BARKER and QUILL
[2021] FCWA 40
•5 MARCH 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BARKER and QUILL [2021] FCWA 40
CORAM: TYSON J
HEARD: 22, 23, 24, 25 and 26 FEBRUARY 2021
DELIVERED : 5 MARCH 2021
FILE NO/S: PTW 1727 of 2019
BETWEEN: MS BARKER
Applicant
AND
MR QUILL
Respondent
Catchwords:
FAMILY LAW – Child-related proceedings – Where there is one child who is 4 years of age – Where the mother was the child’s primary carer until separation – Where the parents’ relationship was conflictual, toxic and violent – Where the child has been exposed to family violence – Where the mother has suffered from poor mental health, including multiple attempts at self-harm – Where at separation the child lived with the father – By the time of trial, the child was living with each parent on an alternate weekly basis – Where the parents live a considerable distance from one another – Where the parties agree the current arrangements are no longer practicable, because the child is due to attend school – Where there is an Independent Children’s Lawyer and Single Expert Witness – Where the evidence demonstrates the mother has been using prescription medication not as prescribed and using medication not prescribed for her – Where the mother denies that her mental health poses a risk of harm – Where the mother has not been honest with her family or treating medical practitioners about her health and her drug use – Where there are ongoing risks to the child in the care of the mother – Where the child is not at risk in the father’s care – Best interests – Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Spashett |
| Respondent | : | Ms Milton |
| Independent Children's Lawyer | : | Ms Hall |
Solicitors:
| Applicant | : | Platinum Legal |
| Respondent | : | Baily Family Law |
| Independent Children's Lawyer | : | Meillon & Bright Legal |
Case(s) referred to in decision(s):
Albert & Plowman [2020] FamCAFC 23
AMS v AIF (1999) FLC 92-852
Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bondelmonte v Bondelmonte (2016) 259 CLR 662
M v M (1988) 166 CLR 69
Stott & Holgar [2017] FamCAFC 152
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barker & Quill has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1 [Ms Barker] and [Mr Quill] have one daughter, [Child A], who is four years of age. Child A currently spends alternate weeks with each parent. The mother lives in [Suburb A], while the father lives in [Country Town A]. Child A starts school this year and as a result, the existing arrangements cannot continue. The central issue in dispute is which parent Child A should live with. The proceedings have been expedited to trial, in circumstances where Child A is not currently attending school.
2 The parents present polarised descriptions of their relationship, and events since separation. The case focused on the risks to Child A in each parent’s care. Those risks include allegations of use of illicit substances, abuse of prescription medication, mental health concerns and family violence. An Independent Children’s Lawyer (“the ICL”) has been appointed for Child A. I must determine what arrangements are in Child A’s best interests.
WHAT IS AGREED?
3 At the commencement of the trial, the parties handed up a Minute of Consent Orders. They agree to an order for equal shared parental responsibility, the exchange of information and that Child A will live with one parent, and spend substantial and significant time with the other parent. That time is agreed to include alternate weekends, special occasions and school holidays.
4 By the conclusion of the trial, the parties agreed to further orders, as proposed by the ICL, which included:
•The mother will:
•keep her parents, her treating psychologist and psychiatrist, informed of her prescribed medication including dosage and usage, which information is to be made available to the father.
•provide agreed information to her treating psychologist and psychiatrist, authorise them to confer with one another, and follow all recommended treatment.
•keep the father informed in the event that she is hospitalised, and undergo hair strand testing, and obtain a report from her psychologist, psychiatrist and a toxicologist in November 2021.
•Restraints on either parent taking Child A to a doctor in relation to any injury in the other parent’s care, without seeking an explanation from the other parent, which is to be promptly provided. Each parent is restrained from photographing any injuries, unless in the presence of the doctor and after receipt of an explanation from the other parent.
•The mother will only consume medication as prescribed, attend upon one named general practitioner and have all prescriptions dispensed from one pharmacy. She will not consume medication other than as prescribed.
•The parents will ensure that [Ms A] does not attend, or interact, or be put in a position which could frustrate one or both parents from attending Child A’s activities.
•The father’s partner has agreed to attend [Parenting Course A]
5 The parents have agreed almost all orders, subject to the determination of where Child A was to live. I was satisfied the consent orders were in the best interests of Child A and supported by the available evidence. They are set out in full at the conclusion of these Reasons.
6 It is agreed that:
•Child A has a meaningful relationship with both of her parents, and it is in her best interest to maintain those relationships.
•Child A has been exposed to family violence.
•It is in Child A’s best interests to maintain a meaningful relationship with her extended maternal and paternal families, including her step siblings.
•Child A is not of an age or maturity to express a view that any weight could be attached to in relation to her future living arrangements.
•Child A has Australian and [Country Z] heritage. Child A will be able to continue to enjoy her Country Z culture, in her mother’s care.
•Each parent has fulfilled their obligation to financially maintain Child A, to spend time and communicate with Child A and to participate in making decisions about long-term issues concerning Child A.
•There are no practical difficulties and expense in Child A spending time and communicating with each parent.
•It is preferable to make orders that are the least likely to lead to the institution of further proceedings.[1]
WHAT ARE THE PROPOSALS OF THE PARTIES?
[1] That was agreed by all parties at the commencement of the trial. By the conclusion of the trial it was no longer the proposal of the mother or the ICL.
7 After completion of the evidence, the ICL prepared a Minute of Orders Sought. She now seeks order on an interim basis only, for Child A to live with her mother, on the condition the mother resides with her parents, who are to be present overnight. The mother is to attend upon a psychiatrist, preferably [Dr B]. The mother is to undertake a hair strand test on around 1 November 2021, with the test to include benzodiazepines and the standard seven panels, together with a patient history of her prescriptions and a PBS patient summary to 1 November 2021, with the mother being restrained from cutting her hair any shorter than 10 cm. She proposes the parties attend a dispute resolution conference, subject to funding, in January 2022, with liberty to relist the proceedings on short notice.
8 The mother now largely supports the proposals of the ICL, save that she will attend upon a psychiatrist, but does not wish to be limited to attending on Dr B, in case there are difficulties beyond her control. She proposes to provide additional information to her general practitioner. She agrees to provide certain information, but questions her capacity to do so, if the proceedings are brought to an end.
9 The father proposes final orders be made, for Child A to live with him. He seeks an order that Child A attend play therapy, with a new therapist and with the involvement of both parents. He agrees that Child A’s time with the mother should be supported by her parents, as opposed to supervised, on the terms proposed by the ICL.
10 With the assistance of the parents, the following issues were identified as significant matters requiring determination:
•Is Child A at risk of harm, abuse neglect or being exposed to family violence in either parent’s care?
•What is the capacity of each parent to meet Child A’s needs, and to what extent has each parent promoted and encouraged Child A’s relationship with the other parents?
•What is Child A’s relationship with members of her extended family?
•What is the likely effect on Child A being separated from either parent or other significant people in their lives?
•What attitude has each parent demonstrated towards the responsibilities of parenthood?
WHAT WAS THE EVIDENCE RELIED UPON?
11 The mother relied upon her affidavit filed 16 November 2020, together with the affidavits of [Mr C], [Ms D] (“the maternal grandmother”), [Mr E] (“the maternal grandfather”) and [Mr F] filed 16 November 2020. The father relied on his affidavit filed 16 November 2020, together with the affidavits of Ms A and [Ms G] (“the paternal grandfather”) filed 24 November 2020, and [Mr H] filed 26 November 2020. He also relied on the affidavit of [Dr J] filed 17 February 2021. The Single Expert Witness, [Dr K], filed three affidavits on 29 January 2020, 12 October 2020 and 19 November 2020.
12 Mr F, together with the paternal grandparents were not required for cross-examination. I accept their unchallenged evidence. Each of the parties, together with the balance of their witnesses and Dr K attended trial and were cross-examined.
BACKGROUND FACTS
13 The mother is 36 years old. She is a [carer] and currently lives with her parents, in Suburb A. The maternal grandmother, known as Ms D, works on a part-time basis. The maternal grandfather is retired. The mother has four siblings: [Ms L], [Ms M], [Mr N] and [Ms O]. Ms L is married to [Mr P]. They have three children, [Child B], [Child C] and [Child D]. Ms M has one child, [Child E], with her partner [Mr Q]. Ms O is in a relationship with Mr F, who is the father’s brother. Ms O and Mr F have one daughter [Child F]. Mr N is in relationship with [Mr R]. Mr F works on a fly in fly out basis. Ms O and Child F often stay with the maternal grandparents when he is away.
14 The father is 28 years old. He is employed as a [driver]. The father lives in Country Town A with his partner [Ms S]. They have one child [Child G], born [in] 2020. Ms S has two children from previous relationships, [Ms T] born [in] 2003 and [Child H] born [in] 2010. Ms T is 18 years old and she is seven and a half months pregnant. Ms T’s partner works with the father. Ms T and her partner live with Ms S and the father.
15 The father’s parents are separated. His mother lives in [Suburb B] and works on a full-time basis [in administration]. His father is a [courier], who lives in [Suburb C]. The father has three siblings.
16 In February 2015, the parties began dating and subsequently lived together. The parties’ relationship was toxic. Both parents used cannabis. The mother often made threats of self-harm. The father described a pattern, in which the parties would argue, the argument would escalate with the mother threatening self-harm, and her being verbally and physically abusive towards him. The father admits that both parties yelled and shouted at one another. He says the mother was physically aggressive towards him.
17 The mother admits the parties’ arguments often became physical. She maintains that the father was physically abusive towards her. The father denies ever assaulting the mother. He attempted to leave the home when the mother’s behaviour escalated, and she tried to stop him.
18 In January 2016, the parties argued. The mother was then pregnant and threatened to take an overdose of medication. The father managed to calm her down.
19 Child A was born [in] 2016. Following her birth, the mother remained at home, and the father resumed working on a full-time basis. The mother was Child A’s primary carer until late 2019, with the father playing a significant role in caring for Child A.
20 The mother struggled to parent Child A on her own. She frequently rang the father, in a distressed state, asking him to leave work and return home, to assist her. He frequently could hear Child A crying in the background, when the mother rang. The father would leave work, return home to find the mother agitated and distressed. Child A would be crying, and he would take some time to settle her.
21 In April 2016, the mother rang the father, asking him to take Child A, because she could not cope. The father immediately left work and upon returning home, found the mother crying, with objects having been thrown around the house, and Child A crying in her cot.
22 In December 2016, the parties argued. The father attempted to leave with Child A, because the mother was becoming increasingly verbally abusive. The mother then became physically aggressive. In an effort to prevent the father from leaving, the mother began punching and hitting the father, while he was holding Child A. The father told the mother he would return when she had calmed down. After the father left, the mother threatened self-harm.
23 In early 2017, the family moved to Suburb A, to be closer to the mother’s family, to provide support and assistance to the mother in caring for Child A. The mother continued to call the father while at work, saying she could not settle Child A. The father was able to call the maternal grandmother, or paternal grandmother, to assist the mother. At times, he would also return home.
24 In November 2017, the mother became upset, while cleaning the home. She began to throw and smash objects. The father took Child A and left. The mother rang the father, told him she had a knife and threatened suicide. The father rang the paternal grandmother, who arrived at the family’s home. The mother was not there. The father returned home with Child A. The mother returned in the early hours of the morning, unharmed.
25 In around February 2018, the family were returning from lunch with the mother’s family, when the mother became upset. The mother began speeding, driving erratically including running through red lights, while Child A was in the car.
26 In around May 2018, the mother rang the father, saying she could not cope with Child A. The father returned home, cared for Child A and discussed with the mother, obtaining professional assistance. The mother became angry, grabbed a knife and locked herself in a bathroom, threating suicide. The father called the police, took Child A and waited outside. The police took the mother to [Hospital A], where she underwent a mental health assessment. The mother attended some follow up appointments, which later ceased, when she told the father she was feeling better.
27 In around September 2018, the mother rang the father, asking him to come home. He explained it would take him some time, because of where he was working. The mother threatened to take her own life. The father then rang the paternal grandmother, who attended at the family home, which was empty. The father was unable to contact the mother by telephone and due to concerns for her and Child A’s safety, rang the police. The police found the mother and Child A when they returned home.
28 During this period, the mother was not engaging in any treatment for her mental health. She told the father she did not trust the health system and when she had sought help in the past, it had not helped. In late 2018, the father contacted Mr C, a psychologist whom he had attended upon. The mother agreed to attend on Mr C.
29 In September 2018, the family decided to move to the country, which they hoped would assist Child A’s asthma and improve the mother’s mental health. The mother was then seeing Mr C.
30 In late 2018, the family moved to [Country Town B]. The mother continued to travel to see Mr C for a short period, but then stopped. The father says on one occasion, he saw the mother hold a pillow over Child A’s face. The mother denied having done so.
31 In November 2018, the mother had a car accident. She rang the father who was unable to come and help her. This appeared to add to the tension between the parties. The father questioned whether the mother had deliberately caused the accident.
32 That same month, the father took Child A and went to stay at Ms A and [Mr U’s] home. The mother refused to leave, despite the fact the Country Town B home had no electricity or running water. The mother repeatedly contacted the father, asking him to return home with Child A. He refused. That night, the mother sent the father a video of her cutting her wrists. The mother deposed “…I was trying to get [the father] to come home, as I was alone, and to see if he actually cared about me”. The mother continued to send the father photographs of her injuries. The father rang emergency services. The police located the mother and transported her by ambulance to Country Town A Hospital.
33 The mother left the hospital, and was later found by police, who returned her to hospital. The mother was detained by police under the Mental Health Act2014 (WA) due to her ongoing threats of self-harm.[2] The father arrived at the hospital but was told he was unable to see the mother, who had been sedated.
[2] Exhibit 20, the Department of Communities Intake Case Plan, Approved Outcome Report, page 4.
34 The medical notes recorded the mother was in a highly aroused state, repeatedly attempting to leave, screaming for a cigarette and her mother, crying hysterically, stripping off her clothing, covering her ears, shouting and refusing to co-operate with staff. When staff attempted to restrain the mother, she kicked and bit them. The hospital considered the mother presented with a [mental health condition], maladaptive coping, deliberate self-harm behaviours in distress intolerance, and Post Traumatic Stress Disorder (PTSD) with depressive features.[3]
[3] Exhibit 10, Mental Health Assessment for the mother [in] November 2018, pages 7 to 8.
35 I accept the physical restraining of the mother was a triggering event, which caused a flashback. The incident was plainly traumatic for the mother and compounded her distress.
36 The mother was transferred to [Hospital C], and was later discharged into the care of her mother. The hospital recorded that the mother would stay in Perth for a few days, to de-escalate the situation.
37 The mother and maternal grandmother then drove to Country Town B, where the father and Child A were. There was a further incident between the parties, in which the mother pushed a basket over and argued with the father, who then attempted to leave, with Child A.
38 The mother was upset, because she thought the father had not visited her in hospital. The father took Child A and got into his car. I do not accept the father attempted to run the mother over. Instead, it appeared the mother clung onto the father’s car, trying to stop him leaving, which resulted in her sustaining bruising and grazing.
39 The police were called by a neighbour. An ambulance attended and treated the mother. She then returned to her parents’ home and unsuccessfully attempted to contact the father.
40 In November 2018, the parents separated and Child A remained in the father’s care. The mother’s sister was in contact with the father. The father says he wanted to ensure the mother was getting help to manage her mental health. The father did not answer the mother’s calls, but sent her a message advising that Child A was safe.[4]
[4] Exhibit 26, The SMS exchange between the mother and the father dated 22 November 2018.
41 [In late] November 2018, the father met with Ms L and her husband. He agreed to return Child A to the mother, on the basis she was then living with her parents.
42 Between 29 November 2018 and 28 February 2019, the mother and Child A lived with the maternal grandparents, and visited the father on most weekends. In December 2018, the parties reconciled. The mother resumed attending on Mr C. She agreed to return to Perth, and leave Child A in the care of the father for a week. The father returned to Perth with Child A to spend time with the mother at Christmas and then Child A remained in the mother’s care.
43 In February 2019, the parties attended [a] birthday party of the father’s brother. The mother became upset, put Child A into a car and attempted to leave. The mother was intoxicated. The paternal grandfather and father stopped the mother from leaving. The father removed Child A from the car. The mother was shouting and attempted to follow the father, who was walking away with Child A. The paternal grandfather stood in between the parties. The mother hit the paternal grandfather with her mobile telephone, striking him on the shoulder.
44 The following day, the mother sent the father a text message, apologising for her behaviour, and wrote “I don’t mean to fuck things up all the time. I feel so frustrated in my stupid brain. I wish it worked properly”.
45 On 26 February 2019, the mother and Child A travelled to Country Town B, to spend time with the father. The parties had an argument and the father tried to leave. The mother took his car keys, so he took her car. While the mother denied trying to prevent the father leaving, I accept she did. The mother then packed the car, and took Child A and the family’s dogs to the beach. She sent the father a message, asking if he wanted to say goodbye to Child A.[5] The father did not respond, so the mother drove to Mr U and Ms A’s house.
[5] Exhibit 21, the bundle of SMS messages exchanged between the mother and the father, pages 18 – 19 dated 28 February 2019.
46 The mother messaged the father saying she was parked outside. Ms A came outside and according to the mother, Ms A threatened her. The mother returned to her car, got a Swiss army knife and slashed two of the tyres on the car the father had been driving. She claimed she was afraid the father would drive over her. The mother was unable to explain why she did not simply leave. The mother was angry at the father, for not responding to her messages. The mother accidentally cut herself and was bleeding.
47 The mother returned to her car, when the father and Mr U arrived. The mother says Mr U grabbed, held, pushed and shoved her, while the father removed Child A, and handed Child A to Ms A. The mother chased after Ms A, who returned to the house and closed the glass sliding door. The mother forcibly opened the door, grabbed Child A and attempted to return to her car. The father removed Child A.
48 It is unclear precisely what transpired next. According to the mother, Ms A and Mr U “beat the crap out of me and threatened to kill me”. Ms A jumped on her and punched her repeatedly in the face, while Mr U began kicking her dog. Mr U also kicked her in the face. All of this occurred in the presence of Child A, who was being held by the father.
49 The father and Ms A deny that Child A was present. The father said he took Child A outside and left. Ms A claimed the mother had attacked her, and she had simply sought to defend herself. In cross‑examination Ms A admitted that she had assaulted the mother.
50 The mother flagged down a passing motorist, who took her to Country Town A Police Station. She was then taken by police to Country Town A Emergency Department.
51 The mother denied that Child A saw her holding a knife or bleeding. I consider that highly implausible, given Child A was strapped into her car seat, facing the mother who repeatedly came and left the car. The incident was likely to be highly distressing for Child A, which reflected poorly on all of the adults involved. I accept the father was acting protectively, in seeking to remove Child A from the situation.
52 The mother sent the father photographs of her injuries,[6] which were extensive and included two black eyes, grazes to her hands, legs and knees, bruising to her face, arms, elbows and back, and swollen nose and lips.[7] Ms A subsequently obtained a Violence Restraining Order for her protection against the mother [in] March 2019. Ms A said she also suffered injuries. I had no evidence of those. Having heard the evidence and in light of the mother’s injuries, I have serious doubts that Ms A simply acted in self‑defence.
[6] Exhibit 21, the bundle of SMS messages exchanged between the mother and the father, pages 10 to 18.
[7] Exhibit 21, the bundle of SMS messages exchanged between the mother and the father, pages 10 to 18.
53 The mother acknowledges that she was panicked, distressed, and has little recollection of the subsequent events, following being sedated when she was hospitalised.
54 According to the hospital and the police, the mother was in a highly distressed state. The mother was shouting abuse at hospital staff and police, and making threats of self-harm.[8] The police attended on the father and sighted Child A, who was reported to be sleeping, with no visible injuries.
[8] Exhibit 20, the Department of Communities Intake Case Plan, Approved Outcome Report.
55 The hospital diagnosed the mother with “Psychiatric – emotional crisis – acute reaction to stress”.[9] It recommended the mother be psychiatrically assessed.
[9] Exhibit 9, Correspondence from [Hospital C] Emergency Department to [Dr X].
56 The father retained Child A and the parents then separated on a final basis. Upon the mother’s discharge from hospital in early March 2019, she moved into her parents’ home. The mother reported the incident to police. No charges were laid.
57 In March 2019, the Department of Communities received a report from [Country Town D] police. Child A had been found by a member of the public, alone, near a lake, with head lice and a soiled nappy. Child A was two years old at the time. She was found crying, asking for her father.
58 Child A was unable to say her name. As a result, the police were unable to contact the father. It took two hours before the police found the father’s cousin, looking for Child A. The police then arranged for Child A to be returned to the father.[10] The father explained he was then living with his cousin, he left early in the morning to work, and his cousin was caring for Child A. Following the incident, he left his cousin’s home and stopped working, to care for Child A. Child A was at risk of harm and neglect. There are questions about the quality of care Child A was receiving, given Child A had sores on her head, suggesting she had suffered from untreated head lice for some time.
[10] Exhibit 19, the Department of Communities Child Protection Concern Referral Form.
59 In March 2019, the mother commenced proceedings. She failed to disclose her recent psychiatric assessment or sedation during hospitalisation.[11] The mother sent the father numerous aggressive emails,[12] including threats such as “I will make sure that Child A will never grow up with your shit influence around”[13] and “Once the VRO is in place you will legally be prohibited from contacting Child A or me for 2 years”.[14]
[11] Exhibit 5, the mother’s case information affidavit filed 7 March 2019.
[12] Exhibit 21, the bundle of SMS messages exchanged between the mother and the father.
[13] Exhibit 21, the bundle of SMS messages exchanged between the mother and the father, dated 4 March 2019.
[14]Exhibit 21, the bundle of SMS messages exchanged between the mother and the father, dated 3 March 2019.
60 The Court granted an ex parte recovery order on 7 March 2019, for Child A to be returned to the mother’s care. The father went into hiding with Child A. His actions reflected poorly on him.
61 On 15 March 2019, the Department advised they held concerns if Child A were returned to the mother’s care, given her mental health and supported Child A remaining with the father. The Court discharged the recovery order. Child A remained in the care of her father.
62 The mother admitted herself into [a psychiatric clinic] [in mid‑March] and was discharged [in late] March 2019. The mother says her PTSD was exacerbated by the domestic violence she had experienced. She was prescribed Lexapro 30mg. She was also referred to a drug and alcohol counsellor.
63 [In mid-March] 2019, the father obtained a VRO against the mother, for his and Child A’s protection. It has since been replaced with a Conduct Agreement between the parents only, which expires [in] March 2021.
64 When the father filed his responding documents, he deposed he had “always had the majority care of Child A, from her birth until now”.[15] That was untrue. Both parents were selective in their evidence at the commencement of the proceedings.
[15] Exhibit 25, the father’s case information affidavit filed 8 March 2019, paragraph 12.
65 On 21 March 2020, interim orders were made, for Child A to continue to live with the father, and spend alternate weekends with the mother, on the basis that her parents were present.
66 The Department completed an assessment, which included interviews with each parent, discussions with [a] psychiatric unit and the Police. The Department substantiated the likelihood that Child A had suffered emotional abuse and physical harm. They sighted Child A in her father’s care, describing her as “well-dressed, hair done, no nits, fresh scabs talkative and happily played. Father responded to her appropriate…Observed a secure attachment”.[16]
[16] Exhibit 12, the Department of Communities Case Notes dated 20 March 2019.
67 The Department found credible evidence that Child A had been exposed to numerous incidents of violence between her parents, over a five-month period. Each parent admitted to fighting, yelling and screaming, in Child A’s presence. The Department said it was difficult to conclude that Child A had been actually harmed, but if the behaviour continued, Child A would be at risk of physical and emotional harm. They described the violence and abuse as “deliberate, intentional and usually escalates over time” and noted that a child exposed to family violence was likely to suffer emotional harm, be at risk of injury, in addition to living in an environment which was unpredictable, uncertain and likely to cause fear for the child.
68 They recommended each parent complete [Parenting Course A]. The father has done so. The mother has not yet completed the course, but says she is now enrolled to do so this year.
69 In May 2019, the father and Ms S commenced living together. Ms S told Child A she and the father were expecting a baby when she was around 12 weeks along. Ms S and the father discussed informing the mother. Ms S said she deferred to the father, who decided not to tell the mother. The father conceded, with the benefit of hindsight, he should have done so. I agree.
70 On 28 May 2019, the parties attended a Case Assessment Conference. The mother alleged the father was using Child A to punish her, to destroy her and for financial gain. The father maintained his concern about the mother’s mental health, but said when she was well, she was “a lovely mother”. He described Child A as a sensitive child, who picked up on her mother’s anxiety. The father considered the mother’s poor mental health compromised her capacity to parent.
71 The Consultant concluded both parents were violent towards one another, yet each continued to deny at having perpetrated acts of violence, noting “It is difficult for any therapeutic or psychological education of an individual if they do not acknowledge their behaviours”.
72 Interim orders were made in May 2019, increasing Child A’s time with the mother. In July 2019, further interim orders were made for Child A to live with each parent, on a week about basis, on certain terms and conditions.
73 On 6 November 2019, Child A was bitten by [an animal] in the mother’s home, which belonged to Mr F and Ms O. Child A suffered facial injuries, which required plastic surgery. The mother immediately informed the father. The father attended the hospital. There is some dispute about the extent to which the mother allowed the father to be involved. I accept the incident was an accident.
74 [In] November 2019, Child A participated in her first concert. Ms T and Child H were also participating in the same concert. The father invited the mother to attend, which she did with her parents. The mother was informed that Ms A would be attending. The father, his grandmother and Ms S also attended.
75 I accept Ms S invited Ms A to attend the concert. She asked Ms A to assist her children and Child A [at the concert]. Ms A described Ms S’s children as her nieces.
76 In [the intermission], the maternal grandmother walked backstage, to see Child A. The mother was nearby, and within earshot. Child A was held by Ms A. I do not accept the mother tried to enter the change rooms, as claimed. I reject Ms A’s evidence that the maternal grandmother swore and threatened her. I prefer the evidence of the maternal grandmother, who denied behaving in that manner.
77 The mother became upset and agitated, and began talking in a raised voice, which I accept Child A likely heard. The mother exchanged words with the father. She then went outside, crying. The maternal grandparents watched the balance of the concert, and brought Child A outside to see the mother afterwards.
78 The evidence does not support a finding about what precisely was said by each party. What should have been a special occasion for Child A, instead involved Child A being exposed to conflict. To the credit of the parties, there has not been any similar incidents since.
79 Ms S had a difficult pregnancy and suffered a number of complications. When the mother was told that Ms S was in labour, she agreed to delay handover for a day. The mother is doubtful that Ms S’s labour went for the period as claimed. [In late] March 2020, Child G was born.
80 In April 2020, the father had Child A’s haircut. The mother’s solicitors wrote, confirming that the mother and her family were “heavily invested and compliant with [Country Z’s] customs” which included females not cutting their hair other than at important times (such as when transitioning from childhood to adulthood, or when they are married), which is accompanied by a special ceremony,[17] involving family members and the community. The mother expressed no difficulty with Child A’s hair being trimmed, but asked that her hair not be cut, to adhere to Country Z’s customs. The father deposed he was unaware of the custom but agreed not to cut Child A’s hair.
Mother’s mental health
[17] Exhibit 27, correspondence from Bannerman Solicitors to Baily Family Law dated 24 April 2020.
81 The mother has experienced significant mental health issues, stemming from being sexually abused on two separate occasions and the death of a friend. She has been diagnosed with PTSD, depression, anxiety, and stress. I have already referred to the mother’s history of self-harm and hospitalisations.
82 The mother has experienced a number of traumatic events in her life. She is plainly vulnerable. The mother’s health has understandably been impacted by the stress and anxiety created by events prior to and at separation. The current proceedings have added to her stress, as has the recent poor health experienced by her father.
83 In 2018, the mother’s GP referred the mother for assessment and treatment to Mr C, whom she commenced seeing [in] June 2018. The mother has attended on Mr C on 32 occasions, by the time of trial.
84 Mr C prepared two reports, [in] June 2019 and [in] November 2020. He attended trial and was cross-examined at length. Mr C’s evidence was delivered in a helpful manner.
85 Mr C initially met with the mother, the father and her parents, to obtain background information. He treated the mother for PTSD, severe depression and extremely severe anxiety and stress. Mr C dismissed the father’s hypothesis that the mother suffered from bipolar. He considered her symptoms were congruent with the diagnosis of PTSD. The mother attended weekly sessions between June and September 2018.
86 In December 2018, the parents attended a joint session with Mr C which led to their decision to reconcile. Following the breakdown of the relationship, Mr C reported the mother’s anxiety increased, particularly when she did not know where Child A was for around two weeks.
87 In Mr C’s second report, he described the mother as presenting with significantly reduced levels of anxiety. He reduced her sessions to bi‑monthly. He reported that the mother no longer met the criteria for PTSD, depression or generalised anxiety disorders. He considered her PTSD in the sub-clinical range and was in remission. He described the mother as displaying increased ability to manage and regulate her emotional arousal and that she was functioning well.
88 Mr C had no concerns with respect to the mother’s capacity to parent. He recommended the mother continue to receive professional support on a bi-monthly basis, to facilitate her continued progress, to prevent relapse and to further consolidate her skills, particularly following the court’s decision. He reported the mother had engaged fully with therapy, and she had a number of protective factors, including the support of her parents and siblings.
89 Mr C had understood the mother remained under the care of her psychiatrist. He was unaware she had not seen him since September 2019. In mid-2020, Mr C recommended the mother attend on a psychiatrist, to review her medication and suggested Dr B, whom he works with. The mother has not yet done so, but has indicated she will. She now has a referral to Dr B.
90 To a large extent, Mr C relied on the mother’s self-reporting. He described the father as supportive of the mother, corroborated by the fact he had encouraged her to see him.
91 Mr C had no recollection of the mother disclosing her use of oxycodone, without a prescription. When Mr C was presented with evidence about the mother’s use of medication, which emerged only during the trial, he accepted the mother had not been forthright in terms of the use of prescription medication, or the fact she had taken medication not prescribed for her. He was not aware of the mother’s recent use of benzodiazepines.
92 Mr C explained that patients with PTSD, commonly used prescription medication to self-regulate. A patient would require separate treatment for both drug dependency and PTSD, the terms of which would dependent on each patient’s circumstances. He confirmed patients with PTSD often displayed coercive and controlling behaviours, in an effort to control their environment, and to minimise the outburst of emotion. The can be hypervigilant, and experience flashbacks, which can last between five hours and five days, when triggered.
93 Mr C was agreeable to work with the mother on her drug dependency, if the mother was willing to do so, as well as to address family violence.
Mother’s drug use
94 The father has repeatedly raised concerns about the mother’s use of prescription medication. The mother’s medical notes confirmed that her treating doctors have also held concerns about the mother’s drug use, and include, for example:
(a)24 April 2019 “known drug seeker”;
(b)26 April 2019 “I raised concern about the Medicare letter regarding her as Dr shopper and concern about dependency”;
(c)16 June 2019 “I advised that exceeding dosage is an alarming sign of dependency and warned her about it, I discussed referral to drug and alcohol rehab centre”;
(d)18 July 2019 “I advised her that I have strong concern about her dependency”;
(e)22 August 2019 “I stated that I could not give her any further… script and she should see next step specialists for that”;
(f)21 April 2020 “taking 4 panadeine forte per day” when she was recommended to only take two.
95 On 25 September 2019, [Dr V], a psychiatrist, reviewed the mother. He reported that she was going well with the increased Escitalopram, discussed her dependency on Oxazepam and noted when she stopped taking it, she stopped sleeping. He planned to reduce the medication over time and change her to diazepam. The mother has not continued to consult with any psychiatrist, as indicated. She has attended upon her GP, and other doctors, for ongoing prescriptions.
96 The mother told the consultant that she had last used cannabis on 3 March 2019. She reported she had attended [Support Service A] for counselling, which had ceased because they told her she did not have a drug problem.
97 The mother denied delaying undertaking hair strand tests. I reject her evidence, in circumstances where:
Firstly, on 21 March 2019, orders were made for the mother to undertake a hair strand test forthwith. She did not complete the test until 28 June 2019. The test was positive for codeine. The test for cannabis was unable to be completed.
Secondly, a further request was made by the ICL on 11 July 2019, which the mother completed on 13 August 2019, over a month late.
Thirdly, the mother refused to complete the test requested by the ICL on 30 April 2020. She was unable to proffer any explanation for her refusal.
Finally, on 14 January 2021, the ICL asked the mother to undertake a 12‑month hair strand test. The mother queried the need for her to do so and asked why the father had not also been asked. On 25 January 2021, the mother agreed to undertake the 12‑month test. For the reasons that follow, I am satisfied that the mother had long hair, sufficient to enable a 12‑month hair test, and that she deliberately cut her hair, lied about her actions and gave evidence which was dishonest.
98 The mother had long hair, down to her waist. The mother now has very short hair. In her updating evidence in chief, the mother deposed that her brother cut her hair on New Year’s Eve, at her request. She explained she had long wanted to cut her hair, which represented leaving her old self behind, to start the New Year.
99 When the mother was shown Facebook posts of a party she had attended,[18] which showed her with long hair, the mother said the party was in December 2020. The Facebook posts suggest the party was on Saturday 9 January 2021. Each of the mother’s parents confirmed the party was in January.
[18] Exhibit 4, Bundle of Facebook posts dated 9 and 11 January 2021.
100 I do not accept the mother’s evidence about when she cut her hair. I do not accept the mother did not know that her hair length impacted on testing. That is improbable, in circumstances where the mother has previously undergone a number of hair strand tests. I do not accept the mother’s claim that she was unaware her drug use was a concern. The mother conceded that had a 12‑month hair strand test been conducted, it may have revealed cannabis use.
101 The mother’s evidence on these matters was not honest and adversely impacted upon my assessment of her credibility. Her actions in cutting her hair, her refusal to undertake hair tests and her delays in doing so, suggested the mother continued to struggle with the use of medication, but more significantly, was indicative of a tendency to be dishonest about significant details. The mother’s conduct has meant there is no independent evidence of the mother’s use of drugs, either prescribed or illicit, for the first half of 2020.
102 The mother’s most recent hair strand test was collected on 2 February 2021.[19] The first sample, for 0 to 3.9 cm, was positive for:
(a)Codeine with a reading of MS 15.7ng/10mg.
(b)Oxycodone with a reading of MS 4.86ng/10mg. The screening cut off was 2ng/10mg.
(c)Benzodiazepines, positive for diazepam with a reading of MS 21.5 pg/mg and Nordiazepam, MS 34.3 pg/mg.
[19] Exhibit 1, […] Hair Analysis Drug Test Results for the Applicant.
103 The second sample, was conducted on 3.9cm to 6.5cm, and was positive for:
(a)Codeine with a reading of MS 20.3ng/10mg (with a screening cut off of 2ng/10mg).
(b)Oxycodone with a reading of MS 10.7ng/10mg (with a screening cut off 2ng/10mg.
(c)Benzodiazepines, specifically diazepam with a reading of MS 41.1pg/mg and Nordiazepam, MS 66.1 pg/mg, both with a screening cut off of 20pg/mg.
104 Dr J is a toxicologist, whose experience and qualifications are set out in annexure A to her affidavit. At the request of the father, she prepared a report analysing the mother’s hair strand test results. She also attended trial and was cross-examined. Dr J gave her evidence in a very professional and helpful manner.
105 Dr J confirmed the test results for the mother’s use of codeine represented “sustained codeine usage over the six-months covered by the test in the order of ~100mg/day”.[20] The mother’s test results for oxycodone, represented sustained moderate use, noting a decrease in the more recent sample. Results for benzodiazepines were consistent with low-level/infrequent consumption of diazepam (Valium). The results were inconsistent with the consumption of Oxazepam.
[20] While noting variance for binge behaviour, body weight and hair colour were unable to be accounted for.
106 Dr J confirmed that Escitalopram, which the mother is prescribed, depression and anxiety, acts as an inhibitor, which likely decreases the efficacy of codeine, resulting in the need for a higher dosage for pain relief. Dr J confirmed diazepam, oxycodone and codeine are all sedating to various degrees, and co-administration or an increase dosage or combination with alcohol would increase the effects of sedation, including potentially resulting in cardiovascular and respiratory depression, coma or worse.
107 The mother’s evidence at trial about her use of medication was summarised in an email to Dr J dated 25 February 2021,[21] as follows:
[21] Exhibit 28, the email exchange with Dr J dated 25 February 2021.
(a)Oxycodone (Oxynorm), 10mg capsule, between 10 to 20 capsules between October and November 2020.
(b)Codeine (Panadeine Forte), 30mg tablet, 10 tablets, prescribed 19 October 2020, one tablet, three times a day, not to be taken with Valium.
(c)Diazepam (Valium) 5mg tablet, 25 tablets, prescribed 20 January 2021, one tablet not for daily use.
(d)Diazepam (Valium) 5mg tablet, 30 tablets, prescribed 13 October 2020, one tablet, not for daily use.
(e)Codeine (Panadeine Forte), 30mg tablet. 20 tablets, prescribed 6 May 2020, used between July and January.
(f)Temaze, 10mg tablet, 5 tablets, prescribed 29 September 2020, take one before bed.
(g)Oxazepam (Alepam) 15mg tablet, 25 tablets, prescribed 14 August 2020, take half tablet daily when necessary.
(h)Codeine (Pandadeine Forte), 30mg tablet, 10 tablets, prescribed 27 June 2020, one tablet daily, when necessary.
(i)Oxazepam (Alepam) 15mg tablet, 25 tablets, prescribed 18 May 2020, take one tablet daily.
108 The mother explained in early 2020 she had [dental issues]. Due to COVID-19 restrictions, she was unable to attend on a dentist for treatment. She then obtained pain medication and antibiotics from her doctor. Following dental surgery in early May 2020, the mother continued to experience significant pain, and required further pain relief.
109 However, in evidence the mother:
(a)Insisted that she had only taken around 50 tablets of codeine in the period of her hair strand test. Her evidence was not supported by the test results, or the evidence of Dr J, which was clear that the results indicated an average use of three tablets a day, or 450 tablets over the period tested. I prefer the evidence of Dr J.
(b)Admitted that for sustained periods she had taken more than 10 tablets a day of codeine, against the prescribed dosage. She admitted having used 70 tablets of codeine between October 2019 and January 2020, including codeine not prescribed to her. The mother’s evidence about how she obtained the codeine, the use of which far exceeded her prescriptions, was entirely unsatisfactory and inconsistent. At times, the mother suggested she had not used all of the medication she had been prescribed, which was inconsistent with her reports to her doctors, when asking for medication. She then suggested she had found left over medication in a communal medicine cabinet in her parents’ home, which her father denied existed.
(c)Admitted that she used Oxycodone, which she had not previously disclosed, without a prescription. She claimed that medication belonged to her mother and was prescribed in 2015. That evidence was contradicted by the maternal grandmother, whose evidence I prefer. The mother admitted she had taken medication prescribed for her father.
(d)[In late] February 2019, prior to attending the father’s home, the mother attended a doctor and obtained a prescription of Oxazepam. She had the script filled at some point during that day, which she had not disclosed.
(e)The mother admitted that some medications made her sleepy. She admitted taking medication before she went to bed, to co-sleeping with Child A, but denied that made her less responsive to her daughter. She insisted she never drove while under the influence of medication.
(f)Between 1 March 2019 and 29 February 2020 the mother purchased 508 tablets of benzodiazepines, and admitted she consumed more than one a day. The mother admitted she had been addicted to benzodiazepines. She accepted her ongoing use of benzodiazepines, including as recently as on the weekend, was relevant. The mother changed doctors in October 2020. At her first appointment with her new GP, she obtained a script for benzodiazepines. She has recently attended on a new GP, who prescribed her with Valium on 13 October 2020.[22] The mother admitted she did not disclose to her new doctor her previous dependency on benzodiazepines. The mother denied having been told not to drive while under the effect of benzodiazepines, despite her medical notes confirming such advice in May 2019. The mother admitted she had not disclosed to her employer, the use of either benzodiazepines or opiates, despite the fact she is required to drive patients as part of her job.
[22] Exhibit 16, copies of prescriptions for the mother dated various.
110 The mother has not been full and frank about her use of medication. The mother has used medication not in accordance with the prescriptions. She has used medication not prescribed to her. The mother has not been candid with her treating health practitioners about her use of medication, which raises significant concerns about the mother’s ongoing drug dependency. The mother’s failure to be honest about these matters, her attempts to minimise and justify her conduct, have meant that the mother has not taken any steps to address these issues.
Father’s drug use
111 The father admitted to using cannabis during the relationship. He said he had last smoked cannabis on one occasion, following the first handover. [In] March 2019, the police seized smoking implements and two plants from the family’s home. The police reported that the father was co-operative with their investigations.
112 The father denied using any other illicit substances. The mother alleged the father used methamphetamines on a daily basis. When the mother was admitted to hospital, she reported she thought the father was using “crack”, but conceded she had no evidence.[23]
[23] Exhibit 10, Mental Health Assessment for the mother dated 22 November 2018, page 2.
113 The father underwent a hair strand test [in] June 2019, which was positive for cannabinoids. The father has since undergone two further hair strand tests [in] November 2019 and September 2020, which were clear of illicit substances. The father’s test results are consistent with his denials of using any illicit substances.
Father’s mental health
114 The father was diagnosed with PTSD when he was around 12 years of age. He attended on Mr C for therapy.
115 I accept the father struggled when the parties’ relationship was in difficulty, as confirmed by the medical notes of his attendance on his GP in July 2018.[24] The notes recorded the father was under a great deal of stress, he and his partner were both depressed and he had suicidal thoughts, but no plan or attempt. While the father denied ever having suicidal thoughts, I consider the notes are likely to be accurate. The father has not attempted suicide.
[24] Exhibit 23, the consultation notes by [Dr W] for the father dated 6 July 2018.
116 The father has attended on his GP. Following separation, he engaged with [Counselling Service A]. The father is not suffering any mental health difficulties.
Child A’s injuries
117 The mother deposed when Child A returns into her care, she frequently observes bumps, marks and bruises, which Child A is unable to explain. At other times, she claims Child A has said the father or Ms S have hit her. She photographs Child A and has taken Child A to the doctor.
118 In the mother’s trial affidavit,[25] she has attached photographs of what she described as injuries Child A had sustained in the father’s care, together with her notes. The mother deposed she did not always take photos, because Child A found it distressing. The mother said she attempted to photograph Child A when she was distracted, to avoid upsetting her.
[25] At annexures two, five and six.
119 The mother asserted Child A was not aware she was being photographed. I reject that evidence, which was contradicted by the fact in some photographs Child A was looking at the camera. In many photographs, the mother has pulled up Child A’s t-shirt, or pulled down her underpants, to photographs Child A’s body. I consider it likely Child A was aware she was being photographed.
120 The mother has taken Child A on multiple occasions to the doctor, after she is returned from the father. The first occasion occurred on the second supervised visit, following orders made in March 2019. [In] April 2019, the mother took Child A to the doctor, raising concerns Child A had bruising, a chipped tooth, and an injury to her toe. According to the doctor’s notes, the mother reported the father was living with a new partner, he had problems with alcohol and drug dependency, he had drug dealers visiting his home, and Child A had not disclosed how the bruises or sore thumb had happened. While the mother suggested the notes were not reliable, I consider the notes accurately recorded the doctor’s recollection of what was reported. The notes did not record that Child A disclosed her father had hurt her, as claimed by the mother.
121 The doctor wrote a letter to Hospital A, noting “mum is so concerned about the possibility of child abuse going on in the living place…” The doctor recorded she had concerns about child abuse, but because police previously did not take action, she requested Child A undertake a full assessment, to rule out the possibility of child abuse.
122 The mother did not take Child A to Hospital A. It was put to the mother that she did not genuinely hold concerns that Child A was at risk of harm, which the mother denied. The father considers the mother’s actions were an attempt to gather evidence and paint a case against him.
123 [In] June 2020, the mother took Child A to the doctor and reported Child A was complaining of a sore bottom and vagina. The mother did not ask the father for any explanation, or raise her concerns about what the mother suspected was a lack of hygiene in his home. Child A was subjected to an anal and genital examination. The mother’s solicitors wrote, after the appointment, confirming Child A had been diagnosed with ringworm, a chesty cough and congestion, and the recommended treatment.[26]
[26] Exhibit 17, correspondence from Bannerman Solicitors to Baily Family Law dated 5 June 2020.
124 The doctor’s notes recorded the mother stated a “couple of times” when Child A had come into her care, saying her bottom hurt:
… but when mom tries to find out more if some one touches her, etc she goes silent. Mom has concern about people who visit dad’s home as in the past dad hs had some unappropriate friend’s (drug dealers) which visited their home and other concern is that mum thinks in dad’s home no one helps her much in her toilet issues and hygine issues might cause fungal infection in her.[27]
[27] Exhibit 17, consultation notes for Child A dated 3 June 2020.
125 The doctor noted she had contacted child protection in relation to Child A. There is no evidence to suggest the Department took any action.
126 The father has also raised concerns on occasions, that Child A has suffered injuries in the mother’s care. For example, in July 2019 Child A returned from the mother’s care, with scratches near her eye, which Child A said had been caused by a cat. The father asked the mother to ensure that Child A was properly supervised.
Single Expert Witness
127 Dr K was appointed as the Single Expert Witness pursuant orders made on 1 August 2019. Dr K is a clinical psychologist and holds a Bachelor of Psychology and Bachelor of Legal Studies, together with a Doctor of Clinical Psychology. She has worked in the area of psychology since 2004. On page two of her first report, Dr K set out her qualifications and experience.
128 Dr K has prepared two reports, [in] January 2020 and October 2020. She has also responded to questions posed by the father [in] November 2020.
129 In her first report, Dr K detailed the documents she had received, her meetings with each parent and her observations with each parent and Child A. She also met with Ms S. The salient parts of her first report were as follows:
•The father denied physically harming the mother. The mother reported that verbal arguments often escalated into physical abuse and said to the extent she used physical force, it was in self-defence. The father alleged the mother was the perpetrator of physical violence, including hitting, punching biting and scratching him. He showed Dr K photographs of bite marks from the mother, which she denied.
•The father alleged the mother had abused prescription medication, including taking medication not in accordance with the dosage prescribed, but also self-medicating with medication prescribed for others.
•Dr K observed Child A to have a good relationship with each parent, and she interacted well with her maternal grandmother.
•Dr K considered Child A had been placed at significant risk of neglect, psychological and emotional abuse and exposure to family violence. Child A’s presence during violent incidents may have negatively impacted upon her neurocognitive development. She noted that children exposed to violence may experience increased trauma, lower self-esteem and higher levels of anxiety and depression, which may lead to the development of insecure attachment, and a distrust which compromises interpersonal functioning. During childhood, children who have been exposed to violence are more likely to be diagnosed with anxiety, depression, and/or PTSD.
•Dr K did not consider Child A was at risk of harm in the father’s care. While the mother continued to be supervised by her family and live with her parents, Dr K did not consider Child A was at risk of harm, but wrote:
Should the mother be unsupervised and fragile in her mental health, the child is at risk of psychological harm, for reasons noted in the report, such as the mother self-harming whilst the child has been in her care…
It is not without a doubt that the mother loves the child very much, however, she appears to continue to struggle with being a victim of domestic violence as well as her past trauma…[28]
•She considered the father had the capacity to recognise and provide for Child A’s needs. He had actively engaged Child A in therapy and was engaging in counselling, to assist managing his blended family.
•The mother reported Child A had regressed with her toilet training and communication skills, she had night terrors and insisted on sleeping with her mother. The father reported no toileting difficulties and that Child A was able to sleep in her own bed, without difficulty. He indicated Child A previously had night terrors, which had ceased since he engaged her with play therapy in 2019. Both parents reported using similar methods of discipline.
•Child A told Dr K “mummy hurt [Ms A] and [Ms A] hurt her mummy”. She said her mummy was not part of her family because she lives with “[Ms D]”, the maternal grandmother. She was excited about Ms S having a baby, but disliked Child H who smacked and pulled her.
•Dr K recommended the existing arrangements continue, the mother receive treatment for her mental health and Child A attend counselling. She recommended the father personally attend handovers as much as practicable, given the mother’s evidence that Child A was less anxious when he was present.
[28] At paragraphs 128 and 135.
130 Dr K prepared an updated report [in] October 2020. She re‑interviewed each parent, Ms S and Child A, together with the maternal grandmother. She viewed updated subpoena material. The salient aspects of that report are set out below:
•The mother reported her mental health was “the best it has ever been” and confirmed her ongoing prescription medication for Lexapro and continued engagement with Mr C. She reported she had not seen her psychiatrist for a long time, but that he worked closely with her psychologist. Dr K noted the subpoenaed material recorded the mother reporting to her GP that she was struggling to sleep, was upset and teary in March 2020, and unable to cope with her levels of stress and anxiety.
•The father reported Child A was distant and aggressive initially after returning into his care. By that time, Child A had ceased her play therapy. He voiced concerns that Child A’s time with the mother was not being supervised. The mother reported Child A had regressed in some of her behaviours. Ms S reported Child A returned with bruises and a burn on one occasion, that she was guarded with information about what she did with her mother, and Child A had referred to “secret mummy and [Child A] time”.
•Dr K found both parents had not kept one another informed about Child A’s medical appointments. The father raised concerns that the mother lacked structure and routine her home. The mother reported the father would not support Child A’s relationship with her and her family.
•Child A said she enjoyed her time with each parent. She described Ms S as “a bit wicked” and said “I don’t like [Ms S]…I feel happy going to mummy’s house, mummy is more better with me, mummy is the best mummy”. Child A said Ms S tells her what to do, did not allow her to sleep with her father, and sometimes smacked her, as did the father. Ms S denied smacking Child A and reported that Child A clings to her, wants to stay longer and says she does not want to return to her mother’s home.
•Dr K considered Child A did not have a close relationship with Ms S, who was Child A’s main carer, when the father was at work. She considered Child A felt safe with her mother. She recommended Child A live with her mother, spend alternate weekends and half the school holidays with her father and Child A resume counselling.
131 At trial, Dr K was provided with the consent minutes, the exhibits, and was present in court for the evidence of Dr J. By agreement, the ICL provided Dr K with a summary of some of the evidence, which had emerged during the trial. She was then cross-examined at some length, by each of the parties and the ICL.
132 In view of the updating evidence, Dr K held concerns about the mother’s mental health and substance use. She said the evidence undermined the stability of the mother’s mental health, and likely indicated that the mother’s PTSD was not in remission, or alternatively, the symptoms were being masked by her use of medication. She recommended the mother receive treatment to address her drug dependency, by a specialist drug rehabilitation service.
133 Dr K deposed that constant changes in Child A’s living arrangements was likely to have adverse impact on her emotional and psychological well-being. If Child A lived with one parent and later moved to the care of the other parent, that transition would be significantly more difficult for Child A in the future, when she was likely to have formed attachments, settled into one parent’s care, be attending school and had formed friendships with peers.
134 Dr K agreed the mother needed to live with her parents, receive further treatment for her mental health, and take steps to address her drug dependency, to ensure her capacity to parent Child A safely. She confirmed the maternal grandmother was an important support to the mother and was essential, to assist her to care for Child A.
135 Dr K accepted Child A was not at risk in the father’s care. She had no criticisms of Ms S’s capacity to care for Child A, apart from what she viewed as Ms S parenting in a different manner to the mother. From her observations, Child A had a close, loving and bonded relationship with each of her parents.
136 Dr K maintained her recommendation that Child A live with the mother. There are many aspects of Dr K’s evidence which I have accepted. I take a different view to Dr K in some important respects, to which I will refer to later. I am mindful that the Single Expert Witness did not have the benefit I did, of hearing all of the evidence and seeing each of the parties under cross-examination.
137 I am reinforced in my approach, having regard to the recent comments of the Full Court in Albert & Plowman [2020] FamCAFC 23 :
[19]Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.
[20]Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.
[21]As was observed in this jurisdiction long ago (see Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819):
... There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities…
…
While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]… (References omitted).
[22]Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn[2008] FamCAFC 128; (2008) FLC 93-377 at [226]- [227]; Friscioni & Friscioni[2010] FamCAFC 108 at [96]- [97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]- [44]; Whipp & Richards [2012] FamCAFC 11; (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U [2002] HCA 36; (2002) 211 CLR 238 at 261).
Current arrangements and each parent’s proposals
138 Child A currently lives with each parent on an alternating weekly basis. Handovers generally occur between Ms S, and the maternal grandfather, accompanied by the mother. The father has not regularly attended handovers, due to his work commitments. At times, the paternal grandmother has also been involved.
139 The maternal grandfather described the handovers as cordial. Child A lately has become increasingly teary at handovers. The maternal grandfather and the mother each describe handovers as better for Child A, when the father attends.
140 The mother has become emotional at handovers. She has cried and says she tries to make sure Child A does not see her upset. The maternal grandfather has recently experienced poor health, which is under ongoing investigation. He was hospitalised for a week and is awaiting further results. He experiences hip pain, which causes difficulty driving.
141 In the mother’s home, Child A is effectively an only child and enjoys the undivided attention of her mother and maternal grandparents. She also enjoys time with her extended maternal family, including her cousins.
142 In the father’s home, Child A lives with Ms S, Ms T and her partner, Child H and Child G, with a new baby on the way. She spends time with her extended paternal family, including each of her grandparents. Ms T and her partner hope to obtain their own accommodation shortly. It is unclear when that may occur.
143 The mother proposes to continue to live with her parents and to combine work and study, with the care of Child A. She intends to enrol Child A into the local primary school. The mother intends to return to university to complete her qualifications, when Child A is settled at school.
144 The mother has been employed with [Community Service A], since 2019, on a permanent part-time basis.[29] The maternal grandmother works for the same employer. The mother receives a fortnightly roster. The mother deposed that her employment was stable, and she was successfully combining work with her studies.
[29] Exhibit 11, the mother’s employment agreement signed by the mother, [in] 2019.
145 The mother’s performance appraisal in December 2020, identified concerns about the mother’s lack of reliability, including her frequent absences on short notice, the mother taking 72 hours of leave without pay (over her leave entitlements) and the mother having missed most of the arranged training.[30] The mother had not progressed her studies […], which resulted her studies being placed on hold.
[30] Exhibit 14, correspondence from [the mother’s employer] to the mother [in] January 2021.
146 The mother says her employer will allow her to work school hours only. The evidence suggests the mother has struggled to manage her work and study commitments, together with the care of Child A each alternate week. I accept the mother has also had to manage the present proceedings, which have no doubt added to the demands on her time, and contributed to her stress and anxiety.
147 The father proposes to continue to live in his rental accommodation with his family. He works on a full-time basis as a [Driver] and has done so since [mid-2019]. He receives a roster on weekly basis.[31] He generally starts work between 6 and 7am, and finishes around 3pm. On occasions he is required to work on Saturday morning. Ms S will be primarily responsible for transporting Child A to school, unless the father finishes work in time. It is proposed Child A attends the same school as Child H.
[31] Exhibit 24, the father’s work roster and correspondence.
148 Ms S works [in hospitality] on a casual basis.[32] She generally works three days each week, between 9am and 12pm, but can be required to work until 2pm. On Thursdays, Ms S takes Child A with her to work.
Child A
[32] Exhibit 29. The email from [Ms S’s employer] [in] January 2021.
149 Child A will be five years old [later in] 2021. Child A suffers from asthma and eczema and requires a preventer and Ventolin. Dr K described Child A as a confident little girl, who is meeting her developmental milestones.
150 Both parents describe Child A as an adventurous, boisterous little girl, with boundless energy. She is creative, active and imaginative. She is a kind, caring child, who adores both of her parents, as well as her extended families. The mother and father each said Child A has a lovely kind heart, and a beautiful soul. She is clearly a delightful little girl, who is much loved by her parents.
151 At the time of Dr K’s first report, she observed Child A became angry and frustrated easily, but described her defiant behaviour as consistent with her age and level of maturity. Dr K considered Child A may benefit seeing a child psychologist when she was five years old, to learn how to manage strong emotions and improve her emotional regulation.
THE LAW
152 In determining what parenting orders are to be made, the child’s best interests are the paramount, but not the only, consideration.[33] The Court is not required to make findings of fact on every factual dispute raised by the parties.[34] The paramount issue is for the Court to determine what order is in the best interests of Child A, in the circumstances of this case. In that process, the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on every factual dispute.[35]
[33] AMS v AIF (1999) FLC 92-852 at 277 [193].
[34] Baghti & Baghti and Ors [2015] FamCAFC 71 at [63].
[35] M v M (1988) 166 CLR 69 at [76].
153 The making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case. It involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the children.[36]
[36] Bondelmonte v Bondelmonte (2016) 259 CLR 662.
154 The parents were not married and accordingly, the proceedings are determined pursuant to the Family Court Act 1997 (WA). Part 5 sets out the objects, principles and matters which must be considered when determining what parenting order is proper. The Court is not bound by the proposals of the parties, subject to the requirements of procedural fairness and the parties being given notice of the possibility of an order being made, unless the making of such an order is obviously open on the known material.[37]
[37] Stott & Holgar [2017] FamCAFC 152 at [26].
155 Section 70A provides a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent or other relevant adult has engaged in abuse of the child, or family violence. Even if the statutory presumption applies, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for their parents to have equal shared parental responsibility.
156 If an order for equal shared parental responsibility is to be made, the Court is required to consider whether the child spending equal time with each parent is in their best interests, and whether such an arrangement would be reasonably practicable. If so, the Court is required to consider making such an order.
157 Against the background of an order for equal shared parental responsibility being made, if the Court does not make an order for the child to spend equal time with each parent, the Court is required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in their best interests and reasonably practicable. If so, the Court is required to consider making such an order.
158 In determining whether it is reasonably practicable for the child to spend equal time, or substantial and significant time, with each parent, s 89AA(5) of the Act requires the Court to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
159 In determining what parenting orders will be in the best interests of the child, the Court is required to consider the matters set out in s 66C of the Act. Although I may not specifically discuss in these Reasons each subparagraph of each relevant section, I have considered all of the sections as required, when making my determination.[38]
Is Child A at risk of harm, neglect or family violence?
[38] Banks & Banks (2015) FLC 93-637.
160 The parties’ relationship was characterised by acts of family violence, perpetrated by each parent against the other. Their relationship was toxic. The parents struggled to effectively resolve conflict. The mother admits her threats of suicide were emotionally abusive and designed to control the father’s behaviour.
161 The evidence from the Department, the police, the parties and the Consultant, supports a finding that the parties frequently argued, which included shouting and behaving in a verbally abusive manner, and often escalated into physical aggression. Child A was exposed to family violence during the parents’ relationship, which reflects poorly on each of them.
162 Having made those findings, I am not satisfied that Child A is at risk of ongoing family violence, subject to the mother’s mental health being stable and well managed. Since the end of the relationship, apart from the concert, there have not been incidents, or any police involvement with the parties. The father is in a stable and loving relationship. The mother has had some short relationships but is currently single. There is no suggestion that any of those relationships have involved violence. When the mother experiences poor mental health, she struggles to regulate her emotions and behaviour, which has resulted in her acting in an abusive manner.
163 I am not satisfied that Child A is at risk of harm in the father’s care. The incident in which Child A went missing in his care, put her at risk. The father’s actions after the incident were protective and appropriate. Since that time, there have been no reports to suggest that Child A is at risk of harm, or neglect or abuse in the father’s care.
164 Dr K had no concerns for Child A’s safety in the father’s care. There is no evidence to suggest that he is using illicit substances or that his health is not properly managed, despite the mother’s suggestions to the contrary. The father denies smacking Child A, however he has agreed to an injunction restraining Child A from being physically disciplined. While the mother has made a number of allegations against the father, she does not suggest Child A is risk when she proposes Child A will spend substantial and significant time in his care.
165 Having reflected on the evidence, I am satisfied that Child A is at risk of harm and neglect in the care of the mother, for the following reasons:
199 Having had the benefit of time to reflect and consider all of the evidence carefully, in the context of the primary and additional considerations, I have concluded that it is in Child A’s best interests to live with the father, for the following reasons:
•In Child A’s short life, she has experienced significant disruptions in her living arrangements. The evidence is that Child A is currently doing well. She has a close and loving relationship with her father, with whom she shares a secure attachment. Child A is not at risk of harm in his care. I am satisfied the father is able to meet the needs of Child A, with the support of his partner. He has demonstrated his capacity to do so.
•The father and Ms S are in a supportive and loving relationship. They have managed to combine blended families, they have sought out counselling and have done their best, to meet the various demands of all the children in their care, including Child A. They have provided Child A with a safe and stable home environment.
•It is preferable to put in place arrangements which provide Child A with certainty and security. Future changes in Child A’s living arrangements risk causing Child A distress, anxiety and potential trauma. That cannot be in her best interests. Child A will have the benefit of stability in the father’s care.
•I am satisfied the father will support and promote the mother’s relationship with Child A. I am confident, having heard his evidence and in light of his conduct, that he is genuinely remorseful for his behaviour in withholding Child A after the recovery order was issued. He explained his behaviour, apologised for his actions and he has since complied with orders of the Court. In addition, he has agreed to vary arrangements on occasions, to facilitate Child A spending additional time with her mother or to participate in activities in her care.
•I accept Child A will miss her mother. I consider that Child A will manage the transition, given her relationship with her father. I am satisfied that the father will proactively support Child A with any adjustment, supported by his proposals to re-engage Child A with professional counselling.
•Child A will be able to maintain the close and loving relationship she has with the mother, through the proposed orders. Child A will continue to spend regular and frequent time with the mother, on alternate weekends and during school holidays. That time will facilitate Child A’s relationship with her extended maternal family and the opportunity to maintain her connection with her mother’s heritage.
200 I am satisfied that it is in Child A’s best interests to engage in counselling, as recommended by Dr K. Counselling will offer Child A professional assistance, to support her transition to reside primarily in her father’s care. The father proposes that both parents be involved, subject to the recommendations of the therapist. That is appropriate and in Child A’s best interests. Subject to hearing from the parties, I have set out proposed orders in this regard.
201 I am satisfied that the balance of the orders proposed by the ICL are appropriate. While I accept the mother says she wants the option to attend on another psychiatrist, if she cannot see Dr B, there is no evidence available to suggest that she cannot do so. I consider it is important that the mother’s psychiatrist and psychologist work together, in the best interests of managing the mother’s health. Given Mr C’s evidence, I consider it appropriate to require the mother to attend on Dr B, if practicable.
PROPOSED ORDERS
202 Subject to hearing from the parties as to the form of the orders, I propose to make orders as follows:
1.By consent, all previous Orders be discharged.
2.By consent, the parties have equal shared parental responsibility for [Child A] born [in] 2016 (“[Child A]”).
3.By consent, before the parties make a decision in relation to long term issues concerning [Child A], they will:
a.notify the other parent of the issue which requires a decision by email or through Our Family Wizard, with their proposal, including the reason for the proposal, and providing as much notice as possible;
b.seek the other party’s comments to be received by email within 7 days; and
c.take into account any comments the other party makes about the issue.
4.Child [A live] with the Father.
5.The time [Child A] is to spend with the Mother, is to be supported by the maternal grandparents, [Mr E] and [Ms D] (“the Maternal Grandparents”), with such support to ensure that one of the Maternal Grandparents is always present when [Child A] is in the mother’s care overnight pursuant these Orders.
6.For the purpose of the preceding paragraph, the Mother is to reside at all times with the Maternal Grandparents when [Child A] is in her care pursuant to these Orders.
7.[Child A] spend time with the Mother:
a.during school terms, with such times to be suspended during school holidays and commence in week 1 of each new school term, each alternate weekend from the conclusion of school on Friday (or the conclusion of school on Thursday if Friday is a non-school day), until 4pm on Sunday (extending to 4pm on Monday, if Monday is a public holiday);
b.during school holidays in terms 1, 2 and 3 of the school holidays from the conclusion of school on the last day of term (noting it may be a Thursday) to the middle Sunday at 4pm; and
c.at other times as agreed between the parties in writing.
8.By consent, for the purposes of the following special days, the times that [Child A] spends with the Mother be suspended, and [Child A] spend time with the Father as follows:
a.by consent, for the purposes of the end of Term 4 school holidays, defined as being the last day of school at the end of Term 4, until 4pm on 29 January, including Christmas:
i.in 2021, and each alternate year thereafter:
1.from 4pm on 23 December, until 4pm on 26 December;
2.from 4pm on 2 January, until 4pm on 23 January;
ii.in 2022, and each alternate year thereafter:
1.from the conclusion of school at the end of Term 4, until 4pm on 23 December;
2.from 4pm on 26 December, until 4pm on 2 January;
3.from 4pm on 16 January, until 4pm on 29 January; and
b.by consent, for the purposes of Easter in 2022, and in each alternate year thereafter, from the conclusion of school (or 3pm if not a school day) on Holy Thursday, until 4pm on Easter Monday;
c.by consent, for the purposes of Christmas in 2021, and in each alternate year thereafter, from 4pm on 23 December, until 4pm on 26 December; and
d.by consent, for the purposes of Father’s Day in each year, from 4pm on the Friday prior to Father’s Day, until 4pm on Father’s Day.
9.By consent, for the following days and times, the times that [Child A] spends with the Father be suspended, and [Child A] spend time with the Mother as follows:
a.by consent, for the purposes of Easter in 2021, and in each alternate year thereafter, from the conclusion of school (or 3pm if not a school day) on Holy Thursday, until 4pm on Easter Monday;
b.by consent, for the purposes of the end of Term 4 school holidays, defined as being the last day of school at the end of Term 4, until 4pm on 29 January, including Christmas, as follows:
i.in 2021, and each alternate year thereafter:
1.from the conclusion of school at the end of Term 4, until 4pm on 23 December;
2.from 4pm on 26 December, until 4pm on 2 January; and
3.from 4pm on 23 January, until 4pm on 29 January; and
ii.in 2022, and each alternate year thereafter:
1.from 4pm on 23 December until 26 December; and
2.from 4pm on 2 January, until 4pm on 16 January.
c.by consent, for the purposes of Mother’s Day in each year, from 4pm on the Friday prior to Mother’s Day, until 4pm on Mother’s Day.
Handover
10.By consent, for the purposes of handover, where handovers do not occur at [Child A’s] school, the Mother will collect [Child A] from a local McDonald’s / Hungry Jacks nominated by the Father at the commencement of time, and the Father will collect [Child A] from a local McDonald’s or Hungry Jacks nominated by the Mother at the conclusion of their time.
11.By consent, both parties be individually permitted to attend handover, with preference being given to the parties personally attending handover.
12.By consent, in the event the parties are unable to personally facilitate handover, they be permitted to send a member of their respective family to facilitate handover.
Communication
13.By consent, the parties agree to communicate in a child-focused manner and be respectful with one another in their communication.
14.By consent, the parties keep each other informed of their contact email address, telephone numbers, and residential address, and any changes thereto, within 24 hours of such change.
15.By consent, the Parties communicate with one another via Our Family Wizard and email, with the costs of Our Family Wizard to be shared equally.
16.By consent, the Mother be at liberty to have telephone, Skype or FaceTime communication with [Child A], each Tuesday and Thursday evening when [Child A] is not otherwise in her care, with the Father to initiate the calls to the Mother’s mobile phone number between 6.30pm and 7.00pm.
17.By consent, the Father be at liberty to have telephone, Skype or FaceTime communication with [Child A], each Wednesday and Saturday evening when [Child A] is not otherwise in his care, with the Mother to initiate the calls to the Father’s mobile phone number between 6.30pm and 7.00pm.
18.By consent, both parties will afford [Child A] privacy during the telephone calls.
19.By consent, upon [Child A] turning 12 years of age, [Child A] have liberal telephone communication with both parents, in accordance with her wishes, and the previous Orders in so far as they relate to telephone communication be discharged.
Medical Information
20.The Father should do all things necessary to enrol [Child A] in counselling, to support [Child A] in the change in her care arrangements.
21.The Father should provide to the counsellor with a copy of these Orders, and copies of the Single Expert Witness reports prepared in these proceedings, along with the Reasons.
22.The Father should authorise the counsellor to provide all information to the Mother as to [Child A’s] attendance at counselling including the dates attended, progress and any recommendations made by the counsellor.
23.By consent, each party shall provide the other party with notice of any significant medical issues concerning [Child A] including details of any treating practitioner and if requested to do so by the other party, shall authorise any treating practitioner to discuss [Child A’s] medical issues with that party.
24.By consent, before facilitating [Child A] attending upon her treating general practitioner in relation to any concern or injury which may have occurred in the other parent’s home, the parents will, in a child-focused manner, through Our Family Wizard, provide details of the injury and seek an explanation for same.
25.By consent, within 12 hours of receipt of such request for information pursuant to the previous paragraph, the other parent will provide an explanation (if any) of the injury.
26.By consent, on a without admission as to needs basis, both parties be restrained, and an injunction be granted restraining them from photographing injuries on [Child A], save and except in the presence of her treating general practitioner, and after seeking an explanation from the other parent.
27.By consent, in the event [Child A] is prescribed any medication or other medical treatment, the parties are to ensure such medication is provided to the other party with [Child A] at handover, and the parties are to ensure Child A’s medication and treatment is strictly adhered to during their time with the child.
28.By consent, both parties confer with one another before organising any vaccination for [Child A], and in the absence of any agreement, the Father arrange for [Child A] to be vaccinated and provide confirmation of the vaccination to the Mother.
Medical - Mother
29.By consent, the Mother be restrained, and an injunction be granted restraining her from consuming medication that is not otherwise prescribed to her by her general practitioner, or psychiatrist, save and except medications that can be obtained from a pharmacy, without a prescription.
30.By consent, the Mother be restrained and an injunction granted restraining her from consuming medication above what is otherwise prescribed to her in the dosage by her general practitioner, psychiatrist, or beyond the recommended dose for medications which can be obtained from a pharmacy.
31.By consent, save and except in a life‑threatening medical emergency situation, the Mother be restrained, and an injunction be granted restraining her from:
a.attending upon any general practitioner, other than a general practitioner at [Medical Practice A];
b.filling any script issued to her, at any pharmacy, save and except [Pharmacy A].
32.By consent, the Mother is to forthwith inform, and keep informed the Maternal Grandparents, her treating psychologist, and her treating psychiatrist, of all medications which she is currently prescribed, including dosage and recommended usage.
33.By consent, the Father be at liberty to request confirmation of the Mother’s prescribed medications at any time, including the dosage and recommended usage, and the Mother is to provide confirmation of same within 4 days, including provision of the script.
34.By consent, the Mother continue to attend upon and follow all recommendations of her treating psychologist [Mr C] of [Hospital B].
35.By consent, the Mother forthwith provide to [Mr C] with (and provide written confirmation of their provision to [Mr C] to the Father):
a.a copy of these Orders and Reasons;
b.a copy of the Affidavit of [Dr J] filed 17 February 2021, as corrected in her evidence in chief;
c.a copy of the email exchange with [Dr J] dated 25 February 2021 (being exhibit 28 in these proceedings).
36.Forthwith, the mother attend upon a psychiatrist, and preferably [Dr B], if practicable and thereafter follow all recommendations of her treating psychiatrist, including taking all medications as prescribed by the psychiatrist.
37.The mother forthwith provide to [Dr B] with (and provide written confirmation of their provision to [Dr B] to the Father):
a.a copy of these Orders and Reasons;
b.a copy of the Affidavit of [Dr J] filed 17 February 2021 as corrected in her evidence in chief; and
c.a copy of the email exchange with [Dr J] dated 25 February 2021 (being exhibit 28 in these proceedings).
38.The Mother is to authorise her general practitioner, [Dr B] and [Dr C] that they are able to confer with one another in relation to her treatment, including, but not limited to, proposed treatment and medication regimes.
39.By consent, the Mother is to forthwith inform (or arrange for the maternal grandparents to inform) the Father of any hospital admission, including but not limited to the reasons for such admission, the arrangements for [Child A’s] care in the mother’s absence, and provide a copy of the Discharge Summary (when available).
40.In November 2021, the Mother is to provide the Father, her treating psychologist and treating psychiatrist, at her expense with:
a.a Hair Strand Test (which has been undertaken by [Drug Testing Facility A]), on or as close to 1 November 2021, for a period of not less than 9 months, which includes testing for benzodiazepines and the standard 7 panel drug test;
b.a patient history for [Pharmacy A] from the date of these Orders to 1 November 2021;
c.a PBS Patient Summary from the date of these Orders to 1 November 2021.
41.The Mother is restrained, and an injunction granted restraining her from cutting her hair on her head any shorter than 10cm, to allow 10cm of hair growth for hair strand analysis.
42.In December 2021, the Mother is to provide to the Father with;
a.a report from her treating psychologist, [Dr C], detailing her progress at counselling, and specifically, the dates attended, the treatment provided, and recommendations as to further treatment; and
b.a report from her treating psychiatrist, detailing her progress at her appointments, medications currently prescribed, and specifically, the dates attended, the treatment provided, any diagnosis, and recommendations as to further treatment.
c.a report from a qualified toxicologist, and with preference given to [Dr J], with such report to cover the same terms as set out in the correspondence from Baily Family Law dated 12 February 2021, and for the toxicologist, to be provided with;
i.the results of the Hair Strand Test (which has been undertaken by [Drug Testing Facility A]), on or as close to 1 November 2021, for a period of not less than 9 months, which includes testing for benzodiazepines and the standard 7 panel drug test;
ii.a patient history for [Pharmacy A] from the date of these Orders to 1 November 2021;
iii.a PBS Patient Summary from the date of these Orders to 1 November 2021; and
iv.written confirmation by the Mother of all medications consumed, during the period from the date of these Orders until 1 November 2021.
Education
43.Both parties will do all things necessary to enrol [Child A] at the school of the Father’s choosing.
44.By consent, both parties will ensure that both parents are listed on any application of enrolment for [Child A].
45.By consent, both parties will authorise and keep authorised any educational institution attended by [Child A] to provide the other party with any and all information about [Child A’s] attendance and progress.
46.By consent, both parties will do all acts and sign all documents necessary to ensure that any educational institution attended by [Child A] is advised of both parents’ contact information for use in the case of an emergency.
47.By consent, both parties shall authorise the school to provide both parties with all significant school or extra-curricular events to which parents are ordinarily invited including but not limited to assemblies, sports days, parent/teacher evenings and class learning.
48.By consent, both parties, and their extended families be at liberty to attend at [Child A’s] school for the purpose of any function, or normal activity attended by parents.
49.By consent, both parties be permitted to attend any extra-curricular activity that [Child A] participates in.
50.By consent, the parties will use their best endeavours to ensure that [Ms A] does not attend, or interact, or be put in a position in which she could frustrate one or both of the parents from attending or participating any extra-curricular activity that [Child A] participates in.
51.By consent, in the event the parties become aware that [Ms A] will be attending any activity or school event that [Child A] is otherwise participating in, they will provide the other party with at least 28 days written notice of her proposed attendance and their understanding as to her need for such attendance.
52.By consent, the parties be permitted to liaise directly with [Child A’s] teachers to obtain any information concerning her progress.
53.By consent, both parties have liberty to provide a copy of these Orders to [Child A’s] school.
Travel
54.By consent, the parties be at liberty to travel with [Child A] for holidays and other short period of time, outside the State of Western Australia, subject to the travelling parties’ compliance with the following:
a.the occasions on which a party travels with [Child A] must:
i.coincide with their time with [Child A] pursuant to these Orders, unless otherwise agreed in writing;
ii.not involve [Child A] having more than two absences from school in any calendar year, unless otherwise agreed in writing.
b.the travelling party must give the non-travelling party as much notice as possible of their intention to travel with [Child A], and must provide:
i.no less than 2 weeks if travelling interstate; and
ii.no less than 8 weeks if travelling overseas.
c.at the time of providing notice, the travelling party must provide the non-travelling parties with a complete itinerary of the proposed travel, in writing, which includes the following information:
i.departure and return destinations and dates;
ii.flight numbers for all flights;
iii.localities, including address and telephone contact information, where [Child A] will be travelling to;
iv.contact telephone numbers for Child A and the travelling party at each location on the trip to otherwise facilitate telephone communication in accordance with these Orders;
v.travel insurance, for international travel, which includes full medical repatriation to Australia in the event of an emergency; and
vi.any update to the non-travelling party if at any time following provision of notice, or during the trip, dates, locations and contact details included in the itinerary provided, change.
55.By consent, within 14 days of a request made by either party, the parties do all acts and sign all documents necessary to apply for an Australian passport for [Child A], and thereafter, the parties are to do all things to ensure [Child A’s] passport has at least 6 months validity on the passport.
56.By consent, the costs of the passport shall be met by the requesting party, and thereafter, renewals shall be met equally.
57.By consent, once obtained, the passport shall be retained by the parties on an alternating basis, with the passport to be handed over to the other parent, on, or within 5 days of [Child A’s] birthday each year, commencing with the Father.
58.By consent, the non-travelling party (if in their possession) must provide to the travelling party [Child A’s] passport no later than 28 days prior to any proposed travel.
59.By consent, the travelling party must also return [Child A’s] passport to the other parent, if they are not to hold the passport pursuant to these Orders, within 5 days of return to Australia.
60.By consent, once the passport is obtained, the party which holds [Child A’s] passport will provide a colour photocopy of the passport to the other party, and retain a copy for themselves for the years in which they do not retain the passport.
Injunctions
61.By consent, on a without admission as to needs basis, both parents shall be restrained by injunction and an injunction granted restraining them from:
a.speaking to [Child A] or, to any other person in [Child A’s] hearing, in derogatory, offensive or insulting terms about the other parent or the other parent’s partner (if any), family or friends;
b.physically disciplining [Child A], or allowing any other person or partner to physically discipline the child;
c.directly or indirectly undermining the other parent or the other parent’s partner (if any), family or friends;
d.allowing [Child A] to be exposed to anyone under the influence of any illicit substance or drinking alcohol to excess;
e.consuming any form of illicit substance, or consuming alcohol to excess, 24 hours prior to, or during any time [Child A] is in their care;
f.discussing these proceedings with [Child A] or with any other person in her presence.
62.By consent, the Father be restrained and an injunction granted restraining him from cutting, or causing to be cut, [Child A’s] hair.
General
63.By consent, the Father use his best endeavours to encourage [Ms S] to enrol, participate and complete [Parenting Course A], and provide evidence of completion to the Mother.
64.By consent, the Father be at liberty to provide a copy of these Orders to [Ms S].
65.By consent, the Mother be at liberty to provide a copy of these Orders to the Maternal Grandparents.
66.By consent, this is an order to which section 175 of the Family Court Act 1997 (WA) applies and to the extent that this order is inconsistent with the Conduct Agreement Order made in the case between the parties […] the aforesaid parenting order shall prevail and the Family Violence Restraining Order is valid to the extent of the inconsistency.
67.The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of this order to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of the Department of Communities.
68.Subject to the institution of an appeal by any party or the Independent Children’s Lawyer, the Independent Children's Lawyer be discharged.
69.All documents produced by named persons pursuant to a subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
70.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
71.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 69 and 70 above do not apply.
72.The Application and Response be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
5 MARCH 2021
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