Allan & Sacco (No 2)
[2024] FedCFamC1F 15
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allan & Sacco (No 2) [2024] FedCFamC1F 15
File number(s): BRC 15354 of 2020 Judgment of: BAUMANN J Date of judgment: 30 January 2024 Catchwords: FAMILY LAW – PARENTING – Where the Court relies on its earlier finding that the father does not pose a risk of unacceptable harm of sexual abuse to the child – Where the mother continued to contend for an order that the child spend no time and have no communication with the father – Final orders made in the best interests of the child for the child to recommence spending time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Allan & Sacco [2022] FedCFamC1F 120
Keane & Keane (2021) 62 Fam LR 190
Russell & Close [1993] FamCA 62
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 88 Date of hearing: 17–19 August and 31 August 2022 Place: Brisbane Counsel for the Applicant: Mr C Bolovan Solicitor for the Applicant: KA Criminal Law Pty Ltd Counsel for the Respondent: Mr J Bunning Solicitor for the Respondent: Page Provan Counsel for the Independent Children’s Lawyer: Mr A Hartnett Solicitor for the Independent Children’s Lawyer: Seth Solicitors ORDERS
BRC 15354 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLAN
Applicant
AND: MS SACCO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 JANUARY 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders are discharged.
Parental responsibility
2.That the parents shall have equal shared parental responsibility concerning the major long-term decisions of the child, X born 2014 (“the child”) including but not limited to the child’s:
(a)education (both current and future);
(b)religious and cultural upbringing;
(c)health (including major medical procedures); and
(d)living arrangements, in terms of any changes that would make it significantly more difficult for the child to spend time with the other parent.
3.That the parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility in relation to long term issues jointly, as follows:
(a)The parent proposing a decision shall inform the other parent in writing of their proposal (inclusive of the timeframe as to when such decision needs to be made);
(b)The responding parent shall reply within seven (7) working days of the written request indicating their consent or contest or counter-proposal (inclusive of their reasons);
(c)In the event the responding parent does not reply in writing in the requisite time, the parent seeking a decision shall proceed to make the decision in the best interests of the child;
(d)In the event the responding parent does reply in writing and does not agree with the proposal, the parents shall consult with each other and make a genuine effort to come to a joint decision or terms of agreement; and
(e)In the event the parents are unable to reach a mutual agreement, the parents shall attend upon a Family Dispute Resolution Practitioner or P Organisation (whichever service is expedient) in accordance with these Orders.
4.That the parents are not required to consult the other when making decisions while the child is in their care under this Order about issues that are not major long-term issues, namely:
(a)the mother shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with her; and
(b)the father shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with him.
Living arrangements
5.That the child shall live with the mother.
6.That the child shall spend time with the father as agreed between the parents in writing and failing agreement as follows in the stages identified:
Reconnection – stage one (1)
(a)Within seven (7) days of the date of this Order, the parents shall jointly engage Ms Q to facilitate the child beginning contact with the father and his family, including R, Y and Z, in accordance with the recommendations of Ms Q and consistent with paragraph 169 of the family report;
(b)The costs of Ms Q for all sessions shall be shared equally by the parents;
(c)The sessions to be undertaken are to occur, unless otherwise agreed between the parents and Ms Q, over a period of no longer than eight (8) weeks;
(d)During the same period that these reconnection sessions are taking place, the parents shall engage, at their joint and equal expense, Dr S to maintain the necessary therapeutic support of X, and make the child available for such sessions.
Reconnection – stage two (2)
(e)After completion of stage one (1) above, but at least by 28 March 2024 (the last day of term one (1) Queensland school term) the child shall spend time with the father:
(i)for weekly periods of six (6) hours each Saturday, commencing Saturday 30 March 2024 between 10.00am and 4.00pm for two (2) visits; then
(ii)each alternate weekend commencing Saturday 13 April 2024 between 9.00am and 5.00pm on Saturday and the following Sunday of that weekend, for two (2) alternate weekends; then
(iii)each alternate weekend commencing Saturday 11 May 2024 between 9.00am Saturday and 5.00pm Sunday until the end of the Queensland school term two (2); then
(iv)during the end of term two (2) holidays (June) from:
A.9.00am Saturday 22 June until 5.00pm Monday 24 June; and
B.9.00am Wednesday 3 July to 9.00am Saturday 6 July.
(v)after the commencement of the Queensland school term three (3), each alternate weekend commencing Friday 19 July 2024 from after school Friday to before school Monday, extended to before school Tuesday if Monday is a public holiday, for the entire term three (3) period.
Spending time – stage three (3)
(f)From the commencement of Queensland school term four (4), the child shall spend time with the father each alternate weekend from after school Friday to before school Tuesday commencing Friday 4 October 2024.
Spending time – school holidays
(g)The child shall spend time with the father during school holiday periods:
(i)for the period set out in Order 6(e)(iv) for the June 2024 school holidays;
(ii)for the September 2024 school holidays, from 9.00am Saturday 14 September 2024 to 12 noon Saturday 21 September 2024;
(iii)for the 2024 end of term four (4) school holidays (Christmas holidays), on a week about basis, with changeovers at 12 noon on a Saturday, with the child to spend time with the father commencing Saturday 21 December 2024 (including the 2024 Christmas Eve and Christmas Day period) but with the period ceasing for this year at 9.00am 26 December 2024 (Boxing Day) and the child’s holiday period with the father recommencing at 12 noon 4 January 2025;
(iv)thereafter for the Queensland gazetted school holiday periods commencing school year 2025, the child will spend time with the father:
A.in the second half in odd numbered years, with the child to return to the mother by 5.00pm on the Thursday before resumption of school and the alternate weekend school term periods beginning on the second weekend of the new school term; and
B.for the first half in even numbered years and the alternate weekend school term periods beginning on the first weekend of the new school term.
Telephone time
7.That the child shall communicate with the parents as follows:
(a)When the child is in the care of the mother, the child shall communicate by telephone with the father, unless otherwise agreed in writing, each Wednesday between 6.00pm and 6.30pm, initiated by the father to a number nominated by the mother;
(b)When the child is in the care father of the father for a period longer than one (1) night, then the child shall communicate by telephone with the mother during that period on one (1) occasion as agreed between 6.00pm and 6.30pm, initiated by the mother to a number nominated by the father;
(c)The parents shall facilitate the child initiating a call to the other parent whenever the child makes a reasonable request to do so; and
(d)All telephone calls shall be in private and unrecorded.
Changeover
8.That for the purposes of changeover that do not occur at school, they shall occur at a location agreed by the parents, failing which it will occur at McDonalds T Street, Suburb U.
Communication and exchange of information
9.That all communication between the parents shall be in writing via the “Talking Parents” application unless in the case of an emergency.
10.That for the purposes of Order 9, within three (3) days of the date of this Order, the parents shall:
(a)register with the Talking Parent’s application at their own costs;
(b)notify the other parent by text of their enrolment details for communication purposes; and
(c)communicate from that point onwards via the Talking Parent’s application unless in case of an emergency.
11.That in the case of an emergency, the resident parent shall notify the non-resident parent of the emergency in a text message and the location of the child (if the child is not at the resident parent’s home).
12.That both parents shall keep each other informed of their residential address and contact telephone number (mobile telephone) and shall advise the other parent within forty‑eight (48) hours of any change in the contact details.
Special days
13.That notwithstanding any other order herein, unless otherwise agreed between the parents and subject to Order 6, on special days the child shall spend time with the mother and father as follows:
(a)On Father’s Day with the father from 9.00am to 5.00pm each year; and
(b)On Mother’s Day with the mother from 9.00am to 5.00pm.
(c)On the child’s birthday:
(i)with the father in even numbered years from 9.00am to 6.00pm on a non-school day and if it is a school day, from the conclusion of school until 6.00pm;
(ii)with the mother in odd numbered years from 9.00am to 6.00pm on a non-school day and if it is a school day, from the conclusion of school until 6.00pm;
(iii)For Christmas, from Christmas 2025:
A.in even numbered years with the father from 12.00pm Christmas Eve until 12.00pm Christmas Day, and with the mother from 12.00pm Christmas Day until 12.00pm Boxing Day; and
B.in odd numbered years with the mother from 12.00pm Christmas Eve until l2.00pm Christmas Day, and with the father from 12.00pm Christmas Day until 12.00pm Boxing Day.
Specific issues
14.That pursuant to s 121 of the Family Law Act 1975 (Cth):
(a)the Independent Children’s Lawyer be granted leave to provide to Dr S and Ms Q a copy of the Reasons for Judgment delivered 30 January 2024;
(b)the mother be granted leave to provide to her counsellor or other healthcare professional providing her support a copy of the:
(i)Reasons for Judgment delivered 30 January 2024;
(ii)family report prepared by Ms Q dated 8 June 2022; and
(iii)report prepared by Dr S dated 14 April 2022.
(c)The father be granted leave to provide to any counsellor he attends for personal therapeutic support a copy of the:
(i)Reasons for Judgment delivered 30 January 2024;
(ii)family report prepared by Ms Q dated 8 June 2022; and
(iii)report prepared by Dr S dated 14 April 2022.
15.That within fourteen (14) days of the date of this Order, the father and the mother shall enrol in a Post Separation Parenting Program.
16.That upon completion of Post Separation Parenting Program, each parent shall inform the other in writing attaching their respective exit letters or certificates.
17.That the father shall use his best endeavours to divert all communication with respect to why the child did not see him and his family, to Dr S should Dr S be engaged as the child’s therapeutic practitioner.
Restraints
18.That during the time the child is with either parent, the parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate the other parent in the presence/hearing of the child and use their best endeavours to ensure that others do not denigrate the other parent in the hearing/presence of the child;
(d)not attempt to discuss any issues in dispute between the parents with the child, or within hearing distance of the child, nor allow a third party to do so; and
(e)not expose the child to family violence or adult conflict.
Schooling authorities
19.That both parents shall be at liberty to attend parent teacher interviews and all other activities which parents would ordinarily attend at the school.
20.That this Order operates as an authority for any professional care provider of the child (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the child to both parents.
21.That should either parent seek any documentation in relation to the child (including but not limited to school notices, school reports, and school photograph order forms), that parent shall be responsible for the costs associated with production of such documentation.
Other orders
22.That the Independent Children’s Lawyer be discharged after the expiration of the Appeal period, or if an Appeal is filed, the conclusion and determination of any Appeal.
IT IS NOTED:
A.That the Independent Children’s Lawyer recommends the parents seek assistance from family dispute resolution or alternatively P Organisation with respect to any time variation sought between the child and the father after December 2027 (if a variation is sought).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allan & Sacco has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
This very difficult parenting decision relates to what orders should be made in the best interests of now nine-year-old X, the only child of the relationship between the Applicant father, Mr Allan (aged 44 years) and Ms Sacco (aged 38 years).
The parents separated in September 2015, when X was one year old, with the father initially commencing parenting proceedings in July 2018, resulting in final parenting Orders made by consent by a Judge of the Federal Circuit Court of Australia in September 2018 that provided for the parents to exercise equal shared parental responsibility; for X to live with the mother and for the child to spend increasing unsupervised time with the father such that by September 2019 the child was to spend effectively five nights a fortnight with the father and also time during school holidays. Apart from an application relating to determining the child’s school, the Orders were generally complied with until after a contact visit between the child and the father on a weekend in October 2020. The mother says the child made comments to her that disclosed sexual abuse. The mother unilaterally ceased time.
As to what occurred after October 2020, Reasons for Judgment delivered in March 2022, after a discrete hearing as to the father posing a risk of sexual abuse to the child, provide a summary of relevant events (see Allan & Sacco [2022] FedCFamC1F 120).
It was the hope of the Court, that having made a funding that the father did not pose “a risk at all (certainly not unacceptable) to [X] of sexual harm (at [37]), after further submissions were received, and in circumstances where the mother was unable to give instructions to her solicitors to consent to any orders for the child to spend time with the father (and in the face of application by the father to do so), the proceedings were listed for final hearing to commence on 17 August 2022 – which is what occurred.
The Court expresses its regret to the parties for the delay in publishing these Reasons and orders arising from the trial in August 2022.
MATERIAL RELIED UPON BY THE PARTIES AT THE FINAL HEARING AND PROPOSALS FOR PARENTING ORDERS
Father
The father’s case outline filed 12 August 2022 identified his reliance upon the affidavits of both himself and his wife Ms B, both of whom were cross-examined. Ms B and the father commenced cohabitation in 2015. Ms B has two children from a previous relationship – Y (now aged 15 years) and Z (now aged 11 years). The father and Ms B were blessed with a child of their union, R, born in 2022.
In the father’s amended Initiating Application filed 12 July 2022, the father proposed parenting orders that:
(a)if the Court determines that it is in the child’s best interests for the father to have primary care of the child, then he should have sole parental responsibility; X should live with him; the child should spend no time with the mother for six months after which the time between the child and the mother should recommence, initially supervised and progressing to each alternate weekend and school holidays; and
(b)in the alternative, if the Court determines that it is in X’s best interests for her to remain the primary care of the mother, then the parents exercise equal shared parental responsibility; time between the parents be shared equally over school holidays and essentially during school terms, Friday to Tuesday (four nights) each alternate week.
By final oral and written submissions (delivered by Mr Bolovan of Counsel), the father submitted that as a change of residence would be too difficult for the child, he regarded it in the best interests of the child to spend at least nine nights a fortnight in his care, or as a second option, at least five nights a fortnight from Friday to Wednesday, together with half of the school holidays. He no longer contended for a moratorium of time or that the mother’s time should be supervised initially.
Mother
The mother’s case outline filed 12 August 2022 identified her reliance on her own evidence (contained within an affidavit of 352 paragraphs) and that of Dr V (a forensic and clinical psychologist) and her counsellor Ms W. They were all required for cross‑examination, however two family witnesses – Mr AA (the maternal grandfather and Mr G (the mother’s brother-in-law) were not required for cross-examination on their brief affidavits.
The mother was represented at the hearing by Mr Bunning of Counsel, who made oral submissions in support of the mother’s proposal, as contained within the amended Response filed 26 July 2022, namely that the child live with the mother; that the mother exercise sole parental responsibility and that “no time take place between the child and the father”. By final submissions, it was clear that the term “no time” was also to extend to any form of communication between the child and the father by telephone or other electronic means, and further, the mother did not support the father writing or sending gifts to the child.
Independent Children’s Lawyer (“ICL”)
Counsel for the ICL, Mr Hartnett, made written submissions at the conclusion of the trial, relying upon the evidence of family report writer, Ms Q, and therapist Dr S, both of whom were the subject of cross-examination.
In circumstances where the ICL submitted (at paragraph 3) that:
(a)the evidence does not support the mother’s case that her parental capacity will be discernibly impaired if X spends any time at all with the father; and
(b)the evidence does not support an order that removes X from the primary care of her mother,
the orders proposed are set out at Appendix One of these Reasons, and provide essentially for:
(c)the parents to share equal shared parental responsibility for major long-term decisions; and
(d)X shall live with the mother but over five distinct steps, the child will recommence spending time with the father initially supervised progressing ultimately after about 12 months to alternate weekends (Friday to Monday) and half of school holidays.
The actual proposal in Appendix One suggests the child spend every weekend with the father, but from submissions I inferred this was incorrect.
The parties were at least agreed on one issue – being that there is no basis to consider an interim order.
For completeness, as the transcript of the trial demonstrates, a number of exhibits were tendered, however apart from correspondence relating to complaints made to the Chief Justice and politicians (Exhibits 1, 5 and 6) and email correspondence between Ms B and a media outlet to which I refer briefly in these Reasons for context, the more relevant tenders were:
(a)Exhibit 2 – Department record of concern reports of late 2020;
(b)Exhibit 8 – notes of the mother’s counsellor Ms W; and
(c)Exhibits 10, 12 and 13 relating to a report by Dr S dated 14 April 2022 and some collateral correspondence.
PARENTING PRINCPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In view of the lengthy affidavit of the mother, much of which was not the subject of cross‑examination, I make the observation that a trial judge is not required to refer to, analyse or make a finding on every asserted fact or submission. The duty is navigating the legislative pathway, to do its best to explain the basis upon which the orders the Court has decided are in X’s best interests on the evidence before the Court.
In that regard, I will consider the competing proposals within the matrix of the relevant primary and additional considerations, but in this case regard it as important to express some views about the evidence of the various experts, before making some findings about the mother and the father.
I do this, in this way, because in circumstances where X has now not spent time with the father for some time, how this child is expected (supported by experts no doubt) to navigate the difficult environment which the parents (in varying degrees) have created, lies at the core of what sustainable and enforceable orders can be made in X’s best interests.
Furthermore, a theme that I will need to return to that arises from the cases as presented is that the jurisprudence in this area of law does not include elements of punishing or penalising a parent who could perhaps have done more, or to reward or compensate a parent who perhaps could not have done more; the dial never really moves from an examination of what is in the child’s best interests, which is the paramount consideration.
Furthermore, I ignore the evidence of complaint to authorities (including the Chief Justice) and actions of the father and/or his wife Ms B in engaging the media outlet. I see it as a reflection of the father’s frustration which I understand – and which I accept Court delays have exacerbated. Furthermore, whilst the mother asserts the father is influenced by some form of “aggressive” men’s/father’s action group, I am not so satisfied.
I now deal with the following discrete evidence, namely:
(a)evidence of the mother’s counsellor Ms W;
(b)evidence of Dr S;
(c)evidence of Dr V; and
(d)evidence of report writer, Ms Q.
MS W
Ms W is a counsellor in private practice who holds a qualification in psychology but is not a registered psychologist and engages in counselling and alternative therapy. She first saw the mother about two weeks prior to the parties’ separation and has been providing therapeutic support to the mother for approximately the last seven years.
The notes tendered as Exhibit 8 revealed consultations began in August2015 and the notes from then until approximately September 2020 reveal a number of assertions by the mother in relation to feeling under pressure from the father who was seeking to increase time with X – hopefully to a level of 50/50 time – and that she was struggling with some of the child’s reactions in her care, after returning from visits with the father.
In May 2017, the mother is recorded as expressing that she “compromised that [X] is with the father when she doesn’t want to go there – I feel guilty” and shortly after (in June 2017) said she did not “understand why” she is worried about X under the father’s care, and despite a therapy session which made her feel better, by July 2017 the mother was expressing to her counsellor she was “scared he [the father] will take [X] away from me”.
By December 2019, the mother was telling her counsellor that she was receiving telephone calls from the father’s mother complaining that the father doesn’t allow them to see X.
In October 2020, the mother presented as “extremely distressed shaking and crying” and explained about the child’s disclosures and that the mother knows “what [X] told her is true…but she also believed that no one will believe her because everyone will agree with [Mr Allan] that she is crazy”.
When the mother expressed to her counsellor in August 2021 her concern about “how I will look in my daughter’s eyes when one day she asked me I told you the truth why didn’t you protect me”. After therapy, directed to the mother’s “self-efficacy and to deal with her guilt and pain”, it is not apparent from the later notes it achieved the intended result.
Thereafter, the notes mostly were directed to the struggles she felt in dealing with the Court proceedings and how she is doing her best to “prepare everything in order to protect [X]”.
At paragraph 33, Ms W said that she has had many discussions with the mother about her belief as to whether or not X was sexually abused by the father and “it remains [Ms Sacco’s] firm belief that sexual abuse has occurred, notwithstanding that the Court has found that there is not an unacceptable risk”, before opining, at paragraph 38, that:
[Ms Sacco] has described to me that if [X] were to live in [Mr Allan’s] care or spend time with [Mr Allan] (even on a supervised basis), that this would be “devastating” and that she was not able to protect her own daughter and that she had “failed her”. I would be deeply concerned about her ability to parent in such a circumstance.
Under cross-examination, Ms W did not deviate from the opinions expressed in her affidavit. She did confirm the mother told her that one of the father’s step daughters “has a severe intellectual disability” – something which the mother has denied saying, and on all of the evidence available is an exaggeration. Certainly, as might be expected, the father’s wife Ms B was offended by this statement about her daughter – who it is acknowledged has a diagnosis of ADHD – but is not medicated.
I return to the opinions later of Ms W, but note that social worker Ms Q, who provided a family report and raised some concerns about the mother’s “trauma response”, expressed a view that it is unlikely Ms W has the experience or qualifications to treat the mother for her issues.
DR S
Dr S is a clinical psychologist who has maintained a private practice for over 20 years, with a clinical speciality and expertise in child and family matters following parental separation.
Dr S provided a report dated 14 April 2022, at the request of the ICL. By way of background, Exhibit 13 reveals that since January 2021 until August 2022, Dr S had 28 appointments with X and also five individual appointments each with X’s parents during the time she has been treating X.
Before clarification of some issues through cross-examination, for context Dr S in her report opined, inter alia, that:
(a)“[X] presents as a happy, funny and intelligent child. She is engaged in therapy and we enjoy a positive therapeutic relationship”;
(b)X has a “close relationship” with her mother and reports “a positive relationship with her father, his wife and her step-siblings. She has no insight into why she is not seeing her father at the current time. She seeks time with [Mr Allan] and reports that she is missing him and her paternal family very much”;
(c)“[Ms Sacco] is highly hypervigilant and untrusting of [Mr Allan] and vice versa”;
(d)The mother in April 2022 “expressed concerns regarding the upcoming scheduled appointments that are in place next week for [X]” with the father as she reported the father “to be unpredictable and angry (directed towards her) and a threat to her and [X’s] safety”;
(e)As a result of recent events which the mother reports have escalated her pre-existing fears, the mother is “extremely distressed and she and [X] have not returned to their home since the initial unacceptable risk Judgment as she fears for their safety”;
(f)Despite explaining the measures taken in the rooms of Dr S to provide a safe environment, the mother remained “highly concerned regarding her and [X’s] safety” and as a result, Dr S expressed “reservations regarding the joint appointments going ahead” in her office;
(g)It may be more appropriate that initial reunification for X and the father occurs elsewhere – perhaps at a supervision centre; and
(h)Although recommending reunification take place in the structured way identified, she cautioned that it would only be successful if the mother “is not viewing [Mr Allan] as a high safety threat, a belief she currently holds”. To assist the mother to adjust and “manage her anxious reaction”, Dr S opined it would be helpful for the mother to “commence consulting with a clinical psychologist specialised in these matters”. Further recommendations to seek to improve the co-parenting relationship were recommended for consideration.
Under cross-examination, Dr S said that:
(a)there is a risk X will experience psychological and interpersonal difficulties later in life if X does not have a relationship with the father – created through spending time with him;
(b)the fact that the child has a very secure attachment with the mother will be a substantial “buffer” to spending no time with the father;
(c)even though the child does not know why she is not spending time with her father, “she has just got on with it” and the child has not indicated the mother has said anything negative about the father. It would be difficult to explain the situation to the child;
(d)X does not know she has a sibling “R” which is another difficult issue. It is generally helpful for a child to be in a household with other siblings;
(e)it would be “very traumatic” for X to change residence and Dr S expressed some concerns about what a “moratorium” would achieve;
(f)X is “highly assimilated” to her mother’s emotional reactions and, as a result, X spending time with the father will only be successful if the mother is not viewing the father as a high safety threat;
(g)if the mother’s reaction is a trauma, then the mother is likely to become more distressed and difficult for her to adjust.
Certainly Dr S expressed a willingness to continue therapeutic support with X.
DR V
In circumstances where the new experienced lawyers retained by the mother were clearly aware of the desirability to adduce some evidence as to the mother’s psychological profile (particularly even referring the expert to Full Court authorities like Russell & Close [1993] FamCA 62), experienced clinical psychologist Dr V was engaged to assess the mother and to report as to:
(a)whether the mother has a belief X has been sexually abused by the father;
(b)whether that belief is genuinely held; and
(c)an assessment as to whether that belief is entirely irrational and baseless.
Nothing really turns on the confusion as to dates of instructions, as I accept the report annexed to Dr V’s report dated 27 June 2022 arises from video conferencing evaluations over a total of 5.5 hours on 22 and 29 June 2022.
As would be expected, some of the foundations for the opinions expressed by Dr V were explored in cross-examination, however he answered the specific questions raised above as follows:
(a)The evaluation identified that Ms Sacco has a belief that X has been sexually abused by the father, based on her perception and interpretation of X’s statements and actions allegedly made to the mother, and X’s subsequent statements and actions made to authorities;
(b)Based on this evaluation, Ms Sacco’s belief is genuinely held; and
(c)Based on this evaluation, that belief does not present as entirely irrational and baseless.
For context, I summarise some of the relevant conclusions recorded by Dr V in his report, based on his evaluation (which I note included psychometric testing), namely:
(a)the history and evaluation identified no past or present psychological problem in relation to the mother and her counselling does not reflect a formal mental health problem;
(b)the mother presents with no personality disorder or personality vulnerability with no tendency towards black and white emotional processing or a tendency towards emotional cut-offs;
(c)the mother’s functioning was assessed as being in the high average to superior ranges of intellectual abilities, which would fit with her work and background as well as educational background;
(d)the mother presents with some anxiety and responsivity to the historical issues associated with X’s alleged statements, including that she has seen the father as not responsive to X’s needs, but rather driven by a desire for a half-time arrangement in a desire for parental parity;
(e)the clinical and psychometric information suggests the mother presents as a sensitive person who has some difficulty with assertiveness in close relationships and the results of the evaluation do not point towards the mother having a tendency towards distortion, elaboration or fabrication of her accounts;
(f)the clinical evaluation fitted with the psychometric results suggesting the mother’s self‑report regarding herself and X could be considered at face value. There is no mental health difficulty such as a personality disorder that would construct her accounts as irrational or baseless; and
(g)the evaluation identified that the mother is likely to experience significant anxiety and distress if time is re-established between X and her father. She believes X may be sexually abused by the father, that X will be retraumatised by time, and that the father will continue to intimidate the mother and that there will be conflict between the parents. It is possible that this anxiety will negatively affect her parenting.
Arising from the cross-examination of Dr V, the following further opinions were expressed, inter alia:
(a)After reading the report and notes of the mother’s counsellor, Ms W, he would not alter the opinions expressed in his report;
(b)The mother presented with two major issues:
(i)The child may be sexually abused by the father; and
(ii)The father will intimidate the mother.
(c)Any time the child spends with the father will “inevitably” affect the mother’s parenting;
(d)The level of distress the mother is likely to suffer will have an effect on her mental health and will affect her ability to be “spontaneous”;
(e)The mother is currently very committed to parenting X, and Dr V held no concerns about her ability to parent competently;
(f)Even before the “disclosures” of sexual abuse by the child, the mother did not trust the father; and
(g)She would struggle to confront an order she did not like and whilst after some years “plateauing” of anxiety can occur, he felt the mother could be assisted by having an additional clinician with expertise in managing patients with anxiety to work in unison with her current therapist.
FAMILY REPORT WRITER MS Q
Ms Q, a highly experienced clinical social worker, was briefed by the ICL to prepare a family report. The letter of instructions dated 8 June 2022 identifies the extensive material provided to her.
Ms Q’s report dated 8 June 2022 sets out the interviews conducted between 16 May 2022 and 25 May 2022. Ms Q interviewed the parents and others including X. She observed the mother with X. She elected not to observe X with the father but did observe the father with the children of his wife Ms B. She further explained her reasons for this process in her cross-examination.
The extensive report chronicles the now almost agreed history of the relationship and the difficult litigation journey, and before analysing some of the opinions tested by cross‑examination (Ms Q being the last witness), I extract some of the more relevant statements from the report:
(a)The expert explained how, after initially denying that the story on the media outlet involved the father and his wife, the father subsequently telephoned her saying that it was in fact them, which caused Ms Q to have some concerns about their credibility;
(b)The father and his wife have not experienced any marital issues or separations;
(c)The mother, who draws support from her father, reported no functionality or health issues;
(d)At paragraph 38, the mother stated she needed a “full hearing” and was simply unable to “embrace or give consent” to facilitating a re-introduction process. She reported “feeling afraid of the father, unable to deal with any direct contact with him, and being at risk of being harmed by him”. She would not embrace equal time or parallel parenting;
(e)Although Ms Q recorded the fact that both the Department and Police did not substantiate the allegations of alleged sexual abuse, and after viewing the s 93A interview it appears from the comments the report writer chose to summarise at paragraphs 52 and 53, lead to her concerns about the nature of the allegations by merely recording that the detailed Reasons for Judgment “were noted”, I infer that Ms Q does not agree with the Court’s decision about risk;
(f)Paragraphs 56 to 78 of the report detail the views of the father and his wife, and I agree the history was essentially consistent with the evidence before the Court. They presented as a “united front” but presented as “frustrated, angry and powerless”. They “were strongly of the view that there has been an increasing pattern of undermining behaviour by the [m]other in relation to [X]” (paragraph 64). The father’s wife “tended to be more vocal”. The father and his wife “reiterated that [X] has been fine in their care”. They hold the mother “accountable” for the current issues and the father and his wife “did not feel that they had done anything to contribute to the trust issues, conflict and inability to resolve any matters in relation to [X] without legal process”;
(g)Paragraph 79 to 105 of the report detail the mother’s views, again, essentially consistent with her affidavits. She was “distressed and tearful at times during the interviews, especially when discussing the alleged sexual abuse of [X] and her own trauma in hearing [X’s] disclosures”. She requested a third and fourth interview “as she needed to feel that she had expressed everything she felt relevant in the matter”. The mother said the father was not physically violent and denied that she was “yelling and screaming” at the father at the time of separation. The mother spoke of the father’s “relationships with his parents and brother being compromised”. The mother felt “increasingly their differences in values and parenting styles” between herself and the father’s household became apparent (at paragraph 87). The mother noted that whilst she embraced X’s relationship with her father, his wife and her step-sisters “she still believes that [X’s] individual needs must be considered and nurtured” (at paragraph 91). The mother strongly believes that the father and his wife “have been more concerned with the rights of the [f]ather to have equal time with [X]”. The core of the mother’s concerns and difficulty in balancing X’s “grief in relation to not seeing her father” and “[X’s] need to be safe” in the father’s care is addressed at paragraphs 95 to 97. At paragraph 103, the mother noted “that she simply cannot trust the [f]ather at this juncture and she continues to feel afraid and protective of herself and [X], to the extent that her and [X] sleep in the same bed/room, more often than not [X’s] room”. She was totally supportive of X’s ongoing relationship with Dr S;
(h)At paragraphs 111 to 137, Ms Q records some of her observations of the child X with the mother and comments made by X. X expressed she “really misses her daddy” and “didn’t know why” she was not seeing him. She smiled as she talked about her two step sisters and Ms B and the only thing that made her sad “was when she had to stop seeing her daddy”. She said she “never felt uncomfortable at her dad’s place” (at paragraph 118). In her second interview, Ms Q explored with X the s 93A interview (at paragraphs 128 to 133) and despite some questioning, when asked specifically “if anything ever happened at her daddy’s place that would make you feel sad or scared, [X] said no” (at paragraph 133); and
(i)At paragraphs 138 to 144, the step sisters Z and Y were interviewed. They live in a week about arrangement with their parents and reported no issues of concern about their step father Mr Allan “and in fact they like him” (at paragraph 140). They were excited about their mother having a baby and “reported sad that they have not seen [X] in nearly 2 years” and miss her and wish “[X] could come back”.
Ms Q provided an assessment, conclusion and recommendations from paragraph 145 of her report, from which I provide a short summary before dealing with some of the cross‑examination of Ms Q – and a confronting “meltdown” by the mother during cross‑examination of Ms Q.
Ms Q expressed the following foundational opinions in her report:
(a)There appears to be “no trust or genuine respect between the parents”;
(b)The matter “does not present as one of alienation by the [m]other, as asserted by the [f]ather and his wife. The mother has likely been overly protective of [X]… [s]he has presented with a much more emotionally focussed and needs oriented parenting style than the [f]ather….” (at paragraph 154);
(c)X “does not present as a child with the level of resilience that would be required to move equally between two separate households where parents cannot communicate and co-operate” and there are likely to be difficulties in moving forward;
(d)The “mother has not presented as in need of a psychiatric assessment” and is “open to embracing the suggestion of [Dr S] as to commencing care with a [c]linical [p]sychologist as to assist her if [X] is re-introduced to her father and his family” (at paragraph 158);
(e)X “appears to be emotionally suffering in the context of separation from the [f]ather… [s]he will also have a half-sibling to her father and once she learns of this will be even more motivated to be involved in her father’s family” (at paragraph 161);
(f)At paragraph 163, Ms Q opined that the mother “is more likely that she would be able to facilitate re-introduction if that decision is taken out of her hands” for the reasons set out; and
(g)After discussions between Ms Q and Dr S, if any order were to be made by the Court for re-introduction, this would best be facilitated by the report writer over a number of sessions; and Dr S would be best placed to continue support for X.
The cross-examination of Ms Q was helpful, although as I will record, an unexpected and confronting “meltdown” of the mother observing the cross-examination occurred. In cross‑examination, Ms Q further opined that:
(a)she believes the child needs a relationship with the father provided it is safe;
(b)it is a bad idea to consider a change of residence, and if that is the father’s proposal, she is “horrified”;
(c)this child does not know why she is not seeing her father and is not rejecting her father. The time needs to be graduated with Dr S therapeutically supporting the process;
(d)whilst the father believes the mother is “fragile”, she gave the father the benefit of the doubt that he does not have a fixed view about equal time; and
(e)on the occasions when X and the mother were present for interview, the mother was able to “contain her emotions”, and in her assessment, the mother’s response was a “typical trauma response” during interview, particularly when discussing the sexual abuse issues, and she needs “trauma treatment” and counselling does not treat trauma – as the trauma needs to be “unpacked”. The current counsellor is probably not qualified to provide the specialist level of trauma support needed by the mother, and further the mother would need to want further treatment but presented as quite adverse to a new person/therapist being involved.
At about this point in the cross-examination of Ms Q by the mother’s Counsel, the mother (who was sitting behind Mr Bunning) began to become uncontrollably upset and distressed. She was trying, but unable to stop crying, and wisely her solicitor escorted her out of the courtroom. It was a highly confronting demonstration of the mother “melting down”, and despite a break of at least 15 minutes, Counsel for the mother was granted leave to continue his cross‑examination in the absence of the mother.
Ms Q showed real concern, and opined that perhaps the “trigger” for the mother’s reaction in Court was a discussion about a change of counsellor. She said the “whole thing” is overwhelming for the mother but that what she had just witnessed confirmed her opinion that the mother desperately is in need of trauma counselling.
Ms Q accepted that the mother may not embrace such treatment, but if she does not do so, events like today could happen in the future. If it happened in front of X (for example at a handover), there could be a significant effect on X which could, for example, manifest in X sympathising with the mother and not leaving to spend time with the father, Ms Q stated.
Although X, who is approaching her “concrete thinking” years, because of her strong emotional attunement with the mother might feel a need to empathise with her mother, it is only a matter of time before the child would seek out her father.
Ms Q indicated that, after reading the mother’s trial affidavit and the mother’s evidence that after the family report interviews the child showed a “reaction”, this is not a typical reaction for a child. Ms Q maintained her recommendations (at paragraph 172).
I will now undertake, as required, an examination of the evidence and make further findings within the matrix of the relevant s 60CC(2) and s 60CC(3) considerations.
PRIMARY CONSIDERATIONS
I find that X will benefit from having a meaningful relationship with both her mother and father – consistent with the evidence of both Dr S and Ms Q.
I am aware that s 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence – must be given weight in the consideration set out in s 60CC(2)(a).
Whilst the mother maintains her belief that X was not only sexually abused by the father, but that he continues to be a risk to her of sexual abuse, I continue to disagree. I appreciate the mother wished to “appeal” my finding of no unacceptable risk, but could not legally do so. It was my hope that more time and the further evidence from a full trial (as she felt she needed) might have caused the mother to intellectually challenge her belief. That has not occurred.
To the extent that Ms Q, for reasons unclear, gave the child a further opportunity to confirm that the father had been inappropriate with her, X’s answers to Ms Q did not support abuse occurring.
Frankly, there is nothing more the Court can say on that issue – save to repeat its earlier finding that the father is not an unacceptable risk.
The mother’s attempts to paint the father now as a risk of harming X (or the mother), by what she feels are his consistent attempts to intimidate her or coerce her into agreeing to a re‑introduction of time and then regular unsupervised overnight time – which the mother has no current capacity to support – have also failed to persuade me. I accept that for most of the period post separation (and even when the Orders in September 2018 provided for significant time of five nights a fortnight began operating in September 2019), the father was pressing for equal time – and I find the more he pressed, the more the mother’s anxiousness and rejection of such a proposal, created further tensions. The mother saw the father’s actions as intimidation; the father saw his actions as his right to offer the child equal time which he genuinely feels is in her best interests.
I am not satisfied on the evidence that the father is a risk to the child of psychological harm. I draw some comfort in noting that although the father had initially sought a change of residence and a moratorium, he did not press for either by final submissions. I give the father some credit for changing his position – after hearing the evidence of Dr S and Ms Q – and perhaps witnessing the mother’s emotional reaction in Court also had an effect.
To the extent the father believes/feels the mother has a mental health issue (the mother says he believes she is crazy), I can understand why he sees that as an answer to the mother’s entrenched opposition to the child having a relationship with him. The expert evidence, including from Dr V, does not support such a finding. I do not make such a finding.
Often in cases involving allegations of sexual abuse, where no finding of abuse is substantiated by those instrumentalities of the State, or a finding of no unacceptable risk by the Court is made, the person who has heard the child’s words is unable to keep their opinions and beliefs from the child – such that the submission is made that they present as a psychological risk to the child. However, this is quite an unusual case where X still thinks positively of the father (and his family); has not been told why she is not seeing the father and simply, I assess, expects to see him again. In the absence of a reason being told to her, the child’s hopes are reasonable. The mother, despite her trauma responses, has shown an amazing capacity to not undermine, by words, the father – which at the time of hearing still seems to be the case. The mother deserves credit for controlling her emotions in this respect.
Had she been found to do so, the issue of a change of residence might have been more strongly pressed by the father and/or the ICL.
In the circumstances, I find the greatest risk to this child in the future is how the mother and father react to the orders I now make and how those reactions make it more difficult for X to navigate a transition from one home to another. The Court proceedings have done little, it seems to me, to dimmish the toxic relationship and lack of trust and respect each parent holds for the other. I will return to this issue later in these Reasons.
ADDITIONAL CONSIDERATIONS
The best evidence of X’s current views and feelings are those recorded by Ms Q in her family report. Although not totally determinative, they clearly support both a reintroduction of time and thereafter continuing time.
At the time when the mother unilaterally ceased time, I am satisfied the child had a strong relationship with the mother and the father. The introduction into X’s life of the father’s wife Ms B and her two children, I find, was a positive development handled well by the father. There is no evidence that Ms B has sought to act as a replacement mother – respecting the mother’s position and role. The extent of the extended family relationships at that time is difficult to assess. The mother sadly has lost her mother but has a close relationship with adult siblings. She went to her sister’s home after the discrete hearing Judgment was delivered. The mother says the father’s relationship with his parents was somewhat fractured – and when time was occurring with the father, she says the paternal grandmother contacted her to complain that she was not seeing X. The mother on a few occasions facilitated X seeing the father’s family. The father’s evidence is that now his relationship with his extended family is good, even if, which he does not admit, it was not warm previously. I accept the father’s evidence that if time with X resumes, his extended family will begin to spend time with X again. This is for X’s benefit I find.
X enjoyed spending time with Ms B and her children. Those relationships offer further extended support to X and are likely to enrich her life as she grows older.
It is a great loss, in my view, that X has not met or had an opportunity to begin a relationship with her baby sibling, R. There are compelling reasons for that to occur. To the extent the mother might feel that a strengthening relationship with the father and his household will in some way diminish the strength of her relationship with X – I disagree. Children have the capacity, especially as they grow older, to hold equally strong and enriching relationships with both parents – if allowed to do so. I believe X can do so.
Since October 2020, when time ceased, the father has not an opportunity to spend time or be involved in decision making for X.
I will deal with the likely effect of any changes in X’s circumstances (s 60CC(3)(d)) which is the focus of the ultimate decision – later in these Reasons.
As to the parents’ capacity and attitude to parenting (s 60CC(3)(f) and (i)), I begin by finding that I accept these parents are different and parent differently – but in my view, to the time of cessation of time in October 2020, both demonstrated solid values, work ethic, honesty and compassion and respect for others (although not the other parent). The mother has not re‑partnered and is highly educated, analytical and a highly committed mother who has provided excellent care for X. The future parenting challenges for her, if time is reintroduced and continuing, is a serious issue dealt with below.
The evidence of the father, his wife and the happiness exhibited by Z and Y demonstrates the father’s capacity and attitude to parenting. The mother does not assert – nor could she on the evidence – that the father’s capacity is compromised by mental health, substance abuse or the like. His relationship with Ms B has no doubt been tested by this litigation, however Ms Q assesses their relationship as solid and supportive. I agree.
There are no family violence orders in existence.
Section 60CC(3)(l) requires the Court to consider “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” – which frankly is a “no brainer” as the Court never seeks to make an order likely to lead to further proceedings. The aim is always to pronounce orders in the best interest of a child that are both enforceable and sustainable. As in most cases however, and this is one such case, predicting with any degree of certainty how the parents’ past behaviour will change after orders are made, is difficult.
THE ESSENTIAL QUESTION TO ANSWER FIRST IN THIS CASE
The first question to consider is whether it is in the best interests of X to recommence spending time with the father. If the answer to that question is no, as is the mother’s case, then the orders to be made are relatively easy.
If however the answer is yes, then the process of the re-introduction and continued momentum is less simple to prescribe. However, to answer the first question, I draw on the evidence and findings above and try to explain, to the mother in particular, why I have come to the conclusion that it is in X’s best interests to recommence spending time with the father and progressing reasonably quickly to significant and substantial time, as follows:
(a)The child wishes to spend time with her father, and I assess it is safe for her to do so;
(b)By spending time with her father, she will reconnect with people she had a warm relationship with, namely Ms B and her two children Z and Y and, I find, to some extent the paternal extended family;
(c)X will have an opportunity to meet and develop a relationship with her sibling R which is likely, as an only child, to bring a source of great joy to her and create a relationship for a lifetime;
(d)The reconnection with the father and his family will not, I find, diminish the strength and importance of her relationship with her mother who is her primary attachment figure;
(e)There is no indication from the statements of X to both Dr S and Ms Q, that she is apprehensive about seeing her father – in fact she is excited by the prospect – and that is even before she is aware she has a younger sibling;
(f)The father’s pent-up frustrations and disappointments about the years of connection lost with X since October 2020, whilst perfectly understandable is, I find, capable of being compartmentalised by him as the child genuinely reconnects with him and his household. He may need to seek out therapeutic support to enable him to not delve into history with X, but to look forward, but with the continued support of his caring and capable wife Ms B, I am satisfied he will do so if required;
(g)Both parents, at their best, have many strengths and skills likely to enrich their daughter X. It has never been a case of this child being under loved; and
(h)I am satisfied, with the assistance of Ms Q as she has offered, and the continued support of Dr S (with the costs of both professionals to be shared equally), X is likely to embrace the future and relationships of both parents and others important to her, subject to the next finding.
When all the positives of recommencing time as I find them to be and as mostly set out above combine, what would persuade the Court to accept the mother’s proposition that no time or communication between X and the father occur at all? In pressing and maintaining her proposal, without qualification, it must be that the positive outcomes set out above combined with the losses, both immediate and in the future if she does not have a relationship with her father, including the continued grief and loss of some identify, must be outweighed by an overwhelming factor.
The mother’s case as advanced, relying of authorities such as Russell & Close and more recently Keane & Keane (2021) 62 Fam LR 190, is that as the mother holds a genuine belief that the child has been at risk and was sexually abused, to order re-introduction will have a devastating emotional effect on the mother, such that her parenting capacity will significantly diminish and this will mean the child will suffer.
In the final analysis, the Court is duty bound to make an order in the best interests of X. Orders pronounced inevitably can have an effect on parents – but as adults they need at times to adjust their approach, thinking and the way to support the child.
In short, it is not the law, and in this case not in X’s best interests, to prevent her from developing a relationship with her father, that I find will be safe, because:
(a)the mother will struggle to support the relationship;
(b)the mother might demonstrate her trauma response to the child such that the mother could cause the child significant distress; and
(c)the mother will always hold a belief that the child is at risk – in my assessment a mistaken belief – even if though genuinely held by her, as the evidence suggests.
The answer for the mother might be in getting different and additional therapeutic support to that offered by her counsellor who I accept the mother wishes to continue seeing, as she is perfectly entitled to do so.
The orders I will now make, and which appear at the commencement of these Reasons, are in X’s best interests. To that extent, as Ms Q opined, the decision has been taken out of the mother’s hands – a control she has maintained since October 2020 – then the mother will need to find ways to cope with the decision. I assess she is able to do so, in X’s best interests.
I would hope that when, if she is capable of allowing herself to do so, the mother sees X returning from visits in the father’s household and keen (as X should) to share stories of her happy experiences and developing relationship with R, the mother’s level of anxiety might start to moderate. To some extent her fear of this unknown is likely to have exacerbated her concerns as identified by Dr V.
I accept there is always the right of a parent to maintain litigation. That is ultimately a matter for the parents, however I am comfortably satisfied the orders I now pronounce are in X’s best interests.
By way of further explanation to the form of the final order, being satisfied that an interim order is not appropriate, I note that:
(a)there is no principled reason (see Vallans & Vallans (2019) 60 Fam LR 193) to not adopt the presumption of equal shared parental responsibility that was ordered in 2018, and although I accept the parents have only in recent times communicated with lawyers, it is in X’s best interest that her parents are involved in major long-term decision making. I do not ignore the Court made an order as to schooling when a conflict arose. For this healthy child, further major issue disputes are likely to be minimal;
(b)I adopt the evidence and invitation of Ms Q and Dr S to be involved in the re‑introduction process;
(c)I see no sensible reason or requirement to “ease into” the time arrangements, based on findings I have made – save to give the mother a chance to obtain further therapeutic support if she seeks to do so. I believe X will adjust quickly and embrace the opportunity – if the mother allows her to do so;
(d)the graduation of time is quite swift after re-introduction which I regard as appropriate. I am not comfortable with empowering Ms Q or Dr S with the right to make a decision (which the parents are bound to accept by Court order), such as might encourage further litigation. As a result, orders which compel a parent to comply with any recommendations of a health professional can create issues. Having so noted, with both parents indicating their support for Dr S, and being satisfied Ms Q is an appropriate and qualified independent person to facilitate reconnection, I believe the parents may be able to agree if some variations to the timing seem appropriate, in variance of the parameters prescribed by the orders. However, on the evidence, the mother is compromised in her ability to negotiate at this time any variations with the father. I am not prepared, on balance, to be overly cautious in progressing time in the hope of the mother’s support, whilst I accept highly desirable, might follow;
(e)the graduation of time, increasing steadily the number of nights in each visit, and incorporating holiday periods, is within the range sought by the ICL and the father. I saw no need to seek further submissions, particularly where the mother was opposed to any time or communication at all. In that regard, I have also included a weekly telephone call between the father and the child and, in longer periods where the child is in the father’s care, a telephone call with the mother;
(f)noting the period over which the child has spent no Christmas period with the father, I find that should occur in Christmas 2024, and then alternate; and
(g)I felt it important to try and set a period by which the facilitation of reconnection should occur - being concerned that if we waited for the mother to be comfortable and supportive, on the evidence, that could unreasonably prolong real time occurring.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 January 2024
APPENDIX ONE
Parenting responsibility
1.That MR ALLAN (hereafter referred as “the father”) and MS SACCO (hereafter referred as the “mother”) shall have equal shared parental responsibility concerning the major long-term decisions of X born 2014 (hereafter referred as “the child”) including decisions regarding the child’s:
(a) Education, both current and future;
(b) Religious and cultural upbringing;
(c) Health (including major medical procedures);(d)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the child to spend time with the other parent.
2.The parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility in relation to long term issues jointly, as follows:
(a)The parent proposing a decision shall inform the other parent in writing of their proposal (inclusive of the timeframe as to when such decision needs to be made).
(b)The responding parent shall reply within 7 working days of the written request indicate their consent or contest or counter-proposal (inclusive of their reasons).
(c)In the event that the responding parent does not reply in writing in the requisite time, the parent seeking a decision shall proceed to make the decision in the best interests of the child.
(d)In the event that the responding parent does reply in writing and does not agree with the proposal, each parent shall consult with the other and make a genuine effort to come to a joint decision or terms of agreement with the other parent on reaching.
(e)In the event the parents are unable to reach a mutual agreement, the parents shall attend upon a Family Dispute Resolution Practitioner or P Organisation (whichever service id expedient) in accordance with these Orders.
Day-to-Day Parenting Responsibility
3.The parents are not required to consult the other when making decisions while the children are in their care under this Order about issues that are not major long-term issues, namely:
(a)That the Mother shall be responsible for the day- to-day care, welfare and development of the child at all times when the child is living with or spending time with her; and
(b)That the Father shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with him.
Living Arrangement
4.That the child shall live with the Mother
Time between the child and the Father
5.That the child shall spend time with his Father as agreed between the parties in writing and failing an agreement as follows:
Stage 1 (reintroduction)
(a)Once a week for a period of at least 1 ½ hours at BB Contact Centre located at CC Street, Suburb DD as follows:
(i)On 4 September 2022 (Sunday) from 3:30pm to 5:00pm
(ii)On 10 September 2022 (Saturday) from 3:30pm to 5:00pm
(iii)On 18 September 2022 (Sunday) from 3:30pm to 5:00pm
(iv)On 24 September 2022 (Saturday) from 3:30pm to 5:00pm
(v)On 2 October 2022 (Sunday) from 3:30pm to 5:00pm
(viOn 8 October 2022 (Saturday) from 3:30pm to 5:00pm
(vii)On 16 October 2022 (Sunday) from 3:30pm to 5:00pm
(viii)On 22 October 2022 (Saturday) from 3:30pm to 5:00pm
(ix)On 30 October 2022 (Sunday) from 3:30pm to 5:00pm
(b)For the purposes of Order 5(a):
(i)The parents shall within 3 days of this Order contact BB Contact Centre and engage in the enrolment process.
(ii)Each party pay their own costs for the enrolment process at BB Contact Centre (approximately $200.00 each parent)
(iii)Each party shall notify the other of their enrolment in writing.
(iv)The costs of supervised time between the child and her father shall be equally divided between the Mother and the Father (approximately $175/hour).
(v)The costs associated with supervised time between the child and the Father shall be paid directly to BB Contact Centre and does not involve the parents liaising with each other
Stage 2
(c)Upon completion of Order 5(a) and for a period of 2 months, on each Sunday from 10:00am to 2:00pm within the local area or community such as parks or shopping centres and not within the Father’s home.
Stage 3
(d)Upon completion of Order 5(c) and for a period of 2 months:
(i)On each Sunday from 1 0:00am to 9:00m on Monday or before school (in school term) or alternatively
(ii)On each Sunday from 1 0:00am to 4:00pm on Monday (non-school term or school holidays)
Stage 4
(e)Upon completion of Order 5(d) and for a period of 6 months and each alternate week thereafter:
(i)During school term, from on Friday (after school) to Monday (before school) or if Monday is a pupil free day, then Tuesday before school.
(ii)During non-school term or school holidays, from 4:00pm on Friday to 4:00pm on Monday.
Stage 5
(f)Upon completion of Order 5(e) as follows:
(i)From 3:00pm on Friday or after school to 9:00am on Monday or before school (if Monday is pupil free day, then to before school on Tuesday or 9:00am).
(ii)For all school holidays in odd numbered years, for the first half of the school holidays with the time commencing from after school or 3:00pm on Friday to 3:00pm Friday the following week.
(iii)For all school holidays in even numbered years for the second half of the school holidays with the time commencing at 3:00pm on Friday to before school on Monday (if Monday is pupil free day, then to before school on Tuesday.
(iv)The December/January school holidays shall operate in 2 week blocks consistent with Orders 5(f)(ii) and 5(f)(iii) unless otherwise agreed between the parties in writing.
Changeovers
6.For the purposes of Order 5, (not involving School) shall occur at EE Contact Centre located at FF Street, Suburb GG unless otherwise agreed between the parties.
7.Within 3 days of this Order, the parents shall:
(a)contact EE Contact Centre and engage in the enrolment process.
(b)Each party pay their own costs for the enrolment process
(c)The costs of supervised changeover shall be equally divided between the Mother and the Father and paid directly to the Contact Centre (without the need for the parents to liaise with each other).
Communication and change of contact details
8.All communication between the parents shall be in writing via “Talking Parents” Application unless in case of an emergency.
9.For the purposes of Order 8, within 3 days of the Order, the parents shall:
(a)Register with the Talking Parent's App at their own costs; and
(b) Notify the other parent by text of their enrolment details for communication purposes.
(c)All communication from that point onwards shall occur by way of the Talking Parent’s App unless in case of an emergency.
10.In case of an emergency, the resident parent shall notify the non-resident parent of the emergency in a text message and the location of the child (if the child is not within the resident parent’s home).
11Both parents shall keep the other informed of their residential address and contact telephone number (mobile telephone) and shall advise the other parent within forty‑eight (48) hours of any change in the contact details.
Special Days
12.Notwithstanding any other order herein unless otherwise agreed between the parents and subject to Order 5, on special days the child shall spend time with the Mother and Father as follows:
(a)On Father’s Day, the child shall spend time with the father from 9:00am to 6:00pm each year (except for year 2022).
(b)On the Mother’s Day, the child shall spend time with the mother from 9:00am to 6:00pm.
(c)On the child’s birthday:
(i)With the Father on even numbered years from 9:00am to 6:00pm on a non-school day and if it's a school day, from the conclusion of school until 6.00pm (except for year 2022).
(ii)With the Mother on odd numbered years from 9:00am to 6:00pm on a non-school day and if it's a school day, from the conclusion of school until 6.00pm.
(d)For Christmas:
(i)In even numbered years with the Father from 12:00pm Christmas Eve until 12:00pm Christmas Day, and with the Mother from 12:00pm Christmas Day until 12:00pm Boxing Day.
(ii)In odd numbered years with the Mother from 12.00pm Christmas Eve until 12.00pm Christmas Day, and with the Father from 12.00pm Christmas Day until 12.00pm Boxing Day.
Specific Issues
13.Leave is granted pursuant to s121 of the Family Law Act 1975 for the Independent Children's Lawyer to provide a copy of the Family Report dated 8 June 2022 by Ms Q and Dr S's Report dated 14 April 2022 to BB Contact Centre.
14.Within 14 days of this Order the Father and Mother shall enrol into Post Separation Parenting Program.
15.Upon completion of Post Separation Parenting Program, each parent shall inform the other in writing attaching their respective exit letters or certificates.
16.In the event that the Mother is struggling with the time between the child and her Father, the Mother shall seek the assistance of an appropriate therapeutic service.
17.The Father shall use his best endeavours to divert all communication with respect to why the child did not see him and his family to Dr S should Dr S is engaged as the child’s therapeutic practitioner.
18.The Father shall not introduce his family to the child (inclusive of the child’s siblings) until Dr S has provided a written confirmation of how and when.
19.The Father shall follow the recommendations of Dr S with respect to the timing of introducing his family.
Restraints
20.That during the time the child is with either parent, the parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate the other parent in the presence/hearing of the child and use their best endeavours to ensure that others do not denigrate the other parent in the hearing/presence of the child;
(d)Not attempt to discuss any issues in dispute between the parents with the child, or within hearing distance of the child, nor allow a third party to do so.
(e)Not expose the child to family violence or adult conflict.
Schooling/Authorities
21.That both parents shall be at liberty to attend parent teacher interviews and all other activities which parents would ordinarily attend at the school.
22.This order operates as an authority for any professional care provider of the child (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the child to both parents.
23.Should either parent seek any documentation in relation to the child (including but not limited to school notices, school reports, and school photograph order forms), that parent shall be responsible for the costs associated with production of such documentation.
24.That pursuant to section 121 of the Family Law Act 1975 (Cth), leave is granted to the parties and their legal representatives to provide a copy of this order, Decision of Justice Baumann dated 11 March 2022, a copy of Family Report dated 8 June 2022 by Ms Q and Dr S’s Report dated 14 April 2022 and Dr V's report dated 27 June 2022 to:
(a)any treating medical practitioner, hospital, or health care professional;
(b)any government department or instrumentality;
that may seek or require to hold a copy of these orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).
THE COURT FURTHER ORDERS:
25.That all previous parenting Orders be discharged.
26.The Independent Children's Lawyer be discharged.
IT IS NOTED:
A.The Independent Children's Lawyer recommends that the parties seek assistance from Family Dispute Resolution or alternatively P Organisation with respect to any time variation sought between the child and the father after 2027 (if a variation is sought).
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