What happened

Kovac & Hurst concerned two children, X, born in 2011, and Y, born in 2014. Their parents, Ms Kovac and Mr Hurst, disputed parental responsibility, the children’s time with their father, allegations of sexual abuse or inappropriate sexual conduct, and a proposed move by the mother with the children from Sydney to Victoria.

The mother sought sole parental responsibility, permission to relocate to City C or Melbourne, and continuing supervised time for the father. She alleged that the father had sexually abused or exposed one or both children to inappropriate sexual conduct. The father denied those allegations, opposed relocation and sought, among other arrangements, six nights per fortnight with the children, half of school holidays and time on special occasions. The Independent Children’s Lawyer supported sole parental responsibility for the mother and proposed that she be permitted to relocate, alongside a staged and reduced pattern of time with the father.

The conflict had been prolonged. The proceedings began in 2016, and the children’s time with their father changed repeatedly under interim orders. In September 2019, their time was suspended; in October 2019, it resumed for four supervised hours each Sunday. By the final hearing, the central factual dispute included the children’s sexualised behaviour and statements reported by the mother, and whether those matters showed a risk arising from the father’s care.

The court had evidence from both parents, other witnesses and Dr O, a single expert psychologist who also gave oral evidence. The court found that neither child’s time with the father required ongoing supervision for safety. It ordered four initial supervised Sundays, followed by regular unsupervised time. It gave the mother sole parental responsibility, ordered that the children live with her, and declined to make orders permitting the proposed relocation to Victoria.

The final arrangements were not simply an endorsement of either parent’s complete proposal. The mother did not obtain indefinite supervision or the proposed relocation. The father did not obtain shared parental responsibility or an order requiring the mother to live in his immediate area. The resulting orders combined the mother’s primary-care role with a substantial, continuing role for the father.

Why the court decided this way

The judge approached the case through the statutory best-interests framework in Part VII of the Family Law Act 1975 (Cth). The reasons identify the benefit of a meaningful relationship with both parents and the need to protect children from harm as the primary considerations under s 60CC(2), with greater weight given to the protection consideration under s 60CC(2A). The court also addressed the additional considerations it considered relevant, including the children’s views, relationships, the likely effects of change, practical difficulties and each parent’s capacity.

On risk, the court considered the mother’s accounts of sexualised behaviour, Y’s alleged disclosures, the JIRT interviews and investigation, and Dr O’s assessment. Neither child spoke to JIRT at either attempted interview. The court noted that JIRT closed its investigation without further action and that the mother was the only person to whom either child had made a statement capable of being construed as a complaint of sexual abuse by the father. The judge considered Dr O’s view that the mother had asked leading questions of Y to be supported by the account of the conversation. Dr O also considered that the sexualised behaviour could be explained by the children’s own behaviour and developmental circumstances, and that both parents had responsibilities to provide clear boundaries.

The judge therefore made an express finding that unsupervised time would not expose either child to an unacceptable risk of sexual abuse. That finding did not amount to a conclusion that every aspect of the father’s parenting had been appropriate. The reasons record criticism of some of his choices, including his past conduct towards the mother and a preference for individual surfing time with X that was to Y’s detriment. The orders’ initial supervised period was accepted as a form of security for the mother, rather than as a safety measure required by the court’s risk finding.

Parental responsibility was a separate question from the amount of time the children would spend with each parent. The court found that the presumption of equal shared parental responsibility had been rebutted because the parties could not communicate effectively and joint decision-making would be extremely arduous. The reasons connect this assessment to the risk that the children would be exposed to continued conflict. The mother was the unchallenged primary carer, so the judge allocated sole parental responsibility to her. The orders still required her to seek and consider the father’s views before long-term decisions and to keep him informed.

Relocation was assessed in light of its practical and relational consequences for the children. The expert regarded regular contact with both parents as important, and the judge considered that a move to rural Victoria would involve a new school, a major adjustment and loss of regular time with the father. The judge recognised that relocation could benefit the mother through family support and distance from the father, particularly given the father’s past coercive communications. But those benefits did not outweigh, for the children, the loss of regular contact identified in the evidence. The court did not respond by ordering the mother to remain close to the father; rather, it required accommodation arrangements to facilitate the children’s time with him.

Before and after state of the law

This judgment applied, rather than changed, the statutory framework described in its reasons. It discussed s 60CC, the presumption in s 61DA, and the time-arrangement provisions in s 65DAA. No legislative amendment or change in doctrine is identified in the material provided.

The court cited MRR v GR (2010) 240 CLR 461 when explaining that s 65DAA requires a practical assessment of whether equal or substantial and significant time is reasonably practicable. The reproduced passages from MRR explain that the statutory questions about best interests and reasonable practicability are distinct, and that a court cannot treat the presumption of equal shared parental responsibility as determining the time question. The High Court’s quoted discussion also describes reasonable practicability as a practical assessment of the parents’ and child’s circumstances. In this case, the judge noted that there would be no order for equal shared parental responsibility and that no party proposed equal time, so the court said it was not required to consider an equal-time arrangement.

The reasons also discussed Taylor & Barker [2007] FamCA 1236. As presented in this judgment, that authority treats relocation as part of the overall assessment of a child’s future living arrangements, while giving real consideration to equal or substantial and significant time where the statutory provisions require it. The point is not that relocation automatically decides the parenting question, but that its effect on the proposed arrangements, including the practical ability to maintain time with each parent, is relevant.

The judgment’s use of these authorities is case-specific. It does not purport to establish a new rule that relocation should always be refused where it reduces contact, or that sole parental responsibility follows whenever parents communicate poorly. The judge’s conclusions depended on the children’s attachments, the expert evidence, the parents’ circumstances and the evidence of conflict in this family.

The supplied judgment contains no information about subsequent decisions or later judicial treatment of Kovac & Hurst. It is therefore not possible, on this source alone, to say whether later courts followed, distinguished or questioned it.

Key passages with plain-English translation

The judge described the parents’ communication as “nothing short of abysmal”. In plain English, the court considered that they could not reliably make significant decisions together without exposing the children to further conflict. That assessment supported sole parental responsibility for the mother, rather than equal shared decision-making.

The judge found that “unsupervised time with the father will expose neither child to an unacceptable risk of sexual abuse.” This was a finding about the evidence in this case and the particular risk alleged. It explains why the court did not order indefinite supervision. It does not mean that the court regarded all the children’s sexualised behaviour as harmless or that it excused either parent from setting boundaries.

On relocation, the judge said there was no good reason, from the children’s best-interests perspective, to require the mother by court order to remain in close physical proximity to the father. This matters because the refusal to make relocation orders did not amount to a positive order fixing the mother’s home near the father. The judgment instead left the mother’s location open within the practical constraint that accommodation facilitate the ordered parenting arrangements.

The expert’s evidence that regular contact with both parents was “essential” was important to the relocation assessment. The court considered that a proposal for only 21 days of supervised contact per year after relocation would not provide the regular contact the expert regarded as necessary. The court instead ordered a staged return to unsupervised time and regular periods with the father.

What fact patterns trigger this precedent

Kovac & Hurst may be relevant to analysis of fact patterns involving contested parenting arrangements, allegations of sexualised conduct, and a proposal to relocate children away from a parent. Its reasoning is particularly tied to cases where the court must assess whether the evidence supports an unacceptable-risk finding, rather than treating allegations alone as determinative.

It also illustrates circumstances in which parental responsibility and parenting time are treated as distinct issues. Here, the parents’ communication was too poor for shared decision-making, but the children’s relationships with both parents remained strong. The court therefore allocated sole parental responsibility to one parent while ordering substantial time with the other.

The relocation analysis may be relevant where a proposed move would change schools, require long-distance travel and materially reduce regular contact. The judgment emphasises the particular evidence about the children’s attachments and expert assessment. It does not establish that relocation must be refused whenever it makes contact more difficult, or that an expert’s recommendation dictates the result.

A lawyer applying the decision would need to compare the evidence and statutory context carefully. Relevant differences could include the strength and nature of the evidence of harm, the children’s views and maturity, the quality of each parent’s relationship with the children, the parents’ communication, and the practical details of the proposed post-relocation arrangements. The judgment does not resolve those questions for other families.

How later courts have treated it

The material supplied is the judgment itself and the legal authorities it cites. It does not include later judgments discussing Kovac & Hurst, so no reliable account of subsequent treatment can be given from these sources alone.

Within its own reasons, Stevenson J cited MRR v GR for the statutory approach to reasonable practicability and discussed Taylor & Barker in relation to relocation and time arrangements. The judgment also referred to U v U and Bolitho & Cohen through the discussion of Taylor & Barker. Those references should not be mistaken for later treatment of Kovac & Hurst: they are authorities that the 2020 judgment itself discussed.

For research purposes, the distinction between the court’s own findings and the authorities it quotes is important. The finding of no unacceptable risk, the conclusion that shared parental responsibility was not in the children’s interests, and the refusal to make relocation orders are the outcomes reached on this family’s evidence. The supplied source does not establish how later courts have treated those conclusions.

Still-open questions

The judgment is a first-instance decision on a particular evidentiary record. It does not resolve how a court should assess every case involving sexualised behaviour between children, a parent’s account of a child’s disclosure, or competing expert interpretations. It records why this judge accepted Dr O’s assessment, but does not create a general evidentiary rule for other cases.

The reasons also do not provide a universal threshold for when conflict makes equal shared parental responsibility unsuitable. The court assessed the parties’ communication, the father’s past messages and conduct, and the likely impact of decision-making on these children. The practical question in another case would depend on its own evidence.

Relocation remains highly dependent on the details of the proposal. The judgment considers the destination, schooling, travel, contact frequency, the children’s attachments and the mother’s reasons. It does not specify how a different travel plan, a different level of support, or different evidence about the children’s needs would affect the balance.

Finally, the provided materials do not show whether the orders were later varied, how the arrangements worked in practice, or how subsequent courts have cited the decision. Those questions cannot be answered from this judgment alone.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

Judgment (133 paragraphs)

[1]

Kovac & Hurst [2020] FamCA 1033 (3 December 2020)

[2]

[2020] FamCA 1033

[3]

FAMILY LAW - CHILDREN - Where it is not in the best interests of the children for the parents to have equal shared parental responsibility - Where the parents have a poor co-parenting relationship and are unable to effectively communicate - Orders for the mother to have sole parental responsibility - Unacceptable risk - Where the children have engaged in sexualised play - Where there is not an unacceptable risk in the father's household - Where the children have a strong attachment to both parents - Where the mother seeks to relocate to Victoria - Where it is not in the best interests of the children to minimise the role of the father in their lives - Orders for the children to spend time with the father.

[4]

Family Law Act 1975 (Cth) ss60B, 60CC, 61DA, 65DAA

[5]

MRR v GR (2010) 240 CLR 461

[6]

Taylor & Barker [2007] Fam CA 1236; (2007) FLC 93-345

[7]

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

[8]

(1) All existing Orders in relation to the children:

[9]

(2) The mother has sole parental responsibility for the children, provided that:

[10]

2.1 before making any long-term decision in relation to the children's welfare, she will seek the views of the father and take such views into account and

[11]

2.2 she keeps the father informed of all major long-term decision which she makes in relation to the children's welfare from time to time.

[12]

(4) The children spend time with the father as follows:

[13]

4.1 for four Sundays, the first being immediately following the date of these Orders, from 9.00 am until 5.00 pm under the supervision of the father's sister Ms B or a professional supervisor

[14]

4.2 thereafter from the conclusion of school or 3.00 pm on Wednesday until the commencement of school or 9.00 am on Friday in each alternate week and from 9.00 am on Saturday until the commencement of school or 9.00 am on Monday in every other week

[15]

4.3 subject to Order 4.4 and commencing with the Easter 2021 school holidays, for one-half of all school vacation time being the first half in 2021 and each alternate year thereafter and the second half in 2022 and each alternate year thereafter.

[16]

4.4.1 on each child's birthday from the conclusion of school until 7.00 pm on a weekday or from 2.00 pm until 7.00 pm on a weekend if they are not otherwise in the care of the father

[17]

4.4.2 from 5.00 pm on Christmas Eve until 12.00 noon on Christmas Day in 2022 and each alternate year thereafter

[18]

4.4.3 from 9.00 am until 5.00 pm on each Father's Day.

[19]

(5) Notwithstanding the provisions of any other Order, the children spend time with the mother as follows:

[20]

5.1 on each child's birthday from the conclusion of school until 2.00 pm on a weekday or from 2.00 pm until 7.00 pm on a weekend, if they are not otherwise in the care of the mother

[21]

5.2 from 5.00 pm on Christmas Eve until 12.00 noon on Christmas Day in 2021 and each alternate year thereafter

[22]

5.3 from 9.00 am until 5.00 pm on each Mother's Day.

[23]

(6) The mother cause the children to be delivered to the father at the commencement of all periods of time in his care pursuant to these Orders, other than for changeovers at their school, and the father cause them to be collected from the mother at the conclusion thereof.

[24]

7.1 the principal for the time being of the children's school; and

[25]

7.2 all treating health professionals of the children for the time being

[26]

to provide to the father all information which he may request in relation to their education and health.

[27]

(8) Each party is authorised to attend any event at the children's school which is normally open to parents.

[28]

(9) Each of the parties is permitted to travel interstate or overseas with the children during periods of time in his or her respective care pursuant to these Orders provided that:

[29]

9.1 the travelling parent provides an itinerary and contact information no less than 21 days prior to each such trip

[30]

9.2 the non-travelling parent has reasonable communication with the children during all such trips

[31]

9.3 during all such trips with the father, he has sole parental responsibility for the children.

[32]

(10) The parties are at liberty at all times to vary the provisions of these Orders by agreement in writing.

[33]

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

[34]

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kovac & Hurst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

[35]

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

[36]

The applicant mother, Ms Kovac, and the respondent father, Mr Hurst, seek competing orders in relation to their two children:
- X born in 2011 (9) and
- Y born in 2014 (6).

[37]

The mother alleged that the children would be placed at an unacceptable risk of harm in the unsupervised care of the father. She sought final orders that they spend only supervised time with the father on an indefinite basis. In particular, the mother alleged that the father subjected Y or both children to sexual abuse. The mother sought orders which would permit her to relocate the children's residence to City C or Melbourne in the State of Victoria. Additionally, the mother sought an order that she have sole parental responsibility for the children.

[38]

The father strongly denied all allegations that he sexually abused either child or exposed the children to inappropriate conduct. The father sought orders to the effect that the children spend time with him for six nights per fortnight; half of all school holidays and on special occasions. The father opposed the relocation proposal and sought orders which would require the children to continue to live in the Northern suburbs of Sydney.
At the conclusion of the trial, the Independent Children's Lawyer ("the ICL") proposed that the mother have sole parental responsibility for the children and that she be permitted to relocate their residence to City C. The ICL sought orders that the children spend day periods only with the father for four weeks, followed by three overnight stays. After the relocation the children would spend time with the father on three weekends per term and for half of all school holidays.

[39]

The father was born in 1956 and is currently 64 years of age. He has three adult children from a previous relationship, including Mr D who was born in 1998. Regrettably, the mother involved Mr D in these proceedings by filing an affidavit sworn by him in support of her case. Mr D was not required for cross-examination and, in my view, his evidence was of little assistance in the determination of the proceedings.
The father has re-partnered with Ms E, a 29 year old professional who is in the process of completing a doctorate degree. It appears that Ms E has met the children but, to date, they have spent little time in her company.
The mother has a son, Mr F, born in 2000, from a prior relationship. Regrettably, the mother elected to file an affidavit by Mr F in support of her case. Mr F was not required for cross-examination.
The parties commenced a relationship in 2010, some two months after their initial meeting. The mother claimed that she ended the relationship in October 2010 but the parties reconciled when she discovered she was pregnant with X. They began to cohabit in a home at Suburb G, which was then owned by the father, in about May/June 2011.
In September 2011 the father took on employment in Queensland and lived there until July 2012. He then moved into the mother's rented accommodation at Suburb G. The mother claimed that she soon formed the view that the relationship was untenable and asked the father to leave her home within a few weeks. She alleged that the father moved into the home of his sister at Suburb Q but resumed living with the mother in December 2012.
The mother's son Mr F went to live with his father in February 2014. He returned to live with the mother in approximately July 2014.
In January 2014 the parties moved into the father's home at Suburb G but the mother left the premises with X in March 2014. She returned to the father's home in July 2014, having given birth to Y earlier in 2014.
In June 2015 the mother decided to terminate the relationship and leased a house in Suburb G. The father sold his house and moved into these premises in January 2016. On 2 or 3 March 2016 the mother told the father to leave the home, before she left on a trip to Queensland with the children and Mr F. The father remained in the home until the mother changed the locks on 21 March 2016.

[40]

"X took another boy into the bushes and told him to take his pants down so he could kiss his willy. The boy did as he was told and X did what he said he was going to do. I have reported the incident to [the Department of Communities & Justice] under the mandatory reporting guidelines."

[41]

The mother commenced proceedings in the Federal Circuit Court by way of an Initiating Application filed on 20 April 2016. On 2 May 2016 interim orders were made by consent and the children began to spend time with the father as follows:

[42]

● each Tuesday from the conclusion of school or 12 noon until 5.00 pm on Wednesday for X

● from 3.00 pm until 5.00 pm each Tuesday and from 9.00 am until 5.00 pm every Wednesday for Y

● each Thursday from the conclusion of school or day care until 5.00 pm for both children

● each alternate weekend from Friday afternoon until 5.00 pm on Sunday for both children.

[43]

On 18 June 2016 an interim Apprehended Violence Order was issued against the father for the protection of the mother, after an incident at a work function where she was acting as host. This application was withdrawn in June 2016.
In July 2016 the mother and the children were at a beach, with a group which included the other boy who was involved in the incident at the day care centre in March 2016. The mother deposed that this child said to his mother in her presence:

[44]

"Mum, X told me to touch his willy"

after the two boys had been alone together on the lifesavers platform.

[45]

The mother deposed that, in early 2017, she observed the following incident:
1. In early 2017 X and Y were having a bath together. I was in the bathroom with them and I noticed X talking to Y and cajoling her into touching his penis and allowing him to touch her vagina. He said to her words to the effect:

[46]

On 27 July 2017 the mother filed a Notice of Discontinuance, on the basis that the parties would negotiate their own parenting arrangements. The mother alleged that, within six weeks, the father resumed a previous pattern of subjecting her to numerous emails and text messages which contained abusive material.
In December 2017 the parties agreed upon arrangements for the children to spend time with the father. These arrangements included overnight time and an additional stayover for X each Wednesday. According to the mother, within a few weeks X began to say that he did not want to stay overnight at the father's home without his sister.
The mother deposed that, at the end of the 2017/2018 school holidays, she was at the home of X's friend S with the children. She deposed that S said to his mother, in her presence:
1. ... "Mummy, X told me to touch his willy or he would punch me."

[47]

The mother deposed also that she immediately went into the children's bedroom and she heard X say to Y:

Go on, pull your pants down.

[48]

The mother deposed that, on an unspecified date in the first half of 2018, X came into her bed in the early hours of the morning and "tried to put his hand, slowly, into my pyjama pants". She deposed that she asked him "...why did you reach into my pajama [sic] pants this morning in the dark?" and that he made no reply.
The mother deposed that on 1 June 2018 the father delivered X to her at Y's dance lesson and that he was "crying hysterically". The mother deposed that X told her that the father had hit him three times and that she saw red marks on his back. The mother made a police report in relation to this allegation.
On 29 August 2018 the mother commenced the current proceedings, by which she sought parenting and child support departure orders. The mother's application for a departure order properly was withdrawn at the trial.
On 17 September 2018 interim orders were made by consent, which provided that the children spend time with the father each Tuesday afternoon until 5.00 pm on Thursday and every Sunday from 9.00 am until 4.00 pm. Between 30 September 2018 and 6 October 2018 the children spent time with the father on a holiday at the north coast.
The mother deposed that, in November 2018, she saw Y "deface the pubic area on one of her new dolls with black texta and then take photos of the doll's pubic area with my phone." The mother exhibited these photos to her trial affidavit.
The mother deposed that both children displayed angry and defiant behaviour after they returned from the holiday at the north coast with the father. She deposed that X had displayed disturbed behaviour prior to this trip and that he said frequently that he did not want to stay overnight at the father's home.
The mother deposed to an incident which occurred at day care on 10 December 2018 between Y and a child H. This incident was described by Ms J, the mother of H, in her affidavit of 20 July 2020. Ms J deposed as follows:
1. Y and H attended pre-school together at L day care. In or about 2017 (the girls were about 3 years old) I collected H from pre-school and she said to me:

[49]

"I played a game today. Y had to check my vagina for bugs."

In her oral evidence Ms J corrected the date of this incident to 10 December 2018.

[50]

Ms J informed the mother of this incident by way of text message and a conversation. The mother reported this incident to the Department of Communities and Justice ("DCJ") and discussed the matter with her general practitioner, a therapist and psychologist. The mother withdrew Y from this pre-school in December 2018.
The children spent holiday time with the father between 4 and 17 January 2019. They travelled interstate. with the father for the wedding of his daughter between 31 January 2019 and 4 February 2019.
On 17 April 2019 interim orders were made which provided that the children spend time with the father from Wednesday afternoon until Friday morning in each alternate week and from 4.00 pm on Saturday until 4.00 pm on Sunday for Y and until Monday morning for X in every other week. These orders provided also for block periods of time with the father during school holidays.
The mother deposed to the following conversation with Y on 1 September 2019, after she observed that the child "was reaching down deep into her night-time nappy and straining to put her finger inside her bum whilst grinning." The mother deposed that she and the child had the following conversation:
1. Me: "Are you putting your finger in your bum? Does it feel good?"

[51]

Y: "Yes"

Me: "Have you been doing that a lot lately?"

Y: "Yes, and X has been doing it too."

Me: "Is X doing it in your bottom and are you doing it in his bottom?"

Y: "Yes, and Daddy too."

The mother deposed that Y said also, during the course of this conversation:

452. ... "We massage each other's bums";

"Daddy uses the pinkie on his finger to massage the poo in my bum and in X's bum."

The mother deposed that:

I then asked whether they massaged anywhere else and Y said to me words to the effect:

"Our hair, our eyes ... and X's willy and Daddy's willy. Daddy's willy gets all gooey and sticky."

[52]

The mother deposed further that she and Y then had the following conversation:
1. Y then laughed and we had an exchange to the following effect:

[53]

Me: "Is it a game that you tell other people about?"

Y: "No, it's a secret. You can't tell anyone."

Me: "If it's a secret why are you telling me the secret?"

Y: "I only tell people I love."

Me: "Some secrets are not good to keep."

Y: ... "You have to keep it a secret."

... 'Well I just make up a big story lie anyway. If you tell anyone you will go to City C. If you tell anyone you will go to gaol.

Zip it."

[54]

The mother made a report of this conversation to DCJ, after she put Y to bed that night. She also made "a detailed file note" of this conversation.
On 2 September 2019 the mother took the children to an interview by officers of a Joint Investigation Response Team ("JIRT"). Neither child would speak to the officers either on this occasion or at a second attempt at interview on 4 September 2019.
On 12 September 2019 interim orders were made which suspended the children's time with the father until 22 October 2019. These orders also restrained the leaving of the children in the care of their half-brother Mr F or any resident of the building in which the mother and the children lived at that time.
On 22 October 2019 interim orders were made which provided that the children spend time with the father under supervision for four hours each Sunday. His sister Ms B acted as supervisor, having given an undertaking as to her responsibilities. The mother rejected as supervisors approximately 20 additional people proposed by the father.
On 6 July 2020 a Victorian solicitor instructed by the father wrote to the mother in relation to proposed defamation proceedings. This letter demanded "a public apology" and an undertaking that the mother desist from "further defamatory comments" in relation to the father.

[55]

In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) ("the Act") sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two "primary" and several "additional" considerations, to which the Court must have regard in determining what orders are in a child's best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent's household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child's best interests for his or her parents to have equal shared parental responsibility.

[56]

[8] Subsection (1) of s 65DAA is headed "Equal time" and provides:

[57]

If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

[58]

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

[59]

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

[60]

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

[61]

Subsection (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

[62]

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

[63]

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

[64]

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

[65]

Subsection (3) explains what is meant by the phrase "substantial and significant time".

[66]

[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

[67]

[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

[68]

[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. ...

[69]

In Taylor & Barker [2007] Fam CA 1236; (2007) FLC 93-345 the Full Court (per Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:

[70]

(i) 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:

[71]

U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen [2005] FamCA 458; (2005) 33 Fam LR 471; (2005) FLC 93-224 applied.

[72]

(ii) There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, such a proposal now also needs to be considered in the context of s 65DAA. 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 subs (2) (primary considerations) and subs (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.

[73]

(v) The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in "substantial and significant time" (or for that matter in "equal time"), the magistrate had then turned to consider the "reasonable practicability" of such an arrangement, some assistance would have been gained from s 65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether "substantial and significant time" would be "reasonably practicable" if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate's decision was incorrectly reached.

[74]

(vi) The options of the child spending "equal time" or "substantial and significant time" with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an "equal time" or "substantial and significant time" arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend "equal time" or "substantial and significant time" with each parent.

[75]

The applicant mother relied on the following affidavits:

[76]

Mr D sworn on 15 October 2019 (the father's son)
Ms K sworn or affirmed on 20 July 2020 (the maternal grandmother)
Ms M sworn on affirmed on 20 July 2020 (friend of the mother)
Ms J sworn or affirmed on 20 July 2020 (friend of the mother)
Mr F affirmed on 23 July 2020.

[77]

Mr D and Mr F were not required for cross-examination.

[78]

The respondent father relied on the following affidavits:

[79]

1. Mr Hurst sworn on 27 July 2020 (the father)

2 Mr N sworn on 30 July 2020 (friend of the father)

3. Ms P sworn on 20 July 2020 (friend of the father)

4. Ms B sworn on 14 July 2020 (the father's sister).

Ms P and Mr N were not required for cross-examination.

[80]

I had the benefit of a single expert report by psychologist Dr O dated 5 February 2020. Dr O also gave oral evidence by way of cross-examination by counsel for all parties.

[81]

THE BEST INTERESTS OF X AND Y: SECTION 60CC CONSIDERATIONS

[82]

Section 60CC(2) considerations

[83]

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

[84]

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."

[85]

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

[86]

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

[87]

In my view the orders proposed by the mother indicate that she considers that the children will benefit from a meaningful relationship with each of their parents. She made no proposal for a complete cessation of contact and communication for the children with the father. Similarly, I am of the view that the proposals of the ICL indicate that she considers that the children will benefit from a meaningful relationship with each of their parents. Obviously, the proposals of the father indicate that he is of the view that the children will benefit from a meaningful relationship with each of their parents.
The single expert, Dr O, made recommendations for a re-introduction of time for the children with the father on certain conditions. He opined as follows:
1. In sum therefore, it is my opinion that allowing X and Y to resume contact with [the father] under a supervised care arrangement to be agreed upon by the parties would be considered appropriate at the present time. Following the attendance of [the mother] and [the father] together, at a minimum of two sessions with a suitably qualified professional who can guide them in placing appropriate boundaries around their children's behaviour and also to guide them in how to do this in the safest and most effective manner for the children, the Orders could return to as previously agreed upon in a 4/10 of 14 arrangement. From this point forward, both parents need to be quite firm about the children no longer co-sleeping with either of them and to be equally vigilant about appropriate and not-appropriate interpersonal conduct - especially X. ...

[88]

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

[89]

Dr O considered the allegations of sexual abuse and/or exposure of the children to inappropriate sexual behaviour by the father. He opined as follows:
1. By her own account, [the mother] has found making decisions about how to best manage her concerns and fears in relation to [the father] extremely difficult but has acted in a manner in which she believes provides the safest outcome for the children. Despite the removal of [the father] from their care, the children appear to both have continued to engage in sexualised behaviour on a recent trip away with friends.
2. The concern here is that [the mother's] decision to appropriate blame to [the father] for the behaviours of the children has not been substantiated by the police investigations nor of the investigations conducted by [the Department of Communities & Justice]. Furthermore, no additional clarity was obtained during the current assessment. As such, it raises the question about the possible reason for X and Y's heightened sexualised behaviour and tendency to aggressively act out. It is strongly recommended that both [the mother] and [the father] attend parenting courses, which provide them with guidance on how to place firm boundaries on their children's behaviour and the skills in which to manage their outbursts when they occur.
3. There remains a strong concern that if X continues to engage in this for the most part normal age relevant and inquisitive play, that it will become entrenched and quickly move outside the age range of what is typical (though not condonable) behaviour due to his increasing age and level of maturity. There also remains a strong possibility that Y is learning this from her brother, and her inquisitive actions may be as a result of this preoccupation and potentially influence on her. It appears from the current assessment, [the mother] has for the most part avoided talking about the sexualised behaviours with X and Y, instead instructing [the father] to not speak about them and also not including him in any further counsel and direction to the children about the inappropriateness of such behaviours. Furthermore, [the father's] response appears to be aggrieved indignation that he is being blamed for these behaviours, and as such adamantly denies the occurrence of the behaviours altogether. It is felt that X needs to have very clear instruction from both of his primary caregivers regarding his behaviour and a child-relevant discussion had with him regarding the inappropriateness of behaving this way. ...

[90]

Following a review of all documents provided, and extensive interviews and assessment conducted, there appears to be minimal identifiable risk posed by [the father] to Y or X presuming that (once unsupervised contact resumes) he provides a firm undertaking that he will not co-sleep with either child again, that when they are in his care he will ensure appropriate respectful personal boundaries are observed by X towards Y and that he will no longer allow them to change, bathe or shower together.
In his oral evidence Dr O said "nothing gave me any sense that X has been sexually interfered with by the father". In relation to Y, he said words to the effect "I would caution that a child can have a close, even enmeshed relationship with an alleged abuser" but added that he observed nothing of concern in the nature of the children's interactions with the father.
In his oral evidence Dr O explained that the mother's apparent adherence to a belief that the father has acted toward the children in a sexually inappropriate manner is impacted by the very poor co-parenting relationship between the parties. He said words to the effect:

[91]

Sexual abuse allegations take on a currency of their own in conflicted situations. A person is more ready to accept that someone they don't like is capable of doing that. Also, the father has done some fairly dumb things with his parenting, for example leaving four year old Y alone and going surfing with X.

[92]

In his oral evidence Dr O also said words to the effect:

[93]

The possibility is open that these children may have been caught up in behaviour of other children, rather than being the instigators. Three or four year olds can be obsessed with playing with poo. Massaging buttocks and fingers in anus potentially are in the land of offending behaviour but the way in which they were questioned [is significant] and now there is an attention-seeking reinforcement element with recent discussions.

[94]

Dr O said that he "certainly took Mr D's affidavit into account" and opined that "it raises questions and brings into play an issue of co-sleeping being a pattern that should not continue in any way." As noted, this witness was not cross-examined by counsel for the father.
Dr O was asked specifically to comment on the mother's conversation with Y on 1 December 2019. He said inter alia:

[95]

Massaging willy, gooey and sticky are age-appropriate words for a five and-a-half year old. It raises my level of vigilance and concern as to the possibility of sexual abuse. Children will readily acquiesce to their parents. There is a need to be really guarded about relying on any of it. I would put it below the balance of probabilities. There is a lead up before "daddy's willy gets all gooey and sticky".

[96]

I am satisfied, and I find, that unsupervised time with the father will expose neither child to an unacceptable risk of sexual abuse. The JIRT investigation elicited no complaints by either child of any inappropriate sexual behaviour on the part of the father. JIRT elected to close their investigation, without taking any further action.
Additionally, the mother is the only person to whom either of the children has made a statement which could be construed as a complaint of sexual abuse. Dr O considered that the mother asked leading questions of Y, which seems self-evident to me on the face of her account of the conversation. As Dr O observed, the mother was well disposed to believe that the father is a child sexual abuser in the climate of conflict and suspicion between the parties. There was no evidence that X has made a statement to any person, including the mother, which could be construed as a complaint of sexual abuse by the father.
In my view, Dr O provided a convincing and innocent explanation for the sexualised behaviour of both children. Effectively, he opined that the parties each have a responsibility to discourage and restrain this behaviour as primary carers of the children.

[97]

Section 60CC(3) considerations

[98]

I will refer only to those considerations which are relevant to the present proceedings. Some of these considerations, for example subsection 60CC(3)(h), have no role to play in the outcome of this litigation.

[99]

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

[100]

X said to the single expert "I have told everyone who has asked me that I want to spend more time with dad" and expressed a wish to live at the homes of each of his parents "half and half". Dr O elected not to interview Y "due to her young age and extreme shyness".
Dr O assessed that X is of an age and level of maturity such that "considerable weight" should be placed on his views. He identified X's stated wish for an equal time arrangement, however, as "maybe nothing more than a developmentally appropriate expression of distributive justice".

[101]

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)

[102]

Dr O considered that both children "have a strong and positive attachment" to each of their parents. He noted "an observable bond" with the mother, whom he described as "attentive, warm and kind" toward both children. Dr O noted "a close and positive bond" between the father and both children. He described the father as "often quite directive" but "attentive, age appropriate and ... able to display and maintain appropriate boundaries".
Dr O observed a marked contrast in Y's demeanour in the company of the mother and the father respectively. He reported as follows:
1. Y was not considered to be old enough to express her views. She is not considered to have reached a level of cognitive development and maturity to be able to adequately comprehend that her parents no longer live together and have new lives, that the court could confidently place any weight on. That said, Y was clearly very comfortable in the presence of her father, after having only seen him on one occasion in seven weeks, she quickly moved from being a clingy, shy, near mute child who could not leave her primary attachment figure or even look at the clinician, to being a happy, chatty, responsive child, laughing, smiling and interacting with all persons in the room consistently. This was in stark contrast to the girl who only minutes before had been unable to stop clinging to her mother due to her extreme shyness. It seemed that [the mother's] anxiety may well be generating a feeling of unperceived threat and fear in Y, whereas [the father's] presence generated one of security and safety.

[103]

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

[104]

The mother has taken every opportunity to participate in the making of major long-term decisions in relation to the children and to spend time and communicate with them. Essentially, the father has been prevented by court orders from taking up these opportunities since September 2019. The children and the father have spent time together only on very limited and supervised occasions.
The mother maintained that the father has failed to take all available opportunities to spend time with the children. For example, she contended that the children were due to start a period of holiday time with the father on 29 September 2018 but that he advised by email twenty minutes before changeover time that he could not take them that day due to work commitments. In a pattern of behaviour which was typical for the father at that time, he said to the mother "well this wouldn't happen if you didn't walk out and smash our family [Ms Kovac]."
The father insisted on individual time with X, apparently so that he (the father) could enjoy their mutual interest in surfing. The father apparently was oblivious to the deleterious impact this arrangement would have upon Y. As the mother opined, "Y feels second best to X with the father."
Dr O was openly critical of the father for this choice. In his oral evidence, Dr O said words to the effect:

[105]

The father will have to reflect long and hard about his interaction with the children, if he has a preference to go surfing with X. Time with the children will need to be time with both children and not surfing with X at Y's expense.

[106]

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

[107]

The father currently is assessed to pay Child Support in an amount of $281.95 per fortnight. The mother has shouldered the burden of most of the financial support of the children with minimal assistance from the father for a considerable period.

[108]

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

[109]

The mother gave evidence that she has not discussed potential relocation to City C or Melbourne with the children and that they know nothing of this proposal. She acknowledged the children "are thriving and happy" and confidently asserted that "I don't think my proposal will detrimentally affect them".
The mother said that the children look into the business premises, being the workplace of the father, whenever they walk past, to see if he is in the premises. She said that the premises is approximately fifty metres from the children's school and it is possible that they may have walked past when she is not with them. The mother conceded that she is aware that both children want to see the father.
Dr O considered the likely impact upon the children of the proposed relocation. He opined as follows:
1. When considering [the mother's] application to relocate with the children to City C, Victoria to be closer to her family there was sufficient evidence in the current assessment that they have close bonds with their father and there remains a concern that if the children lose the regular and ongoing contact with their father that it will be detrimental to their overall psychological wellbeing. Though given the extremely limited financial support provided by [the father] over time (currently $7.00 per child per day), her rationale for seeking to relocate is entirely understandable.
The mother confidently rejected these concerns of Dr O. When asked to comment on these opinions, she said "I am not concerned that a relocation will affect the overall psychological wellbeing of the children."
Dr O was of the view that regular contact with both of their parents is "essential" for the children. He opined as follows:
1. With regard to separation from caregivers, the children have recently had a period of separation from their father and upon their reunion the children's attachment to their father was undeniable, in particular with X. As such it is considered essential that they are able to remain in regular contact with both parents ...
In his oral evidence Dr O said inter alia:

[110]

It is desirable for the children to share and remain part of the father's world.

He said also:

The passage of the last year may mean that there will be a less extreme emotional reaction for X if there is a relocation - but it may be the opposite. It is fair to say that [the children] may gain some security from knowing that the father is close by, even if they are not seeing him.

[111]

Dr O considered that a relocation to City C "quite possibly will reduce the mother's anxiety, other than for areas of dispute such as travel and communication". He had indicated earlier in his oral evidence that, in the event of a relocation, "education will not be a battleground, it will be things like flight itineraries and airport changeovers".
There is no doubt that a relocation to City C would require a major adjustment on the part of the children. They would move from the Northern suburbs area, where they have lived for the whole of their lives, to rural Victoria and be required to adjust to a change of school. Significantly they would lose the opportunity to spend regular time with the father which, as noted, is considered "essential" by Dr O.
The mother proposed, in the event of a relocation, that the children spend time with the father under supervision for a total of 21 day periods per year. Obviously, such an arrangement would fall well outside the parameters of "regular time with both parents" which Dr O considered to be "essential" for the children.
Dr O expressed particular concerns as to a break in the relationship between Y and the father, in terms of development of her attachments. He opined as follows:
1. Y's need to continue to develop strong and positive attachment bonds to both parents should be considered critical. Attachment is formed when strong emotional bonds develop between a child and their specific caregivers. This experience then provides the foundation for all their future relationships. Hence it is critical that stable trusting attachments form when children are young. It provides children with a sense of security and the capacity to develop trusting relationships that give them ongoing positive emotional and social adjustment. In the absence of these, or alternatively when critical attachments are unnecessarily breached such as in the case with [the father], it provides the basis for mistrust, teaching the children it is not safe to form attachments, which then impairs cognitive and emotional development with potentially life-long consequences. ...
The father's primary position included orders that the children should attend primary and high schools in Suburb G. He sought order which would prevent the mother from relocating with the children to an area outside the Northern suburbs of Sydney.

[112]

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

[113]

Obviously, difficulties of practicality and expense for the children spending time and communicating with each parent on a regular basis will arise in the event of a relocation to Victoria. The children would live hundreds of kilometres from the father and, realistically, the relationship could be sustained only by regular air travel.
If the mother and the children were to move from Suburb G to another area in Sydney, arrangements for regular time with the father could be made without difficulty. In my view, advantages for the children would be likely to flow from structured contact only between the parties for the purposes of changeovers. They would then be spared from incidental meetings which occur inevitably in a small community such as Suburb G.

[114]

**_Section 60CC(3)(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

[115]

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents_**

[116]

For a considerable period after the separation, the father engaged in a campaign of harassment of the mother by email and text message and in person. The father urged the mother repeatedly to resume the relationship and accused her of destroying the family unit. According to the mother, the father contacted her by email, text message and telephone up to thirty times per day. She deposed that he also arrived uninvited and unannounced at her home several times each week.
The mother deposed that the father shouted abuse at her in the presence of the children after the separation. She maintained that he said these words to her, inter alia:

[117]

You smashed our family apart

Are you happy now you've got what you wanted?

You don't even care about our children

You destroyed our family

You can't put your own needs aside for the benefit of our family and children

You're a stupid bitch

You're a fucking idiot.

[118]

In numerous emails to the mother, the father was forthright in expressing his antipathy toward and disrespect for her. For example, on 8 February 2018 he wrote inter alia:

[119]

... i try every day to find some sanity in your pathway but you can't admit mistakes, show compassion or offer one ounce of genuine love to either the children or I. ...

(As per the original)

On 9 February 2018 the father wrote to the mother as follows, inter alia:

You are so righteous. U walk out on two little families and then profess godlike character. U have so many businesses that failed. U owe money to everyone including the ATO and u force a father apart from his children because u are too self absorbed to get help. The whole town knows u need help. ...

(As per the original)

[120]

The father indulged in correspondence of this nature to the mother on frequent occasions for a period well in excess of twelve months. Paradoxically, he urged the mother to reconcile their family unit and at the same time offered trenchant criticisms of her as a person and a parent. In my view, this behaviour reflects poorly on his attitude to the responsibilities and duties of parenthood.
In cross-examination the father said:

[121]

I do not deny that I sent text and emails. I was looking for ways to repair the relationship and to make amends for what had happened.

The father appeared to be oblivious to the stress which his unwarranted and unwelcome communications placed upon the mother.

[122]

The father attended the mother's home uninvited on Christmas Day in 2016. The mother had agreed that he could visit on Christmas Eve, when the maternal grandmother would be present. The father nonetheless attended the mother's home on Christmas Day and gave as his reason "I was missing my children".
In his oral evidence Dr O observed of this behaviour on the part of the father:

[123]

I understand the mother's fatigue, the father's dogged pursuit would fatigue anyone.

Dr O said also:

The father did not get it or he did not want to get that he should not have tried to reconcile. I will accept that [this behaviour] is coercive certainly ...

[124]

Dr O addressed specifically the capacity of each of the parents to provide for the needs of the children. He opined as follows:
1. Both [the mother] and [the father] have shown themselves to be capable to provide for the needs of their children, including their physical, emotional and intellectual needs. [The mother] as has been identified above, will benefit from some assistance in developing effective parenting skills and from understanding the importance of having very clear boundaries when it comes to acceptable and unacceptable behaviour from the children. Understanding how to correctly counsel the children following their sexualised and aggressive behaviour is considered essential ...
2. It is suggested that [the father] would also benefit from learning how to correctly counsel children regarding their aggressive and sexualised behaviours and should complete a parenting after separation course to assist him in better understanding the potential complexities of co-parenting and developing appropriate strategies to manage the stressors that will arise. [The father] would also benefit from gaining insight into the very negative impact his post-separation behaviours had on [the mother] and subsequently the children. Although he was able to acknowledge that he should have accepted [the mother's] decision that she did not want to continue their relationship, it is apparent that he continued to push her and influence her to such a degree that it caused her considerable distress and also served only to create further conflict in their already severely distressed co-parenting relationship.

[125]

Section 60CC(3)(j) any family violence involving the child or a member of the child's family

[126]

In my view, family violence does not play a significant role in the outcome of these proceedings. I have referred above to the reprehensible conduct of the father toward the mother, in terms of his coercive communications with her after the separation. It would appear, however, that this behaviour of the father has abated in recent times.

[127]

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

[128]

It seems that these children are likely to be locked in a situation of high conflict between their parents for some time into the future. It may well be that one party will resort to further litigation before the children reach an age of effective self-determination.

[129]

In my view, the presumption of equal shared parental responsibility has been rebutted by evidence that such an outcome would not be in the best interests of the children. I can only agree with Dr O that "the parties' efforts to communicate are nothing short of abysmal" and that "decision making for the children would be extremely arduous." The result likely would be exposure of the children to sustained, ongoing conflict between their parents.
The father suggested that the relationship between the parties has improved to the extent that it is feasible now for them to share parental responsibility for the children. It seems to be the case that he has ceased his intense level of hostile communication with the mother in recent times.
In my view, however, the derogatory tone of his affidavit evidence in relation to the mother's character remains a matter of concern. For example, he asserted that:
1. The Applicant Mother has a history of making unfounded allegations, fabricating academic records and providing misleading information in these proceedings and to the local court.

[130]

Obviously, this material is inadmissible as evidence but provides a window into the father's critical and negative attitude toward the mother.

[131]

Similarly, the father's attitude toward the mother was illustrated in stark terms by his decision to instruct solicitors to threaten her with defamation proceedings by letter dated 6 July 2020. In my view, it is extraordinary that the father saw fit to make this threat and issue his demands for a "public apology" a matter of weeks before the commencement of the trial.
Accordingly, one of the parties must have sole parental responsibility. The mother is the unchallenged primary carer, thus she should have sole parental responsibility. She should, however, be required to consult with the father and keep him informed at all times of major long-term decisions in relation to the children.

[132]

As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the best interests of the children, and reasonably practicable, that they spend equal time with each parent. In any event, no party made such a proposal.
In my assessment, the only advantage to the children which would result from a relocation to City C is the positive impact on the mother in terms of family support and distance from the father. I do not undervalue the benefits to the mother and the flow-on effects for the children.
On the other hand, however, Dr O gave very clear evidence of the disadvantages to the children of an inevitable minimisation of the father's role in their lives. Dr O evaluated that regular and significant time with the father is "critical" and "essential" at this stage in their lives. That objective simply cannot be achieved if the children relocate to City C.
It was evident that the mother has significant support from friends in Sydney. A number of people gave evidence in support of her case and her Costs Notice indicated that "friends and family" contributed to payment of her legal fees. The mother has lived in Sydney since the late 1990s.
In my view the mother's wish to distance herself geographically from the father is entirely understandable, given his past abusive and coercive behaviour toward her. I can see no good reason, from the perspective of the best interests of the children, for the mother to be required by court order to remain in close physical proximity to the father. Accordingly, I will not accede to that aspect of the relief sought by the father. That being said, it will be incumbent upon the mother to arrange accommodation for the children which will facilitate implementation of the orders of the court.
In my assessment, orders in terms of the recommendations of Dr O will best meet the needs of the children. I accept his opinion that there should be a period of supervised time before a return to the previous arrangement of four days per fortnight with the father. I do not consider that the children's safety requires supervision but I accept the opinion of Dr O that "some sort of security" would be likely to flow to the mother from that arrangement.
I will not make orders which compel the parties to attend for counselling as proposed by Dr O. Both the mother and the father read and heard his clear recommendations as to the steps which they should take to address the problematic behaviour of the children. Obviously, they should act upon this professional advice but I will not compel them to do so.

[133]

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 December 2020.

MRR v GR

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