Weaver & Weaver [2025] FedCFamC2F 1752 | Case summary

section 4(1)Weaver & Weaver [2025] FedCFamC2F 1752 | Case summary | Zoe

[30]

During the course of the hearing, the parties reached agreement on various issues including changeover, telephone communication, access to information, travel, passports, non-denigration, communication between the parents and other matters. These matters were recorded as proposed orders 5 to 19 commencing on page 4 of a document handed to the Court during day 3 of the hearing. The principal issues in dispute are parental responsibility and responsibility for decision-making, and the amount of time the children should spend with their father.
The primary position of the mother was set out in her Case Outline and in various proposed minutes of orders she handed to the Court during the trial. She sought orders for sole decision-making responsibility in relation to all major long-term issues for the children. She also sought an order that the children live with her and spend time with the father in accordance with their wishes and as confirmed between the parents in writing.
The mother also proposed an alternative position if the Court was minded to make orders that required the children to spend time with the father. In that situation, the mother proposed that the children spend time with the father each alternate weekend from 10.00 am on Saturday until 10.00 am on Sunday, that the children and the father spend time together on Wednesday in the alternative week from the conclusion of school until 7.30 pm,[1] and that there be time between the children and the father on school holidays, the parents' birthdays, Mother's and Father's day, the children's birthdays and Christmas.
The father proposed orders that the parents have joint responsibility for decision-making in relation to all major long-term issues for the children, that the children live with the mother, that the children spend time with him each alternate Thursday until Monday as well as 'Wednesday dinner' in the alternative week, and that he have the first right to care for the children in the event that the mother is unable to care for them. He also sought orders for a week-about arrangement during school holidays and time on special occasions, such as birthdays and Father's Day.[2]
In broad terms, the mother contended that the father was a risk to the children. The risks were identified by her counsel as follows. First, that the father has a tendency to explode in anger causing emotional harm to the children. Second, that the father's mental health is poor with the result that his behaviour towards the children is concerning and presents a risk to them. Third, that the father thinks poorly of the mother and shares his views about the mother with the children. The mother also stated that the children are miserable, sad and stressed at having to spend time with their father.
In broad terms, the father contended that the orders that he sought were consistent with the recommendations made by the experts who had been engaged in the matter including Ms F, Ms G and Ms H. He maintained that the mother had sought to restrict his time with the children in the face of the recommendations from the various experts.

[35]

The father was cross-examined in some detail about the state of his mental health and the content of the documents above. In the witness box he accepted he had suffered from anxiety and depression. He agreed he was taking anti-depressant medication. Notwithstanding these admissions however, he sought to deny aspects of the contents of the medical records and deny the accuracy of the doctor's notes. He also claimed he did not know why he was taking certain medications. The father thus presented at times as a witness that was evasive and unhelpful. Why he chose to conduct himself in this way is not known, especially when one considers that he admitted at paragraph 70 of his affidavit that his mental health had been 'seriously negatived (sic) impacted' post-separation. The evidence, taken as a whole, demonstrates that the father has suffered from poor mental health from time to time, including as recently as May last year and continues to be treated for mental health issues.
The father bears a great deal of anger, ill will and bitterness towards the mother. The father's GP Mental Health Care Plan of May 2023 records the father's anger at the 'system he feels is not fair and equitable'. The GP records of 21 June 2024 disclose the father as being 'very bitter' towards the mother and holding 'so much hatred'. In his trial affidavit, the father refers to the mother as telling lies (paragraph 11) and says that she uses the children to humiliate him (paragraph 42), that she wants to score points off him (paragraph 43), that she is attempting to 'use gender, and the terrible plight of so many women who are genuine victims of family violence, simply for her own selfish benefit, and she has no cares about who she harms or impacts' (paragraph 51).
At paragraph 76 of his trial affidavit, the father admits to anger after he was prevented from spending time in his own home and from seeing his children. In the witness box, he admitted he was bitter at the mother for, in his view, restricting his time with the children. Ms E and Mr D, in their report, make various observations of the father. They note that difficulties 'emerged in relation to the father who seeks to rid himself of any blame by actively seeking to prove that [the mother] is totally inadequate, manipulative and responsible for undermining a relationship with the children. [The father] would make exaggerated claims about his own capabilities whilst thoroughly denigrating [the mother]'. Later, Ms E and Mr D note that 'it is clear [the father's] negatively reconstructed image of the mother remains fixed, as he actively seeks to prove that the mother is "manipulative", as he presented with potential underlying psychological vulnerabilities that may be highly relevant when considering his capacity to be insightful, empathetic, nurturing and consistent in his responses'. Ms E and Mr D also opine that 'it remains concerning that [the father's] presentation and responses may suggest a pattern of behaviour that is deeply entrenched, with no ability to self-regulate his responses even when in his interests to do so'. The father's dislike of and anger towards the mother was also on display during the course of the proceedings. I am satisfied not only that the father actively dislikes and holds great anger towards the mother, but that he also denigrates her openly and lacks insight into his behaviour.
The question that flows from the issues above is whether and how the father's vulnerabilities may affect children. The evidence reveals the following.
On around 16 February 2024, the father had a text message exchange with X in which he indicated he wanted to speak with her. She in turn indicated that she was busy. Ultimately, the father threatened X that if she 'did not answer by 5pm' he would go to the police. The evidence indicates the father's apparent urgency in calling X had to do with him questioning her about relatively unimportant matters to do with a sports bag left at his home. The father admitted to this incident in the witness box and expressed remorse. The mother's evidence was that X was hysterical and upset. X told Ms H of the stress and frustration this incident caused her. Ms G recorded that X felt threatened by the message and began to cry. X told Ms G that her father had unnecessarily made a big issue of something that could have quite easily been managed through text message. I accept that the incident occurred and that X felt threatened, stressed and frustrated by the father's actions. The father's actions show little insight on his part. It is difficult to believe that any considered parent would threaten to call the police because his daughter could not speak to him immediately about leaving a sports bag behind, yet that is what occurred.
In her affidavit, the mother gives evidence of an incident which occurred on around 23 March 2025. X allegedly told the mother that the father was unable to remove the petrol cap from the car and became angry at her and swore at her saying 'How the fuck do you open the petrol cap?' and 'You've sat in the car a thousand times with mum. How to (sic) you fucking open the petrol cap?'. The mother deposes that X was so upset she called the mother to find out how to open the petrol cap and further, that X could not face school the next day because of how distressed she was about her treatment by the father. Cross-examined about this, the father denied swearing or getting angry at X. He said that X was upset because she was late for work.
I consider it more probable than not that the father behaved as the mother alleged. The mother's evidence is detailed and particularised. She overhead part of the father's voice on the phone call from X and confirms he was yelling. The father, while denying the mother's description of this incident in the witness box and asserting X cried for another reason, did not deny it in his affidavit. Moreover, the father's behaviour in involving X in the parental dispute is consistent with other behaviours described further below. I am satisfied that X felt great distress at the actions of the father. Again, the father's behaviour is demonstrative of poor insight and lack of self-control.
The mother deposes to other instances of the father involving the children in the parental conflict. These include the father, upon being pulled over by the police, telling X he believed that the mother had prearranged for the police to be waiting for him to charge him with speeding, and the father telling X that the mother had deliberately disabled the motor vehicle before returning it to him to prevent him from putting petrol in it. The father failed to deny these matters when he filed his trial affidavit, however, ultimately denied them when they were put to him in the witness box. The father in the witness box denied stating to X that her mother had had an affair and denied questioning X about her mother's alleged boyfriend.
I am satisfied the father has behaved as alleged in the preceding paragraph. His denials in the witness box were not matched with denials in his affidavit. Moreover, the father's involvement of X in the parental dispute and his blaming of the mother is something that the independent experts have verified after talking to X. For example, in paragraph [11] of her report, Ms H records that X perceives 'that there remain high levels of conflict between her parents, due to [the father's] enquiries to [X] and negative comments he makes about [the mother]'. At paragraph [15] of her report, Ms H noted that X could feel uneasy spending time with her father and was conscious of what information she shared with him due to her experience of how he might react. Further, Ms G recorded at paragraph [72] of her report that X described her time with her father as 'up and down' because 'her dad will often want to talk to her about such things as whether she wants to be there or things that [the mother] has done in the past. X finds it very difficult that her dad seems to find it hard to stop talking about those things when she asks him to. X wants her dad to understand that the past is past and not relevant now. She wants her dad to let things go'. Furthermore, at paragraph [79] of her report, Ms G records (quoting X) that X finds it very difficult 'when he comes at me with the pettiness. I don't need to take all this stuff, go talk to someone. I'm not your bloody therapist'.
There is then the evidence from the experts as to the effect of the father's behaviours upon the children. Ms E and Mr D recorded in paragraph [7] of their report that the children 'presented as fragile and anguished by their experience of their father as verbally denigrating of their mother at times, and appeared fearful of the father's response to their concerns as they did not identify the father as empathetic or acknowledging of their views'. Ms H noted that there have been experiences that could be perceived as the father exposing the children to parental conflict and therefore, exposing them to emotional harm, which if true, could undermine their sense of self-esteem, safety and their ability to form healthy relationships. Ms H also reported that the relationship the children have with their father would likely improve if he were able to enhance his parenting skills. I accept all of the evidence referred to in this paragraph.
The father in turn raises issues about the mother's conduct and its effects on the children.
First, the father says that the mother has restricted his time with his children and in his affidavit he says she wants to turn him into a 'no contact' father. This evidence of the father's is, to some extent, corroborated in two ways.
First, Ms F in her report refers at various times to the mother appearing to minimise the father in the children's lives. Ultimately, Ms F commented at paragraph 94 that the mother had minimised the father's involvement in the children's lives by 'identifying as the children's primary carer'. I do not understand how a parent identifying as a primary carer automatically leads to the outcome that the other parent's role has been minimised. There was no opportunity to question Ms F. It is relevant to consider though that Ms F's views appear to be at odds with the later report of Ms G who recorded that even though the mother did not support an increase in the father's time, the mother encouraged the children to see their father. Ms F's view also sits uncomfortably with what X told Ms H, that the mother continues to encourage and support the children's time with the father. In the circumstances, I give Ms F's view little weight, and give more weight to the other evidence to which I have referred.
Second, the father puts forward as an example of the mother not supporting his time, an incident that occurred on Father's Day in 2024. The father says in his affidavit that the mother told him on 13 August 2024 that X had a sleep over the night before (Father's Day) and that the girls were to have a shopping trip the next day (on Father's Day) as part of a party for X's friend's birthday. He says in his affidavit that the mother 'had simply let this be booked in my spend time'. The mother denied this in her affidavit evidence and under cross-examination. The mother in her affidavit said that she texted the father on 13 August 2024 to inform him of the dates for a sleepover and shopping trip birthday party that X was invited to. Regrettably for the father, text messages he attached to his own affidavit corroborate the mother's evidence. The mother informed the father of the invitation and offered him alternative time on Father's Day in order to enable X to attend the party of her friend. The father's text messages in reply are telling. He writes 'Has this already been organised with you knowing the orders for father's day. I would prefer for this to be discussed PRIOR to you organising the children's time without consultation'. In reply, the mother explains that it's an invitation to a party that has been rescheduled. The father in his reply text message is unmoved and writes 'Have you told the parents that you don't have the children because of father's day'. The mother eventually tells the father to disregard her messages and that time on Father's Day will be as ordered by the Court.
What happened in respect of Father's Day 2024 does not demonstrate that the mother has sought to minimise the children's time with the father or disrupt his time with them. Rather, the entire exchange shows the father in a very poor light and as a person who lacks parental insight, flexibility and judgement. His teenage daughter has been invited to a party for a friend and instead of attempting to facilitate something that will likely bring pleasure to his daughter, he insists on court ordered time and falsely accuses the mother of arranging the party during his time with the children.
There is a question as to whether the mother's primary position in this case indicates she is a 'no contact' mother as the father claims. She seeks sole responsibility for decision-making and that the children spend time with the father according to their wishes. This was not always the position. Up until April this year, the mother proposed orders that facilitated the children spending regular time with their father. That position changed following the court proceedings on 29 April 2025. The mother submitted that she changed her position following the father's behaviour and outbursts outside the courtroom on 29 April 2025, which she says confirmed what the children had been telling her about the father's behaviour. The difficulty with that submission is that it is not supported by the evidence. The mother filed a reply affidavit following the hearing on 29 April 2025 and makes a passing reference to being provided support on that day by relevant Court Services, but otherwise failed to particularise the nature of the behaviour that caused her to radically change the final orders she seeks in these proceedings in her court documents. The mother was not examined or cross-examined in relation to this event.
The other explanation relied upon by the mother to support the orders that she now seeks is the risk that the father poses to the children. Even the briefest consideration of that contention exposes its difficulties. If the children are at risk, the mother's answer to that given the orders that she seeks, is that the children are best placed to manage that risk. There are difficulties with that approach, including those set out by Ms H at paragraph [40] of her report.
Clearly, the mother's views about the amount of time the children should spend with the father have changed. While I take that into account, I observe that this litigation has been on foot for some time and many of the circumstances have changed. Those include, in particular, the ages of the children and their need for increased autonomy. Further, while the litigation has dragged on, the evidence also shows little change to the father's behaviours and attitudes towards the mother. In this context it is understandable that the mother may have changed her position as to what is in the children's best interests.
The father's evidence was that the mother abuses the children, referring to them as 'fucking little molls' and 'cunts'. The mother says she and another female colleague would often refer to themselves as 'the moll patrol' and admits to calling the children 'little molls' but says that she did and does not use the term in the way the father insinuates. She denied referring to the children as 'cunts' and says that was a term the father used.
The father deposed that the mother fails to take adequate care and provide adequate supervision of the children. He asserted, among other things, that the mother left the children at home to attend a concert in November 2024. The mother provided an explanation of the arrangement she put in place on that day and also gave evidence that she was only a few kilometres away from the children. The incident does not give rise to any finding that the mother has failed to care for the children or left them unsupervised.

[36]

The children have been interviewed three times in the course of these proceedings (in addition to family therapy undertaken).
At the time they were interviewed by Ms F in around November 2023, the children were spending four nights per fortnight with the father. X then aged 13 years rated that arrangement as a six or seven out of ten, indicated that she may be open to spending more time with her father, but suggested she needed more flexibility in her arrangement. According to Ms F, Y, then 11 years old, advocated for her mother's views and wishes, said she was closer to her mother, and rated the existing parenting arrangement as six or seven out of ten.
The children were then interviewed by Ms G in April 2024. At that time, the children were spending time with the father five nights per fortnight. X indicated that she would not mind spending less time with her father given they 'literally do nothing'. She recounted various issues with her father, including that he often wants to talk about things the mother had done in the past which she finds difficult, the father's threat to her to call the police and that sometimes she didn't want to go to her father's house if she had been treated disrespectfully but would 'still go because it's the right thing'. Y told Ms G that she wanted to spend less time with her father, or to keep it the same. She gave a narrative (as did X) of spending significant time alone when with their father. Ms G assessed that, given her age and level of maturity, X's views should be given significant weight and that Y's views, given her age and maturity, should be given some weight.
At the time the Specific Issues Report was prepared in August 2025, the children were spending five nights per fortnight with the father. In the Specific Issues Report, Ms H indicated that X appeared aligned with the mother's view regarding spend time, being that both she and Y should see their father as per their wishes. Nevertheless, X impressed Ms H as being committed to spending regular time with her father. Ms H records X as giving the impression that the time arrangements are not aligned with her developmental needs. Ms H also records, from the statements X made, that it appeared X felt it was difficult to attend special occasions like a friend's birthday during her time with her father, and that he harboured some resentment when this occurred, which he had expressed directly to her. X also indicated to Ms H that her relationship with the father had somewhat improved, that he was gradually learning to be 'less pressured', and that the relationship is likely to further improve if she feels more respected and heard by him. X also gave the impression to Ms H that there were occasions when she felt uneasy about spending time with her father and was conscious of what information she shared with him, due to her experience about how he might react. Based on comments made by X, Ms H also perceived that X felt there was 'less organised structure' in the father's home.
In the Specific Issues Report, Ms H records that Y gave the impression that the current spend time arrangements are not aligned with her developmental needs. Ms H records that Y's views appear to be like that of X, in that although she is committed to spending consistent time with her father, she would like it to be less structured and more 'as she wished'. Ms H records that Y gave the impression of finding it difficult to transition between the two households, and of finding it challenging being separated from her mother for an extended period. Y told Ms H that she somewhat looks forward to visiting her father and said that they get along and do not argue. It appeared to Ms H that Y perceived that mornings were more organised when living with the mother.
The recitation of the evidence above discloses the following:

[41]

Neither parent raises any concerns or issues as to the particular needs of the children. Both children are doing well at school, both are engaged in extracurricular activities, both have a close group of friends, and both are in good health.
Both children are at an age where they require flexibility with the arrangements, albeit X more so than Y. It is important for the children's development that they are able to see friends, attend birthday parties, and generally be given greater autonomy over their schedule. As the events on Father's Day in 2024 demonstrate, the mother has demonstrated flexibility and is attuned to the children's needs. Ms H considered that the children 'appear to be closely connected to [the mother] and perceive that she is attuned to their developmental needs, which appears to have led to a natural alignment'. In contrast, the events around Father's Day 2024 demonstrate that the father is not able to be flexible and is less attuned to the children's needs. I do not accept the father's protestations from the witness box that he understands the need for his children to have a greater degree of flexibility, autonomy and freedom. The various reports of the professionals engaged in this matter together with the findings I have made in respect of his behaviour indicate that he has not been able to adapt his attitude, despite having had the obvious benefit of reading those reports. Indeed, in the most recent report from Ms H, it is once again recommended that the father take steps to continue to enhance his parenting skills. No such recommendation was made by Ms H in respect of the mother.
The children have had to endure conflict between their parents which has been exacerbated by this litigation. In that respect, I refer to the observations of Ms E and Mr D recorded earlier in these reasons and also Ms H's views recorded earlier in these reasons. There is a need to ensure that the children are protected, as far as possible, from being exposed either to the conflict between the parents, or from being exposed to one or other of the parents involving the children in the dispute between them and their own relationship issues. On these issues, I note that the father has continued to involve X, in particular, in the parental conflict. This is despite the various reports (see the report from Ms H) that indicate this has been detrimental to X. If evidence is needed of the father's continued involvement of X in the parental conflict, one need look no further than the incident with the petrol cap referred to earlier, and X's recently expressed views to Ms H that she is cautious about what she tells her father. This has occurred in a context where Ms G made the point in her report, which the father has had the opportunity to read, that he 'free [X] from any sense of responsibility for his emotional stability and/or happiness'. In contrast, the more recent reports from the professionals indicate that the mother has not involved the children in the parental conflict.
Finally, children need stability and predictability. The evidence demonstrates that the father has a tendency to respond angrily about minor matters, which causes X grief. The mother does not behave in a similar way. The evidence also demonstrates that the children value the level of organisation they experience in their mother's home.

[49]

In my view, the mother's primary proposal that the children spend time with the father in accordance with their wishes is not in the children's best interests. I consider there to be a real risk that the children would either cease seeing their father, or would see him so infrequently or irregularly that the benefits of the relationship they have with him would gradually be eroded. I also consider it not in their best interests to place them in the position of having to decide when to see their father, in what is a highly conflictual relationship between their parents. The children should not be made to carry the burden of managing that relationship or feel the pressure to do so.
It is clear that there are risks to the children of, at the very least, emotional harm arising from the father's lack of insight, flexibility and his history of involving particularly X in the parental dispute. The answer to the proper management and assessment of those risks cannot be, however, to place the children in the middle of the parental conflict and leave it to them to decide how much time they spend with their father in the context of this case. Rather, any risk should be managed in a controlled way by, as noted by Counsel for the mother in closing submissions, limiting the amount of time the children spend with him, because there would not be 'extended opportunity...for him to get angry about things' in front of them. Weighing the evidence concerning risk with the other factors I am required to consider, I do not consider the mother's primary proposal to be in the children's best interests.
I consider that the father's proposal is not in the best interests of the children. I acknowledge and give credit to the father for putting forward a proposal that sees him reduce his time with the children by one night per fortnight. That, regrettably, is not enough and is not in their best interests. The father has clearly had a number of challenges in his relationship with the children. These include his lack of insight, his inability to be flexible and accommodate X's growing need for autonomy, his inability to stop involving the children (in particular X) in the parental dispute, his inability to stop sharing his negative views about the mother with X, his inability to regulate his emotions which results in outbursts or behaviours directed toward the children that they should not have to deal with, and his apparent inability to keep them engaged during the time they do spend with him. In an ideal world, I would happily have reached the conclusion that the father's proposal was in the best interests of the children, but the matters to which I have referred above mean that I cannot do so. I regard his proposal as not being in the best interests of children.
The mother's alternative proposal is that the children spend time with the father each alternative weekend from 10.00 am on Saturday until 10.00 am on Sunday, and also that the children see the father on Wednesday in the alternating week from the conclusion of school until 7.30 pm. This proposal sees the children's time with their father being reduced from the current five nights per fortnight to one night per fortnight.
The issue that confronts the Court in this case is to determine a level of contact between the father and the children that ensures they continue to benefit from a relationship with him, while also ensuring that:

[54]

The Act does not stipulate any specific matters the Court is required to consider when deciding whether to allocate parental responsibility or responsibility for making decisions about major long-term issues in relation to a child to one parent or the other. The Act is also silent on the matters the Court is required to consider when deciding whether to make an order for joint or sole decision-making. In the absence of any specific direction within the Act, these matters are to be determined having regard to the paramount consideration set out in section 60CA of the Act - that is, the best interests of the child.
The mother seeks an order for 'sole responsibility for decision-making in relation to all major long-term issues' for the children. During closing submissions however, the mother accepted that the only issues likely to arise in the future for the children related to any decision to change schools and also decisions relating to medical issues. It was accepted by the mother that no new decision will likely need to be made in relation to religion, living arrangements or changes in name.
Both children attend J School. The mother accepted that a joint decision was made by both parents to place the children into J School and to get them baptised to enable that to occur (the decision to place Y at J School appears to have been made post-separation). There is no evidence of any proposal to change schools or any dispute about changing schools. The mother submits that she does not know whether the father has paid his half of the school fees and therefore does not know whether the children's places at J School are secure. That might be so, but not knowing something is not evidence of a decision needing to be made in the future to change schools, nor is it evidence of a dispute about schooling. In short, the evidence as it stands does not support the making of an order that the mother be given sole decision-making responsibility for educational matters.
The evidence in relation to the children's health is as follows. The mother describes both children as being in good health. The father did not dispute this. X reported to Ms H that she suffered a decline in her mental health in 2024 and 'with the support of her school and her mother, [X] did attend two sessions at [K Organisation] and her general health improved'. X did not initially disclose these issues to her father, but did so at a 'later' time. Further, in around November 2024, X injured her ankle at Gymnastics. In her trial affidavit, the mother says that she relied on communication from X on the afternoon the injury occurred, that X informed her that the father did not seek medical attention for her (X) until the next day, that X informed her of subsequent medical appointments and of the outcome of those appointments (but that she 'does not have a full understanding'), that X has informed her that she (X) is on a public waitlist for surgery, and she (the mother) is 'totally in the dark' about X's ankle injury. In her trial affidavit, the mother says the only message she received from the father in relation to X's injury was a message asking her to collect Y from school because X was waiting for x-ray results. The father sought to rebut this in his affidavit. He stated that he informed the mother of the injury, arranged for treatment, and paid for the MRI. He attached to his affidavit the text message exchange with the mother.
The independent text message evidence annexed to the father's affidavit confirms the mother's account that the father did not communicate with her about X's injury. He communicated (in the context of an opening text asking the mother to pick Y up from school) that X was waiting on an x-ray and then provided a brief explanation of the x-ray result. There is no further communication from him about the topic of X's injury either generally, or in relation to any upcoming MRI results or physiotherapy. I accept the mother's evidence that she did not have a full understanding of what was happening in relation to X's ankle at the time of swearing her trial affidavit in April 2025. It is axiomatic that if she does not have a full understanding of what is occurring, she is prevented from meaningfully participating in decisions relating to X's injury and X's overall health.
The father's lack of communication about X's injury may be contrasted with the information the mother provided to the father about an injury sustained by Y in or around March 2025. Text messages annexed to the father's affidavit reveal the details the mother provided to the father in March and June 2025. In March, the mother provided updates including details of the injury, that Y was awaiting CT scan results, the CT scan results, that a plaster had been affixed to her arm, that Y was feeling miserable and that she was not at school on one of the following days. Later in March 2025, the mother provided the father with an update following an appointment with a surgeon that Y did not require surgery, that she had to do some exercises and physiotherapy, and that she would need to wear a sling to school 'for the next couple of weeks'. Then in May 2025, the mother provided a further progress update.
There is then the issue of communication between the parties more broadly. The father annexed to his affidavit a small number of text message exchanges between the parties. Those text messages reveal cordial exchanges between the parties. It is not possible, however, to conclude from the messages that communication is regular, informed or at the level necessary to sustain a co-parenting relationship. In any event and irrespective of the courteous nature of the messages, both parents agree that the communication between them is poor. Each lays the blame for this at the feet of the other. The mother in her affidavit gives various examples of when she says the father has failed to communicate in relation to arrangements he has made with the children, not keeping her informed of medical appointments and not attending to day-to-day parenting responsibilities. Under cross-examination, the father for his part stated that the co-parenting relationship is non-existent 'mainly because of [the mother]' and that she 'won't communicate'. The poor communication between the parties is also evident from what X told Ms H. Ms H recorded that X appeared to identify herself as the messenger for her parents.
Section 61C of the Act provides that each parent has parental responsibility for a child. Section 61CA provides that the parents of a child are, inter alia, encouraged to consult each other about major long-term issues if it is safe to do so. Section 61DAA provides that where a parenting order provides for joint decision-making in relation to all or specified major long-term issues, the order is taken to require each of the persons to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. It can be seen from the above that the Act contemplates that persons subject to, inter alia, an order for joint parental responsibility have the capacity and be able to communicate with each other, exchange points of view, identify areas of agreement and work towards making a joint decision that is in the best interests of the child.
In the present matter, the parents have not been able to exchange information about X's health, keep each other informed about her progress or agree on treatments. I have come to the view that it is in the children's best interests for the mother to have sole parental responsibility for health matters relating to the children. She has shown an ability to effectively oversee issues to do with children's health and to communicate salient facts to the father to enable him to have an opinion. The father, by contrast, has shown himself to be an inadequate communicator of health-related issues to the mother and has therefore deprived her of the ability to contribute to decision-making in that area.
In circumstances where the children will live predominantly with the mother, and in the overall circumstances described, it is in their best interests for the mother to have sole parental responsibility for health issues. The evidence does not support an order for sole parental responsibility for decision-making beyond health matters.
The orders proposed by the mother simply contemplate that she will inform the father of her decisions in writing. She does not propose any mechanism by which the father has an opportunity to be consulted prior to the making of any decisions. In my view, the father should have an opportunity to be consulted. I regard it as being in the children's best interests, given that each of them love and have a relationship with their father, that he has the opportunity to have a say in relation to medical issues that may affect them in the future.

[55]

In circumstances where I have determined that the children should spend regular time with their father, the parties reached agreement on orders relating to the children spending time with the mother and father on each of the parents' birthdays, Mother's Day and Father's Day, the children's birthdays and Christmas. I have reviewed those proposed orders and consider them in the best interests of the children. I will issue orders about these matters in the form agreed to by the parties.
The parties proposed orders by consent relating to changeover, telephone communication, access to information, travel, passports, non-denigration, communication between the parents and an order authorising the parents to inform others about the court's orders. I have reviewed these proposed orders and consider them to be in the best interests of the children. I will issue orders about these matters in the form agreed to by the parties.
The father sought an order that he have 'first right of care of the children prior to the mother arranging for the children to be cared for by another person'. In my view, such an order is not in the best interests of the children in all the circumstances of this case. The mother has not failed to take adequate care of the children as alleged by the father. Further, to make this order would run counter to the orders I have made which seek to give the children a greater degree of flexibility and autonomy.
The father sought an order that if the children do not spend time with a parent in accordance with the court orders due to a medical condition, the parent who has care of the children is to arrange for a medical certificate to be sent to the other parent. I was not addressed on this order. The evidentiary basis for it is not clear. It is not in the best interests of the children for me to make this order, given my findings and the other orders I have made in this matter.
The father sought an order that each parent be restrained from using physical discipline on the children and from allowing third parties to discipline the children. I was not addressed on this order. There was no cross-examination about it. I am therefore not persuaded it is in the best interests of the children to make the order. Separately, the father sought an order that neither party abuse the children. Given the evidence that emerged, including that the mother sometimes refers to the children as 'molls' (albeit she says not in a derogatory way) and the father's conduct in front of the children (particularly X), I will make the order.
The remaining issues in dispute relate to the time the father will spend with the children over school term holidays and the long summer holidays.
For school term holidays, the mother proposes that the father spend time with the children for five consecutive nights, from 10.00 am on the second Saturday of the school term holidays until 10.00 am on Thursday. The father opposes this. He seeks orders that school term holiday time be shared equally between parents.
For the long summer holidays, the mother proposes that the father spend time with the children for five consecutive nights each alternate week, from 10.00 am on Saturday to 10.00 am on Thursday. The mother's proposal would, in effect, extend the regular weekend time the children spend with the father to 10.00 am on Thursday. The father opposes this. He seeks orders that the children spend the long summer holidays with each parent on a week-about basis.
For the various reasons articulated in this judgment, I have considered it regrettably necessary for the children to spend less time with their father. Having regard to those reasons, it is not in the children's best interests that school term holidays be equally shared, or that long summer holidays for the children result in them spending week-about time with each parent. I agree with the mother that insofar as school holiday time is concerned, the children should have the opportunity to spend five consecutive nights with their father. I will make the orders in the form proposed by the mother. I regard these orders as being in the best interests of X and Y. These orders will give them the opportunity to spend additional time with their father, time will be certain, but it will also enable the children to return home to their mother at the conclusion of five nights. Holiday time should commence and be governed by gazetted state school holidays. That will reduce any conflict between the parents given that private school dates (the children currently attend a Catholic school) can vary.
I have stepped back to consider these orders. I consider them to be in the best interests of Y and X.

[58]

On 29 April 2025 before me, the parties asked to be stood down to negotiate. When negotiations proved unsuccessful in the late afternoon, the father's representatives sought an adjournment of the final hearing. I refused the adjournment request. The father's lawyers then sought leave to withdraw on the basis that they had only briefed Counsel in relation to the adjournment application. I granted them leave to withdraw. I then addressed the father and indicated that the matter would proceed. He told me that he did not have a single document relating to the case with him. In that circumstance, I reluctantly adjourned the final hearing, having regard to procedural fairness implications for the father.
The father says in reply to this that he was totally unaware that his lawyers were not going to run the case on that day. That is disingenuous of him. His representatives on 29 April 2025 made clear to me that they only had instructions (from the father) to seek an adjournment. They are all officers of the court and owe obligations of fidelity to the court. Moreover, the father's position now is disingenuous having regard to the history of correspondence leading up to the hearing in April 2025, where he sought an adjournment on more than one occasion.
The father also says in effect that he sought to save the parties costs by requesting that a mediation occur at the time his lawyers sought the adjournment of the final hearing in April. While he did propose mediation, the direct answer to that proposal is set out in the letter from the mother's solicitors; mediation had already taken place and there were concerns about the father's financial disclosure which would have hampered any mediation efforts. Moreover, the position of the mother taken in the correspondence is entirely reasonable when one considers that the father had already had the benefit of an adjournment.
In my view, there are circumstances that justify the making of a costs order in favour of the mother and against the father arising from the adjournment of the final hearing on 29 April 2025. Those circumstances relate to the conduct of the father. He twice sought an adjournment in the days leading up to the final hearing listed to take place on 29 April 2025. His requests for consent were refused. He then instructed his lawyers to brief Counsel only for the purposes of securing an adjournment of the matter. When that request was declined, he was totally unprepared to run the final hearing. He ought to have contemplated that his request may have been refused and that he needed to come prepared to run the hearing on 29 April 2025. He did not do so. His failure to come prepared caused the mother to incur costs on that day that were ultimately thrown away. A costs order in her favour is justified in the circumstances.
The costs sought are in accordance with the scale being amounts of $2,730.66 plus an advocacy loading of $1,365.33 in accordance with items 13 and 14 of the scale set out in Schedule 1 of the Rules (for Counsel) together with the amount of $2,730.66 for the mother's solicitors in accordance with item 13 of the scale. The setting down fee is $770. The total amount of the costs are $7,596.65. I will make an order that the father pay these costs to the mother within 30 days of the date of these Orders. The mother also proposed an order that if the amount of costs set out above were not paid within 30 days, those costs be added to amounts payable by the father to the mother arising from the sale of a property in City B. The parties resolved outstanding property matters between them by consent and orders were made on 17 July 2025 to give effect to that settlement of property matters. The final property orders contemplate a sale of the property in City B. The mother suggested that if the father does not pay the amount of the costs order set out in these reasons, the amount of the costs order simply be added to the amounts he is required to pay the mother under those orders. The father did not actively oppose this course. I accept that it is a convenient way to deal with any issue of non-payment by the father. I will make such an order and otherwise dismiss the mother's application in a proceeding filed 11 July 2025.

Weaver & Weaver [2025] FedCFamC2F 1752 (9 December 2025)

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Judgment (61 paragraphs)

Legislation Cited (5)