Mather & Vincent [2025] FedCFamC2F 425 (4 April 2025)

1. The Children will live with Father.
2. The Children will spend time with Mother as follows, noting that at the end of each specified time period the Children will resume living with Father in accordance with Order 3 of these Orders:

(a) At her election, providing she gives at least four (4) weekends' prior notice to the Father and that it does not occur on the Father's Day weekend, for one (1) weekend in each school term in Tasmania, from after school on Friday until the commencement of school on Monday (or 6:00pm on Monday if Monday is a non-school day);

(b) During the Tasmanian Gazetted Term 1, 2 and 3 school holiday periods from the second day of the school holidays until the last Wednesday of the school holiday period in New South Wales;

(c) During the Term 4 (Christmas) school holiday period in New South Wales:

(i) In odd numbered years, from the second day of the school holiday period for three (3) weeks of the school holiday period;

(ii) In even numbered years, from 28 December to two clear days prior to commencement of the first term of school of the following year;

(d) At her election, providing she gives at least four (4) weekends' prior notice to the Father, additional time in either New South Wales or Tasmania on the Mother's Day weekend; and

(e) At other times agreed in writing between the Parents.

1. Changeover of care be facilitated by the Parents as agreed in writing, and failing agreement:

(a) The Mother will book and pay for the return airfares for the children between City B and City C/City D/Region E to spend time with her in accordance with these Orders;

(b) The Parents will each be responsible for booking and paying for the costs of their own airfares to accompany the Children;

(c) Changeover is to be effected:

(i) In the case of the children spending time with the Mother in New South Wales:

1. By the Father ensuring that the Children are on booked airfares made in accordance with these Orders and the Mother collecting the Children from City C/City D/Region E airports, as the case may be, according to bookings that are made pursuant to these Orders; and
2. By the Mother ensuring that the Children are on booked airfares made in accordance with these Orders and the Father collecting the Children from City B airport according to bookings that are made pursuant to these Orders;

(ii) In the case of the Children spending time with the Mother in Tasmania, at a location and time agreed in writing at least seven (7) days prior to the Children spending time with the Mother according to these Orders; and

(d) When booking flights, each parent is to provide to the other parent a copy of the Children's flight itinerary to and from Tasmania no less than four (4) weeks prior to the date of the Children's travel.

1. The Father will facilitate a phone call between the Children and the Mother as follows:

(a) Each Wednesday night at 7:00 pm; and

(b) Such other reasonable times as requested by the Children or the Mother.

1. The Children be at liberty to contact either parent in accordance with each of their wishes.
2. Both Parents be at liberty to telephone the Children on each of the Children's respective birthdays if the Children are not otherwise in the care of that parent at a time to be agreed in writing between the Parents, but failing agreement at 5:00pm.
3. The Mother shall facilitate a phone call between the Children and the Father on his birthday if the Children are not otherwise in his care on that day at a time to be agreed in writing between the Parents, but failing agreement at 5:00pm.
4. The Father shall facilitate a phone call between the Children and the Mother on her birthday if the Children are not otherwise in her care on that day at a time to be agreed between the Parents, but failing agreement 5:00pm.
5. The Parents shall communicate using the app 'App Close' or 'Our Family Wizard', with each parent to pay the cost of their account on the app.
6. The Parents will use civil and respectful language when communicating with each other, and their communication will be confined to issues relating to joint decision making for the children and on their health, welfare and development.
7. Each parent will refrain from:

(a) Abusing, insulting, belittling, rebuking, or otherwise speaking negatively, rudely, or critically about the other parent or members of their families/households to the Children or within the hearing of the Children, and permitting the Children to remain in the presence of any other person doing so; and

(b) Denigrating the other parent, their family or friends via written correspondence, online or on social media which may be viewed or accessed by the Children.

1. The Parents keep each other informed of their contact details and residential addresses, and must notify the other parent within 48 hours if any change is made to the same.

1. Should either of the Children require professional medical attention whilst in the care of one parent, that parent will notify the other as soon as practicable and advise them of the details of the treating medical professional.
2. Each parent will keep the other notified of the names and contact details of all medical and health care professionals that the Children see from time to time, and any school, daycare or extra-curricular facility they attend.

1. The Parents be and are hereby restrained from consuming alcohol to above a blood alcohol content of 0.05% while the Children are in their care and will remove the children from the presence of third parties who are affected by excessive alcohol consumption.
2. Each parent must not to expose the Children to family violence and, in the event that the Children are present during any family violence, they are to remove the Children to a safe place immediately.

1. If he has not already done so, the Father complete the MENS Program at G Services and must provide the Mother with a copy of his certificate of completion within two (2) months of the date of these Orders.
2. The Father complete the J Program at G Services and provide a copy of his certificate of completion to the Mother within two (2) months of the date of these orders.
3. Within two (2) months of the date of these Orders, the Mother enrol in and complete the F Program at H Services and provide a copy of her certificate of completion to the Father within fourteen (14) days of completion.
4. The Mother continue to receive therapeutic support from a suitable support service or psychologist and follow treatment recommendations made to her.
5. The Mother has leave to provide a copy of the Family Report dated 28 February 2024 to her treating psychologist or counsellor.

1. Each of the parents do all acts and things that may be required to ensure that they are each authorised to:

(a) Be provided with copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by the Children or either of them;

(b) Receive from the other parent any identity documents, medical documents, or other documents relation to the Children;

(c) Receive information, notices, reports, class lists and photographs directly from any school, extra-curricular or sporting activities attended by the Children; and

(d) Attend all events to which parents are invited and are permitted to attend, including but not limited to open days, concerts, parent teacher interviews, sports days and like events.

1. The Parents have leave to provide a copy of these Orders to any school, medical or allied health professional treating the Children and/or any provider of extra- curricular activities or sporting activities attended by the Children.

1. All extant applications are otherwise dismissed.
2. The Independent Children's Lawyer meet with the Children and explain to them the terms of these Orders.
3. The appointment of the Independent Children's Lawyer is hereby discharged seven (7) days from the date of compliance with Order 27 of these Orders.

1. In the event that the Mother returns to live in Region K of Tasmania within two (2) years of the date of these Orders, the Children will live in a week about arrangement between the Parents, with changeovers to occur at the conclusion of school on Fridays, or if a non-school day at 3:30pm and further that for the duration of the time the Mother lives in Region K Tasmania Orders 3 and 4 of these Orders are suspended.

1. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.

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 parenting proceedings concern two children, X aged 12 and born in 2012 and Y aged 10 and born in 2014 (collectively "the children"), who are the children of the Applicant Ms Mather ("the mother") and the Respondent Mr Vincent ("the father").
2. The mother and father commenced their relationship in 2011 when living in Tasmania and they married in 2015.
3. In 2020, the parties and the children moved to City L in New South Wales ("NSW") to live for a period, and the parties separated in about April or May of 2022.
4. In late 2022, the father and the children moved to Tasmania. The circumstances of the move and whether it was agreed to be permanent is disputed.
5. In early 2023, the children visited the mother in Queensland and remained living in her care. Again, the circumstances leading to this occurring are disputed.
6. In mid-2023, the children visited the father in Tasmania and have remained living in his primary care in Tasmania since.
7. In August 2023, the mother commenced these parenting proceedings. The parties participated in a defended hearing before the Court from 11 to 13 December 2024, during which the children's interests were represented by Counsel for the Independent Children's Lawyer ("the ICL").

1. Each party filed a Case Outline identifying the affidavits and documents upon which they relied.[1] They were as follows and have been considered to the extent necessary to address the issues before the Court:
   • By the mother:
     • Amended Initiating Application filed 23 August 2023;
     • Affidavit of the mother filed 18 November 2024;[2]
     • Notice of Child Abuse, Family Violence or Risk filed 23 August 2023; and
     • Family Report dated 28 February 2024 ("the Family Report"), authored by the Court Child Expert Ms N ("the CCE");[3]
   • By the father:
     • Amended Response filed 24 April 2024;
     • Notice of Child Abuse, Family Violence or Risk filed 5 October 2023;
     • Affidavit of the father filed 26 November 2024;[4]
     • Affidavit of Ms M ("the father's partner") filed 26 November 2024;[5]
     • Affidavit of Mr O filed 9 December 2024;[6] and
     • The Family Report;
   • By the ICL:
     • The Family Report;
     • Affidavit of Ms P filed 10 December 2024;[7]
     • Affidavit of Ms Q filed 10 December 2024;[8] and
     • Affidavit of Ms R filed 10 December 2024.[9]
2. The mother and father each gave evidence under cross-examination. The CCE and the father's partner also gave evidence under cross-examination. The affidavit of the paternal uncle, Mr O, was read without the requirement for cross-examination. The affidavits of the ICL's witnesses, all of whom were staff members of the school the children attended, were read into evidence by agreement without cross-examination.

1. The pivotal issue in dispute relates to whether the children should live primarily with the mother or the father. This will consequently determine the children's primary location of residence because the mother resides in NSW and the father in Tasmania, and neither have a present intention to relocate.
2. In broad terms, the father and the ICL sought similar orders. Namely, that the children should remain living in the primary care of the father in Tasmania and spend substantial time with the mother, with such time arranged around school holidays. The mother sought the reverse of these arrangements.
3. The parties agree they should jointly share decision making for major or long-term issues for the children.
4. It is sufficient to say that the Court is satisfied that the uncontroversial evidence demonstrates the strength of the meaningful relationship between the children and each parent, and that each parent has satisfactorily made decisions concerning the children's health, education and likewise. Although the parties have not always made such decisions jointly or collaboratively in the past, the consensus of their evidence is that their coparenting dynamic has improved, they can communicate about major or long-term decisions, and they can jointly and effectively make those decisions in the future.
5. I am satisfied that there should be an order for joint decision making, this being in the children's best interests for the brief reasons given at [13] of these reasons.

1. In addressing the pivotal issue in dispute and determining what parenting orders should be made in the best interests of the children, the "paramountcy principle" applies.[10] The provisions in Part VII of the Family Law Act 1975 (Cth) ("the Act") also apply and require the Court to make parenting orders that are in the child or children's best interests according to the non-exhaustive, non-hierarchical considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[11]
2. Considerations of family violence remain important in the evaluation of what parenting orders should be made in a child's best interests, as do the wishes of a child.[12] In addition, the object of parenting orders is to ensure the safety of children and give effect to the Convention of the Rights of the Child.[13]
3. The children are palawa, which is how Aboriginal Tasmanian identify themselves. In these circumstances, the Court must also consider the matters in s 60CC(3) of the Act which provides that consideration is required of:

a) the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary: > > 1. to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and > 2. to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and > 3. 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.

4. Although not particularly relevant in this case, as each party agrees that the children ought have substantial time with both parents regardless of who has primary care, the assessment of risk of harm and safety to the children remains informed by the principles established in MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.
5. In matters such as this, where one parent seeks an order that the children live with them in a location different to the other parent, it is common to refer to the matter as a 'relocation case". Despite this, it is established that the Court's overriding task is to make parenting orders about residency and major long-term decision making that are consistent with the best interests of the children.[14] Indeed, in B & B: Family Law Reform Act 1995 (1997) FLC 92-755, their Honours Nicholson CJ, Fogarty and Lindenmayer JJ said that:[15]

... it is noted that relocation cases are not some separate category within the Family Law Act, to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children but within a particular context and, as with any other relevant case relating to children within the jurisdiction of this Court, is to be determined in accordance with the principles contained in that Part ...

1. Their Honours Bryant CJ, Faulks DCJ and Finn J in Taylor & Barker [2007] FamCA 1246 gave guidance as to the approach which courts are to take in such matters, stating:
   1. ...given that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary consideration") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.'
2. Further, in Star & Duggan [2009] FamCAFC 115 at [38], their Honours Boland, Thackray & Watts JJ outlined a "logical approach" in addressing the relevant legislative provisions, being to:
   • first make findings concerning the relevant s 60CC factors;
   • then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
   • then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
3. This methodology was affirmed in Hepburn & Noble [2010] FamCAFC 111 as favourable over the previous approach in A & A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035.
4. Importantly, in determining what course is in the best interests of the children, the Court cannot hear the issue of relocation discretely from other applications as to with whom the children ought to live. The Court in Taylor & Barker [2007] FamCA 1246 stated:
   1. We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child's future living arrangements, at least in so far as that approach is possible (see U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen [2005] FamCA 458; (2005) FLC 93-224).
5. The principles discussed at [19] to [23] of these reasons remain relevant to the making of parenting orders in this case.

1. The mother's affidavit evidence in chief emphasised the adverse impact on her and the children caused by the father's alleged misuse of alcohol and family violence.
2. During cross-examination, the mother's evidence was that:

(a) She agreed she and the father were young when they had their first child;

(b) She agreed there are no members of the paternal or maternal family living in City L, and only a maternal uncle who resides in New South Wales in Sydney;

(c) She could not comment on the father's level of understanding about postpartum depression or whether what she experienced as a lack of support from him was due to his lack of understanding;

(d) She maintained the father had not been "hands on" with the children, and while she returned to work the children went to daycare or, at times, to the maternal grandparents for care. She conceded the father occasionally helped, but said he never got up in the night;

(e) The father's alcohol use was an ongoing issue throughout 2014 and that he had slapped her across the face;

(f) When challenged about not mentioning physical violence during her Family Report interview or in her Notice of Child Abuse, Family Violence or Risk filed 23 August 2023, she said she had not recalled it at the time but did so when she was compiling a timeline of events;[16]

(g) She had reflected on the past and agreed she had been verbally abusive to the father, but said this was often because she could not get her point across;

(h) She had physically assaulted the father, but qualified this by stating that it was a reaction to his conduct. For example, that she had slapped him to get out of a situation when she had been cornered in the kitchen;

(i) The parties' relationship had improved recently and this is because they do not communicate as much;

(j) The parties moved to NSW to find work and seek financial stability;

(k) There had been conflict about money, and the father had initiated the move to NSW;

(l) She had an affair after moving to NSW and this caused the parties' break-up;

(m) She left the home at separation in May 2022 and left the children with the father, who was capable of caring for them. She agreed the children were safe with him;

(n) When she left the family home to stay in a hotel, she had been there for less than four hours when the father and children arrived. She did not recall smashing her phone in front of the children as the father alleges she did at this time;

(o) She agreed the CCE stated that both parties had enmeshed the children in their break-up and that the father regrets this. She stated that the events at the hotel should not have happened in front of the children;

(p) After the incident referred to at subparagraph (n), the father moved to Brisbane for work and visited the children in NSW at the family home where she remained present, but she said this was because the children became unhappy if she left;

(q) She could not produce copies of messages she says the father sent her in July/August 2022 in which she alleges he said he was suicidal;

(r) She had threatened suicide in front of the children and immediately regretted it, and it had devastated Y. She added that she was doing her best to cope at the time. She stated that she had asked the father to speak with the children on 19 August 2022, but not to collect them from school;

(s) She conceded the parties had spoken about the children returning to Tasmania but the father had also said he would consider going to Queensland with them;

(t) She disputed that she agreed to the father permanently relocating to Tasmania. There was also discussion about the father remaining in Brisbane and she had stated her preference was for the children to be with the father in Brisbane. She admitted the authorship and authenticity of the written agreement in evidence as Annexure A to the father's trial affidavit;

(u) She alleged the father had withheld the children for one week at the time referred to in subparagraphs (r) of these reasons.

(v) The children had remained in NSW with her following a visit to see her in April 2023 after a period of living in Tasmania. She maintained that the children had wanted to remain there, but agreed that X had been upset about flying alone and also that she had rejected the father's offer to collect them;

(w) X was unhappy at T School and the school was not a good fit for him. She did not dispute the content of the reports the children had made to their school social worker in Tasmania;[17]

(x) She agreed the children missing school was destabilising;

(y) The significance of the children having limited connection to country in NSW was not a matter previously raised. She is willing to promote the children's palawa culture and understands the importance of it to the children;

(z) She has reached out to the U Centre recently to educate herself about palawa culture, but conceded both that she could not educate the children about the culture as she is not palawa and that palawa culture is different from mainland Australian Aboriginal culture;

(aa) The children could still experience palawa culture when they spent time with the father and she was surprised by their increased interest in culture;

(bb) The importance of palawa culture to the father was not discussed during the relationship;

(cc) The children love both parents;

(dd) She could do a better job of meeting the children's health needs, including ensuring they attend psychological treatment, podiatry and other appointments;

(ee) She agreed the children were seeing a counsellor at the U Centre, but stated the father would only agree to them seeing a psychologist after a court order was made;

(ff) The children love their paternal half-sibling, but in effect she considered it less significant that they be separated from the half-sibling than from her;

(gg) She agreed she did not have knowledge of the father's current alcohol use and the last occasion she saw him drink was in 2022;

(hh) After speaking with X, she believes he would manage attending school in NSW, although he wants to attend V School;

(ii) She has frequent communication with both children, almost daily;

(jj) The communication between herself and the father has been better, particularly since it is mainly in writing. They have had quick phone calls, which have been child-focused;

(kk) Her mental health is better in NSW and she has a circle of close friends with whom she has family-like connections;

(ll) The schools are better in NSW due to smaller class size and better programs;

(mm) She will respect the Court's decision and accept the final orders;

(nn) The maternal grandmother has visited her once in NSW;

(oo) She agreed there were two occasions when she did not come to Tasmania to spend time with the children according to the interim orders. For the most part, the parties were able to reach agreement about alternate dates for visits;

(pp) She works flexible hours and can work three to four days a week from home. Her previous partner had assisted with care of the children in the past if she was committed with work, but she is no longer in a relationship with him;

(qq) She is entitled to four weeks annual leave per annum in her employment;

(rr) She does not intend to return to Tasmania to live, although she may need to reconsider this depending on the outcome of the proceedings. However, she has thought about returning and feels she would be forever being watched. Further, her employment prospects and earning capacity are worse in Tasmania and it does not feel like home to her; and

(ss) Her earnings are approximately $96,000 per annum.

1. The father's affidavit filed 26 November 2024 required a number of clerical corrections which were identified in a schedule, marked by me as MFI1. Subject to those corrections, the father's affidavit was read into evidence without objection.
2. The father also corrected [119] of his affidavit, stating that he had been unaware of being charged with the offences identified in the NSW Police Criminal History record,[18] so his evidence had been that he had no criminal convictions.
3. With the leave of the Court, the father gave brief oral evidence about Y undergoing cognitive testing and her referral to a psychologist, which had been organised through the school. He also stated that X had seen a podiatrist and would have further appointments.
4. When cross-examined, the father stated, in summary, as follows:

(a) He consented to the testing for Y and assessment by a speech pathologist because he had been advised it would be quicker than seeing a psychologist;

(b) He believed he had sent the mother a screenshot of the form he had signed, but not what the teacher had advised him about the process of assessment. He had also informed the mother about the assessment via the Our Family Wizard app in the week before the hearing;

(c) In response to a question about how the mother could have confidence that he would keep her informed, he conceded he had "stuffed up" but will ensure recommendations are progressed because the children are his priority;

(d) He did not ignore the mother's communication about X attending a podiatrist for the pain he was experiencing, he just assumed the mother would arrange it;

(e) He denied that the mother was the one who initiated all routine health checks for the children, such as optometrist and dental, and stated he had ensured they attended appointments;

(f) He could possibly have told the mother, in the heat of the moment, that the children only needed mental health support around her. He maintained the children were happy and healthy with him;

(g) He believes the mother sometimes overreacts about minor health issues and disputed he had not been supportive of the children seeing a psychologist;

(h) He conceded he had mental health difficulties in 2021 following a workplace accident, for which he consulted with a GP and saw a psychologist through an Employee Assistance Program;

(i) He denied that he had been suicidal at the time referred to in the mother's affidavit at [75]. He said he had been working on his bike in the garage and had a ratchet strap over a bearer, and that he was not standing on something near the strap. He said he was embarrassed when the ambulance arrived because the mother had called one;

(j) He agreed the mother had been somewhat supportive of him when he was experiencing mental health difficulties;

(k) He denied that he had consumed a whole bottle of alcohol when the mother told him she was pregnant or that he was drinking regularly on most weekends;

(l) He never expected the mother to collect him when he had been out drinking, and that someone else could have driven him on those occasions;

(m) He denied he was intoxicated around the time of a sports match in 2014, but said he had consumed six to 10 beers;

(n) He denied he slapped the mother across the face and became aggressive when drunk;

(o) He would drink alcohol on Thursdays, but not every Thursday;

(p) He denied drinking on Fridays and Saturdays, stating he did this once or twice a month rather than frequently or regularly;

(q) He and the mother rarely went out drinking together. He agreed that he had possibly called her a "Terry Tough Nut" when she had wanted to do so but added it was possibly said as a joke;

(r) When he and the mother argued, he potentially told the mother he did not want to be with her, adding that he had apologised;

(s) He had been drinking on the occasion referred to by the mother at [79] of her affidavit and he should not have been driving. He was carrying an axe as he was going to deliver it to a friend's house, but denied yelling he would smash the window of the mother's car;

(t) He agreed he told the CCE that he typically drank 12 beers over a weekend;

(u) He agreed he had called the mother names, belittled her and said negative things about her weight, adding that he believed he could defend himself when they were arguing;

(v) He stated he would use "F-words" towards the mother once or twice week, possibly;

(w) He admitted he been absent both emotionally and physically during the relationship, and that he had not supported the mother when she required it;

(x) He denied asking someone to drive past the mother's house in August/September 2022;

(y) He did not dispute sending the threatening messages which led to the making of the provisional Apprehended Violence Order,[19] but denied pressuring the mother to withdraw her reports;

(z) As to the incident at the hotel in May 2022:

(i) He agreed the mother had needed a break from the relationship, but denied this was a mutual agreement;

(ii) When he and the children attended the hotel, he agreed he confronted her about the man walking out of her room and said his anger was "five out of ten" at the time, and that they later frequently argued about this incident; and

(iii) He insisted the children had wanted to see her, and that is why they stopped there after they had seen her car.

(aa) He would go through the mother's phone during the relationship, which he agreed was an invasion of her privacy and was a "stupid" thing for him to do;

(bb) He had read an email sent to the mother by another man, which he saw when he was using the computer to check his pay slips, and he also downloaded her phone records. However, he denied posting about her on Facebook;

(cc) He denied cornering the mother in the kitchen and said she was sitting on the couch during the incident in question. He could not recall if he told the mother he was ashamed of her in the presence of the children;

(dd) He agreed he had turned up unannounced and uninvited to see the children after separation when he was living in Queensland, but defensively added that he was still on the lease to the property so did not think he had to give the mother notice;

(ee) As to the occasion when he collected the children from school on 19 August 2022 post-separation, he said there had been a phone conversation the previous day as the mother was distressed and not coping. He said he would visit, collect the children from school and then go to the family home to help care for the children;

(ff) He agreed that if the children lived with the mother, they could experience palawaculture when they visited him for nine weeks each year;

(gg) He agreed he had not been able to clarify to the CCE the concerns he raised about the children not engaging in palawa culture if they resided with the mother. He stated that he did not feel safe or comfortable discussing it with the CCE;

(hh) He is employed as a transport worker working 6:30am to 2:30pm and earns about $75,000 per annum;

(ii) He has most school holidays off work;

(jj) His partner works three days a week, being Mondays, Wednesdays and Fridays, along with alternate weekends;

(kk) The children catch the bus or walk to and from school;

(ll) X injured his wrist in late 2024, but has not recently expressed feeling low;

(mm) The father stated that he was undertaking the MENS program through G Services at the time of the hearing and the purpose of doing the program was to improve communication with the mother, but not to address family violence;

(nn) He is also completing the J Program through G Services as recommended by the CCE, which he said was helping him understand the children's emotions and address their tantrums;

(oo) He is able to ensure the children spend time with the maternal family as they reside in Tasmania and has communicated with the maternal grandmother about this;

(pp) The maternal and paternal grandparents can assist him with care of the children if required;

(qq) He would like a shared care arrangement with the mother if they resided in the same state because it is not fair on the children to not spend time with both parents. If the Court decided the children should live with the mother, he was unsure if he would relocate to NSW because it would be difficult for his family;

(rr) He no longer has concerns about the mother's mental health;

(ss) He no longer uses alcohol as he did previously. He may have a drink with dinner, but now it does not interest him; and

(tt) Having heard the mother's evidence about interruptions with communication or Y not wanting to talk, he said he can tell the children to go to their rooms to speak with the mother to avoid distractions.

1. The father's partner was cross-examined by Counsel for the mother. She impressed as honest and forthcoming. The reliability of her evidence was tested but she gave plausible explanations about her knowledge of conversations between the parties when she and the father were living in Queensland. I accept her evidence that she had knowledge that the children were not privy to conversations between the parties.
2. When asked what her attitude would be if the Court made an order that the children reside with the mother, she said she would consider a move to NSW but it would be really difficult because they are settled and her mother is considering moving to Tasmania. The father's partner stated she earns about $75,000 per annum and noted that rent was more affordable in Suburb W than in NSW.
3. The CCE authored the Family Report dated 28 February 2024, which was received into evidence as Exhibit ICL5. Before cross-examination, she reviewed a document outlining the children's views expressed to the ICL on 26 November 2024, which was received into evidence as Exhibit ICL6.
4. During cross-examination by counsel for the mother, the CCE stated that the differing views expressed by the children to each parent result from their exposure to the prolonged parental conflict and agreed that such exposure is a major psychological risk factor.
5. When cross-examined by counsel for the mother, the CCE's evidence, in summary, was that:

(a) The children would benefit from the support of a psychologist to settle into the new care arrangements after final orders are made;

(b) The mother has a strong bond with the children, which the CCE observed during the Family Report interviews;

(c) The father's impressions of the mother and comments about her then-partner during the Family Report interviews showed disrespect and a lack of insight, especially in such a serious context. She added that he lacks insight into how his communication style contributes to the parties' poor communication;

(d) The children's challenging behaviour in the mother's care could indicate that there is instability in routines moving between households, different parenting styles, that the mother cannot enforce boundaries with them, that the mother's home is a "safe space" for them, or that they have been exposed to the mother's previous poor mental health;

(e) The father engaged in harmful behaviour towards the mother during the relationship and his emotional reactivity around separation reinforced the mother's experience of him;

(f) The CCE was not aware that the father felt culturally unsafe discussing his and the children's palawa identity with her, and he did not appear uncomfortable during the interviews; and

(g) There had not been an event between the children expressing their views to her and when they expressed views to the ICL.[20] The change may be a result of the children's ages and stages of development.

1. The CCE told counsel for the mother that lessened parental conflict would involve creating consistency in the care arrangements for the children, not denigrating the other parent, encouraging communication with and time spent with the other parent, and developing a shared understanding of the children's needs.
2. Under cross-examination by the solicitor for the father, the CCE's evidence, in summary, was that:

(a) The children were present when the mother was upset during the Family Report interviews and they were distressed;

(b) The way in which the father spoke to the CCE about the mother during the Family Report interviews was at times demeaning and if he was prepared to speak that way in a formal setting there is a risk that he also does so in the home;

(c) The mother's narrative of the relationship showed some elements of controlling behaviour by the father;

(d) She has undertaken various cultural training programs during her career, but none specifically about palawa culture;

(e) She spoke with the children about their palawa identity during the interviews, however children of that age can struggle with the concept of culture;

(f) Connection to the children's extended family, including the paternal uncle, can provide a link to culture;

(g) The father appeared comfortable in the interviews and did not present as uncomfortable to speak with her about cultural matters. She asked questions of him to gain an understanding of his lived experience, to which he responded that he was unsure and could not tell her much;

(h) As the children identify as palawa, she accepted the proposition that the children's connection to their palawa culture has strengthened since the Family Report interviews and this will likely not be as strong with the mother as with the father;

(i) The father has previously made decisions about where the children reside based on his and their needs which have removed them from palawa country;

(j) Stability and consistency in living arrangements are crucial for the children;

(k) School and friendship groups could offer some stability for the children; and

(l) The children have a good relationship with their paternal half-sister and the father's partner.

1. I asked for clarification of the CCE's evidence in respect of stability. She clarified that a move to NSW to live with the mother would significantly alter the time the children currently spend with the extended maternal family, the paternal uncle, and their half-sister, which would be destabilising. However, because of the strength of the mother's parenting capacity and the children's relationship with both parents, stability could be achieved after an initial adjustment period.
2. In response to questions from counsel for the ICL, the CCE gave evidence that:

(a) If the Court ordered that the children live with the mother, she could benefit from therapeutic support and advice, including parenting services, to help her navigate any difficulties;

(b) X's view is shaped by his developmental stage, where he evaluates everything based on its impact on him. He seeks the stability and familiarity which staying in Tasmania would offer and that he is probably not assessing the long-term effects his living arrangements will have on his relationships; and

(c) The views of the children are genuinely held but the Court ought to be cautious as Y's views change and X's views are based largely on familiarity.

1. The joint decision making sought by both parties could be assisted by the father engaging with a men's behaviour program and the mother seeking therapeutic support, along with both parents undertaking post-separation parenting programs.

1. The parties' evidence under cross-examination demonstrates a number of uncontroversial facts, and I find as follows:

(a) The children each have a strong, meaningful and loving relationship with the mother and father;

(b) Both parties have experienced poor mental health at various times. There was no challenge to the evidence that the mother has a history of anxiety and depression,[21] post-partum depression,[22] and PTSD symptoms, high levels of anxiety and distress which she attributes to relationship issues.[23] Similarly, there was no challenge to the evidence that the father experienced vicarious trauma and was treated by a psychologist due to a workplace incident that occurred during the relationship, but his mental health is now stable;[24]

(c) Each party used verbal abuse towards the other on a recurring basis but the mother's concession about this was conditional, stating it was because she could not make herself understood;

(d) The children are safe in the care of each parent and the parents are each attuned to their needs, albeit to varying degrees and have different parenting styles;

(e) The father can and will facilitate the children spending more regular time with the maternal and paternal extended family, as they reside in Tasmania;

(f) Most of the extended maternal family reside in Tasmania and the children spend time with them by arrangement with the father;

(g) The children's relationship with their half-sister is loving and strong. It will be maintained and promoted if they remain living in the father's primary care;

(h) The children have a strong and meaningful relationship with the father's partner, which will be maintained and promoted if they live in the father's primary care;

(i) The children are now progressing satisfactorily at school. I note that the mother believes that they would benefit from greater attention at a school in NSW, but there is no reliable independent evidence supporting this belief;

(j) Both children are palawa on the father's side; and

(k) Both parents acknowledge the importance of the children's connection with and participation in palawa heritage and culture. They differ in relation to the weight this consideration should have in the assessment of the children's best interests.

1. The parties' evidence revealed a dispute about the following:

(a) Whether the mother could provide better care to the children and is more attuned to their needs;

(b) Whether the father abused or misused alcohol during the relationship, contributing to the parties' conflict;

(c) Whether the father perpetrated family violence towards the mother;

(d) The weight that should attach to the considerations in s 60CC(3) of the Act; and

(e) The weight that should attach to the views the children have expressed.

1. During cross-examination, the mother did not resile from her evidence and at times became emotional when discussing various issues. She impressed as a detailed and thoughtful person who genuinely cares deeply for her children. I mostly accept her evidence. However, because the mother's mental health difficulties predate the relationship, her experiences outside the relationship may have somewhat coloured her portrayal of events, noting that the CCE identifies it as a contributing factor to the co-parenting dynamic.[25]
2. The father presented as a somewhat reserved and not always forthcoming in making concessions. He presented as mostly honest, but his evidence lacked detail during cross-examination leading me to attribute less weight to his denials of the allegations made by the mother. At times his evidence also demonstrated either lack of insight about or diminishment of his alcohol use or conduct towards the mother and its likely effect on the mother, given her emotional vulnerability. For example, the father's own evidence about his alcohol consumption conveyed misuse of alcohol on a not infrequent basis. He appeared unable or unwilling to appreciate that drinking up to 12 alcoholic drinks at a time was likely to be problematic to his emotional regulation and interactions with the mother.
3. He also admitted denigrating the mother, including at times when he knew that she was emotionally struggling.
4. As neither party made specific submissions about any current concerns for the safety of the children in either party's care due to mental health issues, it is unnecessary to make a specific finding about whether the father attempted suicide as the mother alleges. Further, the parties' evidence about this subject is in stark contrast,[26] and there is no basis for preferring one party's evidence to the other. Either could have called corroborative evidence from police, ambulance, or Mr Z,[27] but did not. The mother did not give a specific account to the CCE about the father's alleged suicide attempt in mid-2021.
5. I infer on the unchallenged evidence at [86] of the Family Report, that the mother's mental health has in the past and may in the future present risk of harm or threat to the children's safety. However, if the mother receives adequate treatment and support, I consider this risk to be low and less possible.

Whether the mother could provide better care to the children and is more attuned to their needs

1. The evidence of both parties is that the mother primarily attended to the children's care and needs during the relationship. The evidence of both parties persuades me that at times the mother has struggled with these responsibilities due to her mental health.
2. As the views of the CCE demonstrate, there is a risk that in times of poor mental health, the mother may not cope with caring for the children and the challenges of parenting. Indeed, the evidence of the father and the father's partner, which I accept as correct, [28] demonstrates that this has been the case in the past, which informs the future. To the extent that the mother attributed her poor mental health solely to the father, I reject that to be the case but accept that it contributed in view of the evidence uncontentious evidence referred to at [41](b) and the views of the CCE.[29]
3. The father also experienced a period of poor mental health but it was isolated, related to a past workplace incident. The CCE did not express concerns about the father's current mental health and ability to care for the children.
4. Accepting the evidence of the mother about her actions in arranging healthcare and other needs for the children, which was partly corroborated by the father, I find that she is likely to be more pro-active in identifying any concerns for the children's health or welfare. I accept that she is likely to act promptly to ensure necessary attention is given to those concerns.
5. I find that the father is also likely to address the children's health concerns and needs but at times is less proactive. Despite this, I am not satisfied that his approach would expose the children to physical or psychological harm as there is simply no evidence to this effect, noting that the children have resided primarily with him since 2023.
6. The totality of the parties' evidence and how they present satisfies me that the mother is likely to be more emotionally attuned to the children's needs or worries and would be more proactive in seeking out professional supports if she considered it necessary.

1. I prefer the evidence of the mother about the father's misuse of alcohol. For the reasons at [44] of these reasons, the father's evidence about alcohol use was not convincing. For example:
   • Making admissions such as drinking up to 12 alcoholic drinks on the weekend, yet denying that this was problematic with the relationship dynamics;
   • Admitting that he would not be able to drive home and was collected after being out drinking on a number of occasions. This causes me to infer, based on knowledge verifiable by reference to the National Health and Medical Research Council's Australian Guidelines to Reduce the Health Risks from Drinking Alcohol published in 2020[30], that he drank more than one standard alcoholic drink per hour more than infrequently;[31] and
   • Stating that he had "possibly" said there was "only room for one alcoholic in the relationship". Even if this was stated as a joke, which I take the father's evidence to concede, it demonstrates that he had an irresponsible and immature attitude to the risks of harm posed by alcohol misuse.
2. I am satisfied that the father drank alcohol to excess during the relationship not infrequently and that this contributed to conflict between the parties, verbal abuse of the mother (including in the presence of the children) and being less available to the mother to support her with parenting and her mental health struggles. This conclusion is also supported by the risk identified by the CCE at [30] and [43] of the Family Report.
3. The evidence about the father's present use of alcohol and whether it poses any risk to the children is limited to the evidence of the father and the father's partner.[32] I am particularly persuaded by the evidence of the father's partner. Her evidence was not compromised in any way and I find that the father has not misused alcohol in the last two years.
4. It appears that the responsibilities of being the primary carer for the children has caused him to change his attitude to alcohol. I consider that his present use of alcohol is not a risk to his parenting capacity, his ability to ensure the needs of the children are met or to the safety of the children. Further, I am satisfied that the father's current alcohol use does not pose a concern regarding effective coparenting and joint decision making with the mother.
5. To the extent that alcohol misuse contributed to the father perpetrating family violence, which I address below, it is unlikely to operate as such in the future.
6. The views of the CCE also support the findings at [56] to [58] of these reasons.[33]

1. In the context of the overall picture of the parties' relationship, including each at times experiencing mental health difficulties and the father misusing alcohol, I am comfortably satisfied that the father perpetrated family violence by way of recurring verbal abuse and denigration. The evidence of the father was to the effect of conceding that he potentially and possibly said denigrating or abusive things to the mother. He was guarded in giving evidence and made an attempt to minimise his conduct.
2. The parties gave consistent evidence that they each verbally abused one another, which likely arose from the mother's poor mental health and coping along with the father's alcohol misuse and poor mental health. I am satisfied that the verbal abuse was not isolated. It constitutes family violence due to an ongoing pattern during argument and disagreement.
3. On at least one occasion the mother admits that she slapped the father, and this constitutes an assault and family violence within the inclusive definition in s 4AB of the Act. But evidence of physical violence by her was isolated.
4. The father denied that he slapped the mother but, on balance and because I generally preferred the evidence of the mother about this topic due to the father's diminishment of behaviours, I find that he slapped her on one occasion.
5. Informed by the reasons of the Appeal Court in Pickford & Pickford [2024] FedCFamC1A 249 and as I prefer the mother's detailed evidence, I am also satisfied that the father at times exercised coercion or control of the mother by a pattern of conduct.[34] For example by:
   • Demanding that she pick him up and be at his beck and call when he had been drinking;
   • Socialising in the house regardless of her wishes and the children;
   • Not being present and supportive of her,[35] and threatening divorce or saying he did not love her if she raised her concerns;[36]
   • Arriving unannounced at the hotel in May 2022;[37]
   • Going through her phone, downloading phone records and reading an email addressed to her;[38]
   • Threatening that he would make her lose her job;[39] and
   • Telling her he would kill himself, which he conceded was distressing to the mother even though I accept it was a threat he did not intend to carry out.
6. I am satisfied that the mother was not coerced or controlled when she agreed to the children going into the father's primary care in August of 2022. It is evident from the mother's own words,[40] and the content of Annexure A to the father's trial affidavit that she had carefully and consciously decided she was not in an emotional state for various reasons to primarily care for the children at the time. She willingly made a selfless and child-focused decision to protect the children.
7. Further, I am satisfied that the mother did not intend that or agree to the children permanently living in the father's primary care. The terms of Annexure A make that plain.
8. Despite all the above findings, there is no evidence at all of family violence since August/September 2022 and I am satisfied that family violence including coercion or control is historic and unlikely to re-occur.

1. There is no dispute about the children's palawa identity and culture.
2. The mother admits that she knows little about palawa culture and identity. She is not Aboriginal. She is prepared to learn about palawa culture and be educated in it, and says she will promote events and involvement of the children in palawa culture if they reside with her.
3. I find it is unlikely the father previously emphasised the importance of palawa culture to himself or the children during their relationship to the extent which he now does. This was the effect of the mother's unchallenged evidence referred to at [26(bb)] of these reasons and it is consistent with the father agreeing, due to employment and financial reasons, to move to NSW.
4. The father's evidence about his understanding of palawa culture, relationship and language rules, and differences in practices across Aboriginal cultures in different parts of Australia was limited. This contributed to my finding at [70] of these reasons. I do not accept his explanation of feeling unsafe discussing this topic with the CCE and the absence of reference to it is more consistent with his demonstrated limited ability to give evidence about the topic and deferring to the paternal uncle, Mr O, as being able to explain it.
5. However, there is unchallenged evidence that the children, especially X, now identify quite strongly with their palawa culture and both regularly engage in cultural activities.[41]
6. From a practical perspective, the opportunity for the children to experience their palawa culture, engage in it and learn about it necessarily is strongly influenced by the knowledge and willingness of persons in their daily lives who have the knowledge and capacity to promote knowledge and cultural practices and experiences.
7. The unchallenged evidence of Mr O[42] persuades me that it is the paternal family members who identify as palawa and have the relevant knowledge, capacity to teach and live on country and are able to better facilitate the children's identification, connection and experience of their palawa culture. They have demonstrated their promotion of culture and shown that they teach, support, create opportunity and encourage the children to experience their palawa culture.
8. There is no dispute that the children benefit from engaging in their culture.[43]
9. During the hearing, the mother was cross-examined about her understanding of the children's palawa culture by reference to a document not in evidence. Upon counsel for the father seeking to tender the publications, there was some initial objection. The objection was not made during cross-examination and the mother had already answered questions in respect of the content of that publication. The mother frankly gave evidence and demonstrated that her knowledge was limited. Ultimately, the documents were not tendered into evidence.
10. I observed that judges of the Court had available to them publications about Aboriginal cultures and identity from reputable sources not reasonably open to challenge. I also observed that there may not be objection to informing myself from those when assessing the weight that should be given to the consideration in s 60CC(3) of the Act for the purpose of determining the children's best interests. I directed counsel to the provisions of s 144 of the Evidence Act 1995 (Cth) and the resources of which I was aware.
11. I informed the parties of the publications that I may take into account,[44] and afforded them the opportunity to make submissions as to whether they objected to me doing so. They did not object and I have had regard to the publications for making the following findings.
12. It is widely known and I accept, based on the authority of the publications to which I referred the parties,[45] that:

(a) While there are some cultural norms that are common to many Aboriginal cultures, there are some differences depending on the region from which they originate;

(b) There are differences between Aboriginal and non-Aboriginal cultures in relation to collective or individualised culture, whereby elders are considered to be responsible for maintaining social spiritual and cultural identity and cohesion;

(c) Family and kinship ties are wider and stronger in Aboriginal cultures than non-Aboriginal culture. Children are seen as the responsibility of extended family;

(d) Connection to land of their ancestors is central to experiencing Aboriginal cultures;

(e) Aboriginal spirituality involving activities of dreaming stories, ceremonies, song, art and dance are an important part of Aboriginal cultures, which are known to vary across regions and states;

(f) In Aboriginal cultures, some topics are considered taboo which are not in non-Aboriginal cultures;

(g) Communication, language and language styles are known to vary between Aboriginal and non-Aboriginal cultures and within different Aboriginal groups;

(h) Published statistics demonstrating comparatively poorer outcomes in health, education and involvement in the justice system for Aboriginal people[46] are widely accepted to be connected to their displacement and intergenerational trauma due to attempts to assimilate and destroy their culture;[47] and

(i) Attachments to land, family and culture have "natural protective and wellbeing factors such as kinship networks; and language, culture and cultural identity [are] key protective factors that predict resilience in children". They also improve likelihood of employment, reduction in alcohol abuse and being charged by police or being a victim of violence.[48]

1. I accept the mother's evidence that she would seek to promote the children's palawa culture to them, but she is limited in what she can do in this respect, both because she is not palawa and because her proposal is to live off country in NSW. This necessarily presents reduced opportunities for the children to engage in, participate with and deepen their palawa culture. The children will have better experience of their palawa identity and culture if they live with the father, surrounded by paternal family members of the same culture on country.

1. In view of the agreed or uncontroversial findings referred to at [46] of these reasons, each parent is likely to be a satisfactory and safe primary carer for the children. Each has performed the role of primary carer at different times in the children's lives. Based on the findings at [46] of these reasons alone, whether the children's best interests are served by living with the mother or father are somewhat equally balanced, except that most of the children's extended family are in Tasmania.
2. As agreed in discussions during the hearing, the outcome in this case mostly rests on the issues discussed at [42] of these reasons.
3. The findings at [48] to [53] of these reasons are also fairly evenly balanced in respect of the children's best interests being served by living with the mother or father, although the mother's psychological vulnerability may compromise her parenting capacity as discussed below at [97] of these reasons.
4. The finding I have made that the father perpetrated family violence and misused alcohol during the relationship, to which the children were exposed, would ordinarily weigh against making the orders he seeks. However, I take into account that there has been no family violence for in excess of two years. Further, there is no evidence of the children being harmed, or that they are at risk of harm or are unsafe due to family violence or alcohol misuse by the father since they came into his primary care. The risk to the children due to family violence and alcohol misuse has been largely if not wholly mitigated.
5. I am satisfied that the proposal for the children to primarily live with the father and his partner promotes the children's safety, physical and emotional wellbeing, and is unlikely to subject them to family violence abuse, neglect or harm.
6. I accept the submission on behalf of the mother that the children's palawa culture and identity is not determinative of their best interests, but it is now a separate and explicit mandatory consideration by the enactment of s 60CC(1)(b) and (3) of the Act.[49] The Commonwealth Parliament deliberately has included more prescriptive mandatory considerations relating to the right of children to enjoy their Aboriginal culture, and the text and purpose of doing so in my view informs the approach the Court should take to assigning weight to the considerations in s 60CC(3) of the Act when conducting its overall discretionary assessment of what is in the child's best interests. This approach is consistent with the established principles of statutory interpretation.[50]
7. Section 60CC(3)(h) of the Act prior to amendment by the Family Law Amendment Act 2023 (Cth) ("the Amendment Act") also required the Court to consider in a non-hierarchical and discretionary way the right of a child to experience their Aboriginal culture with a number of other "additional considerations". Section 60CC(3)(h), as it was, has been the subject of a number of decisions of the Court and the consistent principle emerging from the authorities is that the Court is required to consider the right of the child to experience their Aboriginal culture in an "active" way, not merely by reference to the child accessing texts or literature.[51]
8. Section 60CC(3)(a) of the Act as it is now expressed by inclusion of subparagraphs (i), (ii) and (iii) reinforces the jurisprudence already established that consideration of the experience of Aboriginal culture requires an active assessment and the Explanatory Memorandum confirms this is the intended purpose of the amendments. As noted in the written submissions for the father at [104], the Explanatory Memorandum for the Amendment Act provides:
   1. Connection to culture is a significant protective factor for the wellbeing of Aboriginal and Torres Strait Islander children and their families. Creating a specific provision for Aboriginal and Torres Strait Islander children, rather than including it in new subsection 60CC(2), is intended to ensure that the particular needs and cultural rights of Aboriginal and Torres Strait Islander children are acknowledged and focused on specifically when considering what is in their best interests.

54. [52] Having a specific provision for Aboriginal and Torres Strait Islander children, rather than including it in the list of general considerations in new subsection 60CC(2), is intended to ensure that the particular needs and cultural rights of Aboriginal and Torres Strait Islander children are acknowledged and focused on specifically when considering their best interests.

1. By removing the consideration of Aboriginal identity and culture from a list of "additional considerations" and providing a separate and specific provision, the Court is now required to give sharp and specific focus to a child's right to fully experience their Aboriginal culture and identity in an active manner.
2. The amendment to the provision does not, in my view, alter the overall wholistic discretionary assessment of all relevant considerations for the purpose of determining a child's best interests.
3. I have no doubt that the mother genuinely would support the children's engagement in their palawa heritage, but she is limited in her capacity to do so. The father and his extended family engage in and share their culture and country and will better ensure that the children experience their palawa culture in an active way. Based on my findings and reasons at [68] to [80] of these reasons, the children's Aboriginality and right to experience their culture and identity weighs in favour of them primarily residing with the father. This is particularly so because for those who identify as Aboriginal, attachments to land, family and culture are protective and predicts the resilience of children.[53]
4. The children's views were presented to the Court through the note from the ICL without objection and through the CCE. The children have expressed the view that they are happy in the father's primary care and mostly want to remain at school in Tasmania. They are strongly connected to their half-sister and family in Tasmania.
5. I accept the CCE's opinion that the children's views are genuine and based on their present stability of arrangements since being in the father's primary care. However, noting what they said to the CCE and the ICL, their views can self-evidently be seen to also be based on their love for and connections with the wider paternal family, schools and friendships.
6. There is no doubt that the children's overall experience in the father's care has given them stability and substantial benefits in contrast to the arrangements that existed prior to mid-2023, when there were six changes in care, school and residence.[54] There are now no concerns for their safety or wellbeing, they are progressing relatively well at school and they are happy. I accept that they do miss their mother, particularly Y. Who more recently has expressed a desire to live with her mother.
7. The mother has presented some evidence of the arrangements she would have for the children if they lived primarily with her,[55] but there is no compelling evidence about how she would manage their care arrangements or attendance at schools that are new and unfamiliar to them. The mother asserted that she has strong friendships and supports in NSW but none of those persons have given evidence about what they are prepared to do in relation to assisting and supporting the mother with care of the children. For example, whether they are willing and able to assist with collecting children when sick, transporting them to extra-curricular activities, assisting the mother if she is unwell or needs treatment, or supporting her disciplining of them as they enter more challenging times as adolescents.
8. There is a risk that the mother may not cope alone with the demands of work, caring for children and her mental health.[56] The absence of probative evidence about persons to assist her causes me to conclude that the mother has no meaningful "back up" or "assistance" when parenting is difficult for her. In my view, this weighs against a change in primary residence as it rebuts the proposition that she is clearly better able to meet the children's needs.
9. The CCE opined that stability was the most important consideration for the children, but that she considered stability could be achieved in the mother's care after an initial period of adjustment due to the "strength of the mother's parenting capacity". While this may be the case, I consider that the views of the CCE ignore her own evidence about the mother's psychological vulnerability and risk to which the children may be exposed due to the mother not coping and the absence of supports for her and the children in NSW.
10. Although the risk of the mother not coping with the demands of parenting both children is relatively low, it cannot be ignored that the children are entering adolescence when more challenging behaviours are likely to arise. The mother has failed to persuade me that she could manage in such circumstances given my reasoning at [96] of these reasons. In contrast, the father and his partner, with the support of extended family, have proven their ability to provide a safe, stable and happy home for the children. The father has available to him many supports if and when the children's behaviours become more challenging.
11. Given the strength of the views X has expressed about wanting to remain living with the father in Tasmania, it is unnecessary and unwarranted in view of my other findings to destabilise his current living arrangements. He is of an age where his views should be given considerable weight.[57] The CCE stated that X's views should be approached cautiously because they were likely based on familiarity, but I do not accept this is the only basis for his views nor is it a legitimate basis for diminishing weight to be given to his views. The fact remains that familiarity can provide happiness, security and stability across a range of areas, including school, friends, recreational activities and family bonds, and these are factors that will promote X's psychological and physical wellbeing.
12. In Y's case, the reasons given more recently for wanting to live with the mother are based on holiday or recreational experiences about which she has been told about, and the love and bond she has with her mother.[58] I consider that she unlikely appreciates the significance of the effect there would be on her if she no longer lived within the paternal household, had a change of school, had to make new friends and not live with her half-sister, with whom she is particularly connected. Her views also seem to have been influenced by offers of activities available to her by the mother, which could be offered to her in Tasmania also.[59]
13. I agree that friendships may be formed and reformed as the children age, no matter where they reside,[60] but unnecessarily requiring the reformation of friendships at the age and stage of these children imposes an unnecessary burden and destabilisation upon them.
14. I give some weight to Y's expressed views for the reasons at [100] of these reasons, but they are not determinative. As neither parent seeks an order for the children to live separately from one another, X's strong views, to which I give greater weight for the reasons given, overall weigh against a change in primary carer.
15. The mother's submissions emphasised that the Court should make adverse findings against the father due to family violence and alcohol misuse. I have done so, but in context of what future parenting arrangements are best for the children, those findings are not determinative of it being contrary to the children's interests to remain living with the father.
16. The findings about the considerations that the Court must consider pursuant to ss 60CC(1)(b) and 60CC(3) of the Act weigh in favour of the children remaining in the primary care of the father.
17. Although the mother is somewhat more attuned to the needs of the children and more proactive in addressing them, I am satisfied that the father provides good care and does not neglect the children. Furthermore, he has the support of his partner and extended family, and I consider this will ensure their needs will be met to a good standard overall in the future.
18. By making orders for joint decision making about major and long-term issues for the children, the mother's attribute of being attuned to the children's needs will positively contribute to supporting the children's health and wellbeing. I am confident that she will continue to prompt the father about attending to the children's major and long-term needs and this will be of benefit to them.
19. As the mother proposes to remain living in NSW, there will be some practical difficulty in ensuring the children spend time with her and there will inevitably be a cost involved. Based on the comparative earnings of the parties' households,[61] I find that the mother has somewhat greater capacity to contribute to the cost of travel.

1. In view of the foregoing reasons about the considerations that inform the best interests of the children, the issue of which parent should have primary care is balanced in favour of the children remaining in the care of the father.
2. Their stability and happiness in the father's care, the availability of supports for care, the wishes of the children, the promotion of relationships with extended family and ensuring the children experience and actively enjoy palawa culture to their maximal benefit, all lead to me being satisfied that children should remain in the primary care of the father.
3. In arriving at the conclusion at [108] and [109] of these reasons, I do not diminish the finding that the father perpetrated family violence, including coercive control on the mother. However, necessarily because the parenting orders are to serve the children's interests in the future and because the mother's experience of poor mental health was not solely caused by the father's conduct,[62] the considerations and findings referred to at [109] of these reasons weigh the balance in favour of the children remaining in the father's care. Furthermore, family violence if one of a number of discretionary considerations that are relevant to determining the children's best interests.
4. I accept all the submissions by counsel for the ICL and adopt in large part the orders sought by the ICL, which are consistent with the Court's findings and determination. In view of the orders the Court will make that the children reside with the father, it can be reasonably foreseen that the mother will experience emotional distress and her psychological state may deteriorate. It is desirable that the children be shielded and protected if possible from exposure to any deterioration in the mother's emotional state. Accordingly, an order will be made for her to continue engagement with psychological services to mitigate the chance of her displaying distress to the children.
5. Given the strength of the children's relationship with the mother, they will be able to maintain their meaningful relationship with her through spending significant non-school time with her as can be facilitated, subject to the cost of travel to and from NSW. The mother may also take advantage of spending time with the children in Tasmania during school terms, all of which will ensure the mutually meaningful relationship between children and mother continues.
6. There will be orders for the children to live primarily with the father and spend time with the mother in NSW and Tasmania. The parties' submissions did not specifically address how the cost of facilitating the children spending time with the mother in NSW should be met, but based on the orders they seek, it is reasonable to infer that they do not oppose roughly equally sharing the cost of the children's airfares. Due to the finding at [107] of these reasons, I consider the mother should bear the expense of her own airfares when spending time with the children in Tasmania.
7. At the time of the defended hearing, the parents had not completed all courses recommended by the CCE. As such, it is the interests of the children that they do so because it will continue to support improved communications and co-parenting. This will be important because I have been persuaded that the children will benefit if the parents make joint decisions about major and long-term issues,[63] particularly because their parenting approach and styles are likely to compliment or support one another.
8. The parties will have the opportunity to make submissions about the draft final orders in respect of mechanical or practical issues and the cost of facilitating the children's time with the mother.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[1] Father's Outline of Case filed 10 December 2024; mother's Outline of Case filed 10 December 2024; and the ICL's Outline of Case filed 10 December 2024.

[10] As amended by Section 60CA of the Act.

[11] As amended by the Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2; and Aldridge & Keaton [2009] FamCAFC 229; (2009) 235 FLR 450.

[14] See A & A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035; and Taylor & Barker [2007] Fam CA 1236; (2007) FLC 93-345.

[16] I infer in preparation for the defended hearing.

[17] Affidavit of the father filed 26 November 2024 at Annexure D.

[22] Affidavit of the mother filed 18 November 2024 at [21].

[23] Report of Mr Y dated 7 November 2024, attached to the affidavit of the mother filed 18 November 2024 at Annexure C.

[24] Family Report at [46]; affidavit of the father filed 26 November 2024 at [112].

[26] Affidavit of the father filed 26 November 2024 at [112]-[115] and [180]; Affidavit of the mother filed 18 November 2025 at [74]-[78].

[27] The General Manager at the father's workplace at the time of the incident referred in the mother's trial affidavit at [75].

[28] Affidavit of the father's partner filed 26 November 2025 at [18]-[20]; affidavit of the father filed 26 November 2024 at Annexure B.

[31] Pursuant to s 144 of the Evidence Act 1995 (Cth), noting that the parties did not object to the Court considering this publication.

[32] Affidavit of the father's partner filed 26 November 2025 at [23]-[25].

[33] Family Report at the final sentence of [43].

[34] Constituting family violence within the meaning of s 4AB of the Act.

[36] Australasian Institute of Judicial Administration, National Domestic Violence Bench Book (2024), ch 3.1.4 and 3.2.

[38] At [30(aa)] and [30(bb)] of these reasons.

[39] Transcript of proceedings dated 12 December 2024 on page 44 at line 45 to page 45 at line 7.

[40] See text messages attached to the affidavit of the father filed 26 November 2024 at Annexure C.

[42] Affidavit of Mr O filed 9 December 2024.

[43] Exhibit ICL6 at pp 2-3; and Family Report at [5] and [63].

[44] Bugmy Bar Book Project Committee, Cultural Dispossession Experienced by Aboriginal and Torres Strait Islander Peoples (Updated February 2025) ("Bugmy Bar Book"); and Judicial Commission of New South Wales, Equality before the Law Bench Book (October 2023), Section 2 ("Equality before the Law Bench Book").

[45] Equality Before the Law Bench Book at 2.2.3.

[46] Equality Before the Law Bench Book at p 2,103 onwards.

[47] Equality Before the Law Bench Book at p 2,113; and Bugmy Bar Book, executive summary.

[48] Bugmy Bar Book, executive summary.

[49] Family Law Amendment Act 2023 (Cth).

[50] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; [1998] 194 CLR 355 at [71]; and Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation [1981] 147 DLR 297 at [304]-[305].

[51] See Gareth & Naylor [2019] FamCA 561; Hort & Verran [2009] FamCAFC 2; Davis & Spring [2007]

FamCA1149; and Sheldon & Weir (2011) FamCAFC 212.

[52] Of Schedule 1 of the Notes on Clauses.

[55] Affidavit of the mother filed 18 November 2024 at [305]; Transcript of proceedings dated 11 December 2024 on page 46 at lines 8-16.

[56] Findings at [49] of these reasons.

[57] Bondelmonte v Bondelmonte [2017] HCA 8 at [35]; In the Marriage of Boman [1981] FamCA 62; (1981) 7 Fam LR 586; and Mitchell v Mitchell (1983) 9 Fam LR 267.

[60] Mother's written submissions filed 20 January 2025 at [12].

[61] $96,000 per annum for the mother, see [26(ss)] of these reasons; $75,000 per annum for the father, see [30(hh)] of these reasons.

[63] As each parent sought during the defended hearing.