. I give significant weight to the recommendation made by Dr H about the benefit of equal school holiday time.
The parties reached a consent position as to orders for both interstate and international travel. It was contended by Senior Counsel for the father that the mother's proposal of no more than seven days in any block, by its very terms, precludes or constraints that from occurring. I agree.
The children will derive the benefit from overseas travel with both parents who will likely be in a financial position to provide such experiences to the children.
Doing the best that I can on the evidence and accepting the opinion of Dr H that equal time is in the best interests of the children during the holidays, I have considered the ages of the children, the benefits of the children experiencing travel opportunities with each parent, and the fact that Y will also be spending time with her older brother. I consider it is in the best interests of the children that they spend increasing blocks of time with their father during school holiday times. I will order increasing school holiday time and that the children spend a seven-day block and a 14-day block with their father in 2028 before moving to a block of half of each long school holidays in December 2029 by which time X will be 13 and Y will be 9.
I am satisfied that the transition in this manner takes into account the factors I have identified, including the mother's anxiety as to conceiving when Y might be old enough. I am satisfied these orders balance the competing considerations and are in the best interests of the children. This transition time over the holiday periods should assist the mother by reducing her anxiety and worry about longer blocks of time of the children being away from her and her experience of the children enjoying longer blocks of time over the next school holiday periods which should assuage her concerns.

[113]

Both the mother and ICL sought orders for the children to spend time with both parents on Christmas Day and Easter. The father sought that Easter not be subject to a particular order and that the children spend Christmas Day each alternate year with each parent.
Dr H was not asked and made no recommendations as to Christmas Day or Easter.
Senior Counsel for the mother submitted that whilst not all of the changeovers have gone well, this is not a situation where the changeovers have been so poor that the benefit to the children and not seeing each parent is overwhelmed by the fact that there would be a changeover required on Christmas Day and Easter.
There was no evidence from either party that Easter is of particular religious or cultural importance to either of them or the children. Easter from time to time falls during periods of school holidays. There was no sound basis to make an order for time over Easter given the absence of any evidence from any party or from the expert as to why such order would be in the children's best interests. As mentioned, the parties have had high conflict in the past and communication has been difficult. There is a risk that any time ordered over Easter may occur during the children's school holiday time with each parent, causing a disruption to the time and likely increasing tension between the parents. For all of these reasons, I am not satisfied it is in the interests of the children to make orders for special time over Easter.
In respect of the time orders for Christmas Day, the mother sought the children spend time with both parents on Christmas Day, necessitating additional changeovers. The father sought that Christmas Day be spent with each parent in alternating years. Neither party gave any evidence about Christmas Day, and the expert was not asked for his opinion as to the most beneficial arrangement for X and Y.
I prefer the father's orders for Christmas Day solely because it will avoid a fraught changeover between the parents and will avoid the children being stressed by the transition.
The mother's evidence was that Y can take a significant time to transition and has of late been complaining about not wishing to go. As above, her evidence was that it can take up to 30 minutes to convince Y to go to her father. Whether that is because she is worried about her mother (as suggested by Dr H) or because she is reluctant for another reason, if direct handovers for shorter periods of time can be avoided, the children will be less likely to be exposed to stress and tension and there will be less opportunity for conflict between the parents.
Dr B opined at page 17 of the Mental Health Assessment that:

[116]

Occasionally, the father is on-call as part of his employment as a medical professional at E Hospital. In the event the father is called in, he is required to attend the hospital within 30 minutes.
The mother sought an order that time with the father be suspended when the father is on call. She said given he is not living with someone at this stage and his sister lives some distance away with her family, that support is not readily available so the likelihood of him requesting to switch days is high. The mother contended that it would be a benefit to the children to have a clear suspension when the father is on call to avoid conflict. There was previous conflict that arose over an on-call event on 13 April 2024 when there was a dispute and some poor communication over the mother's availability to collect the children when the father was called in to work.
The father's evidence was that whilst he is on-call, he is called in less than 10 per cent of the time, however, should he be called in, he will make arrangements for his sister or partner to be present overnight. The father gave evidence that he is now able to make arrangements with the use of a locum to cover if necessary.
The father's partner Ms J swore an affidavit in support of the father's case. She was not required for cross examination. I accept her evidence as to the observations she has made of the children's interactions with their father and her positive relationship with the children. I accept that she will be available to assist the father if required with supervision of the children if he is working on call hours as she deposed.
The order sought suspending time in the event of the father being on an on-call roster would inevitably necessitate increased communication between the parents and may lead to difficulties given the history of poor communication and past conflict. A change of routine by suspension from time to time will impact the children's known routine with their father. Each parent is responsible and capable of making appropriate arrangements during their time.
For these reasons, I decline to make such an order.

Cruz & Bargar [2025] FedCFamC1F 928 (17 December 2025)

At a glance

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Judgment (121 paragraphs)

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