Shelbourne & Shelbourne (No 2) [2025] FedCFamC1F 587 | Case summary

Shelbourne & Shelbourne (No 2) [2025] FedCFamC1F 587 | Case summary | Zoe

[48]

By the end of the proceedings the father no longer sought that the older twin boys be supervised. He did, however, seek that the mother continues to be supervised when spending time with F and E due to the risk of psychological harm to the boys arising from what he said was the mother's dysregulated and unrestrained comments to the boys about the father or to them generally. He sought that supervision continue for a period of six months and thereafter for two years the requirement be that the supervisor be "in the vicinity" as a necessary protection for the boys.
The Independent Children's Lawyer ("ICL") sought that a period of supervision continue for three months and then cease. The ICL did not contend any risk of harm to the boys but supported a period of supervision as a "protective element" of the orders and would be reassuring and assist the children with the adjustment to the increased time regime. He contended that three months of supervision was protective for both the children and the mother while the children adjust to the new regime of unsupervised time given the allegations of reports they had made and given the previously expressed concern to the single expert about spending unsupervised time with the mother.
The mother did not accept that she posed a risk of harm to the boys, however, accepted supervision for three months was in the best interests of the children for the reasons articulated by the ICL.
An updated family report was prepared by Dr X dated 29 December 2024.
E was 11 years old at the time he was interviewed by Dr X. In his interview with Dr X, E said that everything was fine with his mother and discussed increasing his time with the mother. Dr X reported that E "indicated he would be happy to sleep there and that he is not nervous about anything at his mother's home." E had no concerns about spending time with the mother nor about the welfare of the other children in her care.
F was eight years old at the time of his interview with Dr X. Dr X observed that F spoke warmly about spending time with his mother.
Dr X opined that "the younger boys' views about spending more time with their mother, and particularly concerning unsupervised and overnight time, should not be given greater weight than considerations about the mother's capacity to manager anger."
Dr X opined that the likelihood of the children being physically and emotionally unsafe in their mother's care had "probably diminished significantly" and that the risk of violence, in any event, "does not go beyond verbal anger, and even then less than previously and possibly within a commonly observed range in a high conflict post-divorce matters in which supervised visits are not ordered."
In submissions, counsel for the father contended that although the mother did not present an unacceptable risk to the children, there was still a present risk that the Court should consider in making orders for a longer period of ongoing supervision. He contended that the mother is exposing the children to psychological harm, as indicated by the children making reports to the father, and that this supported ongoing supervision as this is an unacceptable risk.
As set out below and for the reasons that follow, I am not satisfied that the mother's conduct or her capacity to manage anger create an unacceptable risk of harm that requires supervision to ameliorate the risk. I find and accept that the mother's regulation and conduct has improved through her ongoing counselling and that it is in the best interests of the children to discharge orders requiring supervision.

[50]

The father said there were of a number of incidents where the boys reported to him concerning conduct of the mother and her supervisors. He had a list of complaints including that the boys had reported inappropriate comments allegedly made by the mother, that she had shown the boys affidavits from the proceedings, that the supervisor Ms U had left the boys for an hour unsupervised, that the supervisor Ms V had been discussing the Court proceedings in the presence of the boys, that the mother had called the father, his family, and the boys names.
As set out below some of the complaints made by the boys were untrue and others were exaggerated. I have no reason to doubt the father's evidence about what he said the boys' complaints were. In this regard I note the observation of Dr X in his updated report that "it is possible that many of [the] father's accounts of what the boys have said represent a combination of exaggeration by the boys and something of a misrepresentation by [the] father because of his prejudice." Dr X also reported that he thought the mother "probably continues to have some poorly considered and inappropriate communication with the older boys in particular, and perhaps with the younger ones as well."
There are various events alleged by the father, as reported to him by the children, that he asserts are demonstrative of the mother's inappropriate behaviour during her supervised time with the children. It was conceded in submissions that the veracity and accuracy of what had been reported by the children is not something the Court can attach great weight to. Even after the evidence, which supported the finding that aspects of the reports to the father were false and some aspects of the reports were exaggerated, the father maintained that ongoing supervision was necessary. Such is the level of distrust between these parties.
Several examples of the father's complaints follow.
On 16 June 2023, the father stated that C told him that the mother had asked if the father's partner was going to D's sports tournament and then said "well she's not your mum and [Mr Shelbourne] is not your dad. Is that not weird. Do you really think you should be with them?" The mother denied that this conversation ever occurred. Her evidence was that she would have never made that inquiry of the children as she does not want to put them in uncomfortable situations.
The father said that on 24 June 2023 the mother requested that the children be collected at 12.30pm as opposed to 5.00pm. He said the children saw the mother attending an exhibition after 12.30pm at which time the children expressed to him disappointment at the mother prioritising her activities over spending time with them and watching their sports game.
The earlier pick-up time had been prearranged with the father because the supervisor, Ms U was only available until 12.30pm. At no time has the father agreed to the mother spending time with the boys in the absence of a supervisor, even in a public place. Because on this occasion the supervisor was not available, the mother agreed to attend the exhibition. Despite the father's awareness of this, he did not tell the children of the reason the mother was at the exhibition and not at their sports game, even when they expressed their disappointment to him. This does not reflect well on the father, and his silence in this instance illustrates his attitude to the mother. It aligns with Dr X's observation of the father's rigid attitude to the mother and his inability to support the relationship other than rigid and strict compliance with the orders.
In August 2023, the father, his parents and brother attended F and E's school Gala Day where the mother was also present. The father stated that C approached him and said that the mother was saying that the father and his family were making her uncomfortable and that she needed to call the police because she was scared. C said that the mother was saying "mean thing about Grandma and Grandad."
The mother agreed that she attended this event with Ms V and her partner, Mr AC, but stated that she did not interact with the father or his family. The mother denied ever having a conversation about calling the police, making negative remarks about the father's family, or discussing the incidents alleged.
In 2023, the father attended the Grand Final Day for E and F, whilst D and C were present with the mother. The father said he noticed C make eye contact but that he did not approach. He said C was told by the mother not to say hello to the father and his family stating that "They are all evil people. His parents are evil. They helped take you away from me." The father emailed the mother on 18 September 2023, requesting she cease denigrating the father and his family. The mother denied the allegations of denigration.
On 25 November 2023 when the father was collecting the children, D and C told him that whilst they were with the mother at their extracurricular activitiy, she had pointed out Ms SS and told the twins not to go near her because "she was one that helped dad get you away from me. She is evil. She said I hit [C], and I never did. She had no business getting involved in our family law matter." The mother denied making the comments about Ms SS, nor did she recall seeing Ms SS at the event. She denied ever saying those words to C, she gave evidence that she was videoing C at the event after which she left because it was raining.
On 29 December 2023, the father stated that D said the mother told him that her time with the children is supervised because of what D said to Dr WW, and that he should not have said it. D then said "She thinks we're stupid. She thinks we know nothing. [E] and [F] probably don't remember but me and [C] just laughed when she looked away. She thinks we're so stupid." The mother denied that she had such a conversation with D or that she accused him of being the reason supervision is required.
On 18 February 2024, the father stated that D said the mother told him that he was "pooing himself" at preschool because he was scared of the father and the mother had questioned why he was no longer engaging in extracurricular activity, and when he explained it was his decision, the mother said it was the father's decision and that the father uses women to get what he wants and then gets rid of them.
In cross examination the mother denied saying to D that he was pooing himself at preschool and said that both D and C were potty trained before she met the father. When asked if she believes the children fear the father, she said she believes that the children have a fear of being disciplined by him and they are very compliant to him due to this concern.
On 28 April 2024, the father said that D told him that when they were spending time with the mother, the supervisor (Ms U) was not present for around an hour. The father caused his solicitor to send correspondence to the mother and ICL advising of the inappropriateness of this. The mother and Ms U gave evidence that Ms U was present for the entire visit.
The email sent from the father's solicitor to Ms U on 30 April 2024 said the father was informed that Ms U was not present with the children for approximately one hour whilst she was supervising them, which was a breach of her undertaking. Ms U immediately emailed a response stating "I am unsure what you mean as I was present with the children and [the mother] all day. Please give me a call to discuss further."
Ms U was required to give evidence. She maintained a strong denial in cross examination and said there would be no circumstances when she would not properly supervise in accordance with her undertaking. She received no reply to her email to discuss her alleged absence during the supervised visit. Ms U stated that the only response she received following this, was correspondence from the father's solicitor's informing her that she was no longer a supervisor.
Ms U was an impressive witness. She was upset by the false allegation and that she did not receive a response to her email. I accepted the truth of her evidence. The report made by the boys that she had been absent for an hour was false. It remains unclear why no response was sent to Ms U, considering the severity of the allegation. There was no basis for her Court ordered role as supervisor to be unilaterally ceased and this impacted the time the boys then spent with the mother.
On 26 June 2024, the children told the father that while they were in the car with the mother and Ms V, they spoke about the proceedings in front of the children. Ms V corroborated the mother's evidence and said that she has never heard the mother have discussions with or in hearing of the children about Court proceedings, her separation from the father, or other matters about the father in a negative way.
I accept Ms V's evidence.
In cross examination the father gave evidence of an incident that occurred in May 2025, when the children were in the care of the mother under the supervision of Mr AG. The father stated that D reported to him that the mother had called him an idiot because he forgot his jumper. The father said he assured D that he was not an idiot and that it was not true.
The mother said she was getting ready to take D over to his friend's place and that the mother told him to get a jumper, as it was "bucketing down rain" and he was only wearing a t-shirt. There was a back and forth that ensued between them where she asked him to get his jumper and he refused, stating that he "sat on the lounge like a teenager that's being a bit obstinate for about 20 minutes, just refusing to go upstairs and get a jumper." The mother eventually went upstairs to get the jumper for D and stated to him that they would leave if he would wear the jumper. The mother denied that she ever called him an idiot, stating that, as an educator, she tends to steer away from using language like that.
Mr AG was present on this occasion and was cross examined about the incident. His evidence, which I accept as truthful, supported the recollection of the event that the mother gave. Mr AG stated that the mother did not call D stupid or use the word idiot. He stated that she may have said that he was "silly" because it was cold outside.
In oral evidence Dr X opined that the risk of exposure to the boys of the mother continuing to express indiscrete or critical comments about the father existed and he assumed this was occurring. This opinion was expressed on reliance of the truth of the complaints being made by the boys to their father. However, the evidence does not support such a finding. I give weight to the independent and corroborative evidence of Mr AG, Ms V, and Ms U in this regard and note it was conceded that great weight could not be given to the veracity and accuracy of what had been reported to the father by the children in light of this evidence.
The allegations made by the boys (and accepted by the father as true) were in several instances false and other instances exaggerated.
Dr X opined that supervision should continue "for a while" and that this was linked to his belief that the mother has not engaged fulsomely and frankly with her treaters such that a further period of more vigorous counselling to address the mother's anger management was recommended prior to unsupervised time commencing.
The risk of harm identified by Dr X was of the mother continuing to make comments as alleged by the father (as reported by the boys). However, as illustrated above several of the complaints reported to the father by the boys were simply untrue and several others exaggerated.
The decision in Isles & Nelissen [2022] FedCFamC1A 97; (2022) 65 Fam LR 288 ("Isles & Nelissen") identified that the task of assessing risk is an evidence-based analysis following the consideration of the factual circumstances, including historical conduct. Findings of past conduct will assist in the prospective assessment as to whether there is a possibility of harm arising in the future.
The Full Court in Eastley & Eastley [2022] FedCFamC1A 101 ("Eastley"), provided further guidance, whereby the Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion.
The past evidence relied on does not support a finding of the probability, or even possibility, that the mother will behave in the way alleged in the future, as I am satisfied on the evidence that she has not behaved as alleged since the matter was adjourned.
I make that finding because I do not accept the factual complaints occurred as referred to above and I accept that the mother has engaged in a fulsome and committed way as opined by her treating psychologist as outlined in my reasons below.

[51]

It was contended that a period of six months of supervision for the younger two children, followed by a graduated move to "vicinity time" for several years where a supervisor would be present but not actively supervising, would be appropriate in these circumstances considering the prospective risk that the mother still poses to the children's psychological safety. It was submitted that this period will allow the mother to engage in further counselling and therapy to improve her impulse control in engaging in inappropriate communication with the children.
The father's supervision regime sought, including the transition to "vicinity" supervision, occurs over a period of three years at which stage F, the youngest child, will be around 12 old. The father gave evidence that he believes when F is a teenager, he will be able to better protect himself.
The father asserted that whilst the mother has improved in her anger management, she has not ceased speaking inappropriately to the children about the father and his family, notwithstanding the presence of supervisors.
The mother contended that there is "no realistic need" for supervision of the mother's time with D and C, as they have now reached an age where they do not require the "protective mantle of supervision when spending time with the mother." It was further contended that supervision after the agreed three-month period was not supported on the evidence and that this initial three month supervised period was an appropriately sufficient period of supervision for the reasons articulated by the ICL, such that it would assist the children to feel comfortable with the transition to more time.
Counsel for the ICL submitted that the three-month supervision period would act as a transition period for the children to adjust but that there is "no residual risk" posed by the mother, and that the period of supervision is not linked to the mother's behaviour or treatment. It was submitted that this supervision period for the younger children would allow them to feel comfortable and adapt to the increased spend time arrangements with the mother. Further it was submitted that if the children continue to make reports to the father that an independent witness may assuage some of the father's concerns.
As referred to above, I do not accept that the mother has behaved in the way alleged. First the allegations reported by the boys are part of a series of complaints a number of which are not accurate or are exaggerated. Secondly, I accept the mother's evidence that she has and continues to seek professional assistance to manage her emotional regulation. Thirdly, I accept the evidence of the three witnesses who each corroborated the mother's evidence. Finally, I accept the mother's evidence that she considers such comments in the presence of the children would be confusing and damaging for them and she would not now do or say what was alleged.
Noting the mother consented to the ICL proposed minute for supervision to continue for three months to enable the children to be comfortable in the transition and noting that this shows a child focus on the part of the mother, I made orders for this to occur by consent on 28 May 2025. I am not persuaded on the evidence that any supervision beyond that time is necessary to ameliorate any risk nor is a continuation of supervision in the best interest of the children.
Supervision is onerous, it can be an impediment to regular time occurring, it can create an artificial environment and limit the activities the children can enjoy with their parent. The risk identified by Dr X is low and as the children are older, they are better able to respond to any inappropriate comments, should any be made. I accept the mother in her evidence and from my observations of her in the witness box and in Court, that she is well able to regulate her emotions as opined by her treating psychologist. I further address my findings that I am satisfied of the mother's capacity to regulate her emotions later in these reasons.

[57]

Dr X's opinion, which I accept, is that if a clear stepwise regime is implemented by the Court, this would act to manage any tendency of the father to rush to judgement and overreact to reports made by the children.
I am satisfied that a stepwise approach as recommended by Dr X is in the best interest of the children. I agree that to protect the children from conflict between the parents is in their best interest and that where possible pick up and drop off at school will reduce interactions and therefore conflict with the parents. The children are familiar with Suburb RR McDonalds as a point of return after time and it is appropriate that this remains the point of collection and return following these final orders. This opinion which I accept further supports the making of the order for a graduated increase in time of a further three-month period of three overnights, before transitioning to the ultimate term time spend time arrangement.
There was no reason that I was taken to that the boys should not have the benefit of spending significant time with each of their parents. The father has been their primary carer for many years, and they have the benefit of the love and support from the father's parents who reside on the same property (albeit in a different house). They enjoy freedom and space at their home with their father. They have the excitement of a new younger sibling, AH, and in recent times the father's wife has spent more time in the father's home, rather than at her home in Region AJ. I accept that the boys all derive great benefit from the environment with their father and their extended family and new brother as he deposed.
The boys will also derive benefit from spending increased and regular time with their mother. She is an educator and volunteers in community services, as observed by Dr X, has much to offer the boys as they grow and mature. The mother has a warm, close and loving relationship with them. She is in a loving relationship with her partner with whom the boys get on well and their home has ample space for the boys.
There is much benefit to the boys in spending substantial and significant time with both parents and from the respective relationships enjoying the benefit that each parent and home has to offer.
The facts remain, however, that there is distrust and limited communication between the households. The primary home where the boys have been living over many years is with their father. A change to significant time with their mother is warranted but the increase to six nights as sought by the mother, due to the distrust and lack of communication is not. The boys should continue to be protected from conflict where possible. The father retains sole parental responsibility and will continue to be responsible for long term decisions.
For these reasons I am satisfied that the time should increase in a stepwise fashion in accordance with the orders I make and I find that such orders are in the best interests of the children.
The mother sought an order that if either parent is not available to care for the children the other parent shall have the first option of caring for the children. No submissions were made with respect to why this order sought is in the best interests of the children. I have no doubt that each parent will make appropriate arrangements for the children if they are personally unable to care for them. Each parent has re-partnered, and the evidence is that the children have a positive relationship with each of the partners. Accordingly, I decline to make such an order.

[61]

In his report, Dr X discussed the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Dr X expressed his concerns that neither parent seems to have a "capacity to turn their mind away from negative connotations, and particularly from allowing this to lead both of them to then ask the children questions about the situation, which places the children in a significant conflict of loyalty."
In cross examination counsel for the ICL questioned Dr X about the "conflict of loyalty" experienced by the children, and whether Court orders can operate as a "shield" for the children, by taking away the decision for them to choose to spend time with each parent. Dr X agreed.
Dr X acknowledged in his report the possibility that many of the father's accounts of what the boys have said "represent a combination of exaggeration by the boys and something of a misrepresentation by their father because of his prejudice."
In cross examination Dr X opined on why the children might exaggerate or fabricate incidents of the mother inappropriately communicating with them. He opined that the children would act in such a way if they believed this is what they thought the father wanted to hear, and that this type of behaviour occurs generally when a parent is being inquisitorial with the children in some way after a visit. Dr X opined that this generates a comforting behaviour which reinforces the reports made. He opined that children may respond to a degree of interrogation with some sort of fabricated negative incident resulting in the father giving the children comforting and positive feedback.
There was an example of this type of situation occurring, as stated above, where earlier this year D had reported to the father that the mother had called him an idiot for not wearing his jumper, and that father stated that during this discussion he had inquired with D as to what the mother had said and why.
As discussed in my findings above, this occasion was an exaggeration of events reported by D to the father and the mother's version of events was supported by the corroborative evidence of Mr AG.
Dr X agreed that if this incident was fabricated, D may have reported it in such a way to get that positive feedback from the father.
Counsel for the ICL submitted although there is a rationale that suggests when the children are 16 years old, as recommended by Dr X, they will be old enough to elect to spend time with the mother in accordance with their wishes. However, it was contended that the children have previously used the Court orders as a shield in some regard, and that in these circumstances it is appropriate that there should be a baseline of time with the mother for the older children that aligns with the spend time regime for the younger children, until the older boys turn 17, at which point they can then spend time with the mother in accordance with their wishes. I accept that the evidence supports that the older children appear to have been caught up in the conflict between their parents and that specific orders may provide a shield and reduce any pressure.
It is for these reasons that removing prescriptive orders and only having orders for time in accordance with the boys wishes as sought by the parties in my view are not in the best interests of the boys. This is a high conflict case where there are conflicting reports by each of the parents as to what the boys are saying to them. An order made for the boys to spend time in accordance with their wishes, in this case, will only be a cause of further conflict and uncertainty.
It is for this reason that I make orders for all the children to spend time and additionally that D and C are at liberty to spend additional time with their mother in accordance with their wishes. I make such an order because I am satisfied as to the maturity and capacity of the older boys to communicate a desire to spend additional time with their mother, if they so choose, but I accept the orders for regular time will act as a shield for them given Dr X observations of the father's rigid attitude to the boys spending time with their mother. I am satisfied that orders setting out the time are both necessary and are in the best interests of the children in this case.

[62]

The father sought that the children spend gradually increasing time over the school holidays with their mother, to ultimately result in the children spending half of the school holidays with each parent after approximately two years. The father sought an order that he have a period of three weeks block time with the children, occurring in the first three weeks of January in each year, with a provision for make-up time with the mother.
Both the mother and the ICL sought orders for half school holiday time.
For the reasons that follow the boys will spend half of each school holidays with their parents commencing from the Term Three 2025 school holidays. In order to ensure a stepwise increase of time as recommended by Dr X, they will spend half of the school holidays with their mother in the Term Three school holidays in 2025, thereafter continuing to spend one half of all school holidays with each of their parents. These arrangements give certainty and finality.
Historically, there has been difficulty between the parties in allowing the mother to spend additional time with the children during the school holidays. The father gave evidence in cross examination, that whenever there is time available in the school holidays the father has agreed for the children to spend additional time with the mother. However, the father conceded that if the twins wanted to spend additional unsupervised time with the mother in the school holidays he would stand in the way of that, as he asserted there is "great risk in that, and, whilst they're under my care, I need to look out for their well-being."
The father stated that he was satisfied with the maternal grandmother as a supervisor of the children as he said she is very respectful of the father, and she had "chastised" the mother previously. In September 2024, when the maternal grandmother was visiting from the USA the father contended that he allowed the children to spend additional time with the mother, whilst being supervised by the maternal grandmother.
The mother said that although the children were made available and they visited every day that the material grandmother was in Australia, the father made it difficult to arrange times for this to occur and was frequently changing plans. In her oral evidence the mother contended that there was no additional time given.
Exhibit 7 is a record of messages on the "OurFamilyWizard" app from September 2024, between the mother and the father in which the mother requested additional time with the children during school holidays whilst the maternal grandmother was visiting. The father responded that the parties can "take it day by day depending on how the children are feeling." In this exchange the mother also requested overnight time, as supervised by the maternal grandmother to which the father responded:

[64]

The mother said the father would take the children away during the school holiday periods throughout the year, which would prevent her from spending time with them. The father agreed that he had taken the children during periods of time that they would have otherwise spent with the mother.
In cross examination the father conceded that during the July 2023 school holidays, he and the children went on a holiday to City AK for the children's sports tournament and a holiday to the snow. He agreed in cross examination that this intruded on the mother's time as set out in the Court orders. The father stated that the mother attended the sports tournament, and that this was the only time that he took a holiday with the children that intruded on the mother's time.
Exhibit 21 is an email from the mother to the father's lawyer and the ICL from July 2023 where the mother stated that she received a message from the father advising that he would be away with the children during the mother's school holiday time and asked to arrange catch up time. The mother requested make up time with the children in the next school holiday period.
The mother only became aware that after the tournament the children were on holidays at the snow as one of the children had told her while speaking on the phone. During this time the father drove the younger children back to their local area to play sports but did not notify the mother of his doing so and did not offer her the opportunity to spend time with the children on that day.
The father contended that he offered the mother make up time on this occasion and that she did not accept. The mother disagreed that the father had ever given her any extra time noting "the time he does give when my mom visits doesn't make up for every other school holiday when he takes the children away despite the spend time with orders."
Proscriptive orders are necessary because for whatever reason, the parents have been unable to reach agreement on time outside of orders and at times the father has imposed on the mother a unilateral change to the ordered time. The certainty of Court orders will reduce conflict between the parents and uncertainty for the children.
Dr X opined in oral evidence that any increments in the children's time needs to reflect what can be best quality time for the children, stating that school holidays are a real opportunity for quality time with both parents. I accept that opinion.
The children should have the benefit of school holiday time with each of their parents for the reason articulated by Dr X. Neither parent is at liberty to "withhold" and unless there is agreement to alter the orders the children are to spend one half of each holiday period with each of their parents.
For these reasons an order for half school holidays is in the best interests of the children and I make such an order. The mother sought that the changeover time at the midpoint of the school holidays occur at 7.00pm, the ICL and father sought the changeover time occur at 3.00pm. There were no submissions with respect to this by either party. In the absence of any evidence the time for changeover will remain at 3.00pm as it ensures consistency with the end of school changeover time.
The mother sought an order that if the parties take the children on an interstate holiday during their time with the children, that they are to provide details of this trip to the other parent. I am not satisfied on any evidence I was taken to that such an order is necessary. Although the tournament / snow trip illustrates that the father did not communicate with the mother, the orders will now ensure the children spend appropriate holiday time with each parent so they can derive the benefit that each parent has to offer. To impose interstate information sharing is unnecessary. The boys are old enough to communicate with each parent about their holiday and travel plans.
The father's counsel sought an order that the mother's time with the children be suspended during the King's Birthday during June each year. There was no evidence with respect to why this order sought was in the children's best interest, other than the father's family has an annual bonfire on this weekend every year. The difficulty with making an order about a weekend which may occur during the school holiday period, is it could create an opportunity for further conflict and may interfere with the holiday time that is now ordered. Given the lack of cooperation and mistrust between the parties I decline to make such an order.

[66]

The father is seeking orders that the in odd numbered years the mother spend from 9.00am to 7.00pm on Christmas eve with the children and from 3.00pm until 7.00pm on Christmas Day with the children, and then in even numbered years from 9.00am until 3.00pm on Christmas day and 9.00am until 7.00pm on boxing day.
The mother did not include specific Christmas day orders, in her final minute of orders. Instead, the mother's order stated that in the school holiday period in Term Four in odd numbered years the father would spend time with the children in the first half and in even numbered years the mother would spend time with the children in the second half.
The mother seeks orders for each parent to have Christmas day with all the children in alternate years, to provide the opportunity every second year to have a three week as a continuous block to enable her to spend Christmas in the USA when that becomes available to her.
The ICL's minute of order was silent as to alternate time arrangements for the Christmas holidays and similarly to the mother, the ICL's orders sought was for half of the Christmas holidays to be spent with the mother and the other half with the father, alternating each year.
The mother expressed her desire to travel to the USA with her children, particularly since all the children's maternal family reside in the USA, and D and C's paternal family and biological father reside in the USA.
Although the father acknowledged the benefit of the children being able to travel to the USA and develop their relationship with the maternal family, the father remained opposed to an order that would allow the mother to spend every second Christmas in the USA.
The strong connection to the maternal family for all the boys and the prospect of connection of the older two boys with their biological paternal family who reside in the USA is a weighty consideration in support of the orders sought by the mother. The opportunity to get to know their USA culture and the culture of their mother is an important consideration and one that supports such orders being made as it is in my view in the best interests of the children.
The mother is permitted by these orders to travel to the USA every second Christmas and I decline to make the Christmas time orders as sought by the father.
The orders for special occasions with the children are to continue as was ordered in 2023, as the children will derive benefit from spending special occasions with each of their parents.

[67]

The father sought an order that both the mother and the father could travel on an extended holiday in Australia or internationally with the children for a period of six weeks, upon the parent giving the other one month's written notice.
The mother sought a similar order, however, with the inclusion of make-up time for the non‑travelling parent, upon the children's return to Australia.
The ICL did not seek specific overseas travel orders, however, in submissions the counsel for the ICL contended that overseas travel should occur in the Court ordered time, due to the mistrust and lack of communication between the parties. Unless the parties are able to eventually reach agreement it seems unlikely the children have the opportunity to see and experience the cultural offerings of the US in the summer.
In his oral evidence, the father stated that if the mother wishes to travel to the USA with the children to visit her family, that he would be "very very concerned." When pressed about why he would be concerned he stated that he was worried about if something went wrong and he did not know about it, referencing the mother's previous threat of self-harm from around the time of separation.
The mother expressed a desire to travel to the USA with the children to visit their family. In 2020 the mother travelled with the children to the USA for a period of around three weeks. The mother said the children frequently ask the mother when they can return. The mother contended that the father has not made any attempt to facilitate visits for C and D to see their biological family in the USA.
The mother said that the children have been alienated from their maternal biological family and the older boys from their paternal biological family, and that the "children lack opportunities for regular contact with their maternal aunts, uncles, cousins, or grandparents living overseas."
Given the lack of trust between the parties and the likelihood that any deviation from the orders made would likely result in further conflict, I will make no order for extended travel other than during the time the children are with their parent. The parties can vary the orders by consent, and I would hope that if one party could take the boys for international holidays during the other parent's time that some accommodation could be reached. Failing that consent position the parties each will have a three-week block during the long Christmas holidays but otherwise will have to limit their travel to their holiday times.
The parties agreed by consent on the final day of the hearing that the father would provide all documents necessary for the mother to apply for a new Australian and/or USA passport for D and C, and that upon receiving the passports they were to be returned to the father's care. However, the mother sought an order that she retain the children's passports, despite agreement that the father has sole decision-making responsibility for all the children.
The father and the ICL did not seek orders that provided for the release and return of the passports upon the children travelling internationally with either parent. There were no submissions made and I was taken to no evidence that supported the mother retaining the children's passports. As such, given the father has sole decision-making responsibility, I will make orders for the father to retain the children's passports, and for the father to release the passport to the mother at least 21 days prior to any international travel with the children, provided one months' notice of such travel has been provided.

[73]

Part XIB of the Act was enacted pursuant to the Family Law Amendment Act 2023 (Cth) and came into force from 6 May 2024. The explanatory memorandum states that:
1. ...The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system.
2. This measure addresses a gap in the court's powers to scrutinise the institution of further proceedings, cited in the case of Marsden & Winch [2013] FamCAFC 177; (2013) 50 FamLR 409. The ALRC Report found that the court's existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repetitive filing of applications and the serving of those applications on the other party.
The power to make a harmful proceedings order can be exercised at any stage of the proceedings, interlocutory or final (per Austin J in Garside [2024] FedCFamC1A 250). Counsel for the ICL first indicated that they sought an order pursuant to s 102QAC on 19 May 2025, where she included in the case outline that one of the issues in dispute at the final proceedings was "whether a harmful proceedings order should be made." The ICL did not include a minute of proposed orders at that time.
The ICL sought an order pursuant to s 102QAC that both parties are prohibited from instituting parenting proceedings under the Act without leave of the Court in the proposed orders (which became exhibit 23) at the commencement of the final day of the trial. The mother supported the ICL's proposed order being made. The father opposed such an order being made.
Counsel stated in submissions that the application was "made neutrally" and not in comment of the conduct of either parties or the capacity of their treating practitioners, but notwithstanding this submitted that the "objective fact is that [the matter] has gone on for eight years."
Counsel for the ICL stated that these "hard fought and contested proceedings" have continued for the majority of the children's lives and contended that an order was appropriate due to the cumulative effect of the ongoing proceedings upon the children.
In cross examination Dr X agreed that the ongoing proceeds had affected the children's whole childhood. He stated that E and C demonstrated more capacity than D and F to cope with the ongoing impacts of the proceedings stating that they appear to have "learned to live around it."
Dr X opined that the future impact of these proceedings on the children would continue to distress the children, stating that the proceedings would represent escalating stress in the children's lives which the children would be aware of, and which would further them in a "conflict of loyalty situation."
In his report on pp. 32-33 Dr X stated:

[87]

The NSW COPS record stated that in October 2023 Mr AG attended the mother's home where they had an argument regarding issues within their relationship, it was recorded that the incident was verbal only. The following day Mr AG attended the mother's home again and the mother informed him that she intended to go back to the USA. Mr AG then left the mother's home and called her shortly after and said that the mother made threats of self-harm after which Mr AG called the police due to his concerns for the mother. The police attended on the mother's home and contacted the ambulance to conduct a mental health assessment.
The NSW Ambulance record from October 2023 records that Mr AG came over to the house to discuss breaking up with the mother, and after he left they had a phone call where the mother threatened self-harm. Mr AG then called emergency services. The mother denied any threats of self-harm and said after the ambulance assessed her they determined that she was not a risk to herself or others.
In cross examination the mother stated that on this occasion she did not threaten to self-harm, she stated that she wanted to go back to the USA and that Mr AG had called the police because he was concerned because the mother was upset.
The mother recalled that she and Mr AG were having a discussion about messages that she was receiving from a colleague of Mr AG, who was contacting the mother with allegations directed towards Mr AG. The mother stated that sometimes the colleague would send messages to the mother from her ex-partner's account as well. The mother did not respond to the messages and stated that she wanted them to stop but was hesitant to go to the police to report the incident, as she did not want an event number created. She considered that police events have been weaponised against her in the past in the Court proceedings. The mother gave evidence that she and Mr AG were disagreeing about how she should go about reporting the messages.
Around this time the maternal grandmother had returned to the USA, and the mother was having significant difficulties in arranging supervisors for the children. The mother said this compounded with the messages that she was receiving from Mr AG's work colleague was contributing to the anxiety she was feeling at this time. She stated that she "was having a hard time with some of the circumstances...it felt like living in a pressure cooker with this court case."
Mr AG explained in his oral evidence that he had contacted the police because he was concerned about the mother although he could not recall whether he had said to the police that the mother was going to harm herself. He stated that he and the mother were in an argument about how to handle the messages the mother was receiving. He said he left the house to avoid the argument escalating.
Mr AG was concerned about the mother's welfare as she kept saying that she wanted to go home to the USA, so he contacted the police to make sure she was okay. Mr AG stated that it was an oversight to not include the details of the incident in his affidavit.
The mother saw Ms FF a week after the incident occurred in October 2023. The mother agreed that when she saw Ms FF, she did not discuss with her the events of October 2023. She told Ms FF that she was feeling anxious and discussed the difficulties around the supervisors but did not talk about the incident in detail, which she conceded, in hindsight, she should have explained in more detail.
In her oral evidence, the mother said she told Ms FF that she was feeling anxious and that she had attended to her General Practitioner, following the occasion in October 2023, and was prescribed a low-dose anti-anxiety medication.
Ms FF's notes from her session with the mother in October 2023 record that the mother is "now taking valdoxan" referencing the medication the mother was prescribed by the General Practitioner following the October 2023 events.
In cross examination Ms FF was asked about this occasion and her subsequent appointment with the mother. She agreed that her notes did not reference the incident in October 2023 and agreed that a volatile situation such as this incident, would have been one that Ms FF should know about. However, this non-disclosure did not concern Ms FF about the veracity or candid nature of the information received from the mother, as she stated that the mother's diagnosis was established earlier on in the mother's treatment, and as such at the time the incident occurred the mother was already engaging in treatment to address the issues. Ms FF did not agree with the significant weight being placed on this incident.
In cross examination the mother agreed that in her interview with Dr X on 4 November 2024 and the follow-up telephone call on 6 December 2024, she did not tell him about the incident in October 2023. The mother gave oral evidence that she was not asked about any particular dates and did not volunteer this information, as she understood that Dr X had access to the subpoena material, including the subpoena which disclosed this incident. She said it was her belief that Dr X would have asked her and Mr AG about this incident if he wanted further information.
Dr X had the subpoena material available to him, which reference this incident in October 2023. He did not ask the mother or Mr AG any questions about this incident in his interviews with them. He recognised the omission and said if he had turned his mind to the material at the time it would have "somewhat" changed his opinion.
Dr X opined that it was an issue that the mother was not candid with Ms FF about this incident. He observed her treatment is on an "improving trajectory" but noted it is important that she continue such treatment. The mother said, and I accept, she intends to continue her treatment.
Dr X noted that the incident did not involve the children directly, however, stated that "to some extent, my greatest concern is the fact that it didn't somehow become the subject of the counselling that she was supposed to be undergoing." The observation of Dr X has some merit.
On balance, however, I accept the opinion of the mother's long term and ongoing treatment provider that despite not giving specifics of this incident, the mother did raise her increased anxiety and medication change and continues to appropriately engage with her therapist. The incident was over 18 months ago. There has been no other and no subsequent incidents of any concern nor any matters involving the police or ambulance. No other incidents of any concern were observed by Mr AG.
The incident reveals that Mr AG and the mother had an argument which resulted in their relationship being tested. Mr AG said it was around the time the mother was struggling to spend time with the boys due to the father's rigid attitude to agreeing to alternate supervisors and was shortly after the maternal grandmother had returned home. The mother said she was at a low point and explained that at that time the father was rigid and inflexible in his attitude to the mother's time with the boys which was increasing her stress and anxiety.
Mr AG's action in contacting the police for a welfare check in fact gives some comfort that if the mother did behave in a way that was of concern, Mr AG would seek professional supports for her. Dr X commented that Mr AG's actions in the circumstances were the appropriate course to have taken. I agree.

[89]

The mother had an appointment with Ms FF seven days after the incident with Mr AG when police and ambulance attended. She did not tell Ms FF about the incident although did tell her that she was now taking an anti-anxiety medication. The mother's lack of candour with her treating therapist is of concern in respect of the history of the mother's previous lack of candour (after a family violence event with her previous partner).
Further to this, the mother and Mr AG did not include reference to this incident in their affidavit evidence. The mother did not raise the issue in discussion with Dr X, although she said, and I accept, that she knew the police records had been provided to Dr X.
Dr X frankly raised with the Court that he had read the police report and overlooked referencing it in his report or raising it with the mother or Mr AG. Notwithstanding this, he placed significant weight on the event agreeing that he was still concerned about the mother's regulation of her impulse control, and more significantly that the event may indicate that the mother is not engaging candidly with her treating psychologist.
Dr X was not taken to, nor was he aware of the hurdles the mother at that time faced in spending time with the boys, such as the father refusing the consider any male supervisors and his unwillingness to permit the mother to attend sports or other functions without a supervisor. Nor was Dr X aware that the maternal grandmother had recently left after a visit, when again there were limitations placed on the time due to the father adopting his usual approach to the orders.
Although, Dr X was not taken to these particular factors that the mother was facing at the time, he was asked about the father's actions in unilaterally withdrawing Ms U as a supervisor for the mother. Dr X stated that the mother "would have been furious" if the father unilaterally withdrew Ms U as a supervisor, and the mother had a genuine belief that he did this without basis. Dr X opined that if there was no evidence before the Court of the mother acting "furiously" then this would be indicative of her progress, whereby the mother either internalised it or got it off her chest in some way.
I find that the mother was able to manage her response to the father's unilateral action in terminating Ms U in an appropriate way and that this supports the finding of the mother's progress as opined by her treating psychologist.
Another recent example of the mother's progress in regulation of her emotions as highlighted by counsel for the ICL was her response to the twin's birthday in 2024. In the expert report the mother stated to Dr X that there had been an issue around the birthday, where she had promised the boys a party on the weekend before their birthday, which was scheduled to be her weekend, however, the father had insisted that the boys be at his home for the party on that weekend.
The mother gave oral evidence that on the weekend prior to older boy's birthday it was her weekend to spend time with the children, and she had arranged a supervisor for that weekend, however, the father insisted on having their birthday party at his house on that day. The mother stated that the father said to her that D would not go to her, if she did not let them have the birthday party. She said he was rigid and would not change his plans to the weekend afterwards. The mother eventually acquiesced and agreed for the father to pick up the children at 12.00pm stating that she "didn't want to cause any problems with the children." The mother said that she made guacamole and snacks with the children when she had them earlier in the day for them to be able to take to the party at the father's home.
When faced with a difficult situation, the mother acquiesced to the father's wishes to avoid conflict for the children, and was not indifferent in her response, but encouraging, in that she made snacks with the children to take to the party. I accept the submission that the timing of the events, of the withdrawal of Ms U as a supervisor and the twin's 2024 birthday, was significant, as they both occurred post the October 2023 incident.
I give more significant weight to the mother's actions in more recent years in considering her progress in her counselling and anger management treatment.
The evidence supports that the mother's treatment with Ms FF is ongoing and is of benefit to her. I am not persuaded that the mother requires an order to engage in additional and alternate anger management assistance as a condition to the time she spends with the boys. I am confident that the mother will discuss the best options for treatment with Ms FF and will continue to engage with her and other recommended treatments as she said she would.
Accordingly, I decline to make an order for the mother to engage with anger management counselling. The mother may discuss this recommended treatment with Ms FF and consider with her therapist the recommendations of Dr X, but I will not order that she do so.

[91]

The father sought an order that the parties each pay half of Dr X fees for the updated single expert report and appearance at Court.
The mother's orders sought were silent about the issue of Dr X' costs.
Dr X Tax Invoice dated 28 December 2024 and an email of his estimated costs for appearing at the final hearing was tendered into evidence and marked as exhibit 18.
The Tax Invoice estimated the costs as $21,500, in addition to an estimated $6,755 for preparation and attendance at the final hearing proceedings. This represents a figure of $28,275 for Dr X's total estimated costs.
Counsel for the father submitted that the mother has capacity to contribute to the single expert's costs and that it is appropriate for the Court to order that the parties share equally in the costs of Dr X.
The mother gave evidence in cross examination that her annual income is approximately $113,000 inclusive of superannuation. The mother currently has outstanding costs from her previously lawyers, and her rental income is being applied towards her mortgage repayments. After she pays her monthly child support, she has no extra funds available.
Although the mother agreed that the report prepared by Dr X is of benefit to the children, she stated that she would have preferred to use the report writer provided through the Court, as opposed to having had continually meet the costs of the single expert witness.
The costs of legal proceedings are significant, and I accept that both parties have expenses associated with the care of the children and the costs of living. There is nothing, however, that I was taken to that supports either of the parents meeting the entire costs of Dr X. Expert evidence is a necessary part of the legal process because it informs the Court and provides important opinion to assist the Court to make orders that are in the best interests of the children. Dr X's opinion has been of significant assistance to the Court in the determination of the matter both in relation to the 2023 proceedings and these final issues. It is appropriate that the parties meet half of the costs of Dr X each and I make that order.

Shelbourne & Shelbourne (No 2) [2025] FedCFamC1F 587 (27 August 2025)

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