Adaab and Releheb
[2010] FMCAfam 1278
•2 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
ADAAB & RELEHEB [2010] FMCAfam 1278
FAMILY LAW – Parenting orders – risk of harm to child – capacity to parent – parental attitudes.
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Adaab & Releheb [2009] FamCA 910
Adaab & Releheb [2010] FMCAfam 282
Applicant: MR ADAAB
Respondent: MS RELEHEB
File Number: SYC7363/2009
Judgment of: Altobelli FM
Hearing dates: 8, 9 & 10 November 2010
Date of Last Submission: 10 November 2010
Delivered at: Sydney
Delivered on: 2 December 2010 REPRESENTATION
Solicitor Advocate for the Applicant: Mr Sperling
Solicitors for the Applicant: Legal Aid NSW
Counsel for the Respondent: Mr Weaver
Solicitors for the Respondent: JN Legal
Counsel for the Independent Children’s Lawyer: Mr Thomas
Solicitors for the Independent Children’s Lawyer: Coleman Greig Solicitors ORDERS
(1)That all previous parenting orders be discharged.
(2)That the child [X] born [in] 2001 (“[X]”) lives with the Father when not spending time with the Mother pursuant to Order 5.
(3)That the Father Mr Adaab (hereafter referred to as “the Father”) and the Mother Ms Releheb (hereafter referred to as “the Mother”) have equal shared responsibility for [X] except as otherwise provided in these orders.
(4)That the Father have sole responsibility for making decisions as to [X]’s education.
(5)That [X] spend time with the Mother as follows:-
(a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and in the event that [X] is too ill to attend school then the Mother’s time shall conclude at 9.00am on the Monday provided that if the Friday immediately preceding a weekend when [X] is to spend time with the Mother is a public holiday then the Mother’s time with [X] shall commence on the Thursday immediately preceding that weekend and if the Monday immediately following a weekend when [X] is to spend time with the Mother is a public holiday then the Mother’s time with [X] shall cease at 3.00pm on the Tuesday immediately following that weekend.
(b)For half of all school holidays to be taken in alternate one week block periods to commence in the 2011 July school holiday period and for each school holiday period thereafter. If the parents are unable to agree as to who has which week, in 2011 and in all odd-numbered years the mother to have the first week of the school holidays, and in 2012 and in all even numbered years the mother is to have the second week of the school holidays.
(c)That [X] spend time with the Mother from 10.00am until 5.00pm on Mothers Day, if she is not otherwise in her care pursuant to these orders.
(d)That [X] spend time with the Father from 10.00am until 5.00pm on Fathers Day, if she is not otherwise in his care pursuant to these orders.
(e)That when [X]’s school holiday time with one parent coincides with Easter Day, Christmas Day and Boxing Day, the other parent is to spend time with [X] as follows:
(i) On Easter Sunday from 2:00pm to 7:00pm;
(ii) On Christmas Day from 3:00pm to Boxing Day at 3:00pm
(6)That in the event the Mother fails to deliver [X] to school in accordance with Order 5(a) hereof without a reasonable excuse on more than two occasions in any four month period from the date of these Orders then the Mother’s time with [X] shall be reduced so that her time will conclude at 4.00pm on Sunday.
(7)That for the purpose of [X] spending time with the Mother outside of school term changeovers are to take place at McDonalds Family Restaurant, [address omitted] and the Father will ensure that in the event that he is unable to deliver [X] to the Mother that his mother or his brother, Mr P, will deliver [X] and the Mother will ensure that in the event that she is unable to deliver [X] to the Father that the maternal grandfather or the Mother’s friend, Ms G, will deliver [X].
(8)That each party shall not:
(a)Speak to [X] or in the presence or within the hearing of [X] in a manner that is demeaning or derogatory or insulting to the other party;
(b)Speak negatively to [X] about her schooling and religion;
(c)Discuss with [X] or in the presence or within the hearing of [X] any issues arising in these proceedings or in relation to any past AVO proceedings or allow [X] to read any court documents.
(9)That the Mother and the Father be hereby restrained from converting or attempting to convert [X] to the Muslim Religion.
(10)That Ms Releheb born [in] 1977 and Mr Adaab born [in] 1971 and [X] born [in] 2001 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born [in] 2001 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watch List until the Court orders its removal.
(11)That the Mother shall do all things and execute all documents necessary to cause the cancellation of any Lebanese passport issued in respect of [X].
(12)That the Mother is restrained from making any application for the issue of a passport for [X] by any country without leave of the Court.
(13)That the Mother is restrained from leaving Australia with [X] without leave of the Court and [X] is restrained from leaving Australia without leave of the court until 16 November 2019.
(14)That each party shall ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to [X] and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to visit [X] if hospitalised.
(15)That the Mother and Father consult in relation to the attendance of [X] on any medical specialist and in the event that there is a dispute over the selection of the medical specialist the Father be solely responsible for determining the nomination of any medical specialist for [X] to be referred to and such medical specialist shall include: any specialist medical practitioner; dentist; orthodontist; speech pathologist; occupational therapist; psychologist or other therapist (hereafter referred to as “consultant”) PROVIDED THAT
(a)in the event that [X] is referred to any such consultant the Father shall inform the Mother as soon as practical of any specialist medical appointments;
(b)that the Father do all acts and things to ensure that the Mother is provided copies of any test results, letters of referrals, reports, and letters received from and by any such consultant;
(c)that the Mother be permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device;
(d)that the Father as soon as possible after the initial appointment is made and prior to the first appointment authorise the consultant to discuss such matters with the Mother.
(16)That the Mother be restrained from taking [X] to any counsellor, psychologist or psychiatrist without the prior written consent of the Father or order of the Court.
(17)That each party shall do all things necessary to enrol in the Keeping Contact Programme offered by Unifam Sydney (telephone 9373 5000) and attend all consultations as may be reasonably required by that service and follow all reasonable directions of that service, including ensuring that [X] attend if requested.
(18)That each party share equally the costs of the Keeping Contact Programme.
(19)That each party inform the other of their:
(a)Current mobile number;
(b)Ordinary residential address at which they accommodate [X] when she is living with or spending time with that parent; and
(20)Promptly advise one another of any changes to same, within 48 hours of such change.
(21)That each party is hereby given leave to provide copies of the documents listed below to such counsellor that they or [X] may attend in compliance with these Orders:-
(a)Judgment of Justice Stevenson dated 7 November 2009;
(b)Report of Dr H dated 25 November 2008;
(c)Report of Dr R dated 4 November 2010; and
(d)Judgment of Federal Magistrate Altobelli.
NOTATION
A.[X] commences school at 8:40am.
B.The parents agree that [X] should continue to be raised in the Catholic faith.
IT IS NOTED that publication of this judgment under the pseudonym Adaab & Releheb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEYSYC7363/2009
MR ADAAB Applicant
And
MS RELEHEB Respondent
REASONS FOR JUDGMENT
Introduction
1.This case is about [X], who, by the time these reasons will be delivered, will be 10 years old. [X]’s father is the applicant. He is 39 years old. [X]’s mother is the respondent, she is 32 years old. For almost three years now, [X]’s parents have been litigating in the Family Law Courts about where she will live, and how much time she will spend with each parent. Regrettably, the litigation between the parents has not been confined to the Family Law Courts, with AVO and criminal proceedings taking place in various local courts in New South Wales since May 2007.
2.[X]’s parents married in Lebanon in 2001 and separated in March 2005.
Background and History
3.This is a somewhat unusual matter in that two final hearings have taken place in relation to [X] during 2009 and 2010, the first in the Family Court of Australia before her Honour Justice Stevenson, and the second in the Federal Magistrate’s Court before me. It is necessary, in my opinion, to go into some quite considerable detail about the background and history of this matter, in order to properly understand the orders that I make.
4.The reasons for judgment of Her Honour, Justice Stevenson delivered on 7 September 2009, are reported as Adaab & Releheb [2009] FamCA 910. This hearing was conducted over seven non-consecutive days between 10 October 2008 and 17 June 2009. The mother was the applicant and, at the time of the final hearing, she was represented by both solicitor and counsel. The father was the respondent, and he appeared on his own behalf. The Independent Children’s Lawyer was Ms Warda, and the Independent Children’s Lawyer’s Counsel was Mr Thomas. Both the ICL and Counsel for the ICL also appeared before me in the present proceedings.
5.Justice Stevenson articulated the relevant background matters at paragraphs 6-17 of her reasons for judgment, which I reproduce below:
Mr Adaab, who is now 38, and Ms Releheb, who is now 31, began to communicate with each other by telephone in August 2000 at the instigation of his brother-in-law. At this time Mr Adaab lived in Sydney and Ms Releheb in Lebanon. They spoke to each other by telephone each day for about two and a half months.
In October 2000 Mr Adaab travelled to Lebanon to attend his sister’s wedding. He and Ms Releheb commenced a relationship within a short time and married in Lebanon [in] 2001.
Mr Adaab returned to Australia in March/April 2001 and Ms Releheb remained in Lebanon. [X] was born in Lebanon [in] 2001 and came to Australia with her mother on 10 January 2002. The maternal grandparents also came to Australia in June 2002. Ms Releheb’s mother returned to Lebanon in June 2003. Her father still lives in Sydney and shares accommodation with
Ms Releheb and [X]. Ms Releheb said that he has remained in Australia to seek medical treatment, for an undisclosed condition, but intends to return to Lebanon.
Ms Releheb and [X] went to Lebanon in September 2003 and remained there until 24 February 2004. She and [X] were again in Lebanon between 19 April 2004 and 7 June 2004 and subsequently from 9 August 2004 until 9 February 2005. On 16 May 2005 Ms Releheb and [X] again returned to Lebanon and this time remained there until 14 February 2007.
Mr Adaab travelled to Lebanon on 25 December 2006 and stayed there until 14 January 2007. The parties and [X] spent one week together at Daydream Island in February 2007, after Ms Releheb returned to Australia on 14 January 2007. Ms Releheb and [X] then lived with the paternal grandparents until April 2007. By this time the parties’ relationship had broken down completely.
On 22 April 2007 Mr Adaab obtained an order that [X]’s name be placed on the airport watch list. Apparently he made this application through the after-hours service conducted by the Federal Magistrates Court.
Police officers attended an incident between the parties at the former matrimonial home in [omitted] on 12 May 2007. The result was that a provisional apprehended violence order was taken out for the protection of Ms Releheb.
In the absence of Mr Adaab, the Local Court issued an interim apprehended violence order against him on 17 May 2007. This order became final, by consent, on 16 July 2007.
On 8 August 2007 Mr Adaab was charged with breach of an apprehended violence order after an incident at a shopping centre in [omitted]. Further charges were laid against him following another incident, at a shopping centre in [omitted], on 18 September 2007.
Following these incidents Mr Adaab moved to Canberra. He soon returned to Sydney and lived with his parents at [omitted]. His father died in July 2007 and he now shares the home with his mother and brother. His sister and her children stayed in the house for a period after the breakdown of her marriage. Mr Adaab’s sister [name omitted] was married to Ms Releheb’s brother, [name omitted].
In November 2007 interim orders were made which provided that [X] spend time with her father each Saturday from 12:00 noon until 6:00pm for six weeks. It seems that only one of these visits took place.
On 4 August 2008 interim orders were made which provided that [X] spend time with her father each Saturday and then on Saturday and Sunday until 5 October 2008. On 18 December 2008 further interim orders were made, on the application of the Independent Child’s Lawyer and with the consent of Mr Adaab. These orders provided that [X] live with her father:
· from 12:00 noon until 6:00pm on 25 December 2008
· each Friday, Saturday and Sunday from 10:00am until 6:00pm, commencing on 26 December 2008
· from after school on Friday until 7:00pm on Sunday for two out of three weekends, commencing in Term 1 of 2009
· on the basis of a three day cycle during the April 2009 school holidays
· for one half of all subsequent school holidays
· It seems that [X] has lived with her father in accordance with these orders.
6.In the proceedings before Justice Stevenson the mother’s main proposal was that she and [X] relocate to Lebanon, with [X] returning to Australia one month each year, during which period she would spend daytime only contact with her father. However, Justice Stevenson records that the mother was not prepared to return to Lebanon without [X], and her alternate proposal was that [X] live with her and spend time with father each second Saturday and Sunday, with day periods only during school holidays, and with changeovers taking place at [omitted] police station. The mother proposed to remove [X] from [S] School at [S], where she was then attending, and enrol her in a school at [P]. The father proposed that [X] live with him during the week, and spend time with the mother on weekends.
7.The proposal of the Independent Children’s Lawyer in the proceedings before Justice Stevenson was that [X] live with her father, and spend time with her mother each alternate weekend from Friday afternoon until Monday morning, and for half the school holidays.
8.The reasons for judgment of Justice Stevenson, together with the family report prepared in those proceedings by Dr H, were documents in evidence before me.
9.It is important to set out some of Justice Stevenson’s reasons, particularly in the context of her meticulous and thorough discussion of the primary and additional considerations under section 60CC of the Family Law Act.
10.Justice Stevenson found that [X] enjoyed a meaningful relationship with both of her parents. In discussing whether there was the need to protect [X] from any form of harm, her Honour summarised the mother’s case as an attempt to portray the father as a violent man who was abusive to both her and [X]. Her Honour concluded that it was probably the case that [X] had witnessed high level confrontation between her parents, but, ultimately, concluded that there are a number of indications that there is no need to protect [X] from abuse, neglect, or family violence while in the care of her father. Indeed, her Honour appeared to be more concerned about [X] being neglected in the mother’s household. Her Honour carefully considered the evidence about the violence.
11.At paragraphs 46-49 of her Honour’s reasons she states:
These incidents must have been distressing to [X]. It is probably the case that she has been present during further incidents of conflict between her parents. It would thus seem that there is a need to protect her from psychological harm arising from exposure to this conflict.
For reasons which appear below, in the context of Ms Releheb’s willingness and ability to encourage a close and continuing relationship with her father, I am of the view that there is a need to protect [X] from psychological abuse by her mother. As will become apparent, there are real indications that Ms Releheb places little value on [X]’s relationship with her father.
As noted, there are reasons to conclude that Ms Releheb has neglected [X]’s educational needs and dental health. I will refer to the relevant evidence below, in the context of the capacity of the parties to meet [X]’s needs.
In summary, [X] requires protection from psychological abuse due to exposure to parental conflict and undermining of her relationship with her father and paternal family by her mother. She also needs to be protected from neglect of her educational and dental health needs by her mother.
12.In relation to any views expressed by [X], her Honour thought that, on the facts of this case, they were not a compelling consideration, particularly given that she was only a seven year old child obviously caught in a situation of high conflict between her parents.
13.Her Honour noted that the mother was, undoubtedly, the primary carer for [X] during the whole of her life and was thus her primary attachment figure. The mother’s case was that [X]’s reluctance to spend time with her father demonstrated a poor relationship with him. Justice Stevenson disagreed, and found that any reluctance which [X] may have shown in going to her father was likely to be generated by her awareness that her mother does not support her relationship with him.
14.What was clearly a significant issue in the proceedings before Justice Stevenson, was the willingness and ability of each parent to facilitate [X]’s ongoing relationship with the other. Her Honour states at paragraphs 70-72 of her reasons:
My impression was that Mr Adaab would facilitate and encourage a close and continuing relationship for [X] with her mother. I cannot say the same in relation to Ms Releheb. I share the concerns of Dr H, who said: “I don’t see much evidence that she would encourage [X]’s relationship with her father. I do not see goodwill.”
Ms Releheb has a disturbing history of failure to make [X] available to spend time with her father and an apparent open disregard for court orders. Mr Adaab said that she told him on 27 December 2008: “I don’t care about any court orders” and on 2 January 2009: “I don’t care about orders or what any judge or solicitor has to say”. I accept that she made these statements. It was my impression that these comments accurately reflect her attitude to [X]’s time with her father.
On the other hand, it appears that [X] has been spending time with her father in accordance with the interim orders of 18 December 2008 and 9 April 2009 without difficulty. For her sake, I can only hope that there has been a softening in the attitude of Ms Releheb.
15.In the context of a case where the proposals of both parents would bring about significant changes in [X]’s life, her Honour concluded at paragraphs 95-96:
There can be no doubt that [X] would miss her mother greatly, if she is suddenly placed in the primary care of her father. I am confident that Mr Adaab would make proper arrangements for her care and, in fact, bring about considerable improvements in terms of her school attendance and dental health. I expect that it would be a challenge for him to cope with her distress at separation from her mother. The proposals of Mr Adaab and the Independent Child’s Lawyer thus hold starkly contrasting advantages and disadvantages to [X]’s best interests, in terms of this consideration.
I can see no advantage to [X]’s best interests in the proposal to limit her time with her father to day periods. Ms Releheb advanced no good reason for such a change and, in my view, this proposal is no more than an illustration of her lack of respect for [X]’s relationship with her father and paternal family. In my view it is clear that this proposal holds more disadvantages than advantages to [X]’s best interests, in terms of this factor.
16.As there were no significant issues about practical difficulty and expense associated with contact, her Honour’s next main focus was about issues of parental capacity. It is quite clear from the passages below that her Honour had significant concerns about the mother’s capacity in this regard.
105. Ms Releheb has been unable to ensure that [X] arrives at school on time, or attends at all, on a consistent basis. The school records show that [X] was absent for 71 days and arrived late on 23 days in 2007. One effect of these absences is that it has been necessary for [X] to repeat a grade in 2009. This disruption to her educational progress could probably have been avoided if she had attended school consistently.
… 107. As noted, I accept that Ms Releheb had a legitimate explanation for some of [X]’s late arrivals at school. She said that it is a 10 minute walk from her home to [P] Station and then a 40 minute train trip to [S].
… 109. For these reasons I accept that Ms Releheb has experienced genuine problems in getting [X] to school on time by public transport on some occasions. On the other hand, I am satisfied that she failed to cooperate with Mr Adaab in organising accommodation closer to the school. The problem could have been solved if she had accepted his offer graciously, and focussed on the benefits to [X], rather than seizing the opportunity to create difficulties. Further, it is of concern that she said in her oral evidence: “on most days she was late she didn’t want to leave home”. Obviously, it is not for a 5 year old child to decide whether or not she would leave home to go to school. It is the responsibility of a parent to ensure that she attends school punctually.
… 111. Another matter of concern in relation to Ms Releheb’s capacity to meet [X]’s needs is the state of her dental health. The records of the Sydney South-West Oral Health Service were in evidence as exhibit 9. A referral dated 5 September 2008 stated: “ …multiple caries due to poor OH and diet.” A form headed “recommendation for admission” to [omitted] Hospital stated it was necessary for [X] to undergo a general anaesthetic to enable a dentist to extract some of her teeth. As far as I am aware, this treatment has not taken place. The Health Service records support Mr Adaab’s contention that [X] regularly eats sugary foods and fails to brush her teeth while in the care of her mother.
112. Mr Adaab said, and I accept, that he has made four attempts to take [X] to a dentist but Ms Releheb has not delivered her to attend the appointments. I find it difficult to understand why Ms Releheb would prefer to frustrate Mr Adaab’s endeavours than to cooperate with him in securing proper dental treatment for [X].
17.Having regard to all of the above matters, her Honour then evaluated the competing proposals and the relevant paragraphs are found at 127-130, and 134 of her Honour’s reasons:
127. It follows that I conclude that the proposal which offers the fewest advantages to [X]’s best interests is that of Ms Releheb to relocate with her to Lebanon. I have real concerns that her relationship with her father and paternal family would be imperilled in these circumstances. I have real concerns that
Ms Releheb would fail to attend properly to her needs, particularly with regard to her health, if Mr Adaab has little or no opportunity to monitor the situation by regular contact with [X].
128. I have concerns also about the proposal of Ms Releheb to reduce [X]’s time with her father to day periods. As noted, she failed to justify this proposed change to the current arrangements. It seemed to me that she was motivated by a desire to limit Mr Adaab’s involvement in [X]’s life, rather than a genuine concern for her welfare. I am concerned that Ms Releheb would frustrate even this limited time for [X] with her father and paternal family.
129. I have concerns also about the proposal of Mr Adaab that [X] live with him on school days and with her mother on weekends and during holidays. As Dr H noted, in this arrangement “the child would be separated from her mother who has been her primary carer and strong attachment figure throughout her life”. [X] could only be very distressed, at least initially, if this proposal is implemented. On the other hand, she would attend school regularly and her health needs would be properly addressed. I am confident that Mr Adaab would facilitate an ongoing relationship with her mother.
130. I make a similar evaluation of the proposal of the Independent Child’s Lawyer, with the rider that the 2 month hiatus in [X]’s time with her mother would be likely to enhance her distress. I appreciate the logic of the proposal but I have concerns that Mr Adaab would be unable to cope with [X]’s reaction to this substantial change.
… 134. It seems to me that the best arrangement for [X] would be for her to live with her father from 12:00noon on Sunday until the commencement of school on Wednesday in each week and otherwise with her mother. Mr Adaab would then be able to take her to school on 3 out of 5 mornings each week. Ms Releheb should take heed that a continued failure to ensure that [X] attends school on time and regularly may well put at risk ongoing residence with her on Thursdays and Fridays. She could take steps to alleviate her difficulties with public transport by cooperating with Mr Adaab to rent accommodation closer to [S] school. Mr Adaab could make all necessary appointments for [X]’s dental health needs to be addressed while she is in his care.
18.Her Honour then made the following orders:
1. That all existing orders in relation to the child [X] born [in] 2001 (“[X]”) be discharged.
2.
2.1 That, subject to order 2.2, the parties have equal shared parental responsibility for [X].
2.2 That the father have sole responsibility for making decisions as to [X]’s education.
3. That [X] live with the father as follows:
3.1 from 12:00noon on Sunday until the commencement of school on Wednesday in each week during school term time
3.2 for one half of all school holidays, being the first half in 2009 and each alternate year thereafter and the second half in 2010 and each alternate year thereafter, unless the parties agree otherwise in writing.
4. That [X] live with the mother at all other times, subject to orders 5.1, 5.2 and 6.
5.
5.1 That [X] spend time with the mother from 10:00am until 5:00pm on Mothers Day, if she is not otherwise in her care pursuant to these orders.
5.2 That [X] spend time with the father from 10:00am until 5:00pm on Fathers Day, if she is not otherwise in his care pursuant to these orders.
6. That [X] spend time on her birthday with the parent who does not have her care pursuant to these orders, for a period of approximately 3 hours on a school day or 4 hours on a weekend, at times which the parties shall arrange or which will be from the conclusion of school until 6:00pm or from 9:00am until 1:00pm on a weekend.
7. That the parties effect changeovers at [omitted] Police Station, in the event that it is impossible to do so at [X]’s school.
8. That both parties do all things necessary to ensure that [X]’s name remains on the Airport Watch List.
9.
9.1 That the mother shall do all things and execute all documents necessary to cause the cancellation of any Lebanese passport issued in respect of [X].
9.2 That the mother is restrained from making any application for the issue of a passport for [X] by any country without the leave of the court.
10. That the mother is restrained from leaving Australia with [X] without the leave of the court.
11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
12. That all material produced on subpoena be returned.
19.I observe here that one would have thought after receiving these reasons for judgment, and taking the benefit of the orders made, that the mother would be acutely aware of the very significant issues that Justice Stevenson raised about her, and, specifically, the mother’s willingness to support [X]’s relationship with her father, and her capacity to meet [X]’s educational and mental needs.
20.On 2 December 2009, less than three months after Justice Stevenson published her reasons for judgment, the father filed an urgent application before the Federal Magistrates Court, which was listed before me. The father was, in effect, seeking orders for [X] to live with him. His first appearance before me was to seek ex parte orders, but I declined to do so. On 3 December 2009, therefore, I adjourned the proceedings to 8 December for a possible interim hearing, directed that the mother be served with the father’s documents, and appointed an Independent Children’s Lawyer. In his supporting affidavit, the father raised serious issues about [X]’s dental health, the mother’s denial of contact between [X] and the father, and that [X] had been taken out of school for a considerable period.
21.
On 8 December the mother appeared in person, and there was an appearance by Ms Warda, the Independent Children’s Lawyer. The mother had not filed any material. I adjourned the matter to
23 December 2009 for interim hearing, and in the meanwhile restrained the mother from taking [X] to any counsellor, psychologist or psychiatrist without the consent of the Independent Children’s Lawyer. In addition I ordered the mother to deliver [X] to the court’s child care services on the morning of 23 December.
22.On 23 December the mother appeared in person, representing herself. She had filed some material and made submissions in support. I made the following orders on this day:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Orders (1) to (7) made by Justice Stevenson on 7 September 2009 are suspended.
2. The Child [X] born [in] 2001 live with the Father.
3. The Father have sole parental responsibility for the Child.
4. The Mother is to immediately vacate the Court building and is not to remain in the vicinity of the Court building, after the conclusion of this matter.
5. The Father is to collect the Child from the childcare facility on level two.
6. The matter be adjourned to 24 February 2010 at 2.00pm for interim hearing.
7. Parties have liberty to apply on seven days’ notice.
23.The matter then came back before me on 24 February, and on this occasion the mother was represented by Ms Black of Counsel. I made orders on 5 March as follows:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Orders (1) – (7) made by Justice Stevenson on 7 September 2009 remain suspended.
2. That the child, [X] born [in] 2001 live with the father.
3. The father have sole parental responsibility for the child.
4. Order that the mother spend time with the child under supervision with a supervisor approved by the Independent Children’s Lawyer or otherwise at the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre (whichever is available first) on one day each fortnight and to facilitate such time;
a. Each party must:
i. Contact the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre within seven (7) days to arrange an appointment for assessment for suitability
ii. Attend the assessment
iii. Comply with any appointment made by the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre
iv. Comply with all reasonable rules of [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre
v. Comply with all reasonable requests or directions of the staff of the [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre
vi. If [[H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court
b. If the parties are accepted by [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre following intake procedure then the mother is to spend time with the child on days and times as nominated by [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre and such time is to be implemented by the father delivering the children to [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre at the start of the mother’s time with the children and collecting the children from the same place at the end of the mother’s time.
c. The parties shall each pay the fees nominated by [H] Supervised Contact Centre, [R] Supervised Contact Centre or the [B] Supervised Contact Centre for the provision of its service.
THE COURT ORDERS THAT:
5. The matter be adjourned for 3 day final hearing to 8, 9 and 10 November 2010 at 10am.
6. Each party file and serve any affidavits on which they intend to rely by no later than 29 October 2010. No further affidavits to be filed after that date without leave of this Court.
7. The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
8. No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
a. The affidavits on which each party will rely at hearing; and
b. The Orders sought at hearing.
9. Pursuant to Part 15 Rule 9 of the Rules, an expert be appointed to prepare a report addressing the issues identified in the memorandum on the court file OR in a joint letter of the parties to the expert, such expert to be agreed by the parties, or failing agreement, such expert to be appointed by the Child Representative.
10. I DIRECT that, upon completion, the expert report be forwarded to my Associate by email to [omitted].
11. The parties have liberty to apply on 7 days notice.
12. The parties have leave to file consent Orders in chambers.
24.It is important that I set out a brief explanation for making the orders referred to above. These are summarised in the published reasons for orders made on 5 March 2010 (Adaab & Releheb [2010] FMCAfam 282).
25.By way of summary, the father’s case before me was that the mother had failed to implement the orders of Justice Stevenson, had denied contact, had neglected her dental health, had taken [X] out of school, and had taken [X] to see a psychologist without consulting him. The father was seeking orders that [X] live with him, for the reasons referred to above. When the mother filed a response, she sought orders that [X] live with her, sole parental responsibility, that she be entitled to change [X]’s school, and that the father have supervised contact. What was patently obvious from the reading of the mother’s own affidavit was her complete dissatisfaction with the proceedings before, and the reasons for judgment of, Justice Stevenson.
26.The mother’s case was that [X] was resisting any contact with her father, expressed concerns that the father would harm [X], raised issues about the father’s family violence, and raised serious issues about the father’s character.
27.At the interim hearing on 23 December, both the father and the Independent Children’s Lawyer advocated strongly that [X] be placed in the care of her father. Ultimately, I accepted their submissions on the basis that what evidence there was before me strongly indicate that the very concerns about the mother articulated by Justice Stevenson were fulfilled by the mother literally within a matter of weeks. It was clear to me that the mother had little or no regard for orders of the court, that she maintained beliefs about matters that had been clearly rejected at the hearing, that there were real issues about the mother’s capacity to attend to [X]’s dental health and to ensure that she attended school. Moreover, there were significant issues about the mother’s willingness to encourage [X]’s relationship with her father. I accepted the submission of the Independent Children’s Lawyer that what was needed, in the short term, was for there to be, in effect, a short “circuit breaker” and to place [X] in her father’s care, away from her mother’s influence for a short period during which there would be no contact.
28.The primary focus of what I will describe as the second interim hearing on 24 February was to consider the issue of [X] spending time with her mother. However, on this occasion the mother was represented by experienced counsel, Ms Black, and she sought orders discharging the existing orders for equal shared parental responsibility, and that [X] live with the father each alternate week from after school on Friday to before school on Wednesday. What I must say I found surprising is that the mother’s proposal to the court on 24 February 2010, notwithstanding all of the serious issues raised about her, actually proposed that the father have less time with [X] than that ordered by Stevenson J. The father and Independent Children’s Lawyer’s proposal on 24 February was that [X] have supervised contact with her mother at a supervised contact centre.
29.What was also striking about the mother’s evidence is that she was asserting that she had experienced an epiphany (my interpretation, not her words). Thus, for example, her affidavits express at a number of points contrition about previous acts. She professed to now understand the importance of [X] spending time with her father. She professed to now understand the importance of complying with court orders and the importance to [X] of having continuity of education and adequate dental care. These are important matters to record, because her case before me at the final hearing had very much the same flavour.
30.
The father gave evidence in his affidavit in relation to [X] during the time she was in his care from 23 December. He set out how on
23 December she was distressed, but settled down. She recommenced school at [S] School at the beginning of term 1 2010, had been to see a dentist and had undertaken oral surgery.
31.In my reasons for judgment of 5 March 2010 I explained that it was important for contact to be resumed between [X] and her mother, but that this needed to be supervised having regard to the issues referred to above. It was clearly inappropriate to return to the parenting arrangement that had been ordered by Stevenson J, and it was most certainly inappropriate to vary them as proposed by the mother. I expressed cynicism about the mother’s epiphany and observed that her proposal before me would indeed give [X] less time with the father that had been ordered by Stevenson J thus further raising doubts about the mother’s ability to foster [X]’s relationship with her father. As is apparent from the orders I made, I ordered supervised contact.
32.An important matter needs to be noted. At the final hearing before me in November, there was no challenge whatsoever on the mother’s behalf to the factual issues that were relied on in making the two interim orders on 5 March 2010, and 23 December 2009. There was, for example, no cross-examination of the father as to these assertions.
Proposals
33.The detailed minutes of order sought by the father, mother, and Independent Children’s Lawyer are set out in the schedule to these reasons. In short, the father’s proposal was that [X] live with him, that the parents have equal shared parental responsibility save in relation to decisions as to [X]’s education (in relation to which the father would have sole responsibility for making decisions) and save as to decisions about [X] attending any medical specialist in respect of which the parents were to consult with each other but that the father would sole responsibility for decision making in the event of a dispute. The father proposed that [X] spend time with the mother from after school on Friday to 4 pm on Sunday each alternate weekend, following a transitionary period of reintroduction. He also proposed half the school holidays to be taken in alternate one week blocks. There were a number of other detailed matters that are referred to in the father’s minute of order.
34.The mother’s proposal was that, in effect, there be a resumption of the parenting arrangement ordered by Stevenson J. Thus, [X] would spend time with the mother from after school on Wednesday until 12 noon of Sunday in each week, plus half the school holidays. The mother’s proposal contained no transitionary phasing in period, and there are some relatively minor differences in terms of the other orders sought, which will be discussed in my reasons below.
35.The Independent Children’s Lawyer’s proposal is that [X] live with the father, that there be equal shared parental responsibility except in the matters referred to in the father’s proposal i.e. education and health. The Independent Children’s Lawyer proposed that [X] spend time with the mother each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and half the school holidays. However, if the mother failed to deliver [X] to school without reasonable excuse on more than two occasions in any four month period, then the mother’s time with [X] would be reduced so that contact would conclude at 4 pm on the Sunday, rather than the Monday. There are a number of other relatively minor differences in terms of the other orders sought by the Independent Children’s Lawyer, and the parents.
36.The evidence before me consisted of affidavits of the father, the mother, and the father’s brother and mother. The latter two were not required for cross-examination. Dr R, the court appointed Part 15 child, adult and family psychiatrist also gave evidence in the form of a report dated 4 November 2010, and the oral evidence he gave at the hearing.
The Issues
37.The main issue is making a parenting order that is in the best interests of [X] in the context of a dispute about how much time she should spend with her mother. In dealing with this issue, however, it becomes necessary to examine a number of primary and additional considerations under section 60CC of the Family Law Act. Indeed, it is necessary to revisit each of the considerations that Stevenson J explored in her reasons for judgment.
Applicable Law
38.In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
39.The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
40.At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
41.If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
42.Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Expert Evidence
43.Dr R’s report is dated 4 November 2010 and he gave oral evidence on the second day of the hearing before me, 9 November 2010. His written report follows the usual form. There are a number of very useful, and insightful sections in the report. For example, in the present circumstances where there had been a very significant change in the parenting arrangements relating to [X] in December 2009 he makes the following observations about the interaction between [X] and the significant people in her life. At pages 16-17 he observes:
AT INTERVIEW
The father [X] and Ms S, the paternal grandmother were seen together. They appeared very happy and relaxed with each other. The child appeared comfortable. [X] said that they often go to visit the neighbour and her grandmother will drink coffee and she will play. Mr Adaab said that [X] is learning how to knit and cook with the grandmother. Mr Adaab said to [X] that parents do get divorced but that both parents do love her. [X] agreed that some of her friend’s parents were divorced. [X] said that she has good time with her father. They play games. They play pillow fights.
[X] said that she was happy at school. Mr Adaab said that she’s settled into the school and was doing well. [X] acknowledged that when she was with her mother last year she preferred not to go to school and she stayed at home with her mother a lot. I asked Ms S what she thought the Judge should decide. Ms S said, “I think she should stay with the father. It’s better. I look after her. She’s very good now. I help her.” Mr Adaab said that he believed that it was better for the child to remain living with him. I asked [X] what she thought would be best for her. She said, “I tell him that I wish to stay with my mum more.” Mr Adaab said that [X] has been helping him clean and cook. Mr Adaab said that [X] gets scared when it’s raining and that she comes in to be consoled by her father.
[X] and Ms Releheb were seen together. [X] was very pleased to see her mother. They cuddled and clung to each other. [X] sat on her mother’s lap. Ms Releheb was cuddling her closely and stroking her hair. She said that [X] looked very nice. Ms Releheb said, “I miss you. I love you with all my heart.” [X] looked very pleased to see her mother. She said she liked playing games with her mother. Ms Releheb repeated that she loved her. She likes to play with her. They talk about things together. They go out and have fun. [X] said that she sleeps with her mother because she’s scared to sleep by herself. She also said that if she’s scared she goes and sleeps with her father for a short time. The mother was continually kissing [X]’s hand. They were clearly closely bonded and pleased to be with each other. [X] talked about her watch and said that she needed to get if fixed.
44.
It is interesting to observe the happy and relaxed interaction between [X] and her father, and the obvious joy that [X] had in spending time with her mother. Clearly, despite the changes in relationships brought about by my orders of 23 December 2009, the relationships between [X] and her parents are not only intact, but obviously quite strong. Whilst I will discuss [X]’s views below, it is interesting that she told
Dr R that she wanted to stay with her mum more, which seemed a measured response for [X].
45.Dr R also observed the mother and the father together as well as the paternal grandmother. These observations are contained at page 17:
Ms Releheb and Mr Adaab were seen together. They were very tense with each other. Ms Releheb said that she really hoped that they could solve their problems and make the life for [X] better. Mr Adaab said that they had tried to reconcile but there was a lot of resentment held. He also said that he wants what’s best for the child. Ms Releheb said that she believed that the child needed a good relationship with her. She didn’t feel that the child felt comfortable with the father.
… Ms S and Mr Adaab were then seen together again. Ms S said that she’s there to help the father and the child. The father then repeated that he believed that the mother was working as a prostitute. She’d also neglected the child’s teeth. A neighbour had contacted him and told him that she was abusing substances and was having men visit at different hours of the day. “She’s floundering and promiscuous. She stays in night clubs. The neighbour told me. She has a boyfriend. She employs a Barrister for $1,500 a day. Where‘s she getting the money from. She wants the gaol post changed.”
The mother was seen alone. She said that she feels disgusted that he father would say things about her, such as prostitution. She said she has dignity. She said the father was using the word prostitute in Arabic in front of the child. She was upset that the father had tried to manipulate and trick her into signing paperwork for financial purposes. The Crime Squad are likely to investigate the father.
46.The clear tension in the relationship between the parents was palpable. I must say that, by the end of the hearing, my observation is that little or nothing had changed in this regard.
47.Dr R was specifically asked to express an opinion as to the nature of [X]’s relationship with her mother. He expresses this opinion at page 18 as follows:
1. The nature of the relationship between [X] and the mother.
I formed the view that [X] had a close loving relationship with Ms Releheb. I believe that there is a very strong bond between them. With the anxiety and closeness there’s probably then a degree of separation anxiety. I formed the view that Ms Releheb cared a great deal about [X] and wanted to act in her best interest although appeared rather naive in her manner. There seemed to be a degree of emotional overinvolvement between the mother and child. I believe that [X] is worried about the mother and there is a degree of the child worrying about the mother’s welfare.
48.Likewise he was asked to give an opinion on the nature of [X]’s relationship with her father. He says at page 19:
2. The nature of the relationship between [X] and the father.
I formed the view that Mr Adaab had a close loving relationship with [X]. I believe that he was providing good care for the child. He was also reliant on his mother to provide a lot of nurturing to [X].
49.In relation to [X]’s wishes, and the weight to be given to them, he states at page 20:
3. The wishes of the child and weight to be given to those wishes.
[X] was an 8 year old girl who as developing normally, both cognitively and emotionally for her age. She appeared to have a close bond with both parents. However, it was clear that she had a close bond with her mother. She missed her mother. [X] stated clearly that she wanted more time with her mother. She was also clear that she didn’t particularly want to stay with her grandmother.
I wasn’t able to find any clear evidence that the father was physically violent. However, I do have concern that he showed some signs of trying to bamboozle the mother. His use of large words such as ‘changing the goal post’ and ‘ambiguous’, were attempts to bamboozled and disadvantage Ms Releheb whose’ English is still developing.
50.Dr R discusses the possible outcomes at pages 21-22 where he states:
5. Possible Outcomes
Should the current regime continue where the child is having one or two hours per week in a supervised way I believe that ultimately this would not be in the child’s best interest. The relationship with the mother would eventually become too restricted and damaged. The mother and child are finding this restriction quite difficult to contend with. The father however, feels in control because he is able to monitor the situation and doesn’t fear that he’s going to lose [X]
Should the child reside with [Ms Releheb] I believe that she would be extremely pleased about being reunited with her mother. I believe that the mother would be able to care for the child’s physical needs, however, the mother hasn’t shown a great deal of strength in being able to manage her and the child’s anxiety by insisting that the child go to school or attend contact when the child shows some separation anxiety. Nor has the mother indicated that she values the relationship between the father and the child. I believe that [X] is worried about the mother and there is a degree of the child worrying about the mother’s welfare.
If the child were residing primarily with Mr Adaab and having substantial contact with the mother then the child would develop well. I believe that this would be the best outcome for the child [X] stated that she wants to spend more time with the mother. The father has a much better record of appropriate management of the child. I believe also that he does want to maintain the relationship with the mother and the child. I am a little concerned still about his attitude towards the mother, his denigration of her and his reliance on the paternal grandmother whom [X] appears to feel some ambivalence about.
51.In view of all of the matters referred to above Dr R made the following recommendations:
RECOMMENDATIONS
1. I recommend that there the child to reside with the father primarily who has a better record of management. The father I believe needs to be careful not to rely on the paternal grandmother too much to provide the nurturing although her support would be key when he needs to return to work.
2. I recommend the contact with the mother be substantial for example, from Friday after school until Monday morning each fortnight. If the contact progresses well then after six months I would suggest adding one evening per week as well half the school holidays
3. I recommend that neither parent denigrate the other parent in front of the child.
4. I recommend that the father desist from making allegations against the mother with regard to prostitution.
5. I recommend that neither parent physically punish the child.
6. I recommend that both parents attend post-separation counselling and courses.
7. I recommend that both parents utilise individual respective counselling in order to help them with their respective situations.
8. The mother needs psychological assistance perhaps with a child and family psychologist through a community health team local to [P] to help her deal with her own anxiety and the separation anxiety that this engenders in [X].
9. Should the mother attempt to undermine the child attending school or contact then the contact would need to be restricted to day contact.
10. I recommend that the father have further psychological treatment to deal with his trauma from these difficulties.
52.In his oral evidence Dr R explained that he did not have a strong view about whether or not there should be a period of phasing in or reintroducing the mother’s extended contact with [X]. He rather thought the main issue was the mother being able to demonstrate that she could effectively parent [X], especially in terms of getting her to school. Dr R seemed to be attracted to the Independent Children’s Lawyer’s proposal that contact only be extended to Monday before school for as long as the mother can demonstrate that she can get [X] to school on time. He also explained that a significant concern was the mother’s separation anxieties in relation to [X], and her ability to control this. Clearly, this was the focus of some of his recommendations. He was asked to comment on the prospects of the mother and father being able to, in effect, “move on” in terms of their difficulties with each other. He doubted whether this would happen in the near future, but thought that there could be medium term prospects of this happening if both parents engaged in counselling, benefited from it, and if the implementation of the orders was relatively unproblematic. In the meanwhile, it was important to keep the parents apart.
53.Dr R clearly articulated that he did not believe that the mother’s proposal was in [X]’s best interests, based on the concerns that he had articulated in his report. The advocate for the father, Mr Sperling, valiantly tried to persuade Dr R as to the benefits of a staggered reintroduction of [X]’s time with her mother, but the most that he would concede is that this was a matter for the court to decide.
54.I find that there was certainly nothing in Dr R’s oral evidence that detracts from his report, its observations and recommendations.
Meaningful Relationships
55.The evidence of the mother, father and of Dr R leads me to conclude, quite confidently, that despite the rather tumultuous relationship between [X]’s mother and father, she enjoys a meaningful relationship with both of them. This must surely reflect a degree of resilience on her part. Moreover, since 23 December 2009, it also reflects the father’s efforts in at least not seeking to detract from [X]’s meaningful relationship with her mother. I am confident that the meaningful relationship will continue irrespective of which proposal I accept, or which adaptation thereof I make.
Protecting the Child from Harm
56.I believe that the key issue before me is the same as the one that confronted Justice Stevenson. Clearly, [X] requires protection from psychological abuse due to exposure to parental conflict. This can be achieved by putting an end to this litigation and establishing a framework that attempts, so far as possible, to keep the parents apart from each other whilst at the same time seeking to repair relationships, and develop in each parent skills that might, in time, enable them to co-parent more effectively. Many of the orders proposed by the parties and the Independent Children’s Lawyer will provide the framework for the latter. However, after hearing both the mother and the father give evidence, I remain sceptical as to whether they will be able to improve the regard that they each have for one another, or establish even basic communication skills. Nonetheless, there is always hope.
57.Justice Stevenson found, and I likewise find, that [X] requires protection from psychological abuse due to the undermining of her relationship with her father and paternal family by her mother. At the final hearing, as in the interim proceedings before me in February 2010, the mother sought to convey the impression that she had changed, and now fully appreciated the importance to [X] of a relationship with her father. Whilst I found the mother’s evidence in this regard to be genuine, I formed a strong impression that she was, perhaps conveniently, minimising the extent of the enmity that exists between the father and herself, and thus minimising the potential for her own personal animosity towards the father to be projected onto [X]. At various times during her evidence, particularly when being cross-examined about past events involving her non-compliance with orders made by Justice Stevenson, I thought she demonstrated a real lack of insight about her own behaviour, and a lack of understanding of the potential impacts of her behaviour on [X]. In short, I am not entirely satisfied that there remains no risk to [X] of her mother undermining her relationship with him, though I am cautiously optimistic that the orders of December 2009 and February 2010 will be a stark reminder to the mother of the potential consequences of not, at the very least, containing her feelings about the father.
58.Justice Stevenson found that [X] needed to be protected from the psychological abuse that would occur as a result of neglect of her educational and dental health needs by her mother. Clearly the events that occurred after her Honour’s orders demonstrate this starkly. Am I satisfied now, that there is no risk of this reoccurring in the future? I think the situation is the same as in relation to the matters discussed in the previous paragraph. I believe the mother has a much greater awareness of the importance for [X] of a good education and good dental health. And yet, I have a strong impression that if educational decisions were left to the mother alone, [X] would be taken out of [S] School purely because it is not convenient to the mother. The mother does not appear to me to place the same value on education as does the father.
59.Because I have lingering doubts about the risk of psychological abuse to [X], if she were in the mother’s care, I need to be particularly careful about who has responsibility for making decisions and the extent to which the mother is able to exert an influence on [X]. This makes the father’s and Independent Children’s Lawyer’s proposals far more child focussed, from [X]’s perspective. By contrast, if I were to make the orders proposed by the mother, there would, in my opinion, be a much greater risk of the past psychological abuse being reperpetrated.
The Views of the Child
60.Dr R’s evidence is that [X] has expressed a view to spend more time with her mother. Even the father’s proposal gives effect to this. The issue is of the extent of more time. In any event, I agree with Justice Stevenson’s observation that [X]’s views are not a compelling consideration, on the facts of this case. She is a very young child who is caught up in a situation of high conflict between her parents.
Nature of Relationships
61.Dr R observed the very positive interactions between [X] and both her mother and father, which was suggestive of good relationships. However, he found that there was a degree of emotional over-involvement between the mother and [X], with [X] worried about the mother, and the mother anxious about separating from [X]. He observes, for example, at page 18 that the mother “has clung to [X] for her own security.” Thus, it is a close loving relationship but one which also has characteristics of dependence by the mother on her daughter. This was of sufficient concern to Dr R that he would make a specific recommendation for the mother to receive psychological assistance, perhaps with [X], to help the mother deal with her own anxiety, and the separation anxiety that this engenders in [X].
62.This also explains why Dr R favoured the father’s and Independent Children’s Lawyer’s proposals for time, as opposed to the mother’s.
Willingness and Ability to Facilitate Continuing Relationships
63.Justice Stevenson had no concerns about the father facilitating and encouraging a close and continuing relationship between [X] and her mother. Based on the evidence I have seen, I completely agree. Indeed, the last 12 months is testament to his commitment in this regard. Clearly, as I will discuss below, the father has real issues in terms of his attitudes towards the mother. Significantly, however, even though [X] has been in his almost exclusive care since 23 December 2009, all the evidence indicates that [X] has been able to sustain her relationship with her mother notwithstanding very limited supervised contact. Whatever he may have felt, and continues to feel, about the mother he has managed to contain from [X].
64.The mother’s track record between the date of Justice Stevenson’s orders and 23 December 2009, is far more problematic. Her actions unequivocally demonstrated a lack of willingness, and an inability to encourage [X]’s relationship with her father. Is there scope to be more optimistic in the future? As I have indicated in my discussion about psychological abuse above, the mother certainly signals a change in attitude and increased willingness, but from a perspective and context where she has had such limited contact with [X]. Accordingly, whilst there is scope for some optimism, and evidence of improvement in terms of the mother’s willingness, her actual demonstrated track record is disconcerting. Clearly Dr R’s comments at pages 21-22 signal concerns about the extent to which the mother has indicated that she values the relationship between the father and the child. I think, therefore, it is necessary to be cautious and conservative in framing parenting orders, and to ensure that the greatest influence in [X]’s life, at least from a quantitative perspective, comes from the parent in respect of whom there are fewer concerns in terms of willingness and ability to encourage a close and continuing relationship between [X] and the other parent.
Likely Effect of Change
65.Each of the scenarios presented as proposals to the court brings about change in [X]’s life. To the extent that this means spending more time with her mother, this is positive change. The extent of this change needs to take into account the many other relevant considerations in this case. I have no doubt, for example, that having regard to the matters I have discussed in these reasons so far, that [X] would cope with the changes suggested in the father’s and Independent Children’s Lawyer’s proposal. [X] might even cope with the change that would be involved in implementing the mother’s proposal, but for the fact that the mother’s proposal is contra-indicated by many of the other considerations I have discussed.
66.The father’s proposal involves the gradual and careful reintroduction of [X] to her mother over a period of time. Dr R did not believe that this was necessary. I do not believe it is necessary given the strength of the relationship that clearly exists between [X] and her mother.
Issues of Practical Difficulty and Expense
67.There are no major, insurmountable issues on the facts of this case. If I accepted the father’s proposal about changeover at a supervised contact centre, this clearly creates a measure of inconvenience for the mother who, for the time being, does not have her own driver’s licence and is dependent on the generosity of her friends in terms of getting her to [B]. This is not an insurmountable problem.
Issues of Parental Capacity
68.In this regard there is a stark contrast between the respective capacities of [X]’s father and mother. Since 23 December 2009 he has demonstrated that he has the capacity to meet all of [X]’s needs – physical, emotional, intellectual, financial etc. Between the date of Justice Stevenson’s orders in September 2009, and 23 December 2009, the mother demonstrated a real lack of capacity to attend to her dental needs, to get her to school, and to facilitate [X]’s relationship with her father. Dr R continues to retain some concerns about these issues and, as I have indicated above, so do I. Since 23 December 2009 the mother has not really had the opportunity to demonstrate that she has regained the capacity in question. From [X]’s perspective, the court cannot take many chances, or experiment with [X] to find out whether her mother has indeed regained the capacity being discussed in this context. It is important to recognise that the very concerns expressed by Justice Stevenson in her reasons for judgment about the mother came to fruition within a matter of weeks after the orders were made. In this context, lingering concerns about the mother’s capacity remain. This must inevitably make the father and Independent Children’s Lawyer’s proposal more child focused, realistic on the facts of this case, and durable.
Parental Attitudes
69.As I have indicated at several points during these reasons, there is ample evidence to conclude that both parents need to work at improving their attitudes towards each other, and therefore their attitudes about the responsibilities on parenthood. The father still clearly believes that the mother has prostituted herself. The mother still clearly believes that the father has engaged in various criminal activities. Despite these views held by each of them, no evidence was led at the hearing before me that went to seeking to establish whether these views were in any way founded upon facts. These parental attitudes towards each other create distrust and destroy any semblance of communication which in itself, then, is the catalyst for even deeper enmity towards the other. The facts indicate that the father has been better able to contain his feelings, and protect [X] from them. The mother is, as yet, an unknown quantity in this regard.
The Orders in [X]’s Best Interests?
70.A close examination of the detailed minutes of order submitted by each of the parents and the Independent Children’s Lawyer, together with the closing submissions, indicate that the parents are actually in agreement about many issues. Referring the minute of order sought by the Independent Children’s Lawyer, for example, everybody agrees to orders 1 to 4, 8 to 12 (save for matters to which I will shortly refer) and 14 to 20.
71.The first major issue is in relation to order 5. The mother proposes that [X] spend time with her from after school on Wednesday until 12 noon Sunday in each week during school term time. For the reasons that I have articulated above, I do not consider this to be in [X]’s best interests. The father proposes that after the lead in period described in paragraphs A to C of his proposed order 5, [X] spend time with her mother from after school on Friday to 4.00 pm on Sunday, each alternate weekend. For the reasons that I have articulated above, I do not believe there is any necessity to have the lead-in period suggested by the father.
72.The Independent Children’s Lawyer’s proposal is for each alternate weekend from after school on Friday until the commencement of school on Monday. This proposal must be read in conjunction with order 6 proposed by the Independent Children’s Lawyer which provides, in effect, that if the mother fails to deliver [X] to school without a reasonable excuse more than twice in any four month period then the mother’s time with [X] is reduced from Monday to Sunday at 4 pm. Dr R was attracted to this proposal. I agree that it provides an incentive to the mother to be zealous in terms of getting [X] to school on Monday mornings. What I find particularly attractive about the Independent Children’s Lawyer’s proposal is that the changeover will be at school, thus avoiding the necessity for the parents to come into contact with each other, and also giving the mother a point of interaction with the school. Thus, whilst I understand the father’s concerns about whether the mother will get [X] to school, I believe that the independent children’s lawyer’s proposed order 6 adequately deals with this issue.
73.The parties seem to be in agreement about school holiday contact, as well as Mother’s Day and Father’s Day.
74.There is an issue about where a changeover takes place when it is not at school. The father expressed a preference for the [B] Children’s Contact Service whereas the mother and Independent Children’s Lawyer proposed McDonald’s family restaurant [address omitted]. I no longer see the necessity for the involvement of a supervised contact centre, even for the limited purposes of supervised exchange. I am satisfied that the order proposed by the Independent Children’s Lawyer contains sufficient safeguards.
75.Proposed orders 8, 9, and 10 in the Independent Children’s Lawyer’s minute are not in dispute. In relation to orders 11 and 12 the mother proposed that the obligation be extended to include the father, but I see no logical reason for doing so.
76.Order 13 is a restraint on [X] leaving Australia until either she turns 16 or 18. The father prefers 18. I infer that the mother feels the same way. In these circumstances, order 13 will refer to 2019.
77.Order 14 of the ICL minute is not in contention. Order 15 is supported by the father, but not the mother. I do not think there is any logical basis for the mother’s objection given the history of this matter, other than an unrealistic, and perhaps idealistic, view that all of the relationship issues that exist between the parents will somehow dissipate.
78.Order 16 of the ICL minute is supported by the father, but the mother seeks to have it made reciprocal. I think this ignores the history of the matter and accordingly I adopt the proposed order 16. Orders 17-20 are not contentious and it appears to be quite sensible to ensure that these reasons for judgment are made available to Unifam, as well as the other counsellors referred to in order 20.
79.The father proposed specific orders dealing with Christmas Day, Boxing Day, and Easter Sunday. The mother’s preference is that these special occasions would be governed by the order for school holidays. The Independent Children’s Lawyer did not express a view either way. I note that the orders already provide for the special occasions of Mother’s Day and Father’s Day and in these circumstances it seems to be consistent that the other special days referred to by the father should also receive specific mention in the orders. His proposal is for an equitable sharing and I consider this to be in [X]’s best interests. The father seeks two notations to the orders about [X] commencing school at 8.40 am and about [X] continuing to be raised in the Catholic faith. This is consented to by the mother, and accordingly I will make those notations.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 2 December 2010
Schedule of Orders as Sought by the Parties
MINUTE OF PROPOSED FINAL ORDERS AS SOUGHT BY THE APPLICANT FATHER
1.That all previous parenting orders be discharged.
2.That the child [X] born [in] 2001 (“[X]”) lives with the Father.
3.THAT the Father Mr Adaab (hereafter referred to as “the Father”) and the Mother Ms Releheb (hereafter referred to as “the Mother”) have equal shared responsibility for [X] except as otherwise provided in these orders.
4.That the Father have sole responsibility for making decisions as to [X]’s education.
5.That [X] spend time with the Mother as follows:-
a.From the commencement of these for a period of four hours each Sunday from 10am to 2pm for a period of 5 weeks;
b.At the completion of the time referred to in Order 5a. from 9am to 4pm each Sunday for a period of 5 weeks;
c.At the completion of the time referred to in Order 5b. from after school (or 3pm if it is not a school day) on Friday to 4pm Saturday each alternate weekend for a period of 10 weeks; and
d.At the completion of the time referred to in Order 5c. from after school Friday to 4pm Sunday each alternate weekend.
e.For half of all school holidays to be taken in alternate one week block periods to commence in the 2011 July school holiday and for each school holiday period thereafter.
f.That [X] spend time with the Mother from 10.00am until 5.00pm on Mothers Day, if she is not otherwise in her care pursuant to these orders.
g.That [X] spend time with the Father from 10.00am until 5.00pm on Fathers Day, if she is not otherwise in his care pursuant to these orders.
6.That for the purposes of [X] spending time with the Mother changeovers are to take place at [B] Children’s Contact Service for a period of XXXX and thereafter at xxxx PROVIDED that if the [B] Children’s Contact Service is closed or unavailable for any reason then changeovers occurs at XXXX.
7.That each party shall not:
a.Speak to [X] or in the presence or within the hearing of [X] in a manner that is demeaning or derogatory or insulting to the other party;
b.Speak negatively to [X] about her schooling and religion;
c.Discuss with [X] or in the presence or within the hearing of [X] any issues arising in these proceedings or in relation to any past AVO proceedings or allow [X] to read any court documents.
8.That the Mother and the Father be hereby restrained from converting or attempting to convert [X] to the Muslim Religion.
9.That Ms Releheb born [in] 1977 and Mr Adaab born [in] 1971 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born [in] 2001 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watch List until the Court orders its removal.
10.That the Mother shall do all things and execute all documents necessary to cause the cancellation of any Lebanese passport issued in respect of [X].
11.That the Mother and the Father is restrained from making any application for the issue of a passport for [X] by any country without leave of the Court.
12.That the Mother and the Father is restrained from leaving Australia with [X] without leave of the Court.
13.That each party shall ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to [X] and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to visit [X] if hospitalised.
14. That the Mother and Father consult in relation to the attendance of [X] on any medical specialist and in the event that there is a dispute over the selection of the medical specialist the Father be solely responsible for determining the nomination of any medical specialist for [X] to be referred to and such medical specialist shall include: any specialist medical practitioner; dentist; orthodontist; speech pathologist; occupational therapist; psychologist or other therapist (hereafter referred to as “consultant”) PROVIDED THAT
a. In the event that [X] is referred to any such consultant the Father shall inform the Mother as soon as practical of any specialist medical appointments
b. that the Father do all acts and things to ensure that the Mother is provided copies of any test results, letters of referrals, reports, and letters received from and by any such consultant.
c. That the Mother be permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device.
d. that the Father as soon as possible after the initial appointment is made and prior to the first appointment authorise the consultant to discuss such matters with the Mother.
15. That the Mother be restrained from taking [X] to any counsellor, psychologist or psychiatrist without the prior written consent of the Father or order of the Court.
16. That each party shall do all things necessary to enrol in the Keeping Contact Programme offered by Unifam Sydney (telephone 9373 5000) and attend all consultations as may be reasonably required by that service and follow all reasonable directions of that service, including ensuring that [X] attend if requested.
17.That each party share equally the costs of the Keeping Contact Programme.
18.That each party inform the other of their:
a.Current mobile number;
b.Ordinary residential address at which they accommodate [X] when she is living with or spending time with that parent; and
c.Promptly advise one another of any changes to same, within 48 hours of such change.
MINUTE OF PROPOSED FINAL ORDERS AS SOUGHT BY THE RESPONDENT MOTHER
1. That all previous parenting orders be discharged
2. That the child [X] born [in] 2010 (“[X]”) lives with Father. When not spending time with the mother, pursuant to order 5.
3. That the Father Mr Adaab (hereafter referred to as “the Father”) and the Mother Ms Releheb (hereafter referred to as “the Mother”) have equal shared responsibility for [X] except as otherwise provided in these orders.
4. That the Father have sole responsibility for making decisions as to [X]’s education.
5. That [X] spend time with the Mother as follows:-
a.From after school on Wednesday until 12:00 noon Sunday in each week during school term time.
b.For half of all school holidays to be taken in alternate one week block periods to commence in the 2011 July school holiday and for each school holiday period thereafter.
c.That [X] spend time with the Mother from 10.00am until 5.00pm on Mother Day, if she is not otherwise in her care pursuant to these orders.
d.That [X] spend time with the Father from 10.00am until 5.00pm on Fathers Day, if she is not otherwise in his care pursuant to these orders.
6. That for the purpose of [X] spending time with Mother, pursuant to 5, changeover are to take place at the McDonalds Restaurant located on [address omitted], NSW.
7. That each party shall not:
a)Speak to [X] or in the presence or within the hearing of [X] in a manner that is demeaning or derogatory or insulting to the other party;
b) Speak negatively to [X] about her schooling and religion;
c) Discuss with [X] or in the presence or within the hearing of [X] any issuesarising in these proceedings or in relation to any past AVO proceedings or allow [X] to read any court documents.
8.That the Mother and the Father be hereby restrained from converting or attempting to convert [X] to the Muslim Religion.
9.That Ms Releheb born [in] 1977 and Mr Adaab born [in] 1971 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born [in] 2001 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watch List until the Court orders its removal.
10.That the Mother and the father shall do all things and execute all documents necessary to cause the cancellation of any Lebanese passport issued in respect of [X].
11.That the Mother and the Father is restrained from making any application for the issue of a passport for [X] by any country without leave of the Court.
12. That the Mother and the Father is restrained from leaving Australia with [X] without leave of the Court.
13. That each party shall ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to [X] and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to visit [X] if hospitalised.
14. That the Mother and the Father be restrained from taking [X] to any counsellor, psychologist or psychiatrist without the prior written consent of the Father and the Mother or order of the Court.
15.That each party shall do all things necessary to enrol in the Keeping Contact Programme offered by Unifam Sydney (telephone 9373 5000) and attend all consultations as may be reasonably directions of that services, including ensuring that [X] attend if requested.
16. That each party share equally the cost of the Keeping Contact Programme
17. That each party inform the other of their:
a. Current mobile number
b. Ordinary residential address at which they accommodate [X] when she is living with or spending time with that parent; and
c. Promptly advise one another of any changes to same, within 48 hours of such change.
MINUTE OF ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
1.That all previous parenting orders be discharged.
2.That the child [X] born [in] 2001 (“[X]”) lives with the Father when not spending time with the Mother pursuant to Order 5.
3.That the Father Mr Adaab (hereafter referred to as “the Father”) and the Mother Ms Releheb (hereafter referred to as “the Mother”) have equal shared responsibility for [X] except as otherwise provided in these orders.
4.That the Father have sole responsibility for making decisions as to [X]’s education.
5.That [X] spend time with the Mother as follows:-
d.Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and in the event that [X] is too ill to attend school then the Mother’s time shall conclude at 9.00am on the Monday provided that if the Friday immediately preceding a weekend when [X] is to spend time with the Mother is a public holiday then the Mother’s time with [X] shall commence on the Thursday immediately preceding that weekend and if the Monday immediately following a weekend when [X] is to spend time with the Mother is a public holiday then the Mother’s time with [X] shall cease at 3.00pm on the Tuesday immediately following that weekend;
e.For half of all school holidays to be taken in alternate one week block periods to commence in the 2011 July school holiday period and for each school holiday period thereafter.
f.That [X] spend time with the Mother from 10.00am until 5.00pm on Mothers Day, if she is not otherwise in her care pursuant to these orders.
g.That [X] spend time with the Father from 10.00am until 5.00pm on Fathers Day, if she is not otherwise in his care pursuant to these orders.
6.That in the event the Mother fails to deliver [X] to school in accordance with Order 5(a) hereof without a reasonable excuse on more than two occasions in any four month period from the date of these Orders then the Mother’s time with [X] shall be reduced so that her time will conclude at 4.00pm on Sunday.
7.That for the purpose of [X] spending time with the Mother outside of school term changeovers are to take place at McDonalds Family Restaurant, [address omitted] and the Father will ensure that in the event that he is unable to deliver [X] to the Mother that his mother or his brother, Mr P, will deliver [X] and the Mother will ensure that in the event that she is unable to deliver [X] to the Father that the maternal grandfather or the Mother’s friend, Ms G, will deliver [X].
8.That each party shall not:
h.Speak to [X] or in the presence or within the hearing of [X] in a manner that is demeaning or derogatory or insulting to the other party;
i.Speak negatively to [X] about her schooling and religion;
j.Discuss with [X] or in the presence or within the hearing of [X] any issues arising in these proceedings or in relation to any past AVO proceedings or allow [X] to read any court documents.
9.That the Mother and the Father be hereby restrained from converting or attempting to convert [X] to the Muslim Religion.
10.That Ms Releheb born [in] 1977 and Mr Adaab born [in] 1971 and [X] born [in] 2001 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born [in] 2001 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watch List until the Court orders its removal.
11.That the Mother shall do all things and execute all documents necessary to cause the cancellation of any Lebanese passport issued in respect of [X].
12.That the Mother is restrained from making any application for the issue of a passport for [X] by any country without leave of the Court.
13.That the Mother is restrained from leaving Australia with [X] without leave of the Court.
14.That each party shall ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to [X] and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to visit [X] if hospitalised.
14.That the Mother and Father consult in relation to the attendance of [X] on any medical specialist and in the event that there is a dispute over the selection of the medical specialist the Father be solely responsible for determining the nomination of any medical specialist for [X] to be referred to and such medical specialist shall include: any specialist medical practitioner; dentist; orthodontist; speech pathologist; occupational therapist; psychologist or other therapist (hereafter referred to as “consultant”) PROVIDED THAT
a. in the event that [X] is referred to any such consultant the Father shall inform the Mother as soon as practical of any specialist medical appointments;
b. that the Father do all acts and things to ensure that the Mother is provided copies of any test results, letters of referrals, reports, and letters received from and by any such consultant;
c. that the Mother be permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device;
d. that the Father as soon as possible after the initial appointment is made and prior to the first appointment authorise the consultant to discuss such matters with the Mother.
15. That the Mother be restrained from taking [X] to any counsellor, psychologist or psychiatrist without the prior written consent of the Father or order of the Court.
16.That each party shall do all things necessary to enrol in the Keeping Contact Programme offered by Unifam Sydney (telephone 9373 5000) and attend all consultations as may be reasonably required by that service and follow all reasonable directions of that service, including ensuring that [X] attend if requested.
19.That each party share equally the costs of the Keeping Contact Programme.
20.That each party inform the other of their:
a.Current mobile number;
b.Ordinary residential address at which they accommodate [X] when she is living with or spending time with that parent; and
21.Promptly advise one another of any changes to same, within 48 hours of such change.
22.That each party is hereby given leave to provide copies of the documents listed below to such counsellor that they or [X] may attend in compliance with these Orders:-
a.Judgment of Justice Stevenson dated 7 November 2009;
b.Report of Dr H dated 25 November 2008;
c.Report of Dr R dated 4 November 2010; and
d.Judgment of Federal Magistrate Altobelli.
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