ARRANZIO & MOSS

[2015] FamCA 544

FAMILY COURT OF AUSTRALIA

ARRANZIO & MOSS [2015] FamCA 544

FAMILY LAW – CHILDREN - with whom the child lives - with whom the child spends time - where the parties have diametrically opposed parenting approaches - where issues relating to the child's heath are significantly in dispute - where the parties cannot agree - where each party asserts the other poses a risk to the child - where the mother does not support a relationship between the child and his father

Family Law Act 1975 (Cth)

McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509
Mains & Redden (2011) FLC 95-478

APPLICANT: Mr Arranzio

RESPONDENT: Ms Moss

INDEPENDENT CHILDREN’S LAWYER: Stewart Family Law

FILE NUMBER: LEC 437 of 2010

DATE DELIVERED: 17 July 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 6, 7, 8, 9, 28, 29 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smith

SOLICITOR FOR THE APPLICANT: David Hunter Solicitor

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stewart Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

1. All previous orders are discharged.

2. The child B, born … 2009, live with the father from:

   (a)after school Friday, 17 July 2015 until before school Monday, 20 July 2015; and

   (b)after school Friday, 24 July 2015 until before school Tuesday, 28 July 2015; and

   (c)after school Friday, 31 July 2015 until before school Tuesday, 4 August 2015; and

   (d)after school Friday, 7 August 2015 until before school Wednesday, 12 August 2015; and

   (e)       from after school 14 August 2015.

3. The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that he shall, prior to making a decision about any such issue:

   (a)inform the mother in writing of the issue about which a decision needs to be made; the decision he would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the mother 14 days after the provision of the information referred to above to respond to the same in writing; and

   (c)consider the mother’s response, if any, when coming to a decision about any such issue; and

   (d)inform the mother of the final decision made with respect to that issue as soon as practicable thereafter.

4. Each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.

5. The child shall live with the mother as follows: 

   (a)commencing Thursday, 20 August 2015: each alternate week from after school Thursday until the commencement of school on Monday;

   (b)       for half of the school holiday periods in each year being:

   (i)for the first half of the school holidays at the end of Terms 1, 2, and 3 in odd numbered years; and

   (ii)for the second half of the school holidays at the end of Terms 1, 2, and 3 in even numbered years; and

   (iii)until 2017: for the first, third and fifth weeks of the school holidays at the end of Term 4 in odd numbered years; and

   (iv)until 2017: for the second, fourth, and sixth weeks of the school holidays at the end of Term 4 in even numbered years;

   (v)from 2017 onwards:

   A.for the first half of the school holidays at the end of Term 4 each year in odd numbered years, and

   B.for the second half of the school holidays at the end of Term 4 each year in even numbered years.

6. In the event that the child would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the child shall spend time with the father from after school Friday until before school Monday on that weekend with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time.

7. In the event that the child would not otherwise be spending time with the mother on the weekend on which Mother’s Day occurs, the child shall spend time with the mother from after school Friday until before school Monday on that weekend with the mother to collect the child from school at the commencement of time and return the child to school at the conclusion of time.

8. From the start of Term 3 in 2015 the operation of Clause (5)(a) shall be suspended during any school holiday period and shall resume with weekend time commencing:

   (a)on the first weekend of school Term if the child has spent time with the mother in the first half of the holiday period; or

   (b)on the second weekend of school Term if the child has spent time with the father in the second half of the holiday period.

9. Unless otherwise agreed between the parties in writing or otherwise provided for in this Order, changeovers shall occur at McDonald’s Restaurant C Town.

10. Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.

11. The mother shall have telephone communication with the child each Wednesday between the hours of 6:30 pm and 7.00 pm or at such other times as may be agreed in writing between the parents with:

    (a)the mother to initiate the telephone call to a telephone number to be provided to her by the father; and

    (b)the father to ensure the child is available to receive the telephone call.

12. In any school holiday period during which the child is spending holiday time with the mother, the father shall have telephone communication with the child each Wednesday between the hours of 6:30 pm and 7.00 pm or at such times as may be agreed in writing between the parents with:

    (a)the father to initiate the telephone call to a telephone number to be provided to the father by the mother; and

    (b)the mother to ensure the child is available to receive the telephone call.

13. The mother and father shall:

    (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within twenty-four (24) hours of such change; and

    (b)notify the other at least seven (7) days prior to relocating their residence; and

    (c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and

    (d)inform the other as soon as is reasonably practicable of any serious medical condition suffered by the child;  and

    (e)keep the other informed of any school, educational facility or extra- curricular activity provider attended by the child.

14. Each party is hereby restrained from smoking in the presence of the child.

15. Each party is to use their best endeavours to ensure the child is not brought into contact with cigarette smoke and to remove the child from the presence of cigarette smoke.

16. Each party shall refrain from consuming alcohol to excess or being under the influence of alcohol at a level higher than that which would enable that parent to lawfully operate a motor vehicle while the child is in their care

17. Neither party shall enrol the child in any activity nor arrange for the child to participate in any activity which occurs during time the child is with the other party without first obtaining the written agreement of that party.

18. By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.

19. By this Order, the mother and father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

20. Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately.

21. Neither parent shall discuss these proceedings with the child, save for in counselling, nor involve the child in any discussions regarding any issue in dispute between them.

22. Each parent shall forthwith complete a Post-Separation Parenting Orders programme through either a Family Relationship Centre or Relationships Australia and provide the other with written confirmation of their attendance and completion of the same within six (6) months of the date of this Order.

23. Save in the case of emergency, the mother is restrained from taking the child to any medical practitioner other than the person nominated by the father in writing as the child’s general medical practitioner.

24. Save in the case of emergency, the father is restrained from taking the child to any medical practitioner other than the person nominated by him in writing to the mother as the child’s general medical practitioner.

25. Save as provided for in Clause (23), the mother is restrained from taking the child to any person or health practitioner howsoever described in relation to issues about his health.

26. Neither party shall change the child’s residence to a place more than 50 km from the C Town Central business district without first providing the other with no less than 60 days notice in writing of an intention to do so.

27. The mother, Ms Moss born … 1980 and the father, Mr Arranzio born … 1966 and their servants and agents each are restrained from removing or attempting to remove or causing or permitting the removal of the child B (a male), born … 2009 from the Commonwealth of Australia before 30 September 2016.

28. It is requested that the Australian Federal Police give effect to the preceding order by maintaining the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 30 September 2016.

29. Upon expiration of the period referred to in Clause (27) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police cause the removal of the child’s name from the Watchlist. 

30. Either parent is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel after 30 September 2016.

31. In the event that any parent wishes to remove the child from the Commonwealth of Australia pursuant to Clause (30), that parent shall provide the other with no less than sixty (60) days notice of the intention to travel overseas and shall provide details of the proposed departure and arrival dates, destination and contact details whilst overseas.

32. No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other

    (a)a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and

    (b)a copy of an itinerary which contains sufficient contact details to enable telephone communication between the non-travelling parent and the child to occur in the manner provided for in this Order.

33. Until 28 May 2017, each parent is permitted to remove the child from the Commonwealth of Australia for holiday purposes on the proviso that the period of time during which he is outside the Commonwealth of Australia is no longer than 10 consecutive days and occurs during school holiday periods.

34. After 28 May 2017, each parent is permitted to remove the child from the Commonwealth of Australia for holiday purposes on the proviso that the period of time during which he is outside the Commonwealth of Australia is no longer than 21 consecutive days and occurs during school holiday periods.

35. Both parties will engage a therapist, a counsellor or psychologist (the person) nominated by the Independent Children’s Lawyer for the purpose of assisting the child to progress in the time with the father and, for this purpose, the parties will:

    (a)follow reasonable directions provided by the person as to the frequency at which the child should attend upon the person; and

    (b)ensure that the child continues to attend as reasonably directed by the person from time to time; and

    (c)be equally responsible for the costs associated with the child’s attendance upon the person; and

    (d)attend at all such reasonable times as the person may request with the attending party to be solely responsible for the costs of their own attendance upon the person.

36. The Independent Children’s Lawyer and parties have leave to provide the following documents to the person upon whom the child attends pursuant to Clause (35) of this Order:

    (a)the Family Reports prepared by Ms D dated 25 August 2011, 13 July 2012, 1 May 2013, and 22 April 2014; and

    (b)a copy of this Order and the Reasons for Judgment delivered 17 July 2015.

37. The father has liberty to obtain a passport for the child and, to the extent necessary, the mother is to sign and return any document required for this purpose within seven (7) days of receiving a request to do so.

38. In the event that the mother fails to comply with a request to sign and return any document necessary to obtain a passport for the child, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the mother and to do all acts and things necessary to enable a passport to be obtained for the child.

39. The father shall be entitled to possession of the child’s passport.

40. Upon the mother’s request, the father shall provide the child’s passport to the mother no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.

41. In the event the mother removes the child from the Commonwealth of Australia for the purpose of holiday travel, she shall return the passport to the father within seven (7) days of the child’s return to the Commonwealth of Australia.

42. Upon compliance with the terms of Clauses (35) and (36) of this Order, the Independent Children’s Lawyer is discharged.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act (1975), 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AND IT IS FURTHER ORDERED THAT

1. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

2. After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and any exhibit shall be returned to the party by whom that exhibit was tendered.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 437 of 2010

Mr Arranzio

Applicant

And

Ms Moss

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I commence these Reasons with a sincere apology to the parties for the delay in finalising this matter. I assure them that I have had particular regard to the extensive contemporaneous notes taken by me during the hearing. I have, of course, revisited and reread these notes, the affidavit material, the exhibits, the various reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to the transcript of the proceedings.

2. These proceedings concern the child B. He is now six years of age, having been born in 2009 to an Italian born father[1] and an Australian born mother.[2] He and his mother live with his maternal grandparents, as they have done for all of his life.

   [1]           Who is currently 49 years of age

   [2]           Who is currently 35 years of age.

3. His parents were in a relationship:

   a)according to the mother:  between May and June 2008 and between September 2008 and April 2009; or

   b)according to the father: from May 2008 until an unspecified time and from September 2008 until about April 2009 and from about December 2009 until March 2010.

4. A resolution of this issue is unnecessary in the determination of those parenting orders which are now in the child’s best interests.

5. The parties’ disagreements touch upon many aspects of the child’s life: for example, they disagree about whether he should be immunised or not; they disagree about what food he should eat; they disagree about whether he should be the subject of further testing for alleged allergies to food; they disagree about whether he should be baptised. These disagreements arise from their fundamental differences and approaches to parenting and their views about these issues.

6. There can be no conclusion other than that both parents are, in their own ways, devoted to the child. In so far as the father is concerned, an obvious demonstration of this devotion can be seen from his decision to move from Sydney to live at C Town in about May 2011. I accept this was so he could spend time with the child and be involved in his life.  That both parents live in the same town means that there are no practical difficulties and/or expenses associated with the child’s time with either of them which affects his right to maintain personal relations and direct contact with each of them on a regular basis.

7. I accept Ms D’s[3] assessment of the mother, after her first interview in August 2011, as a parent who is utterly dedicated to the child’s needs to the point of self-sacrifice.[4] She has approached his parenting by implementing techniques and theories described by Ms D as attachment parenting: she and the child have consistently co-slept, he was breast fed on demand until he was about 4 years of age and did not attend kindergarten or any other form of outside the home care until then.

   [3]           The author of four Family Reports prepared in this matter.

   [4]          Family Report dated 5 August 2011, [8.37]

8. A fuller appreciation of her approach to being one of the child’s parents can be garnered by looking at an extract of her email to the father on 10 December 2010. Whilst authored when the child was only 19 months of age, it provides a window into her attitude to the father, his parenting capacity and his wish to be fully involved in the child’s parenting. It contains:

   a)stipulations about the food to be fed to the child and assertions about allergies;

   b)the following list:

   IMPORTANT EVERYDAY ISSUES

   #Keep his water with him always and offer it to him regularly every 20mins at the longest

   #He has day sleeps any time between 10am-2pm please let him sleep when he wants and needs to and as there was no cot at [Ms E’s], make sure wherever you put him it is clean and that he cant fall..check mattresses arent mouldy, usually they are if theres no ventilation underneath the mattress

   #make sure the room is well ventillated with fresh air when hes napping

   #Change his nappy every 2 hrs or before if really wet and straight away after hes done a poo. wash your hands before and after

   #Nappies I use for him at the moment are ‘Huggies’ brand Toddler 10-15kg

   #B weighs 10kg

   #most cakes, biscuits and some pastas and other foods contain eggs/egg products so please avoid the ones that do due to allergy

   #allergic to NEUROFEN (asprin based) and possibly penicillin but you cant give these anyway without my consent

   #never leave him alone

   #never take your eyes off him ever

   #please buy a barrier for the stairs!!!!!!!!!!!!

   #he still puts things in his mouth so make sure he only has access to larger toys/objects that cant fit into his mouth

   #Check any toys and musical books that contain batteries and smaller batteries (eg like from a watch) that they cant be dislodged from the toy and swallowed..theres a number of cases where brain damage occurs.

   #[B] loves to socialise, i take him to playgroup 1-2 times a week, i think it would be really good for both of you to go to a playgroup together;

   #dont hit him or yell at him..be gentle and loving always;

   #bring him back home at anytime before 3:30 if you want to!!!!! just call me first. I feel that 6hrs is far too long for [the child], i dont think or feel he could handle that being so young..if hes miserable and destraught i hope you can find it in yourself to recognise he probably just wants to come home to mum. Mr Arranzio i just want him safe and happy. Please do whatever it takes to make this happen.

   #when hes in the pram don’t let go of the handlebar, dont rely on the brake and keep firm grip of the handlebar around roads, hills, trainstations and especially rivers, dams and any body of water also dont let go of his hand around any of these environments.

   #if you take him to WET SIDE water park, take him to the toddler area and mostly you have to hold his hand as the other kids run around and knock the litter ones over and there are metal and cement objects all over the area

   #please be hygienic please

   #never ever ever leave him in the bath alone or with other kids, only bathe him if you ar there present 100% and watch him as our friends 1yr old fell in the bath and knocked some of her teeth out!!

   #carry him up and down stairs

   #at the beach keep him away from the rocks and boulders..and i often find broken glass there so watch where he walks.

   #dont let him get near dogs!!! puppies are ok but no dogs even if you think you know them, far too unpredictable

   WHEN YOUR TOGETHER CALL ME ANY TIME AT HOME OR MOBILE PH IF YOU NEED ANYTHING OR ANY HELP ETC

   and when your not together call my mobile if you need any info re the child

   KEEP HIM SAFE.

   (errors and omissions in original)

1. Further evidence of the mother’s approach to the father’s parenting of the child can be garnered from the parties’ respective descriptions of an incident in January 2013. During the child’s time with his father, the parties’ local area flooded. As a consequence, the Contact Centre used for changeover was closed. The father tried to tell the mother this but she did not answer his calls. He sent her a text message telling her he would keep the child for the day because it was not safe to be on the roads. Despite this, the mother attended at his house in a ute with an unidentified and unknown man and removed the child from him.

2. The mother’s account to Ms D is that she was concerned the Contact Centre was closed and went to the father’s house to see the extent of the flooding. She said no roads were closed but, when she saw the extent of the flooding, she felt she had to get the child as she was concerned about the risk to him if he remained in the flooded area because she was not sure how fast the water was rising

3. She said that, while the floodwaters were not at a “dangerous” level to drive through, her car could not have safely traversed them. Consequently, she stopped a stranger with a larger vehicle and persuaded him to drive back through the floodwaters to the father’s house so she could remove the child. She said she did this because she felt the child was at more risk being at the father’s house than travelling through floodwaters. I do not accept this to be the case.

4. I record my significant concern that the mother was willing to remove the child from the safety of his father’s home and care to travel with him in circumstances where her own appreciation of the extent of the flood was that her car could not safely traverse the waters. I consider it more likely than not that her perceptions of the risk the child faced whilst in his father’s care – perceptions which I consider to be out of all proportion and unfounded – blinded her to the very real potential risk he faced when travelling with her in a stranger’s car through a flooded area.

5. Given their diametrically opposed parenting views and their respective opposition to yielding to the views of the other (although the father seemed to me to have attempted to meet the mother’s suggestions, requirements and demands initially), the real difficulty in this case lies in determining the parenting regime which best meets the child’s needs on both a short and long term basis, taking into account the reality of the circumstances in which he finds himself as a result of being born to two people with these characteristics.

An overview of the child’s time with his father

1. When the child was about 16 months of age, his father sought orders that his parents have equal shared parental responsibility for major long term issues relating to him[5] and that he live with each of his parents on a week about basis.[6] The next month, orders were made by consent[7] that the child live with his mother and spend supervised time with his father for a period of up to two hours per day on up to three days per week at a local Contact Centre. the child’s time with his father was to start as soon as the Centre could facilitate it.

   [5]Hereafter, I intend to use the abbreviated term ‘equal shared parental responsibility’ to refer to the concept of ‘equal shared parental responsibility for major long term issues relating to the child’.

   [6]           By Initiating Application filed in the then Federal Magistrates Court on 7 September 2010.

   [7]           Order made on 8 October 2010 by Federal Magistrate Demack (as her Honour then was).

2. In December 2010, further orders were made. These provided that the child’s parents have equal shared parental responsibility for him. His time with his father was to occur in C Town from 9.30 am to 3.30 pm on any three days in a fortnight. No more than two of these days could be consecutive. The father had to give the mother seven days’ notice in writing of the nominated days. On 6 June 2011[8], it was ordered that the child spend time with his father every Friday and Saturday from 9.30 am to 3.30 pm. The local Contact Centre was to be used for changeovers.

   [8]           Just after the child’s second birthday.

3. In August 2011, Ms D recommended that the child live with his mother and, for six months, spend time with his father from 9:30 am to 5:30 pm Friday and from 9:30 am Saturday until 9:30 am Sunday. She recommended that after this, his time with the father occur between 9:30 am Friday and 9:30 am Sunday each week.

4. On 13 September 2011, it was ordered that the child spend time with his father every Friday from 9.30 am to 4.30 pm and every weekend from 9.30 am Saturday until 9.30 am Sunday.

5. In February 2012, a further order[9] was made. It provided that, commencing on 29 May 2012 (when the child turned 3), his time with his father occur from 9.00 am on the first morning to 9.00 am on the third consecutive morning every week. If the parties could not agree specific days, the child was to spend time with his father from 9.00 am Friday until 9.00 am Sunday in each week.[10] Changeover was to continue via the local Contact Centre.

   [9]           22 February 2012.

   [10]         Order 2, Orders made 22 February 2012.

6. In the period from 3 September 2012 until 2 November 2012, the child spent time with his father from 9.00 am Thursday until 9.00 am Sunday (extending to 5.00 pm on Sunday 23 September 2012) and from 9.00 am to 5.00 pm on each of Monday 17, Tuesday 18 and Wednesday 19 September 2012. During the week from Sunday 16 September 2012 to Sunday 23 September 2012 the father was permitted to spend time with the child on the Sunshine Coast (or other such location as agreed between the parties). This change to the terms of the February 2012 Order occurred to facilitate the child’s time with his elderly paternal grandparents, who had travelled from Italy to Australia.

7. Unfortunately for the child, an order[11] was necessary to ensure he had this opportunity to spend additional time with his paternal grandparents while they were in Australia. That this was so is a further demonstration of the difficulties these parents have experienced in reaching agreement about the time the child should spend with each of them.

   [11]         Made 27 July 2012.

8. Save for the occasions leading up to the most recent Family Report interviews in late March 2014, the child has generally spent time with his father in accordance with the terms of the February 2012 Order.

The proposals

1. The father initially propose the child live primarily with him and spend time with his mother from after school Thursday to before school Monday each fortnight and for half of the school holiday periods. During the Christmas school holiday period, this time is to occur in no more than fortnightly blocks. He also proposed that he have sole parental responsibility for the child and that the mother have the opportunity to provide her opinion about any decision to be made.

2. If his primary proposal is not adopted, he accepts that the mother should have sole parental responsibility for the child and seeks to spend time with him in the same way as his primary proposal provides for the mother.

3. Irrespective of the orders which provide for the time the child spends with each of his parents, the father also wants to be able to take him overseas for holidays:

   a)in the period from January 2015 until May 2017: for two weeks in each calendar year; and

   b)from May 2017: for a period not longer than four consecutive weeks during school holidays or at such other time, provided the child does not miss more than 10 school days as a result.

4. He propose the child’s name is removed from the airport watchlist. The mother opposed this.

5. The father also seeks to restrain each party from relocating the child’s residence more than 50 km from the C Town centre without the other’s written consent. This order is sought, I suspect, out of a legitimate concern that the mother may relocate with the child to some other town or city. This possibility has certainly been adverted to at some stage.

6. The mother proposes the child continue to live primarily with her and that she have sole parental responsibility for him. She advances that his time with his father be conditional upon:

   a)him (B) being assessed by a child counsellor “to assess the extent, and the cause, of distress that he suffers in relation to spending time with the father”; and

   b)the father undertaking any assessment or treatment recommended by that child counsellor.

7. She also proposes that the child’s time with his father revert to supervised time (albeit for two hours per day on a number of days each week) at the local Contact Centre until this assessment and treatment process takes place. She says that once this assessment and treatment process is complete – presumably, to her satisfaction – the child should spend time with his father each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday. His holiday time with his father should not commence until next year, when he is seven years of age, and should then only be for two consecutive nights in each week.[12]

   [12]         After he has first spent three consecutive days with her.

8. A perusal of some of the specific orders and injunctive relief sought by the mother provides a further clear insight into her parenting of the child and her view of and attitude toward the father’s parenting of him. By way of example only, she proposes that:

   a)if, when the child is in his care, the father travels more than 300 km from her residence, the child is to be returned to her care – in essence, a prohibition on the father taking the child more than 300 kms from her home;  and

   b)the father be restrained from allowing the child to undergo any surgery without her written authorisation and her physical presence during the surgery (with her passport), unless such surgery is deemed urgent by the medical practitioner performing the surgery and that the child remain in her sole care for the later of three weeks, or any medically recommended period of convalescence, following any such surgery; and

   c)neither parent or agent administer any medication to the child’s penis, or permit any other procedure involving retracting his foreskin or interfering otherwise with his penis, except where advised and performed by his treating doctor or a doctor to whom he is referred by his treating doctor, without the written authorisation of both parents and without the mother physically present with her passport identification;

   d)the child not be administered any medication unless such medication is prescribed by his treating doctor and she has given her consent to the prescribing practitioner to give the prescription; and

   e)the child remain in her care if he suffers from a “serious infection” as confirmed by his treating doctor; and

   f)she be permitted to enrol the child in a hospital based food elimination trial during which time his time with his father occur only at a Contact Centre;

   g)the child’s time with his father be conditional upon the father not physically disciplining him.

9. The Independent Children’s Lawyer proposes that the child live with the father and spend time with his mother for five nights per fortnight (from after school Friday until before school Monday in the first week and from after school Wednesday to Friday in the second week). She supports the father’s position that he have sole parental responsibility for the child. She also advances that it is in the child’s best interests to attend on a child psychologist recommended by his treating doctor to assist him in dealing with any separation anxiety which may arise from the implementation of a decision that he live primarily with his father.

10. There is no doubt that orders in the terms proposed by either the father or the Independent Children’s Lawyer would involve significant change for the child. His time with this mother – the parent who has been his primary carer since birth – would be reduced from ten nights per fortnight to either four or five nights per fortnight and to half of the school holiday periods.

11. The significance of this impact was openly acknowledged by Counsel for the father. She nevertheless submitted that if the child remained in his mother’s primary care, he would be at an unacceptable risk of physical, psychological and emotional harm arising from what she submitted had been and would likely remain in the future:

    a)constant unnecessary medical testing and treatments; and

    b)non-vaccination; and

    c)exposure to the mother’s negative, unsupportive and undermining approach to the facilitation and encouragement of a relationship between the child and his father.

12. These submissions fall to be considered in circumstances where, on the father’s proposal, the child will continue to spend substantial and significant time with his mother.

principles

1. In these proceedings, being proceedings for a parenting order[13] in relation to the child, I may, subject to s 61DA[14] and s 65DAB[15] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[16] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[17] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[18]

   [13] s 64B of the Family Law Act 1975 (Cth).

   [14]         Presumption of equal shared parental responsibility.

   [15]         Parenting plans.

   [16]         s 65D of the Act.

   [17]         s 60B of the Act.

   [18]         s 60CA and s 65AA of the Act.

Is there a benefit to the child of a meaningful relationship with both parents?

1. The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.

2. In McCall & Clark[19], the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach.  That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that that child has a meaningful relationship with both of that child’s parents.  Thus, the Court must consider and determine whether there is a benefit to the child in having a meaningful relationship with each of his parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with his parents. If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect him from physical or psychological harm.[20]

   [19] (2009) FLC 93-405

   [20]Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.

3. The mother submitted that there was no proper evidence of a loving relationship between the child and the father. She relied on the child’s assertions to Ms D in March 2014 that he would not miss his father as “hardly evidence of a loving relationship”. I am not persuaded by the child’s comments to Ms D on that occasion that he does not have a loving relationship with his father or that this relationship is not beneficial for him. Further, I consider the mother’s submission to stand in stark contrast to the child’s numerous positive interactions with his father and Ms D’s reports of her observation of the child’s delight and comfort in his interactions with him during all of her interviews but the most recent.

4. When analysed, the mother’s evidence really amounts to the contention that, such are the father’s failings as a parent, the child does not obtain any benefit from spending time with him. Whilst she at one point said that her wish was for the child to have a loving relationship with his father and that this was all she had ever wanted, she also said she did not have any confidence in the father’s capacity to engage appropriately (as she determines that term should be interpreted) with the child.

5. Such a view ignores the unambiguous and consistent observations of the interactions between the child and his father in the time prior to about February/March 2014. However, its expression by the mother provides a clear insight into the reality of her purported support for the child’s ongoing relationship with his father. The rigidity, totality and emphatic nature of her opinion that there is nothing the child can gain from the opportunity to spend time with his father provides a clear basis for the father’s concern that, if the child continues to live primarily with her, the likelihood of him receiving true support for an ongoing relationship with him (his father) is slight indeed.

6. Despite the fact that, in the months leading up to the Family Report interviews in March 2014, the child verbalised an unwillingness, on occasions, to leave the Contact Centre with his father at the start of their time together, he did not actually continue to refuse to see him - a point emphasised by Ms D.

7. His refusals and recorded comments and behaviours must also be seen in the context of earlier observations of his interactions with his father, as discussed elsewhere.

8. The benefits for the child of the opportunity of a meaningful relationship with his father include exposure to a way of interacting with the world that is significantly different to that to which he is exposed when in his mother’s care and the opportunity to explore fully his Italian heritage and all that is associated with it. I am confident in concluding that the child will benefit from the opportunity to have a meaningful relationship with his father.

9. The father’s proposal that the child spend substantial and significant time with his mother must, logically, reflect (in part at least) his opinion that the opportunity to continue to spend significant time with her will be beneficial for the child.

Is the child at an unacceptable risk of harm in the care of either parent?

1. The mother does not directly assert that the child is at an unacceptable risk of physical harm in his father’s care provided that the father’s parenting of him occur under the strictures which would be imposed if orders are made completely in terms she proposes.

2. However, it is implicit that in seeking such prescriptive orders, she considers the father likely to make decisions (including having the child vaccinated and feeding him certain foods) during his parenting of the child which would expose the child to a level of risk she considers unacceptable.

3. Whilst there is evidence from the Contact Centre of what supervisors have viewed as anger management issues for the father, the weight to be accorded to such opinions from persons who were not witnesses in the proceedings can only be limited. Additionally, a consideration of the contents of the Centre records should properly take into account:

   a)the many occasions on which the father’s behaviour at changeovers was unremarkable; and

   b)his understandable frustration at the limitations imposed on him by the Centre: that is, on occasions he was not afforded the opportunity to interact with the child to see if he could settle him but was simply told the child was refusing to see him and the attempted transition would be recorded as a “refusal”.

4. Given Ms D’s assessment of his capacity to settle the child when he was distressed, it is, I think understandable that the father felt unfairly restricted in his desire to attend to and comfort the child when he exhibited distress at these times.

5. I have concluded that there have been occasions on which the father has deliberately flouted some of the practices imposed by the Contact Centre as part of its provision of services. For example, on a number of occasions – like 20 May 2014 and 27 May 2014 – the father did not return the child the required 10 minutes before the changeover time but, rather, delivered him at the exact time. I accept he tried to engage with the child’s mother in front of the Contact Centre on occasion and that, despite it being explained that the staggered changeover process was designed to eliminate the prospect of parental conflict in front of the child, he failed to return him 10 minutes early as required. These seem clear examples of the father’s determination not to be told what to do in relation to his parenting of the child. They do not, however, amount to behaviours which persuade of a conclusion that unsupervised time with the father would put the child at risk of suffering harm.

Health/hygiene issues

1. In 2013, the mother told Ms D she had concerns about the father’s hygiene practices. She linked these to him having been diagnosed with Hepatitis C.[21] I accept that the father has sought out treatment for this condition. Evidence tendered in his case suggests the virus is no longer present in his system. There is nothing in the evidence to suggest that he will not continue to manage his health appropriately.

   [21]         Family Report dated 1 May 2013, [5.10].

2. In an affidavit filed in November 2010, the mother said she had seen  or had been told that the father:[22]

   a)cleaned his own faeces from a pair of jeans that he was wearing using a dish cloth and retuned the cloth to the sink; and

   b)cleaned a dinner bowl by flushing the toilet and letting the toilet water rinse a bowl; and

   c)smoked, drank coffee, talked on the phone and “pick[ed] at himself” all at the same time; picked at his arms and put his fingers in his mouth; compulsively picked at sores on his body; and

   d)did not wash his hands after using the toilet or before handling food; and

   e)urinated in the shower cubicle.

   [22]         Affidavit of the mother filed 26 November 2010, [66].

3. Noting that the mother’s cross-examination of the father did not include specific reference to these alleged behaviours, I am not persuaded that it is likely the father would deliberately expose the child - his only child – to any risk of infection. Whilst he clearly may have smoked a cigarette whilst he drank coffee and may even have engaged in behaviours the mother evocatively describes as “picking sores”, there is nothing in the evidence other than these bald assertions to persuade me that it is more likely than not that the father would consciously and deliberately engage in behaviours likely to expose the child to any risk of harm.

Alcohol consumption and smoking

1. The mother proposes that the child’s time with his father be conditional upon the father not consuming alcohol or smoking. The father is agreeable to an order restraining the parties from ‘exposing’ the child to cigarette smoke. He is agreeable to an order which prohibits excessive alcohol consumption whilst the child is in his care. He objects to any order which imposes a complete prohibition on his consumption of alcohol when the child is in his care.

2. The mother says that, during the time in late 2009 and early 2010 when the father was intermittently staying with her and her parents, he would become heavily intoxicated. This, she said, made her increasingly concerned. She did not detail any particular behaviour which occurred as a result of this alleged intoxication.[23]  

   [23] Affidavit of the mother filed 26 November 2010, [49]-[53].

3. The mother points to notes from the F Clinic, at which the father attended treatment for his Hepatitis C, which indicated he was then drinking three to four schooners per day. The father accepts that, prior to this treatment, he was drinking (“but always in a safe way”). I accept his evidence to the effect that, since then, he has become more conscious of the risks to his health associated with drinking to excess and now only drinks a glass of wine with dinner, including when the child is in his care.

4. The mother also said the father has three drink driving offences that she is aware of and has had his driver’s licence disqualified multiple times due to this.[24] There are no documents before me from any relevant authority to substantiate these assertions. I accept the father’s evidence about his most recent interaction with the police and that this was not related to drink driving. In any event, whatever the father’s past issues involving alcohol and the use of motor vehicles, I am confident that he will not transport the child in a motor vehicle at any time if he is not lawfully able to drive the same.

   [24]         Affidavit of the mother filed 13 June 2013, [36].

5. I am not persuaded that the father’s consumption of alcohol to an extent that would not prevent him from lawfully operating a motor vehicle is something which would place the child at an unacceptable risk of harm.  

Discipline

1. The mother claims the father uses physical discipline to manage the child’s behaviour.

2. I accept that on 20 April 2014, the child told his mother that his father had smacked him on his bottom because he (the child) had accidentally jumped on his (the father’s) stomach.[25] The mother said that, when she asked the child on or about 7 May 2014 why he did not want to go to his father’s, he said that his father was mean to him and smacks him.[26]

   [25]         Affidavit of mother filed by leave 7 May 2014, [77].

   [26]         Affidavit of mother filed by leave 7 May 2014, [81].

3. I accept the father’s account of what occurred on the occasion he smacked the child on his bottom: namely that, after the child jumped on his stomach and testicles during their time at the beach together, he gave the child a very light tap on the bottom and reprimanded him for doing so. I accept his evidence that the child was not physically hurt by his actions. I accept his evidence that the child did not cry at the time. I accept his rejection of the mother’s suggestion that he has otherwise used physical discipline toward the child.

4. I also accept that this is the only occasion on which the father has ever physically disciplined the child. I also accept that he has otherwise used the ‘time out’ technique to discipline the child if needed.

   Text to the mother

5. In October 2013, during a disagreement about the appropriate treatment for an infection to the child’s penis, the father sent the mother a text message in which he told her to stop kissing the child’s doodle. Given he told Ms D he sent this out of frustration and not because he was concerned the mother was sexually abusing the child, there is no evidence to suggest that the mother has behaved toward the child in the manner suggested in the text. That the father sent this text – even out of what he described as frustration – does him no credit at all and demonstrates the depths to which the relationship between the child’s parents has, on occasion, fallen.

   Conclusions about unacceptable risk

6. I am confident in concluding that the father does not present a danger to the child. I have no hesitation in concluding that the child is not at an unacceptable risk of harm when with his father. I also have no hesitation in concluding that the father is devoted to the child’s care and attentive in his parenting of him.

Additional considerations

1. Part of the mother’s case that the orders sought by her are in the child’s best interests rests upon his distress and comments at changeovers in the lead up to the March 2014 Family Report interview, his comments and behaviours during this interview and his comments and behaviours at changeovers after the interview. In order to assess the child’s observed distress and his comments properly, it is important to have a clear appreciation of his previous observed interactions with his father.

The child’s attachments, relationship and interactions with his parents

1. Ms D has seen the child’s interaction with each of his parents on 3 August 2011, 2 July 2012, 8 April 2013 and 25 March 2014.

2. In 2011, the child was just over two years of age. He appeared happy, even tempered and “remarkably calm” throughout the sessions conducted by Ms D.[27] When he saw his father, he jumped slightly with excitement, gave a big smile and said “Papa”. He sought out interaction with the father. He showed no anxiety about being left in the father’s sole care and appeared very pleased to be with him. I accept Ms D’s opinion that her observations of the father’s interaction with the child suggested a mutually warm and loving relationship then existed.[28] I also accept her conclusion that, whilst the mother was the child’s primary attachment[29], he was “very welcoming” of a relationship with his father. She considered the foundation of a bond between them was present.[30] She assessed the child as “evidently enjoying his father’s company, and appeared to feel safe and trust his father.” She also noted he demonstrated no anxiety in being separated from his mother.[31] Ms D considered the child was in a phase of consolidating attachments; he was understandably more confident and self – assured in his mother’s presence.

   [27]         Family Report dated 5 August 2011, [9.3].

   [28]         Family Report dated 5 August 2011, [10.7].

   [29]         Family Report dated 5 August 2011, [9.6].

   [30]         Family Report dated 5 August 2011, [10.13].

   [31]         Family Report dated 5 August 2011, [10.13].

3. During her 2012 interview, Ms D saw the child demonstrate a degree of clinginess with his mother – he became anxious and clingy, buried himself in his mother’s chest, started crying and said several times with genuine distress: “I don’t want daddy to take me away”.  However, despite these comments and observed distress whilst in his mother’s care, the child immediately ran to his father when he saw him, jumped in his lap and cuddled him.  He was still crying and distressed and repeating he did not “want to go”. When Ms D told his father what had happened before the child came into his care, the father responded appropriately by consoling him and reassuring him that he (the father) was not taking him anywhere.

4. The child then settled very quickly – in fact, after about 30 seconds of distress, he settled cheerfully in his father’s company. He stayed in his father’s lap for the duration of the session. Ms D concluded the child felt comfortable being with his father and enjoyed his company. 

5. Towards the end of the session, the child appeared to remember his mother’s presence outside the consultation room. He became teary, insisted on seeing her, ran to see her and was clingy with her.

6. Ms D considered the child was in the process of growing his developing bond with his father. Further, whilst there was an evident bond between them and very clear signs of a warm and loving relationship, she thought the “foundational trust” between them needed time to develop further. Given the child’s exposure to what Ms D regarded as attachment parenting in the mother’s house and the father’s absence from that residence, this was to be expected. She concluded that the father presented as strongly capable of managing the child’s emotions: he was “enormously comforting” with him, and “capably integrated activity, attention, conversation and affection” to soothe the child and redirect him gently from his initial state of distress.[32]

   [32]         Family Report dated 13 July 2012, [5.7].

7. Ms D also concluded that the child’s demeanour demonstrated his readiness for an increase in overnight time with his father. She thought that, while there might be some high emotion at changeover, the father’s capacity to readily pacify the child meant this was unlikely to have any damaging, long-term effects and was likely to be only short lived.

8. In April 2013, the child ran down the hall to his father, smiling and excited to see him. He asked “Is dad taking me?” He was calm and turned to his mother and waved. Although he asked where his mother was going, he did not exhibit distress.[33]

   [33]         Family Report dated 1 May 2013, [8.1].

9. B was observed to be very comfortable and relaxed with his father: he immediately started playing and was responsive to the father’s initiated affection. Again, Ms D considered the father skilful in managing the child. the child appeared respectful of his authority. Although the child asked where his mother was about ten minutes into the observation, he was not distressed but merely inquisitive. When the father responded “are you okay with papa?”, he smiled and agreed.

10. Ms D concluded the child presented as a socially confident child, who was not clingy, trusted his father and was relaxed and happy in his company.

11. When the mother attempted to correct the child’s behaviour during their session together, he threw a tantrum, hid underneath the chair and then smacked her in the face. She remained quiet and did not say anything about his outburst. Within five minutes, the child apologised for hitting her - she accepted his apology and they continued to play. When the child hit his head on the desk he loudly cursed: “fuck”. The mother told him he could not say that word.

12. When, later, the child had another tantrum and ran down the corridor, the mother gave chase, bringing him back to the room. She ignored his behaviour. She did not impose any discipline. the child escaped from the room several more times, yelling down the hall and refusing to return: he became verbally aggressive and “grizzled’ loudly. The mother permitted him to do whatever he wanted: she explained to Ms D that her parenting approach was not to “force” the child to do anything but, rather, afford him opportunities to make his own decisions.

13. In her 2013 report, Ms D expressed concerns about the mother’s lack of discipline of the child. She considered that, from a long-term perspective, a lack of discipline and failure to impose boundaries would be likely to cause difficulties for him. She thought the stark differences between the child’s behaviour during observations with his mother and father demonstrated “seeds of problems occurring in the child’s behaviour”. If these behaviours continued, Ms D considered the child likely to experience social problems which would affect his education, peer integration and, potentially, limit his long-term opportunities.

14. In 2013, the vast majority of changeovers at the Contact Centre occurred without issue. Whilst when the child was unwell on one occasion he was unwilling to go to his father, Ms D thought this a typical reaction for a sick child: namely, to seek out his primary attachment for comfort.[34]

    [34]         Family Report dated 1 May 2013, [5.19].

15. The mother details numerous occasions on which the child has allegedly refused to spend time with his father,[35] intensifying from late November 2013 until the trial.[36] During these refusals, the child is alleged to have:

    a)told the father directly that he did not want to go with him; and

    b)begged the mother to stay with her; and

    c)asked to go home and cried; and

    d)asked why no one was listening to him; and

    e)physically run away.

    [35]         Affidavit of the mother filed by leave 7 May 2014.

    [36]         Affidavit of the mother filed 31 January 2014, [16].

16. The notes from the Contact Centre[37] establish the following occurred in the lead up to Ms D’s 25 March 2014 interview:

    a)on 12 January 2013 (which I assume – given its place in Exhibit 2 – is intended to read “2014”) during changeover, the child returned from his father’s care showing signs of distress and anger; he did not talk to his father and did not want to say goodbye when it was time for him to leave. He appeared anxious to return to his mother;

    b)on 14 February 2014, the child was hesitant to go into his father’s care. When reassured, he did go into his father’s care but cried and asked staff if he could remain at the Centre with his father;

    c)on 14 March 2014 (11 days before the interview with Ms D), the child refused to spend time with his father. Despite encouragement and the use of different strategies to facilitate changeover, he hid under a chair and cried. After twenty minutes, he remained inconsolable and continued to refuse to go to his father. At this point, the father demanded the Centre telephone the mother and make other arrangements;

    d)on 15 March 2014, the child transitioned quickly into his father’s care: other children were also moving between parents. That he did suggests a capacity to do so as long as the process is not protracted or focused too much on him. He became upset when he told his father he did not want to stay the night;

    e)on 21 March 2014 (four days before the interview with Ms D), the Centre recorded a “child refusal”. the child screamed and cried and became very distraught. He repeated “no, no I am not going to [Mr Arranzio’s]; he does not listen to me”. The notes record their author’s conclusion that the father “displayed aggressive mannerisms towards staff”, who had to discourage him from denigrating the mother.

    [37]         Exhibit 2

17. Ms D interviewed the parties and, for the first time, the child, on 25 March 2014. He was not yet five years of age. 

18. I accept Ms D’s evidence, as contained in her April 2014 report, about the manner in which her interview with the child progressed, the comments he made to her and the manner in which they were made. It follows that I accept that, in March 2014, the child told Ms D that:

    a)sometimes every day he wanted to cry because he spent lots of nights with “[Mr Arranzio]”; and

    b)staying with “[Mr Arranzio]” was “not good”; and

    c)it felt like he was with “daddy” lots of days and it was really bad and he wanted to be with his mother forever; and

    d)he hates going to spend time at “[Mr Arranzio’s]”; and

    e)there was nothing he liked about going to spend time at the father’s place; and

    f)it was boring to go to “[Mr Arranzio’s]” house; and

    g)there was “nothing, not one thing” that he liked at his father’s house; and

    h)when he is at his father’s, it feels like he will never go back to his mother’s; and

    i)he wanted to know what he could do to stop going to “[Mr Arranzio’s]”; and

    j)he was scared that someone was going to take him away; and

    k)he would be “so, so sad” if he had to stay at his father’s house; and

    l)he did not want to see his father and would not miss him – “only mummy”; and

    m)“no one listens to me”.

19. These comments are consistent with his refusal to spend time with his father in the two weeks preceding the interview. His resistance to time in the lead up to interview is, on the father’s case, a reflection of the mother’s deliberate undermining of the relationship between father and son.

20. B’s presentation to Ms D was inconsistent with the father’s reported observations – which I accept - of the child on the previous day at kindergarten where he was said to be smiling and happy to see him (the father).[38] It is also, I think, inconsistent with the fact that the child and his father communicated regularly via Skype during his father’s time in Italy in about February/March 2014.

    [38]         Family Report dated 22 April 2014, [4.2].

21. The father said this Skype communication went well and the child demonstrated no concerns about talking to him. Whilst the mother disputed this and indicated she had to “exert significant effort” to have the child Skype with his father after the first couple of occasions,[39] even her evidence establishes that, with her support and influence, the child did in fact communicate with his father.

    [39]         Affidavit of the mother filed by leave 7 ay 2014, [12].

22. I accept Ms D’s evidence to the effect that, in sitting across the table from his father during their session together, the child’s presentation was notably different from Ms D’s previous observations – when he had embraced his father and/or sought out physical contact. Whilst the child pulled away from the father’s attempts to kiss him, he sat contentedly on his father’s lap. I accept Ms D’s assessment that the child appeared to enjoy the affection bestowed on him by his father and leaned into him. I also accept that when, toward the end of the session, the child asked where his mother was, he did not appear bothered when told she was not far away and he would see her shortly.

23. I accept Ms D’s conclusion that, in so far as she observed greater emotional distance between the child and his father and his intermittent rejection of his father’s affection, there had been a noticeable shift in the dynamic between them during this joint session when compared to her three previous opportunities to observe them together.

1. I accept Ms D’s evidence to the effect that the child’s presentation was “most unusual” for a child of his age.  I accept her evidence that, despite expressing views to the contrary, the child welcomed contact with his father during her observations. I accept Ms D’s assessment that the child did not demonstrate an unambivalent rejection of his father. I also accept her assessment of the child’s expressed reasons for not wanting to spend time with his father – namely, being bored and not having a friend around - as “trivial”. Additionally, I accept that the child’s statement he missed his mother needed to be weighed with the fact that he had not apparently displayed separation anxiety at kindergarten.[40]

   [40]         Family Report dated 22 April 2014, [8.3].

2. I accept Ms D’s evidence to the effect that, whilst observations of the child’s interaction with his father did not indicate a troubled relationship, it appeared he was pushing his father away and rejecting the affection his father had consistently provided to him.[41]

   [41]         Family Report dated 22 April 2014, [5.21].

3. Against the background of his earlier observed interactions with his father:

   a)the content of the child’s comments to Ms D; and

   b)his demeanour during his interaction with her; and

   c)the manner in which he conveyed those comments to her,

   persuades me to conclude it is more likely than not that the child has been significantly influenced or encouraged (or, as the father would have it, “coached”) to tell Ms D the things she records.

4. If needed, further support for this conclusion is found in the child’s comment to his father during the most proximate visit to Ms D’s interview: he said “Papa I just want supervised visits with you”.[42] Such comment is, obviously, a mirror of, and consistent with, the mother’s underlying view that the child needs to be protected from the consequences of what she considers his father’s parenting deficiencies.

   [42]         Family Report dated 22 April 2014, [4.10].

5. Given the child’s age, the most compelling conclusion is that, at the very least, he has been exposed to his mother’s view about how his time with his father should occur. Given her clear focus upon the child and her attention to detail about every aspect of his parenting, I do not accept that such exposure is likely to have been inadvertent. Exposure to such a view – namely that supervision is necessary to protect him whilst in his father’s care – is more likely than not to undermine his confidence in his father as a person from whom he can expect support and protection in the future. It also serves to reinforce that his mother is the only parent capable of meeting his needs.

6. Given Ms D’s observations of the father’s interaction with the child and her assessment of his parenting skills, I consider it highly unlikely that there is any experiential basis upon which the child relied to make the statements he did to Ms D.

7. Rather, I consider his comments are highly likely to reflect exposure to his mother’s views that time with his father is not good for him. I consider it more likely than not that, at the very least, the mother has deliberately refrained from reassuring the child when he expressed sentiments like it was boring at his father’s and that there was nothing he liked about his time there.

8. I accept Ms D’s evidence that allowing the child to call his father “Mr Arranzio” could facilitate him distancing himself from his father. I further accept that it is very undermining of the relationship between the child and his father to allow this distinction in the manner by which he refers to each parent and that it is disrespectful to permit a child to refer to one of his or her parents using a name other than that selected by that parent. I do not accept the mother’s evidence to the effect that she has played no part in the child using ‘Mr Arranzio’ rather than ‘Pappa’ to refer to his father. Given her significant involvement with the child, I have no difficulty in concluding that if she wanted him to call his father only ‘Pappa’ she could so easily have ensured that this was the case.

9. Given the child’s earlier observed positive interactions with his father, I consider it much more likely than not that his behaviour and comments to Ms D in March 2014 reveals that very little is truly being done by his mother to support him in his relationship with his father.

10. Whilst the child’s comments to Ms D may well have appeared to have been “genuinely felt”, his age (not yet five) and my conclusions about the highly likely significant influence of his mother mitigate against any such “views” being accorded weight in the overall determination of those parenting orders which are in his short and long-term best interests.

11. The notes from the Contact Centre establish the following occurred after missing McDonald’s last interviews:

    a)on 28 March 2014, the Centre recorded a “child refusal”. the child screamed and cried in a very distraught manner. Contact Centre staff refused to have input because they thought he was emotionally overloaded;

    b)on 4 April 2014, during changeover, the child started screaming “I don’t want to go to Papas; I don’t want to go.” The mother was observed to attempt to encourage him by telling him he would have a nice time but he continued to say he did not want to go. Centre staff intervened and determined that this amounted to a “child refusal” – the mother was permitted to leave with the child;

    c)on 11 April 2014 (about two and a half weeks after the Family Report interview), the child went into his father’s care after much observed encouragement from his mother. He asked Centre staff if he could just spend time with the father that day; he also asked if they could have the father promise to return him that day. When the child asked his father to only visit for the day and his father replied that he could come and sleep over, the child insisted his father promise that he would be returned that day. His father made that promise but later called the Centre and told them he would not return the child but, instead, would return him on Sunday in accordance with the terms of the operative Order;

    d)on 10 May 2014 the child refused to go to his father: his mother was observed talking to him and, when staff attempted to talk to him and tell him that the father was waiting for him, he clung to her, wrapped his arms around her neck and his legs around her waist and said he did not want to go to his father and was not going. When Centre staff tried to encourage him to go to his father, he said he did not want to see him ‘now or anytime’, that he hated him, that his father smacked him on the bottom, did not listen to him, lied all the time and did not do what he (B,) asked him to do;

    e)on 11 May 2014, the child’s grandmother took him to the Centre for changeover: when he was greeted by Centre staff, he immediately said “I just want to talk, I just want you to listen to me, I do not want to go with Papa”. Whilst his grandmother tried to encourage him to see his father,   his behaviours deteriorated into a tantrum: he screamed, flung his arms about, banged into a door and yelled in his grandmother’s face that he was ‘not going’.

12. During her cross-examination, the mother accepted that, before these occasions in 2014, the child transitioned into his father’s care on a weekly basis via the Centre without significant issue on all but one occasion.

13. I accept Ms D’s evidence that the child’s 2014 refusals at the Centre are starkly inconsistent with his previous presentations to her at interview. I accept that they are also inconsistent with his presentations at kindergarten. I further accept that his demonstrated level of distress is inconsistent with his reporting of why he did not want to spend time with his father.  

14. Given the mother’s response to the child asking her during the 2013 interview with Ms D whether she liked the father, I am not confident that, whatever the mother’s observed verbal responses to the child, she was truly supportive and encouraging of him going to his father. Additionally, given the manner by which she managed his oppositional behaviour during Ms D’s 2014 observations, I think it unlikely that she would not have been able to prevent the child’s behaviour escalating as it did at the Centre on various occasions if she had truly wanted to ensure that he remained calm and/or that his complaints about his time with his father were assessed in a manner other than one which began with an underlying assumption that the child would be better off without any paternal interaction at all.

15. Whilst it is, I suspect, highly likely that as the child has grown older he has become more aware of the significant differences in the parenting styles of each of his parents and their different approaches to dealing with issues relation to him, I do not accept the mother’s implicit contention that his refusal on occasion to spend time with his father is because, having become more aware, he has chosen her parenting style as the better or superior one. Even if this was the case, his age mitigates against according to him the responsibility for determining which of his parents’ parenting approaches best meets his best interests. I also do not accept her belief and/or contention that the child’s behaviour at the Centre when refusing on occasion to interact with his father has occurred because he has had “a gutful” (of time with his father). I have little difficulty, however, in concluding that she has had a ‘gutful’ of having to accept the father’s ongoing presence in the child’s life.

Parental capacity

1. I accept Ms D’s assessment of the father as very child focused and as having an understanding of the child’s emotional and physical needs. I accept her observations that he has demonstrated awareness of the child’s needs and reactivity to his mood. I accept that he has also demonstrated the capacity to stimulate the child intellectually, physically and emotionally. I accept Ms D’s assessment of the father as a parent who has demonstrated very strong skills in nurturing the child’s physical, emotional and intellectual development.

2. Whilst the mother may well feel that the father has failed adequately to address  those allergies and sensitivities she asserts the child experiences - and so has acted in a manner she thinks detrimental to his health - there is no credible expert evidence which persuades me that the child in fact suffers now from such asserted allergies and/or sensitivities. The mother’s belief that the father does not appropriately manage the child’s health is another reason for her belief, as asserted to Ms D, that less contact between the child and his father will be beneficial for the child because it will reduce his exposure to foods she believes cause him ill health.

3. I do not accept that the father is in denial about any asserted symptoms of alleged allergies the mother believes the child to have because he has the ‘illusion’ that any form of food sensitivity or intolerance is a sign of weakness. After all, the mother herself did not assert to Dr G that the father had fed the child egg or egg products after they became aware of his initial allergy to it.

4. The mother further criticises the father’s parenting capacity and/or approach by asserting that he is “project[ing] on the child the food and the self-indulgent culture with which he is himself familiar and sees fitting for the son of an Italian man.”  To the extent that this may be true, I record that there can be no doubt whatsoever that, in a similar fashion, the mother is ‘projecting’ onto the child the food, culture and beliefs with which she is familiar and which she clearly believes are ‘fitting’ for him.

5. I do not accept that the father has neglected the child’s health or that the evidence suggests he is likely in the future to act in a manner likely to hinder the child’s long term health and development. He clearly sought expert advice in relation to whether the child suffered from any allergies and he has continued to take expert advice about this issue via his engagement with Dr G. That the mother asserts that he has and would is, I consider, a reflection of the chasm between these parents’ respective approaches to health and medical issues and a demonstration of the lack of trust the mother has in the father.

6. I accept Ms D’s 2011 description of the mother as a parent dedicated to and focused on responding to the child’s needs as he defined them and as a highly effective and child directed parent who focused on nurturing the child’s emotional and intellectual development in the manner she considered appropriate.

7. After her 2013 observation, Ms D expressed the opinion that, if the child continued to live primarily with his mother, she would anticipate further behavioural problems as a consequence of lack of discipline.[43] However, her 2014 observations resulted in Ms D outlining that she had seen the mother demonstrate calm and capable parenting.

   [43]         Family Report dated 1 May 2013, [11.3].

8. The father raised his concerns[44] that the child may be negatively affected by exposure to what he described as the mother’s ‘insular’ lifestyle – by which he meant she had few friends, lived with her mother, did not have a driver’s licence and was not in paid employment. However, there is nothing to suggest that, even if what the father asserted was entirely accepted, any of these matters are likely to impact particularity negatively upon the child: they are, it seems me simply further reflections of the vast differences in the way in which each of his parents approaches life.

   [44]         Family Report dated 22 April 2014, [4.3].

Each parents’ attitude to the child’s relationship with the other

1. During her first interview with Ms D in August 2011, the mother mimicked the father’s accent in describing conversations between the parties. She outlined her view that he had “sociopathic traits”: she said he was a “compulsive liar and user who didn’t care about other people, had a parasitic and manipulative personality.”[45] Such criticisms seem, to me, to strike at the very core of the father as a person.

   [45]         Family Report dated 5 August 2011, [8.33].

2. I accept Ms D’s evidence to the effect that, in her interview in 2011, the mother’s presentation suggested she had difficulty contemplating the child’s needs in a relationship with the father: rather, she considered she could comprehensively attend to all of his needs through her own role.

3. I accept Ms D’s conclusion in August 2011, that the relationship dynamics which existed between the mother and the father skewed the mother’s perception of the child’s needs in relation to his father and his culture. I accept her conclusion that, when combined with the hostile relationship between the parents, the “attachment parenting” approach implemented by the mother posed a barrier to the child’s relationship with his father.

4. The mother told Ms D in July 2012 that she had observed the child closing his eyes on the journey to spend time with his father - she believed this could be a sign he was unhappy about spending time with the father.[46] She also noted changes in the child’s behaviour in mid-June 2012 when he was fretting about going to spend time with his father on a day when he would not otherwise have been spending time, reporting that he said he did not want to go. She subsequently attended on Dr I[47] to report her concerns about these matters, saying that the child would close his eyes and cry and say he did not want to go. She also outlined that he did not want to speak with his father on the telephone. [48] At this stage, the child was a little over three years of age.

   [46]         Family Report dated 13 July 2012, [4.7].

   [47]         On 14 August 2012.

   [48]         Exhibit 2.

5. The first of the reports to Ms D seems to me to be a clear demonstration of the mother’s willingness to draw adverse conclusions about  the child’s relationship with his father from the slightest thing. The second report suggests simply that the child may have struggled to accommodate a change to plans. Accepting this as accurate, the fact that the child, at three years of age, may not have wanted to speak with his father over the telephone does not seem to me to suggest any particular issue with their relationship.

6. During Ms D’s observations of the child and his mother in 2013, he asked her (his mother) whether she liked the father. The mother responded: “I guess so?” I accept that, at this time, Ms D’s noted a very clear non-verbal expression by the mother that she did not. I also accept Ms D’s assessment that the mother was making it clear to the child that she did not like the father.[49]

   [49]         Family Report dated 1 May 2013, [9.2].

7. I accept Ms D’s view, expressed in 2013, that, at that time, the mother had become more “accepting” (in a fatalistic sense) of the father’s increased involvement in the child’s life but continued to reject the prospect of him being a decision maker and playing a significant part in the child’s life. I also accept as highly likely her conclusion that the mother’s resistance to the father’s involvement in the child’s life was less about his parenting skills and more about her perception of his challenge to her dominancy in the child’s life.[50]  In doing so, I accept her evidence that she had never seen the father perform as anything but a highly capable and loving father.[51]

   [50]         Family Report dated 1 May 2013, [5.4], [5.6].

   [51]         Family Report dated 1 May 2013, [5.7].

8. After the 2013 interview and observation process, Ms D outlined her opinion that the mother did not appear to foster or promote the relationship between the child and his father. I do not accept the mother’s refutation of this assertion. Even if she has never verbally discouraged the child from spending time with or seeing his father, Ms D’s observations of her very clear non-verbal expression during the joint session with the child suggest that she is quite capable of conveying her opposition to his time with his father in that manner.

9. Given that the mother behaved as Ms D noted during a Family Report interview process when her behaviour was being observed and assessed, it is highly likely that any ostensible attempts she has made positively to encourage the child’s relationship with his father (for example, by reminding him of fun things they might do when they are together or by encouraging him to transition to his father’s care when observed at the Contact Centre) are similarly accompanied by the same subtle, non-verbal opposition observed by Ms McGregor during the 2013 interview.

10. A striking example of the mother’s inability to shield the child from exposure to her view of the father’s parenting of him can be found in the evidence about the contents of a telephone conversation between the child and his father in July 2013. I accept that during this, the child told his father that his mother had said he (the father) was a monster and wanted to make him (B) sick. The mother explained this comment by saying that the child had ‘misreported’ a comment she made when she did not realise he was within hearing distance. [52] However, a comparison of her comment (as she outlined it) and the child’s recounting of it to his father aptly demonstrates, I think, that he very accurately interpreted the gist of what she was saying about his father: after all, her comment was: “what kind of a monster takes a kid swimming in winter when they’ve got a temperature?”

    [52]         Affidavit of the mother filed 31 July 2013, [42].

11. In the absence of the other matters already discussed, a single comment by a parent, perhaps frustrated with the other parent’s approach to parenting, overheard by a child of the child’s age would not assume particular significance. In this case, however, this comment provides an example of the mother’s attitude to the father’s parenting of the child and the way this is likely to be expressed in her household.

1. The mother relied upon the evidence of Dr K and was not required for cross-examination, and Dr J, from whom a number of affidavits were filed.[83] Dr K has never seen or examined the child. Any purported assessment by her rests entirely upon information provided to her by the mother who is vehemently opposed to vaccination.

   [83]         On 25 April 2014, 30 September 2013, 31 July 2013, 17 June 2013, and 12 April 2012.

2. Dr J’s evidence advanced, amongst other things, the proposition that the child has alleged underlying health issues which it is asserted place him at a higher risk of sustaining an adverse reaction from vaccinations.

3. The father relied on the evidence of Dr G, a consultant physician in allergic diseases, who originally trained as a general physician before specialling in allergy and immunology via further study at the Mayo Clinic, which he described as having an extremely high reputation in the medical field.

4. Dr J has previously given evidence in other matters about vaccination: in one case, she provided evidence about immunisation and in another it seems the evidence was in support of a modified vaccination schedule after appropriate preparations for that process: by that, she meant a modified vaccination schedule with monitoring to ensure that the child in that case maintained good health.

5. Despite the fact that she is not a specialist immunologist, allergist or paediatrician and that her registration with the medical regulator is as a general practitioner, Dr J[84] has lectured “predominantly on children’s disorders; children’s immune disorders; gastrointestinal disorders; autism and patterns of modern illness.” Her approach to clinical practice is to use complementary therapies with what she described as a standard medical approach. She practices bioenergetics which she accepted may be understood as ‘energy flowing through bodily systems.’ None of her primary areas of practice involve immunology. She accepted that standard medical opinion is in favour of the vaccination of children.

   [84]who has an Honours degree in Medicine, a Diploma in Nutrition and is a fellow of the Australasian College of Nutritional and Environmental Medicine – an interest group within the College of general practitioners.

6. In 2012, Dr J gave a presentation in Melbourne during which she relied upon a discredited research paper which purported to link the MMR[85] vaccine to autism. When questioned, she explained that staff had inadvertently handed out a paper which had been prepared before this purported research was refuted – she accepted it had been a mistake to provide the paper because it relied upon previous research which had been discredited at the time of her presentation.

   [85]         Measles, mumps and rubella

7. Dr J also accepted she had previously been involved in an anti-vaccination video presentation. Whilst she explained that:

   a)this document had been prepared 20 years earlier; and

   b)she had not been involved in its propagation; and

   d)she had changed her opinion to become more concerned about the issue of choosing which child was appropriate for what; and

   e)her current views were different and modified to those anti-vaccination views she had previously expressed in the video,

   specific details of her involvement in this earlier presentation came to light only during cross-examination by Counsel for the father. Even accepting entirely Dr J’s explanation that her views have changed over time, her failure to openly acknowledge the existence of her previously held anti-vaccination views casts significant doubt upon her impartiality or independence in the sense in which that term is understood when referring to those purporting to hold expert qualifications.

8. She explained that, as a general rule, she was not opposed to the vaccination of children but was concerned this needed to be seen as a medical procedure about which a risk-benefit analysis should be undertaken. She personally vaccinated children a couple of times of year, explaining that she is not regarded by her patients as a general practitioner but rather as an “environmental consultant”. She said she did not advocate against immunisation but, rather, proposed “safe” immunisation: by this she explained her view that if a child has a history of what she described as “immune dysfunction”, that child may need a modified vaccination schedule in conjunction with diet and health interventions.

9. Dr J made it clear that her client group does not involve children who are not breastfed or who are in day care: given this, she clearly provides a service to a specific subset of parents who, it seems, are likely to engage in fairly similar approaches to parenting and, inferentially, are likely to share fairly similar views about matters such as vaccination.

10. Dr J had a telephone consultation with the mother and maternal grandmother on 9 March 2012. She did not see the child personally but relied upon the history and information provided by the mother and maternal grandmother to make recommendations in relation to him.

11. It is clear from her answers during cross-examination that, as well as the history they provided (namely, that the child had cradle cap and an oral egg allergy at 12 months, eczema and rashes, frequent skin and middle ear infections and a sore throat and recurrent colds) she relied very significantly on the mother and maternal grandmother’s account that the mother had had adverse effects from vaccination (my emphasis) when she was a child.

12. The symptoms reported by the mother (namely, aching in her joints which worsened, muscle pain, cramping and muscle spasms in her neck, oral thrush, asthma from when she was six years of age, “recurrent” colds and flu as a child and teen and glandular fever in her late teens) resulted in Dr J concluding that the mother had “probable” subtle immune dysfunction - which she (Dr J) said arose in response to vaccination.

13. When asked to explain how she arrived at this last conclusion, Dr J immediately asserted that she was not the one who said that the mother had had a vaccine reaction because she did not know that she (the mother) had had such a reaction. Rather, she had simply accepted the “correlation” made by the mother and maternal grandmother (my emphasis) between the mother’s receipt of vaccination and described symptoms and built upon this in formulating her recommendations in relation to the child.

14. The fatal flaw in Dr J’s reasoning process is, I think, adequately explained by simply recording that, in essence, she simply accepted the mother had herself suffered some sort of adverse effect from vaccination because she (the mother) said she had and concluded that, as a consequence, there was “the possibility” the child already had a “subtle level of immune dysfunction” which she considered needed to be “healed” before he received any vaccination.

15. If they are needed, additional reasons for my conclusion that no weight can sensibly be accorded to Dr J’s opinions can be found in that she was prepared to provide an opinion to the mother in April 2012 - in which she outlined that the child had an “underlying immune shift” - in circumstances where she had not even seen him personally at that time but, again, relied on the history provided by the mother and on the mother’s assertion that she (the mother) had suffered consequences caused by her vaccination as a child as the basis for her “diagnosis”.

16. Additionally, whilst Dr J relied on the results of pathology tests done on 29 April 2011 as the basis for her conclusion that the child had iron deficiencies,  the results of pathology tests undertaken on 19 May 2011 at the request of Dr L (B’s paediatrician) led that specialist to report that, as the child was mildly unwell when the test was done, his iron studies were a little confusing but “best interpreted as being normal [and] certainly, his blood film does not support a diagnosis of iron deficiency.”

17. There is a certain irony in Dr J’s refutation of and critical response to Dr G’s evidence[86] because he was the very specialist to whom she had referred the child in December 2012 for allergy testing, because she wanted expertise in relation to allergy and immunology.

    [86]         In her September 2013 affidavit.

18. Counsel for the father referred Dr J to the Code of Conduct issued by the Medical Board of Australia which provides that, in providing good care a medical practitioner is to assess a patient and undertake an appropriate physical examination. However, Dr J had not examined the child until November 2012 – after she had recommended the treatment she did. She in fact saw him for the second time on 20 September 2013.

19. Whilst Dr J attempted to deal with this criticism by outlining that she was not then in fact treating the child (but, rather had provided an opinion about what “we need to do” or what had to be done), she clearly :

    a)made dietary recommendations from test results at hand; and

    b)determined that further tests were required; and

    c)prepared referrals for this further testing.

20. All of these actions persuade me that Dr J did in fact treat or prescribe treatment for the child before she had even seen him, assessed him and/or performed any physical examination of him at all. I also consider it more likely than not that she was well aware from her first consultation with the mother that the child’s father did not want her to see the child and that she wrote a referral for the child after speaking with his father in June 2012 in circumstances where I think it more likely than not that he voiced his view that he did not want the child to undergo these tests.

21. Dr J said that she supported vaccination if a child was in long day care, was not breastfeeding and was exposed to cigarette smoke because such children fell within a category for whom it could be argued that the benefit of vaccination outweighed any risk of the same. the child is now due to be at school – which, in one sense, approximates ‘long daycare.

22. I consider one of the most telling aspects of Dr J’s cross-examination arose when she was pressed by Counsel for the father to express an opinion about whether, if the child did not have those issues she had identified him as having, she would support him being vaccinated. Dr J said that, if that was the case, it was about assessing the risks of disease sought to be protected against so as to determine whether vaccination was necessary: she asserted that there remained the need to assess the side effects in a “risk v benefits” analysis. I have concluded that her hesitance to accept the clear proposition put by Counsel for the father and the conditions she attached to her response is indicative of an underlying opinion inherently adverse to the vaccination of children generally.

23. Dr J accepted Dr G’s confirmation that the child does not have any food allergy now and that the only allergy he had ever been diagnosed with was a mild positive to egg. She said he may still have a food intolerance and relied on the results of IgG testing as the basis for this conclusion. Whilst agreeing that the position paper endorsed by the relevant peak body (as provided by Dr G) made it clear that IgG testing was an inappropriate test for the presence of food allergy[87], she maintained it was an appropriate test for food sensitivity/intolerance.

    [87]         A position with which she agreed.

24. Dr J accepted that there is nothing in the literature to suggest that a food intolerance/sensitivity can be life threatening. She also accepted that the existence of a food intolerance/sensitivity does not indicate that a child should not be immunised: her view was that it indicated a pre-existing immune system mild dysfunction which should be fixed before the child received vaccine and it did not indicate per se that a child should not be immunised: her position was that the “pre-existing immune system mild dysfunction” should be addressed before vaccination was administered so that a child could be safely immunised and not have a significant immune system trigger as a consequence of the administration of vaccine. She agreed that issues with food did not directly affect immunisation but asserted that there was this indirect impact.

25. Dr G’s evidence was really to the effect that he disagreed fundamentally with almost all of Dr J’s evidence. He took great issue with a lot of the statements contained within Dr K’s evidence. He said he had seen lots and lots of children whose allergies were far more severe that that previously experienced by the child. He maintained his view that the child was quite well: he had very mild eczema and there was no evidence that any allergy was making this worse. When he consulted with the child, he found no evidence that the child had any food intolerance – whilst he had earlier had a problem with egg yolks, the more recent testing was negative for egg and there was no evidence at all of any egg and/or wheat allergy. Dr G expressed the opinion that Dr J was ‘creating’ problems that the child did not experience.

26. He refuted Dr J’s assertion that paracetamol was a cause of, or related to, allergic problems, saying that he had never seen this in his almost 40 years of practice. In fact, he thought this aspect, and many others, of Dr J’s evidence was “total nonsense”: for example, he expressed his opinion that the testing Dr Cosgrove relied upon had been investigated over a decade and shown to be useless in determining food reactivity or allergy; he described IgG testing as ‘totally unreliable’ ; testing for “dybiosis” as absolute nonsense and vega testing as total nonsense, saying that it had been investigated many times, had been shown to be absolute nonsense and had no place in diagnosing hypersensitivity to foods or environmental allergens. He said that there is no evidence that paracetamol makes people at a higher risk of an allergic response to anything.

27. During cross-examination, Dr G explained that he was a general physician with allergy as his general subspecialty and that, whilst he rarely administers vaccines himself, he had been asked to consult on many occasions when there is a reaction to the injection. When asked when was the last occasion on which he had been vaccinated, Dr G explained that he had travelled to Nepal on numerous occasions and had received numerous injections to prevent hepatitis and typhoid and cholera and had given his wife similar injections, all without experiencing a problem. He further explained that he saw many patients who presented thinking that they had an allergy but who, in fact, had a sensitivity rather than a true allergy to a particular thing.

28. Dr G took issue with most of the evidence given by Dr K. He took particular issue with the summary Appendix A: ‘Why I question vaccines”. Whilst acknowledging that it was known and recognised that various vaccines can cause adverse effects, he described the assertion that the chicken pox vaccine caused shingles later in life as ‘bunkum’. He also took issue with the assertion that the measles had been eradicated, noting that a problem was being encountered as a result of groups of people who are not immunised: he gave the examples of a recent case of measles in Brisbane and an outbreak in a high school in the Sunshine Coast hinterland which had developed in patients who were not vaccinated. He described as nonsense the assertion that the United States of America ceased using the polio vaccine because it was in some way responsible for polio, outlining that the use of the oral form of the vaccine had ceased because it was ineffective and did not prevent polio in a lot of people.

29. Dr G also expressed his opinion that:

    a)there is no evidence that vaccines cause cancer;

    b)the flu vaccine is very safe;

    c)whilst it had previously been thought that administering the diphtheria vaccine provided long term relief, it appeared that it provides only temporary control and, therefore, needed to be repeated as it loses effect over time;

    d)the idea that administering the pertussis vaccine resulted in pertussis remaining in the system was nonsense because the whole point of vaccination was to get rid of pertussis;

    e)the polio vaccine, which should be administered by injection, was extremely effective;

    f)while polio had been eradicated in India because virtually all people had been immunised, there had been major outbreaks of this disease in Pakistan because the government/administrators had curtailed the immunisation programme in that country;

    g)people like Drs J and K had forgotten history: namely, that in the early 1900s, it was well recognised that diphtheria and whooping cough and measles were very common causes of severe illness in children with quite high fatality rates and this was the very reason vaccination had been introduced in Australia, with the consequence that those diseases had been eradicated and/or eliminated;

    h)one of the weaknesses with Dr J’s approach and analysis was that, whilst a lot of unvaccinated children may have no problems because disease has been eradicated, an absence of vaccination will result in the return of these diseases; additionally, people travelling into Australia may introduce the diseases into the country and the community;

    i)he strongly objected to non-immunisation, at least on the basis that it is impossible to predict that a child will never get measles (which can be a major health issue) via exposure to a person who had introduced the disease into the community.

30. Dr G outlined that the suffering of an allergic reaction to a vaccination was so rare that he had only had one or two people referred to him. He outlined that, as vaccines can contain other additives in the vaccine (including antibiotics), the recipient of the vaccine can have a reaction to it, but it is very rare for those types of reactions to be severe.

31. Dr G was clear in outlining that he very strongly believed that the illnesses against which vaccination are intended to protect are far more serious and life-threatening than any adverse reaction from the injection by which the vaccines are administered, particularly given that any adverse reaction is so rarely significant. He gave the example of the horrible consequences attendant upon tetanus, emphasising that the diseases are dangerous and life threatening. He outlined that a friend had suffered measles as a baby and was legally blind as a result. He further emphasised that people are now far healthier than they ever were historically as a consequence of the eradication of diseases. He again emphasised that a lot of people currently had no experience of measles so they had forgotten the consequences of it.

32. Dr G outlined, by way of overview, that the potential severity of contracting a disease against which vaccine will guard is far greater than the potential risk of any adverse reaction to the vaccine. He outlined clearly that the likelihood of a vaccine causing an adverse reaction was so low compared to the benefit obtained from the vaccination. He emphasised that he had no doubt that vaccination for infectious diseases was most effective in eradicating them and that he strongly believed vaccination was very safe.

33. Dr G considered that there was no evidence to support the assertion that children who experience a “measles type” reaction (in circumstances where they do not record a positive test for the presence of measles) are exhibiting a reaction to the measles vaccination.

34. Dr G noted that, when he had a patient who presented with an adverse reaction to vaccines he looked at the inserts provided by the manufacturers of the vaccine: sometimes an antibiotic or preservative might have caused the adverse reaction reported. He had concluded that there were some additives which may cause a reaction but said that these were unlikely to cause severe systemic responses in the recipient of the vaccine.

1. Whilst Dr G accepted he had done very little particular research about the alleged adverse reactions allegedly caused by vaccination, his clinical experience and professional expertise is, I consider, such as to provide him with sufficient relevant expertise in relation to the likelihood of a child suffering an adverse reaction from the administration of vaccines.

2. Dr G outlined that he was unaware of any procedure that could predict whether a potential recipient of the vaccine was going to react to it or not: he emphasised that doctors have given numerous vaccinations and that it is so rare for an adverse reaction to occur that when these do it comes as a surprise.

3. He accepted that because measles had largely been eradicated a young child in Australia is at a fairly low risk of incurring the disease: he remained adamant that the measles vaccine will not cause measles to stay in the body, but rather will get rid of the virus.

4. Dr G did not accept the contents of the frequencies of reactions in unvaccinated children to be as Dr K reported them to be. He said he held this view because he did not think studies had been done in Australia to assess that, noting that there is no reason for a vaccinated child to be more likely to develop measles – he emphasised that, in fact, the opposite is true.

5. Dr G also outlined that the historical patterns of vaccination in relation to measles, mumps and diphtheria had been so successful that these diseases are very uncommon: the consequence of this is, he said, that it is highly likely that many unvaccinated children do not contract these diseases because they are not exposed to them. However, this “protection” afforded by the absence of the diseases in Australia (as a consequence of vaccination of the majority of the population) does not extend to protection against people travelling into Australia who may not have been vaccinated and who present a risk to the unvaccinated.

6. Whilst Dr G accepted that he had not personally done any research in relation to unvaccinated children contracting and suffering an adverse effect from any of the diseases against which the standard vaccinations are intended to guard, he offered the opinion that the person who could answer that may be an infectious diseases expert. Neither Dr J nor Dr K have experience in that specialty.

7. Additionally, it does not appear that Dr J has personally undertaken any research in relation to unvaccinated children contracting and suffering an adverse effect from any of the diseases against which the standard vaccinations are intended to guard. Further, Dr K’s evidence appears to consist significantly of a literature review of articles in favour of anti-vaccination. That her affidavit contains not a single reference to any studies contrary to the suggestion that vaccination represents a risk to children undermines the quality of her evidence. She does not, for example, detail the results of studies which have suggested that vaccination has proven successful in protecting populations and outline her reasoning about why such research is flawed. Rather, it seems to me that she seeks to present only that research which she advances supports her ultimate conclusions.

8. Dr G agreed with Dr K’s assertion that different people have different immunological responses in that one patient might receive one injection and have a strong ongoing response (resisting the onset of the disease) whilst others may need a “top up”:  however, this did not mean that vaccination was useless. He continued to express his adamant opinion that vaccines, whilst not perfect, are very, very successful in controlling disease and have a low risk of adverse effects. He thought that what Dr K was speaking about was that some vaccines do not always give protection: he said it is a common feature of immunology that one person might be protected as a result of receiving a vaccine, while another person might need more of the same vaccine in order to receive the same protection: he outlined clearly that, for most patients, vaccines provide long-term suppression of the diseases against which they are intended to protect.

9. Dr G reiterated that measles was largely eradicated because of the measles vaccination and that few people developed tetanus despite coming into contact with the bacteria because of successful immunisation.

10. Dr G also noted that it is very risky for people not to be vaccinated when travelling overseas: he noted that diseases which have been successfully eradicated in Australia because of the administration of vaccines are so common overseas. He outlined his opinion that the mother was taking a big risk in not immunising the child.

11. It is possible, in one sense, to infer that the particularised travel injunctions sought by the mother - which would prevent the child from travelling to any country located on the continents of Asia, Africa, Middle East or South America or to any country which is classified as a “developing country”[88] - constitute a tacit acknowledgment of the risks associated with not vaccinating the child: especially given Dr G’s evidence that an unvaccinated person who travels to a third world country where the diseases against which vaccinations are prevalent would be at a high risk of developing the disease.

    [88]         And to any non-Hague Convention country.

12. I accept that Dr G did not say that the child’s risk of getting diseases against which he can be immunised is extremely high. I conclude that this is the case because of the consequences of vaccination in Australia and its impact upon the eradication of the diseases in this country.

13. Dr G did not accept that the child’s risk of exhibiting an adverse outcome from the administration of vaccine was adversely high. He said the child was at no greater risk than anyone else and that there was no reason to think he was likely to react to vaccination more adversely than anyone else.

14. Dr G said that, if the child is exposed to someone who is a carrier of the disease, he is at a high risk of contracting that disease. Whilst he accepted the child had a low risk of contracting disease in Australia, he emphasised that if he encountered measles, he was more likely to react to it than a child who had been vaccinated. Dr G was at pains to emphasise that the diseases against which vaccines protect are very dangerous and can cause very dangerous long-term effects: he emphasised that they are not trivial at all.

15. Dr G continued to emphasise that the risk of any adverse reaction to the vaccine is extremely low. He said that, whilst the risk of contracting diseases against which vaccines protect is low in Australia, it is not zero – an unvaccinated child retains the risk of contracting those diseases if not vaccinated. That is, if exposed to the disease the risk of contraction is very high for an unvaccinated person.

16. When asked his opinion about the impact of aluminium, Dr G said it was useful for controlling indigestion but there was no evidence to suggest that it had any use as a supplement to prevent allergy or the immune system. He rejected the contention that aluminium had a priming effect on an immune system. When asked why aluminium was present in vaccines, Dr G outlined that it had been shown it made vaccines work more effectively: it made the injections safer and better and, in that sense, he conceded it may be useful but there was no evidence and no reason to believe that aluminium supplements themselves stimulated the immune system.

17. Dr G was sceptical about some of the data portrayed in graphs exhibited to Dr J’s affidavits. His points – which included that there is limited information about the meaning of terms such as “widespread vaccination introduce” or the basis relied upon for this summary term – seemed to me to be persuasive.

18. Given my analysis of Dr J’s willingness to approach her involvement with the child on the basis of unquestioning acceptance of the mother’s assertion that she had suffered an adverse reaction from vaccination and Dr K’s similar willingness to proceed only on the basis of information provided by the mother and her catalytic reliance on her reported observations of the health issues encountered by her cat after receiving vaccine, I prefer the evidence of Dr G to that given by Drs J and K.

19. I consider his expertise and practical experience in treating children over about 40 years is significant : this timeframe enables him to speak with real authority about:

    a)the very significant potential risk and consequences to the child if he remains unvaccinated and is exposed to diseases which enter Australia as a consequence of an unvaccinated traveller coming into this country; and

    b)the very minimal risks which receipt of vaccinations pose to the child.

20. Whilst the mother submitted, amongst other things, that there is no necessity for the child to be immunised while he does not travel outside Australia or to any third world country, such submission ignores the reality of people travelling into Australia.

21. I consider that the consequences for the child of contracting a disease against which he may be vaccinated are so significant that they significantly weigh against the grant of an injunction prohibiting the administration of vaccine. Whilst it may be that the risk of the child contracting diseases against which he can be vaccinated is minimised (as a consequence of vaccines having been administered to other children in the Australian community), such risk is affected in an indeterminate way by the presence in this country of travellers from overseas. While ever the child remains un-vaccinated, he remains at risk of contracting these diseases; in contrast, if he is immunised, the presence of a person with such a disease in Australia will be entirely irrelevant to him.

22. Having regard to the above, I am not persuaded that an order restraining the father from having the child vaccinated is appropriate for the child’s welfare or in his best interests.

23. On the basis of my acceptance of and preference for Dr G’s evidence to that of Dr J, I am also unpersuaded that the additional tranche of mandatory injunctions[89] sought by the mother are appropriate for the child’s welfare or in his best interests. I am not persuaded by Dr J’s evidence that such further testing is necessary for the child, who has been assessed by Dr G as healthy. To require that the child undergo a further regime of testing in such a circumstance cannot be considered to be in his best interests or something that is appropriate for his welfare.

    [89]That, if the father is ‘permitted’ to have the child vaccinated, he first be tested for natural immunity in relation to the targeted disease; and he shall not be vaccinated for 12 months from the date of the order; and in the intervening 12 month period, the parents shall do all things to implement a program of treatment to address those conditions diagnosed by Dr J - being gut dysbiosis and SNP profile; the child not be vaccinated against those illnesses - such as hepatitis B - for which he has a low risk profile; no more than one vaccination be given each visit; paracetamol not be used for the treatment of any response to the vaccination; the vaccine schedule be halted or reviewed if the child commences displaying symptoms or new allergic or gastrointestinal conditions; the father sign an Immunisation Information Provision form at least three weeks prior to the administration of any vaccine; the father ensure that the administering doctor comply with all valid consent guidelines; in the event the child suffers from any adverse effect from the vaccine, the father be solely financially responsible for any medical expenses incurred as a result and the father then follow all treatment recommendations of Dr J.

I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 17 July 2015

Associate:                 

Date:    17 July 2015