Biggins and Brown

FAMILY COURT OF AUSTRALIA

BIGGINS & BROWN

[2011] FamCA 1027

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child – Allegations of unacceptable risk – Mother lives in Queensland, father lives in Victoria – Orders made for child to live with his father.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Biggins

RESPONDENT:

Mr Brown

INDEPENDENT CHILDREN’S LAWYER:

Caroline Smith

FILE NUMBER:

MLC

5258

2008

DATE DELIVERED:

6 October 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

17 May 2011, 12-16 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cash

SOLICITOR FOR THE APPLICANT:

Cash & Stavroulakis Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Curtain

SOLICITOR FOR THE RESPONDENT:

Kordell Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED

That all previous parenting orders in relation to the child J Brown born … August 2002 (“the child”) be discharged.
That the father and Mother have equal shared parental responsibility for the child.
That the child shall live with the Father.
That the Father shall engage in therapeutic counselling forthwith for such time as the counsellor deems appropriate and a copy of the Family Report of 31 July 2011 prepared by Ms S and a copy of my Reasons of 6 October 2011 shall be provided to the counsellor.
That the Mother shall spend time and communicate with the child as follows;
(a)For half of the term one and three Victorian gazetted school holidays, as agreed between the parties in writing and failing agreement from the first Saturday of the school holidays until the “middle” Sunday;
(b)For all the second term Victorian gazetted school holidays commencing in 2012, as agreed between the parties in writing and failing agreement from the first Saturday of the said school holidays until the last Saturday/Sunday;
(c)From 11 January 2012 to 31 January 2012;
(d)For one half of the long summer Victorian gazetted school holidays in each year commencing in December 2012, as agreed by the parties in writing with the Mother to provide the Father notice in writing of her proposed dates by no later than 31 October and the father to reply in writing to the Mother no later than 14 November with the parties to endeavour to reach agreement by 30 November. In default of agreement the child spend time with the Mother in the first half of the summer vacation commencing December 2012 and each alternate year thereafter, and in the second half in all other years;
(e)By telephone or Skype or like electronic communication on each Tuesday, Thursday and Sunday at 7pm Victorian time;
(f)The child may communicate with the Mother at all reasonable times in accordance with his wishes and the Father shall facilitate such communication; and
(g)As otherwise agreed in writing between the parents.
The Father shall arrange and pay for the child to attend upon a paediatrician in Victoria without delay to obtain a full assessment and report of the child’s academic and behavioural progress and such report shall be provided to the Mother. The Father is authorised to provide a copy of the Family Report of Ms S dated 31 July 2011 to the said paediatrician.
The Father shall authorise the release of and the Mother shall be at liberty to obtain any of the usual information from the child’s school including photos, school reports, and notifications of any information in relation to the welfare of the child.
That for the purpose of changeovers, until the child attains the age of 14 years, the father shall accompany him on the flights from Melbourne to Brisbane and Brisbane to Melbourne and shall deliver him to and collect him from flights to or from Mackay, and the child is to travel unaccompanied on each flight from Brisbane to Mackay and Mackay to Brisbane with the mother collecting the child from and delivering the child back to Mackay airport.
That the mother shall book the child’s flights first and provide the father with an itinerary of travel no less than 21 days prior to any travel and the father shall provide to the mother an itinerary of travel no less than 14 days prior to any travel and he shall ensure that the flights are aligned.
That the father and the mother shall share the cost of the airfares with the mother being responsible for the fares each way between Brisbane and Mackay and the father being responsible for all fares for both himself and the child to and from Brisbane and Melbourne.
That the father and the mother and/or their nominee shall be restrained as follows:
(a)From denigrating the other party or any of their family to, or within the hearing of the child;
(b)From discussing these proceedings with the child or within the hearing of the child; and
(c)From administering physical parental discipline to the child and from using illicit substance or drinking alcohol to excess whilst they have the child in their care.
That each parent shall use their best endeavours to support and encourage the child’s relationship with the other and any extended family member.
That the mother shall have 28 days from the date the Independent Children’s Lawyer (ICL) mails the letter referred to in the next paragraph of these orders to apply in writing to the court in relation to the details of the orders about her time with and travel arrangements for the child.
That as soon as practicable the ICL shall send a sealed copy of these orders to the mother:
(a)At her residential address at C, Queensland; and
(b)Through her solicitor
with a covering letter explaining that she has 28 days from the date the letter was posted to her to apply to the court if she wants to change any of the details of the orders about her time with and travel arrangements for the child.
That all applications shall be otherwise dismissed.
That the appointment of the Independent Children's Lawyer is hereby discharged after 28 days.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5258 of 2008

Ms Biggins

Applicant

And

Mr Brown

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The child, J, is just nine. He presently lives with his mother in a beachside town in far northern Queensland. In the last 18 months he has spent limited time with his father, who lives in Central Victoria.
From January 2010 to March 2011 he did not see his father at all, while a police investigation was conducted, following the mother’s account of the child's disclosures of sexual abuse by his father. Ultimately, no police action was taken against the father, and since March 2011 he has seen the child in Queensland on four different occasions, each time for several days. In accordance with interim orders, one of the father’s siblings was in attendance with him.
It is a difficult case. The mother has consistently made very serious allegations about the unacceptable risk to the child in his father’s care. Her allegations have included that the father was physically violent to her in the course of their relationship, that he was physically violent and sexually abusive to the child, and that the child was also at risk of experiencing or seeing violence in the care of the father and his immediate and extended family.
Overall, until the final part of the hearing, the mother consistently described the child as extremely fearful of a violent and out-of-control father. After that, her version “chopped and changed”.
Her case was opened on the basis that she then agreed that the child should spend substantial holiday time with his father on an unsupervised basis. She was no longer pursuing the allegations that he faced an unacceptable risk in his father’s care. Otherwise, she maintained that the child should continue to live with her and she should have sole responsibility for decision-making as she and the father could not communicate at all.
When being cross-examined about her obviously late change of heart, the mother conceded that despite what she had said to the contrary in her evidence that far, she did in fact still harbour serious concerns about the father, and she had only said that he could spend substantial time with the child so that she would not risk the court removing him from her.
Nevertheless, shortly after that, she signed consent orders for the child to not only see his father, but to move to live with him, spending only holiday time with her. Very soon again after that, she said she did not in fact agree to those orders. She said she had felt pressured into them by her lawyer, and she reverted to the position that the child should live with her, but spend holidays with his father. She did then agree, and has continued to agree, that the parents should retain joint responsibility for decision-making.
The father seeks orders that the child live with him and spend holiday time with his mother, and that both of them share decision-making for him. The Independent Children’s Lawyer (ICL) supported that view from the start to the end of the case. Counsel for the ICL submitted that the child should move to live with his father, as his mother simply cannot facilitate the child’s relationship with him, and because the father and his partner, their two little children, and the extended paternal clan can offer the child a rounded, secure, healthy lifestyle, unlike the mother, who is socially and emotionally isolated.

BACKGROUND

The father, Mr Brown, is a 33-year-old agricultural worker. He and his partner, Ms D, have two little girls aged 3 years, and 15 months’ old.
The mother, Ms Biggins, is aged 39. She receives a disability pension, suffering back pain from a car accident in 1999.
The parents married in 2000. The child was born in August 2002.
The parents separated in May 2004. The mother moved to Western Australia with the child. She was there for about two years. The father spent various times with the child there or in Central Victoria, until he moved himself to Western Australia in May 2005, to be close to the child.
In early 2006 the mother took the child with her to the mid-north coast of New South Wales, where she went to look after her mother who was suffering a terminal illness. About eight months later the mother moved with the child to Far North Queensland. The father said that he was then having difficulties in being permitted to see the child. He started proceedings in the Family Court of Australia at Brisbane in September 2006.
It seems that in the course of the 2006 proceedings, the mother had also made very serious allegations, including that he had been violent to her in the relationship, that there was violence amongst his family members, that he had a drug and alcohol problem, and that he was violent to the child. Despite that, she consented to orders on 6 December 2006 that the child live with her and spend time with the father by agreement and for a minimum of two weeks every two months, as well as having telephone communication with him.
There was a new round of proceedings started by the mother in November 2008 in relation to property orders. In his response, the father sought some changes to the parenting orders, as he was by then back in Victoria. On 22 May 2009, consent orders were made, providing for the child to spend time with the father during school holidays, and for the father to pay all the costs associated with the child’s travel. A previous prohibition on the child being left in the sole care of his paternal grandmother was then removed, and the parties agreed to be mutually restrained from using any illicit drugs when the child was in their care.
On 17 May 2010 the father started contravention proceedings in the Federal Magistrates’ Court at Melbourne. He alleged the mother’s failure to facilitate telephone contact, and her failure to make the child available to spend time with him in the Easter 2010 holidays.
On 19 July 2010, the matter was transferred to the Family Court of Australia. The next day the mother filed a Notice of Risk of Child Abuse alleging:
·The father had inserted his finger in the child's bottom
·The father had sucked the child's penis
·The father had punched the child in the chest
·The father had struck the child
·The father had struck his two young daughters and his brother in the presence of the child.
Ultimately, the father withdrew his contravention application and pursued a new application in relation to substantive parenting issues.
On 17 March 2011 Mushin J made interim orders by consent for the child to spend unsupervised time with his father during the day in Queensland, and overnight time so long as one of the father’s sisters was in substantial attendance. Since then, the father has spent about eight days with the child in Queensland.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon:
·Her Amended Initiating Application filed 13 May 2011
·Her affidavit filed 7 September 2011
·Her Case Outline filed 9 September 2011.
She had relied on the affidavit of a former boyfriend, now a friend, Mr Y, filed 8 September 2011, but she withdrew the affidavit part-way through the hearing.
The father relied upon:
·His Amended Response filed 10 may 2011
·His affidavit filed 31 August 2011
·His Case Summary filed 9 September 2011
·Affidavit of Ms D sworn and filed 7 September 2011
·Affidavit of the paternal grandmother sworn and filed 26 August 2011
·Affidavit of Mr J Brown sworn 25 August 2011 filed 26 August 2011
·Affidavit of Mr H sworn and filed 26 August 2011
·Affidavit of Ms H sworn 1 September 2011 filed 5 September 2011
·Affidavit of Mr and Ms L sworn and filed 1 September 2011
·Affidavit of Mr M sworn and filed 25 August 2011
·Affidavit of Ms R sworn 29 August 2011 filed 30 August 2011
·Affidavit of WK sworn 24 August 2011 filed 26 August 2011
·Affidavit of Mr U sworn 24 August 2011 filed 26 August 2011
·Affidavit of Ms Z sworn 24 August 2011 filed 26 August 2011
·Affidavit of Dr P sworn 24 August 2011 filed 26 August 2011
·Affidavit of Mr T sworn 5 September 2011 filed 8 September 2011
·Affidavit of Ms G sworn 3 September 2011 filed 8 September 2011
Only the father, his partner Ms D, and the paternal grandmother were required for cross-examination.
The ICL relied upon the Family Report of Ms S filed 26 July 2011, and her Issues Assessment dated 7 March 2011.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child are the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. In this case the parents agree to share the responsibility.
If there is an order for equal shared parental responsibility, the Court is obliged to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)). No-one suggests it in this case. The geography does not permit it.
I must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d)). In this case it will mostly be in school holiday time, again due to the distance.

THE ISSUES

It is convenient to consider the issues under the primary and additional considerations as set out in s 60CC of the Act.
The two primary considerations are set out in s 60CC(2). In this case, they can best be considered together.
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
These considerations overlap. On the one hand the mother claims that the child should have a meaningful relationship with his father. On the other hand she has made serious allegations of the father’s physical abuse towards her, and his subsequent physical and sexual abuse of and in front of the child. She admitted in evidence that she still believes he has acted that way.
Her conduct in maintaining the allegations, dropping the allegations, admitting that in her heart of hearts she still believes the allegations to be true, her signing then of consent orders that would have seen the child living with his father, and her subsequent withdrawal of consent to those orders, leads to the likelihood that her concerns about his conduct are not based in reality, but are nevertheless so strongly held, that she is simply not able to see the importance of the father in the child’s life.

That the child is not at risk with his father is confirmed by all the other evidence which points to him being a loving father, and points to the child feeling secure and enjoying his time with him. I shall return to the detail.
When it comes to the mother’s relationship with the child, although in evidence the father said over and over that he believed the child loved his mother, he was unable otherwise to say much at all that was positive about her. He found it extremely difficult to give her much credit for the upbringing of their young son. The same lack of recognition to the mother was shown by the father’s partner Ms D. Although she was able to express appropriate sentiments indicating an understanding that if the child lived with them she would be helping to care for him but was not in the position of a parent, when asked direct questions about the mother’s positive contributions to the child she “damned her with faint praise”, along the lines that the mother had managed to feed the child, bathe him, and give him somewhere to sleep.
Of the two parents however, the greater concern as to whether there is a genuine appreciation of the need for the other parent in the child’s life lies with the mother. So does the concern when it comes to the potential for psychological harm in her care. That conclusion can conveniently be expanded upon under the additional considerations in s 60CC(3) of the Act. Central to those considerations is the willingness and ability of each parent to facilitate and encourage a close relationship between the child and the other parent. I shall deal with that first.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother’s serious allegations against the father are long-standing. It seems that even before the 2006 final consent orders, she had portrayed him as an aggressive man with an explosive temper. She made various allegations of violent, unpredictable, and uncontrolled behaviour on his part, of family feuding and fighting amongst the paternal family members, of the paternal grandmother hitting and attempting to drown the child when he was a toddler, of the father’s drug and alcohol problems, and of his reckless and cruel behaviour towards his young son.
Despite those serious allegations, the case settled with the mother agreeing that the child could spend substantial periods of time with his father. Her explanation for that apparent conflict was that she was pressured into those orders by her lawyers.
It was then after the father started the contravention proceedings against her in May 2010 that the mother raised the serious allegations of sexual abuse against him. Until the start of this trial, she maintained in court documents that the child was very scared of his father, and that she too was fearful of him. She said she believed what the child had told her about the sexual abuse. She said she did not believe that he would make up such a thing, or that he could have obtained such information. She maintained that the father verbally abused the child.
The child was interviewed by child protection and the police in March 2010. The father was interviewed by police in July 2010. In January 2011, the police investigation concluded. The father was advised that no charges would be laid against him.
The mother also alleged that the father tried to rape their 17-year-old babysitter. She said the young girl would not make a statement to police as she “feared for her life”. It is not clear when it was supposed to have occurred. It seems it was while she was living in Western Australia. That was between 2004 and 2006. There was little other detail about this serious allegation.
The mother persisted in her account of the allegations against the father when Ms S, the Family Consultant, prepared her initial Issues Assessment on 7 March 2011. The mother described the child returning from time with his father in Victoria “withdrawn and scared”. She said that the child told her his father “yells at him and physically hurts him”. She said she believed that the father’s abusive treatment of the child mirrored her own experiences with him. She described the child’s behavioural problems at school, and nightmares, as part of the effects of the child spending time with his father. The child’s presentation to the Family Consultant at that stage reflected those fears.
When the full Family Report was prepared with interviews in mid-July 2011, just shortly before trial, the mother continued to describe the father as an extremely violent man with an uncontrollable temper. She described him to the Family Consultant as a “pathological liar”. She described his family as aggressive and violent. She maintained that the paternal grandmother “bashed” and tried to drown the child when he was a toddler. She continued to describe violent relationships between the paternal family members, including that the father and Ms D were violent to their little daughters. She described herself as a “protective lion” over the child, and that she had to protect him from his father.
That litany of concerns were still broadly continued in the mother’s affidavit sworn and filed just days before this trial started.
They are serious allegations. Section 140 of the Evidence Act 1995 (Cth) sets out the standard of proof in civil proceedings. Amongst the matters for me to consider in deciding if allegations are proven to the requisite standard – on the balance of probabilities – is the nature of the subject-matter and the gravity of the matters alleged.
The evidence in this case cannot satisfy me that the allegations are proven, or that there is an unacceptable risk to the child of physical, sexual or verbal abuse in his father’s care.
First, the mother’s evidence was entirely unreliable. In 2006 she made serious allegations against the father, but then agreed to him spending substantial periods of time with the child. In 2010 she again made the serious allegations, with the addition of detailed allegations of sexual abuse. Then, despite the Family Consultant explaining to her at the time of the Family Report interviews in July 2011 that the child seemed to really enjoy seeing his father, and although in the Family Consultant’s presence the child told his mother that he wanted to spend time with his father, the mother still filed a subsequent affidavit maintaining the allegations, and that the child was extremely scared of the father.
As noted, at the start of the trial, through counsel, she said that she no longer maintained the allegations. She repeated that for some time in cross-examination. However, when counsel for the ICL put to her that she “hated” the father, she agreed. When he put to her that she still believed the father was “a monster”, she agreed. And when he put to her that in her heart of hearts, she still maintained and believed the allegations, she agreed with that too.
Shortly thereafter though, she signed consent orders providing for the child to move to live with his father. When asked by me whether she was truly consenting to such orders, she then said that she was not.
She explained her change of heart in relation to permitting the 2006 orders, and her change of heart about the orders in the course of this case, primarily on the basis of her lawyers and their advice and/or pressure. In a similar vein, she explained her affidavit of 7 September 2011, and the fact she had maintained the allegations in it, on the basis that although she had not wanted to do so, she was unable to talk to her lawyer, and “the lawyer’s secretary” said that it would look bad if she did not go ahead with the allegations. She said that in the rush and pressure that she was under, she swore to the contents. She had to concede that the contents were based on the instructions she had given her lawyers just several weeks prior.
All in all, she was an unreliable witness when it came to the allegations.
The child’s interactions with his father also countered against the truth of the allegations.
As the Family Consultant noted in her report and repeated in evidence, in light of the serious allegations of abuse, and the fact that at the time of the Issues Assessment she had not been able to observe the father and the child – as the father was still in Victoria – her observations for the purposes of the July 2011 Family Report were extensive.
Ms S described a child who was “relaxed” and “affectionate” with his father, showing “no signs of hesitation or apprehension.” He made many comments to indicate that he missed his father and felt that the time between visits was too long. She described the child’s demeanour throughout the interview as “relaxed, self-disciplined and emotionally contained.” She said that he showed no signs of “impulsivity, hyperactivity or poor concentration in his behaviour, social interaction or speech.” She described the father as speaking with the child in a gentle and relaxed tone, and that he was obviously enjoying laughing with him.
Ms S said that the child’s responses to his father indicated not only that he enjoyed being with the father, but also that the time was satisfying “a primary attachment need to be with his father.”
According to the Family Consultant, although the child’s primary attachment relationship is with his mother, with whom he feels he has a loving relationship, he also has a strong attachment with his father. He perceived himself as part of a family with his mother, father, Ms D and his two little half-sisters. The expert’s opinion, based on all the material, was that the child has a secure attachment with his father.
When Ms S reminded the child of the negative things he had said about his father in the previous interview on 19 February 2011, she said (at para 66):
…[the child] screwed up his nose at these remarks in a way that intimated he was either confused or that he did not know what the report writer was talking about.
When asked to describe his family, the child simply said “It’s sad”. Ms S said it was clear that the child loved both parents and wished he could live with them both. He wanted both parents in his life. He said he wanted to continue living with his mother but wanted to spend his holidays with his father.
The child emphasised that he missed his father and worried that he may again suddenly not see his father for a long time, as occurred in the 15 months up until March 2011.
Ms S noted that when the child was reunited with his mother he spoke “without inhibition” about his father. He told his mother that he wanted to spend his school holidays with his father. He made this statement in a “fairly stern tone”, but the mother “grappled to respond supportively to [the child] and managed no more than affirmative acknowledgements” of what the child was saying.
That evidence, cumulatively, leads me to conclude that the child is not in any way fearful of his father as described by his mother.
The Family Consultant also made a number of specific observations about the mother’s allegations. She noted that the mother had suffered significant emotional damage in her childhood, particularly at the hands of a violent and alcoholic father. In the expert’s opinion it was “highly probable” that Ms the mother’s own experiences of childhood trauma have had a significant effect on her parental attitude and relationship with the child. Her “global negative attitude” to the father, Ms D and the paternal grandmother, as well as her move to a location that isolated her and the child from any significant attachment figures, were, according to Ms S, “strong indicators of a profoundly distrustful parenting style.”
In clinically diagnostic terms, Ms S said that the mother showed tendencies towards “paranoid traits” which included:
…her pervasive mistrust and suspiciousness of others and tendency to interpret other people’s motives as malevolent.
Ms S concluded (at para 80):
The evaluation of the information made available for this report gives credible weight to the hypothesis that much or all of [the mother’s] claims that [the child] has been sexually and physically abused by [the father] as well as members of his family are untrue and symptomatic of a pattern of profoundly distrustful parenting style and/or pervasive paranoid functioning…
Ms S said her opinion was reinforced by the fact that there were no other indications throughout the assessment to add support to the mother’s claims. To the contrary, the majority of the information drawn from the assessment actually negated the validity of the mother‘s claims.
Ms S also said that the “manifest change in [the child’s] expressed views”, from the negative view of his father in his interview in February when he had not seen him for a year, to the positive view in the most recent interview when he had recommenced spending time with him, was a strong indicator that the child had not been physically or sexually abused by his father. She said that such an extreme change in a child’s view of his parent, without a rational and justified reason, was uncommon and raised some serious concerns. She explained that although the child’s behaviours and emotional responses in his first interview were congruent with the clinical presentation of a child who has become estranged from one of his parents as a consequence of that parent’s history of family violence or abuse, that likelihood was challenged by the different way he presented at the second interview.
She said (at para 83) that:
…Estranged children do not overturn their views and attitudes simply by recommencing spending time with their rejected parent. Research in this field suggests that a child’s rejection of a parent, because of abuse, is a robust reaction that is resistant to change without significant intervention and facilitation of the child’s relationship with the parent they are estranged from.
Ms S concluded that the probability was that the child’s previous claims of abuse were a consequence of his mother’s unresolved issues, young children being highly sensitive and responsive to the emotions and behaviours of their primary care-giver. She said children may respond to the care-giver’s trauma as if it were their own. As she put it, a child can “take on feelings of trauma by vicariously hearing about it.”
Ms S concluded that although there was “minimal risk” to the child of physical or sexual harm in his father’s care, the issue was raised as to whether the child had been “emotionally harmed by chronic exposure to his mother’s on-going traumatised response.” If so, it could account for the child’s disturbed behaviour at school, which had been diagnosed as ADHD.
In recommending that the court should consider “substantial changes” to the child’s parenting arrangements, including a consideration of the merits of the child living with his father, Ms S said that a significant consideration was that there was “little robust indication” that the child was at risk of harm in his father’s care, but that he “may be at risk of emotional damage” if he continued to live with his mother and she did not shield him from her own negative feelings and thoughts about the father.
Otherwise, I take into account the evidence of the many witnesses, family members, and friends from the central Victoria area relied upon by the father. Most were not required for cross-examination. The overall picture was of a good, hard-working man, who had close family and extended family relationships, a sound and loving relationship with his partner, healthy, close and loving relationships with his two little daughters, and of someone who was stable and reasonable.
For these combined reasons, I am satisfied that the child is not at risk in his father’s care in the ways alleged by the mother. As to other risks, or risks in his mother’s care, I need to specifically consider each parent’s capacity to meet the child’s needs.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
There is no question that both parents love the child. I am satisfied that neither harbours other than a genuine desire to do the best by him. Any limitations are not because of a lack of commitment or care, but rather because of a lack of capacity, and/or because of circumstances.
In some respects, the mother has shown herself as a capable parent. The child is closely attached to her. It is to her credit that she has been able to facilitate that primary attachment, so important to his healthy development.
According to the expert evidence, he also has a healthy and secure attachment to his father. Normally I would regard that as a credit to his mother, as well as his father. In the circumstances of this case however it is hard to give much credit to the mother for engendering a positive attitude between son and father. Whether the positive attitude that the child has ultimately expressed and shown is due to his own resilience, or his father’s parenting skills, or a combination of those or other factors, is unclear. Fortunately for the child, he has that attachment.
In his mother’s care, the child has been exhibiting some behavioural problems. Although in their evidence, more specifically in answer to questions that I posed to them, both the father and Ms D described the child in glowing terms, effectively as a happy, healthy, well-adjusted little boy, that did not fully reflect the nuance of all their, and the other evidence.
The father had expressed some concerns in the witness box, and certainly to the Family Consultant, about how the child appeared to have up to “three personalities” and he described some inappropriate responses during telephone contact when for example the child, usually a kind boy, laughed when the father told him that the paternal grandfather was unwell.
Both the father and Ms D discussed the child’s unsettled behaviour at the start of periods of time with them, which they interpreted as the child settling into their “boundaries”. That in itself may not be an unusual feature of a change of households. Similarly, although they described him as becoming upset in the days prior to returning to his mother, that may not reflect any negative response to his mother, rather just the unease of the transition. The same applies to the mother’s description of the child being unsettled at first when he returned from the father.
What is clear however is that the child has been experiencing behavioural problems at school. They were sufficiently serious that in early 2011 the mother took him to see a paediatrician. At first the paediatrician diagnosed him with Oppositional Defiance Disorder, but later ADHD, and in about March 2011 the paediatrician prescribed Ritalin. The mother said that while taking Ritalin, the child’s behaviour, particularly at school, had improved.
The father and Ms D said that the child’s behaviour, while in their care, did not suggest any behavioural problem, nor that he suffered from ADHD.
Ms S’s evidence was that when she saw the child in the presence of his father he did not display any of the symptoms that she would normally associate with ADHD. I wondered if that was just because he was on medication. He was by then taking Ritalin, although the mother said he had not taken his Ritalin that day. I have no expert evidence to assist me as to the life of that drug, and whether or not it was its effects that made his behaviour appear “normal” and settled. But it is clear that Ms S, an experienced psychologist, was concerned that the angry and unsettled behaviour exhibited by the child at school was in response to the pressures he felt from his mother’s negative attitude to his father, rather than any inherent illness. That would accord with the father’s view that the child does not have a behavioural problem but is an energetic child who responds well to firm boundaries.

The mother has now agreed to obtain a second opinion about the ADHD diagnosis.
There were two other aspects of concern as to the mother’s care of the child. One related to his school attendance. The other to his social and emotional isolation.
It was apparent from school records that in 2009 the child missed 29 days of school. In 2010, he missed 33 days.
Sometimes the fact that young children miss school is unremarkable. It may be they have been absent with minor illnesses or colds or flu, or for other specific, unavoidable reasons. The mother’s overall explanation was that the child had lost time from school because he had nightmares, he was tired, and he had headaches. She said that in 2010 there was also a cyclone. That seemed to account for two days. She said the child also had gastro, and earaches. She worked into the evidence that on the last two occasions he spent with his father he got gastro, and caught a cold from playing in a fountain. It was evident that she also attributed the child’s nightmares, tiredness and headaches to his fear of spending time with his father.
It became apparent from the mother’s notes to the school that in fact there were occasions when the child missed school not because of any health problems of his, but because the mother had a migraine, or was moving home, or she was having her own dental work done. On each such occasion, she said that she had no-one who could take the child to school or collect him. That claim was a concern from two points of view.
First, it was an inadequate explanation for the child not going to school. It seemed that the mother had not prioritised the need for his school routine and education as much as she should have, particularly in light of reports that he was struggling with fundamental aspects of school-work.
Secondly, her claim that she could not find anyone, amongst her friends or other school parents, who could occasionally help with a school drop-off or pick-up, did not sit well with her claim of an extensive social network. Her explanations about it made little sense. She talked of various people to whom they were close, but it became apparent that several had moved away, and others certainly had not given assistance.
The mother called no witnesses at all in support of her case. No-one attended court with her. Her former partner, Mr Y, had sworn an affidavit. It was withdrawn in the course of the case. It appears that she has remained friends with him over the last few years since their relationship ended. Her concerns about him that led to the relationship ending – that he was spending excessive amounts of money and mixing with unsavoury people – make it strange that she continued the relationship, and that he was to be called as her only witness. I was left with the impression that there were few, if any, other significant relationships in her life. The Family Report writer’s concern that, with her negative and paranoid disposition, the mother had moved the child away from family or other networks, and was socially isolated, was supported.
The father’s proposed arrangements for the child were starkly different from the mother’s in that they reflected a strong family network and community in the central Victoria area. The father’s large extended family live within a short distance of his home with Ms D and their two little girls. Many of the child’s cousins attend the local school that he would attend, and it is the school at which his sisters will start. There was no question that the father and Ms D and the extended paternal family are committed to the children properly and routinely attending school, and participating in local activities, sport, and family occasions.
The father was critical that with his mother, the child spends some time each week in the school after-care program. In my view it is not a fair criticism. For a child who seems to be otherwise isolated, without a wide family or social network, after-care may well offer opportunities and group activities that are healthy for him. I cannot help but be left with the view however that the father genuinely values participation in team sports and other sporting and outdoor activities between himself and the child and other family members, in a way that is very attractive and healthy for an active boy.
The Family Consultant did not see any evidence of concerns with the parenting capacity of the father or Ms D. She did say however that “possibly the only issue” was that Ms D was “the primary care-giver” and that she would take on the majority of the parenting care and responsibility for the child. She pointed to Ms D’s confidence in parenting, and the father’s own parenting confidence resting on her. She noted too that with his work and lifestyle it may be difficult for him to take on the majority of the parenting responsibility and care for the child.
The father and Ms D were at pains to point out that their care for the children is equal, as is their division of household tasks. Ms D works three days during the week and Saturday mornings, running her own business. The father works as an agricultural contractor, for hours that vary.
It is likely that the father and Ms D overstated the extent of time that the father spends with his daughters or will be available to spend with the child. Although the agricultural hours vary according to different times of the year and different jobs, there is no question that he is a hard worker, and has had to work harder in order to meet the legal fees in this case. I do accept that he is hopeful that he can reduce those hours after this case, that he may be able to contract less and work more on the family farm (although the hours of farming are also likely to be onerous at times), and that he is also hopeful that, whether contracting or farming, the child can and would sometimes be with him, enjoying safe outdoor activities.
I accept that overall the father is a “hands-on” father who is genuinely committed to spending time with his children and being an active parent and home-maker.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The mother maintained right up until the time of this hearing that the child was extremely fearful of his father and was frightened of spending time with him. In the hearing, she conceded that the child has told her that he does want to see his father.
The father and Ms D maintain that at the end of time with them, the child has always wanted to stay with them and not return to his mother.
Having indicated earlier this year to Ms S that he was scared of his father, the child was adamant in the July interview that he wanted to spend the holidays with his father, and he worried that he may not see his father again for a long time.
Ms S noted (at para 70):
…It seems that not seeing his father for a prolonged period of time has had a significant effect on [the child] who is now almost hypervigilant about his father and clearly fearful that he may just disappear from his life again…
As noted above, he told his mother quite “sternly”, in the presence of Ms S, that he wanted to spend that time with his father. It may be that he felt secure enough in the presence of Ms S to be able to speak about his father without inhibition. Ms S noted that the mother “grappled to respond supportively” and “managed no more than affirmative acknowledgments of what [the child] was saying.”
I have already referred to Ms S’s observations of the father and child together, and of their healthy and close interaction. Those observations were corroborated by the evidence of the many witnesses on the father’s side. The child was also observed with Ms D. Their interaction indicated to Ms S that they had “a friendly relationship” but not one that is overly significant to the child.
I am satisfied, from the unchallenged affidavits of the father’s relatives, that despite what the mother has previously asserted, the child also has a sound relationship with his father’s family members.
The child was clear in his stated wish to Ms S to continue living with his mother. Ms S observed that as soon as they met up at the end of the day, the child made eye contact with his mother, and his body language towards her “indicated his very close attachment to her.” She noted though that the mother “spoke passively” to the child. She apologised for a number of things, including that the child was not allowed to spend any further time with his father during the day. According to Ms S, the mother “appeared to be emotionally exhausted and did not seem to have the energy to interact much with [the child].” She also “sighed a lot” during the observation.
Ms S said that when the child described his relationship with members of his family he described himself as “sometimes angry”. She said his response was uncommon for a child of his age who would most commonly describe negative emotions in a separated family as “sad”, not “angry”. In the context though of being asked by her to identify a positive image about his family, he did then say simply “It’s sad”. He grappled with the challenge of conceptualising his family with a sense of hope or optimism. He drew a picture with only himself in it. He sought clarification from Ms S as to whether he was meant to be thinking about his family with his mother or with his father. The decision was left for him to make. He eventually drew a picture of himself “[working] like his father, on his father’s farm.”
Counsel for the father put to Ms S that, in assessing the child’s expressed wish to live with his mother, she had not taken into account that at the time of that second interview the child had not spent time with his father in central Victoria for something like 18 months. He had seen him only on eight days or so during that time. Ms S said that although it would have been a “wonderful opportunity” if she had been able to interview the child later in central Victoria, the mere fact that he had spent little time in Victoria during the 18-month period did not mean she attached less weight to his expressed view that he wanted to live with his mother. She emphasised that a child’s wishes are from experience, and arise from attachments to people, not places. She was satisfied that the child’s views seemed very genuine. She was naturally aware though that the child’s world view was influenced predominantly by his mother.
At just nine, the child’s wishes cannot be determinative of the outcome of this case. They should however help to inform the evaluation of his best interests. And they are an important element when it comes to considering how the child is likely to cope with a significant change in his circumstances.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This consideration is very much at the heart of the case.
I must consider whether the mother is capable of change in her entrenched attitude towards the father, and whether in her care, the child will not only be free to spend time with and love his father, but will be spared the emotional burden of taking on her fears that his father presents a risk to him and has abused him in terrible ways.
I must consider the likely effect of the changes for the child if he moves to live with his father. Will he settle without being with his mother full-time? Is his father capable of ensuring that the child will be free to love his mother? What role will the mother be prepared to retain in the child’s life?
It is a convenient time to note the particularly high standard of Family Report and the helpful evidence of the Family Report writer. It was not that she provided one simple recommendation. To the contrary, she could not and did not, but her report and evidence were appropriately nuanced and textured, and responsive to the genuine complexities of the case.
Ms S can be criticised for only one aspect of her involvement in this case, and she readily admitted that. On the day of the recent interviews, she had not realised that court orders precluded the father from spending unsupervised time with the child. She allowed the father to take the child out. That caused enormous consternation to the mother. As soon as it was brought to Ms S’s attention, she telephoned the father, who immediately returned with the child to the Registry. It did mean that the mother’s interview with Ms S got off to a bad start. The mother was upset and hostile.
I was satisfied that Ms S was appropriately sensitive to the fact that the mother was upset about that error. She consciously spent time and effort with the mother to ensure that she was able to settle in the course of the interview after that rocky start. I was equally satisfied that in her assessment of the mother, Ms S took that properly into account.
I note that although a large part of the mother’s trial affidavit was used to criticise Ms S’s reports, once the mother no longer pursued the allegations against the father, not only was the staunch criticism missing when her counsel cross-examined Ms S, but indeed the mother told me on various occasions that she had started to change her mind about the father presenting a risk to the child on the strength of Ms S’s opinions and advice to her about that.
In the conclusion of the Family Report, Ms S recommended that the child should spend every school holiday period with his father but continue living with his mother:
…on the condition that she commit to the Court that she will refrain from communicating any of her own negative thoughts and feelings about [the father] to [the child], talking with [the child] in ways that encourage him to speak negatively about his father or denigrating [the father] in front of [the child].
However, she continued (at para 102):
If [the mother] cannot commit to the condition that she will not contain her own negative feelings and thoughts about [the father] from [the child] or engender negative feelings about [the father] in [the child] then it is recommended that [the child] live with his father and spend restricted time with his mother.
Much of the cross-examination of the expert witness related to a consideration of the mother’s capacity to change her view of the father and what she communicated to the child directly or indirectly about him, and otherwise, around the effects on the child of moving to live with his father.
In summary, Ms S’s evidence was clear: there is “no one good outcome” in this case. She also made it clear that it was not simply a matter of finding that if the allegations were “made up”, then the child should move. She steered away from simplistic concepts and approaches.
Ms S continued to emphasise that, given the child’s strong attachment to his mother, it would be ideal if he could continue to live with her, but only if she were able to restrain herself from being so negative about his father. She was conscious of the impact of severing the child’s primary attachment with his mother. Still, she expressed the strong concern that, given the mother’s entrenched views, it is unrealistic to expect that she can facilitate the meaningful relationship with his father that the child needs. Similarly, it is hard to see that she can teach him healthy ways to deal with the challenges of life as he develops, unless and until she is able to put in a conscious and deliberate effort, including undertaking extensive work by way of substantial clinical therapeutic intervention.
Ms S said her concerns about the mother were confirmed by her demeanour at interview. Allowing for the difficult start, and understanding that the context and setting can make people anxious and nervous, the mother’s presentation still caused Ms S to hold quite profound concerns for her parenting capacity. She emphasised the mother’s paranoid and distrustful nature, how strenuously she appeared to have believed what she had been saying about the father, and her entrenched views in that regard. Importantly, in front of the child, she presented as emotionally overwhelmed, but the child did not seem to respond to that, as if he had seen it many times.
Ms S was not comforted by the mother having now “dropped” her allegations against the father. She did not believe that she has shown genuine insight into the damage she herself suffered as a child, even though she was able to acknowledge that she did suffer damage. Ms S was concerned that she will revert to mistrust of the father, and that she remains likely to derail the future arrangements. The last minute changes and the contradictions in her evidence simply reinforced Ms S’s view of the mother’s pervasive mistrust and confusion. As the report writer put it, it “rings bells” of what she observed in the course of the interviews, of the mother’s massive vulnerability from, and propensity to her swinging emotions.
Ms S concluded that the mother believes in her heart that the father is a risk to the child, and without long-term psychological help she will “revert to type”. Ms S emphasised the concern that with his mother, the child was at risk of her views being projected onto him, so that he will not be provided with adaptive ways to handle the challenges of life, and will integrate the unhealthy way that his mother does it.
In assessing the child’s capacity to cope with a change to living with his father, Ms S said that, unlike the isolated existence she perceived the child has with his mother, in central Victoria, he would experience the “richness” of relationships that can be found in a family environment, with more resources for him to grow with resilience. She was satisfied that the child had a strong enough attachment to his father that he would not be left without emotional support if he were to move to live in his household.
Ms S said that although the father and his partner would have to “let go” of their natural negative feelings towards the mother – understandable feelings after the heartache that she has caused by her allegations – she feels that with assistance, they are more likely than the mother to be able to do that. Certainly the father said he was willing to undertake any recommended course or therapy.
One very difficult aspect of this case was that when interviewed by Ms S, the mother said that if the child were to live with his father she would not see him anymore. She told Ms S that “He wouldn’t even be the same child, to pick him up for holidays may not even be worth it.”
According to Ms S, she remained fixed in her stance, throughout the interview, that she would not spend much time with the child if he lived with his father. She emphasised that the child would “change”, and because of that she would not want to see him. She said that when he is with his father, “it is like he is dying inside a little bit because he is always on guard.”
Ms S asked the mother how she would cope living without the child, and reported that:
…[the mother] was highly distressed during this discussion but remained angry as well. She conceded that she has thought that life without [the child] may not be worth continuing but would not expand any further.
The mother confirmed to Ms S that she had told the child that if the court decided he must live with his father that she would not be able to see him. When asked if she thought it was an appropriate thing to tell the child, she said that she needed to prepare him for a “smooth transition”. She rejected the idea of moving to Victoria, saying that Queensland was better for her health and she produced some medical certificates to the court, to the effect that the warmer climate was better for her back pain and asthma.

In the witness-box, the mother said that of course she would continue to see the child. She was just upset during the interview. She said that when she had told the child that she would not be able to see him if he moved to live with his father, what she actually told him was that she “might not be able to see him as much”, because she could not afford the air fares.
In her evidence, Ms S said that her concerns about the mother abandoning the child were not completely alleviated by the mother saying in evidence that she would never do so, but it was in any event a positive step that she said that she would want to spend holiday time with him. Ms S said there was no question that the mother would be very upset if the child goes to live with his father, and it would be distressing for the child to see his mother upset.
Late in her evidence Ms S offered the reasonable summary that she doubted that the mother could change her belief system, and that being the case, there would be lots of strengths for the child in living with his father, including the enriched relationships with extended family, and his good relationship and secure attachment with his father. She said that with the right type of parenting and assistance, the child could integrate well if he lived with his father.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
With the mother living in Queensland and the father in Victoria, the distance and air fares prohibit day-to-day or week-to-week time with the child for whichever parent is not living with him full-time.
The mother is adamant that even if he lives in central Victoria with the father she would not move back to Victoria, even to Mildura with its milder climate. The father, his family, and his work are clearly established in central Victoria. Accordingly, wherever the child lives, the distance and the air fares will remain a reality.
It was the mother’s evidence that she has been offered a job and that she is thinking about it. She says that if she is working she can pay half the air fares. If not, she will contribute what she can. She did not know how much the air fares would cost. To date, the father has paid them.
I will need to take into account this significant consideration.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The child does seem to enjoy the outdoor, farming and sporting activities that he shares with his father. That in no way suggests that he does not relish his time with his mother. But it has become apparent that being deprived of time with his father has been a source of sadness to the child. His father and Ms D emphasised that for such an energetic boy, the outdoor activities with his father have been beneficial. I accept that.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This is an important consideration for any child, particularly one who has been the focus of so much litigation. Judging the future by the past, I have more confidence that the arrangements for the child will proceed more smoothly if he his living with his father than with his mother. With his mother, there have been so many impediments to him spending time with his father. The expert and other evidence suggests that he is more likely to be able to spend time with his mother, in accordance with court orders, if living with the father and his partner.

The other s 60CC(3) considerations

The other considerations are either not relevant in this case or have been dealt with already in sufficient detail.

CONCLUSION

The consensus is that there should be equal shared parental responsibility. It leaves the difficult question as to whether the child should continue to live with his mother in Queensland and spend time with his father in school holidays in Victoria, or now move to live with his father.
The fact that the child has always lived with his mother and is primarily attached to her weighs heavily upon my decision. However, the counter-balancing considerations persuade me that it is not in his best interests to remain in her care.
I am particularly persuaded by the expert evidence, underpinned by the other evidence, as to the level of the mother’s own personality dysfunction, and that in her care the child has been led into believing that his father has harmed him in ways that are not objectively sustained on the evidence. I cannot be satisfied that her views about the father have genuinely or consistently changed. Even during the hearing, she re-iterated her concerns that the father is “a monster”. For her to develop the capacity to spare the child from her view of the father would require insight, a genuine commitment to change, and extensive therapy. She has not shown that insight, at least not in a consistent or sustained way. Any glimpse of apparent insight has been eclipsed by a subsequent retraction, the claim she succumbed to the pressure of others, or that, effectively, she perceived the need to tell the Court what she believed it needed to hear. An adequate change in her attitude or capacity appears unlikely at present.
Moreover, the child’s existence with his mother in Queensland is isolated from any extended family or a circle of friends. In Victoria, he has the opportunity to be part of a close family unit, including extended family and cousins. He also has the opportunity for involvement in the local sporting and wider community, and a greater commitment to consistent attendance at school.
This decision is likely to be difficult for the child. Leaving his mother will be a very significant change in his circumstances. Settling in with his father will also require adjustment. I am satisfied that his father and Ms D and the extended family can and will cope well enough with helping the child deal with those changes. I am heartened by the father’s willingness to undertake a parenting after separation course, and therapy. It is essential that he, his wife and his family put aside their own understandable hurt, and focus on supporting the child, and reassuring him that his strong relationship with his mother can and should continue. The child needs both his parents.
The change will be very significant for the mother and one that I am conscious she will find very hard. I hope for her sake, as well as for the child’s, she will seek the help and counselling that she needs and deserves, to find the strength for her own life and mental state to be enhanced, and in order to be available to spend very substantial time with the child during school holidays.
The ICL proposed orders for the mother to undertake therapeutic counselling as a pre-condition to spending time with the child. Subject to any submissions about it – as the details of orders were not fully explored – I would not propose such an order. The expert did not suggest a pre-condition. It could counter against the child seeing his mother which, on balance, would be a worse outcome for him. And any therapy that she will require is likely to be long-term. Realistically, the changes she needs to make could not be expected in the very short-term.

THE ORDERS

The orders that I propose are otherwise those proposed by the ICL. I invite submissions not only as to form but also as to detail, much of which was hard for the parties to consider without knowing where the child would live. The arrangements for the child’s move to live with his father are an immediate focus.
Subject to submissions, I propose orders as follows:
1.That all previous parenting orders in relation to the child J Brown, born … August 2002 (“the chid”) be discharged.
2.That the father and mother have equal shared parental responsibility in relation to the long-term care, welfare and development of the child.
3.That the child shall live with the father.
4.That the husband she be at liberty to enrol the child forthwith to attend the … Primary School.
5.That the father shall attend and engage in therapeutic counselling forthwith for counselling intervention, for such time as the counsellor deems appropriate and a copy of the Family Report of 31 July 2011 prepared by Ms S shall be provided to the counsellor.
6.That the mother shall spend time and communicate with the child as follows:
(a)    For half of the term one, three and the long summer Victorian Gazetted school holidays, as agreed by the parties in writing, commencing in the long summer holidays in December 2011;
(b)    For all of the second term Victorian Gazetted school holidays commencing in 2012;
(c)    By telephone or SKYPE or like electronic communication on each Tuesday, Thursday and Sunday at 7.00pm; and
(d)    As otherwise agreed in writing.
7.That the father shall arrange and pay for the child to attend upon a paediatrician in Victoria without delay to obtain a full assessment and report of the child’s academic and behavioural progress, and such report shall be provided to the mother.
8.That the father shall authorise the release of and the mother shall be at liberty to obtain any of the usual information from the child’s school, including photos, school reports and notification of any information in relation to the welfare of the child.
9.That for the purposes changeover, the father shall travel with the child (for the short-term, at his discretion), to and from Brisbane airport, and place the child on, and collect the child from, as the case may be, the flight to or from Mackay airport, and the child is to travel unaccompanied on each flight to and from Brisbane to Mackay airport and the mother shall collect the child from Mackay airport.
10.That each party shall provide the other with an itinerary of travel to each other no less than 7 days prior to any travel and align the flights.
11.That the father and the mother shall share the cost of the airfares with the mother being responsible for the fates to and from Brisbane and Mackay and the father being responsible for all fares for both himself and the child to and from Brisbane and Melbourne.
12.That the father and the mother and/or their nominee shall be restrained as follows:
(a)From denigrating the other party or any of their family to, or within the hearing of the child;
(b)From discussing these proceedings with the child or within the hearing of the child; and
(c)From administering physical parental discipline to the child and from using illicit substance or drinking alcohol to excess whilst they have the child in their care.
13.That each parent shall use their best endeavours to support and encourage the child’s relationship with the other and any extended family member.
14.That all applications shall be otherwise dismissed.
15.That the appointment of the Independent Children's Lawyer is hereby discharged.
16.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 6 October 2011.

Associate:

Date: 6 October 2011

[2011] FamCA 1027

6 October 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Natural Justice

Procedural Fairness

Remedies

Res Judicata