Bronwell & Bronwell - [2021] FedCFamC1F 89

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bronwell & Bronwell [2021] FedCFamC1F 89

File number(s): SYC 6278 of 2015

Judgment of: REES J

Date of judgment: 7 October 2021

Catchwords: FAMILY LAW – PARENTING – application by the father to vary final parenting orders made in 2018 – where the child is fifteen and a half years old and weight is to be given to their views – where the child has significant vulnerabilities – orders for the child to continue living with the father and for the father to have sole parental responsibility – orders for the child to spend supervised time with the mother not more than once per calendar month – orders for child to initiate communication with the mother as desired

Legislation:
Family Law Act 1975 (Cth) s 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01

Division: Division 1 First Instance

Number of paragraphs: 228

Date of hearing: 20, 21 & 22 September 2021

Place: Sydney

Counsel for the Applicant: Ms Shea

Solicitor for the Applicant: Gordon & Barry Lawyers Pty Ltd

Counsel for the Respondent: Mr Hopper

Solicitor for the Respondent: Kincaid Legal

Solicitor for the Independent Children's Lawyer: Mr Holmes, Holmes Donnelly & Co Solicitors
ORDERS

SYC 6278 of 2015

BETWEEN:
MR BRONWELL

Applicant

AND:
MS BRONWELL

Respondent

HOLMES DONNELLY & CO SOLICITORS

Independent Children’s Lawyer

ORDER MADE BY:

REES J

DATE OF ORDER:

7 OCTOBER 2021

THE COURT ORDERS:
1.That all prior parenting orders be discharged.
2.That the father have sole parental responsibility for X, born … 2006 (“the child”).
3.In the exercise of his parental responsibility, the father shall:
(a)Advise the mother in advance of any decision he proposes to make in relation to a major long-term issue concerning the child;
(b)Take into account any views expressed by the mother about the proposed decision; and
(c)Inform the mother of the decision he makes in the exercise of his parental responsibility.

4.That the child live with the father.
5.That the child spend supervised time with the mother at such times and at such places as the child determines, being not more than once per calendar month for 3 hours.
6.That the costs of such supervision be shared equally between the parents.
7.The supervision agency shall be VV Group, G Group or such other agency as the parents agree, or, in the absence of agreement, as determined by the father.
8.That the child communicate with the mother by telephone or other electronic device in accordance with the child’s wishes.
9.That in order to facilitate Order 8, the mother within seven days provide to the solicitors for the father a mobile telephone number and email address which the child can use to contact the mother.
10.That the mother is restrained from initiating telephone or electronic contact with the child and from:
(a)Discussing the Court proceedings, or any of the issues raised in the proceedings, with the child;
(b)Initiating any discussion with the child in relation to varying the parenting arrangements set out in these orders, including suggesting, requesting or expressing a desire for any increased time or communication with the child;
(c)Discussing with the child access to additional services that the child is not currently engaged with, including but not limited to police, refuges, Youth Centres, legal advice, medical and therapeutic services, and
(d)Coming within 250 metres of the child, other than for the purpose of spending time with the child pursuant to these orders, including at any location at which the child may be present and including but not limited to WW Street, Suburb XX ACT, or such other address where the child may reside at with the father, and YY School at ZZ Street, Suburb AB ACT, or such other school as the child may be enrolled in.

11.That the father continue to authorise the child’s school and treating medical and allied health providers to provide such information directly to the mother as the mother requests.

THE COURT NOTES:
12.That the Independent Children’s Lawyer will, in consultation with Ms AC, ensure that these orders are explained to the child.
13.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bronwell & Bronwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

X, who was born in 2006 and will be 16 years old in 2022, is the child of Mr Bronwell ("the father") and Ms Bronwell ("the mother").
The parents separated in late 2009 or early 2010. The father has been in a relationship with Ms J ("the step-mother") since 2011. The mother is not currently in a relationship. She has a daughter, AE who was born in 2020. There is no evidence of the identity of AE's father and AE has no relationship with him.
The child's preferred name is X and throughout these reasons the child will be referred to as X.
In order to understand the evidence, it is necessary to provide some background of the family and to understand X's vulnerabilities.
The proceedings were commenced in 2015.
In late 2018, there were proceedings in the Family Court of Australia in relation to parenting arrangements for X.
The relevant history, up to the time of that hearing, is recorded in the judgment delivered on 7 December 2018 and is summarised below.
In June 2015, X commenced to see a paediatrician, Dr E and a psychologist, Ms HH. Ms HH formed the view that X suffered from Attention Deficit Hyperactivity Disorder ("ADHD") and an adjustment disorder with anxiety. Since that time, X has had a number of therapists.
In October 2015, interim consent orders were made which provided that X live with the father and spend supervised day only time with the mother.
Dr D, a child and family psychiatrist, prepared a report dated 21 July 2017.
X was not returned to the father's care by the mother in March 2018 after X made allegations that the father and Ms J were abusive. The police were called and X repeated the allegations to the police.
On 20 March 2018 a recovery order was made and X was to be returned to the care of the father by 22 March 2018.
On 20 March 2018, while still in the mother's care, X called the child protection hotline and the mother was advised to take X to the police station. On 21 March 2018, the mother and X attended at Suburb FF Police Station.
X was returned to the father's care on 22 March 2018.
On 1 April 2018, during a contact visit, the mother took X to the RR Town Police Station where X complained that the father had brushed against her in the hallway. The mother did not return X to the care of the father.
On or about 6 April 2018, the mother took X to a mental health unit attached to the MM Hospital. The father was not informed until 13 April 2018 when he received a phone call from a nurse at the facility who told the father that X presented as highly anxious and sleep deprived.
On 12 April 2018, orders were made for X to be returned to the care of the father and contact with the mother was suspended.
In late April 2018, X commenced counselling with C Group.
On 21 June 2018, X wrote to the father a note ending "I feel like killing myself".
On 14 November 2018, orders were made for family therapy. In default of agreement, the therapist was to be Ms AC who was recommended to the parents by Dr D, I infer, in the course of her oral evidence. Appointments with Ms AC commenced in December 2018.
On 7 December 2018 reasons for judgment were delivered and orders made in relation to the parenting arrangements for X.
Those orders provided that X live with the father and that he have sole parental responsibility for X. The orders provided for unsupervised contact with the mother increasing from overnight on Wednesday and 10am to 5pm on alternate Saturdays to four consecutive nights each fortnight from the commencement of term three in 2020. There were prescriptive orders in relation to ancillary matters which, inter alia, gave liberty to the father to apply to the Court on 48 hours' notice if the mother retained X or stopped attending family therapy; mandated that X continue to attend counselling at C Group; required each parent to provide an authority to any medical professional treating X to give information to the other parent and restrained the mother from taking X to a medical professional without the consent of the father.
On 22 May 2019 while in the care of the mother, X was admitted to AG Hospital. The records produced by the hospital note the presenting problem as "suicidal ideation". There is no dispute that it was appropriate for the mother to have taken X to the hospital on that occasion.
The present proceedings were instituted by the father by an application filed 5 September 2019 after an incident on 23 August 2019 when X attended with the mother at Suburb W Police Station. The circumstances surrounding that event will be examined in more detail later in these reasons.
On 12 September 2019, the mother's contact with X was suspended and an order was made for her to spend time with X under supervision for three hours at a contact centre and by telephone each Wednesday. Because it is the father's case that the mother has breached the orders made on 12 September 2019 on a number of occasions, the relevant orders are set out in full below:
PENDING FURTHER ORDER IT IS ORDERED THAT
7.The mother shall communicate with the child by telephone each Wednesday at 7pm commencing on Wednesday 18th September 2019.
8.The father will ensure that the child has access to a mobile phone at the times specified in the orders for the purposes of receiving calls and that the calls are audible to the father.
9.The mother will initiate communication by telephone pursuant to Order 3 by calling the child on ….
10.The father or an adult nominated by the father may be present during the telephone calls between the child and the mother pursuant to Order 3.
11.Each party will do all things necessary to record each telephone call between the child and the mother pursuant to Order 3 and retain each recording of those calls.
12.The mother shall be and is hereby restrained during any time that she has contact with the child as provided for by these orders from discussing with the child the Court proceedings and how the child may access additional services that she is not currently engaged with including but not limited to the Police, Refuges, Youth Centres, Legal Advice, Medical and Therapeutic Services.
13.That the child spend time with the mother supervised by G Group for one visit of three (3) hours on 22 September 2019 between 2pm and 5pm with changeovers for the time to be facilitated by G Group.
14. The father is to meet the costs of supervision pursuant to the preceding order.
NOTATION
A:I note that I have previously ordered that all previous orders for the child to spend time with the mother are suspended pending further order.
On 29 October 2019, orders were made for the continuation of professionally supervised contact once per calendar month for three hours and telephone contact was reduced to one Wednesday per month to occur between the supervised visits.
The reports of the contact supervisors are in evidence and I am satisfied that contact occurred in accordance with the orders. The most recent contact, because of the COVID-19 restrictions, has been conducted by Zoom.
On 17 January 2021, the father, Ms J and X moved to live in Canberra.
THE HEARING
The father relied on affidavits by himself and by Ms J. The mother relied on an affidavit sworn by herself.
The Court was assisted by an Independent Children's Lawyer ("ICL") who has been the ICL for X since 2015.
The ICL relied on an affidavit of Ms AC which annexed two reports dated 11 October 2020 and 1 September 2021.
The mother's primary position was that X live with her from 9 January 2022. Until that time, she proposed that X spend weekend time with her until November 2021 and then two weeks in each month. If the father moved to Sydney, then X should live in a week about arrangement with each parent.
If X remained living with the father, then the mother sought a return to the scheme provided in the December 2018 orders.
In either event, the mother sought equal shared parental responsibility.
The father and the ICL sought similar orders which would have the effect of X's remaining in the care of the father.
The ICL proposed orders in the following terms:
1.        That all prior parenting orders be discharged.
2.        That the Father have sole parental responsibility for [X].
3.        That [X] live with their Father.
4.That [X] spend supervised time with their Mother at such times and at such places as [X] so determines, being not more than once per calendar month for 3 hours.
5.        That the costs of such supervision be shared equally between [X’s] parents.
6.The supervision agency shall be VV Group, or such other agency as the Father determines.
7.That [X] communicate with their Mother by telephone or other electronic device, if [X] so determines, not more than once per calendar month, noting that the Father, in the exercise of his parental responsibility may monitor the call in [X’s] best interests.
8.That is [sic] be a condition of Orders 4 and 6 that the Mother refrain from discussing these completed proceedings with [X] and/or from initiating any discussion about changing these parenting arrangements.
9.That it be a condition of Order 2 that the Father forthwith authorise [X’s] school and treating medical and allied health providers for [X] to provide such information directly to the Mother as the Mother requests.
10.That the Father pay one half of the ICL’s costs of these proceedings, fixed in the sum of $5,000.
11.That a copy of these final orders and reasons for judgement may be released to any of [X’s] treating medical or allied health practitioners and to their school if so considered appropriate by their Father.
The father sought, in addition, an order restraining the mother from approaching X and from discussing with X access to services such as police, refuges, resource centres, legal advice and therapeutic services.
EVIDENCE OF MS AC
Because there was trenchant criticism in the mother's case of the evidence of the family therapist, Ms AC, and a challenge to its reliability, and because that evidence is central to the case of the ICL and of the father both in relation to X's views and in relation to her therapy with X, I propose to deal firstly with that issue.
On behalf of the mother, it was contended that Ms AC failed to carry out her role as a family therapist; that she was biased against the mother and in favour of the father; that her evidence was not reliable; that she was not qualified to give the evidence she gave and that Ms AC made assumptions about the mother's behaviour that are not supported by evidence.
Further, the mother contends that Ms AC should be discharged as X's therapist and a different, unspecified therapist appointed.
All of those propositions were put to Ms AC in cross-examination and were rejected by her.
Ms AC was engaged pursuant to the orders made on 14 November 2018. She was engaged as a family therapist. She is employed by a private practice and charges for her professional time. Her appointments with the family commenced in December 2018.
Ms AC met with the mother alone on 18 December 2018 and again, with X, on 21 December 2018. The mother made it clear on the first occasion that she was not able to pay for Ms AC's services and the father paid the fee for both sessions. The next interview between the mother and Ms AC was on 7 May 2019. On 31 May 2019, the mother and the father attended with X.
On 31 May 2019, Ms AC observed a heated exchange between the parents in the waiting room and removed X from the room.
The evidence does not suggest that there were any further appointments for the mother with Ms AC although Ms AC continued to see both X and the father.
Ms AC has continued to have sessions with X at three weekly intervals and intends that arrangement will continue. X has had a therapeutic relationship with Ms AC for almost three years.
Whilst she was initially engaged as a family therapist, it is clear that Ms AC now regards herself as X's therapist.
In cross-examination by counsel for the mother, Ms AC agreed that her role as a family therapist was to be impartial, however, she said that "It changed. My assessment brought about…a different formulation as to what the system was working under". The change in her position was solidified by 23 August 2019.
By that date, the mother had twice retained X and twice taken X to a police station to make a complaint about her father.
The incident on 23 August 2019 was the third time that X had attended on police in the company of the mother.
Counsel for the mother put to Ms AC that she considered her role as court appointed family therapist had ended in August 2019. She responded, "I don't know if that's the case. I couldn't tell you". She said:
I didn’t take sides. My whole focus was [X]. I had to assess [X] each week, each month and have continued to do so up until this day, and my whole focus is [X]. It’s not [the father] or [the mother].
Although the mother denies that she instigated the attendance on the police on this occasion, she did accompany X. Ms AC formed the view that the mother had instigated the attendance. As will be explained later in these reasons, that was not an unreasonable view to take.
In her report dated 11 October 2020, Ms AC stated:
I have now developed a relationship with [the father] and [Ms J] as they attend regular Family Therapy sessions with [X]. I also see [X] individually and
[the father] and [Ms J] for parenting support. Ms AH, Counsellor at C Group see's [X] individually fortnightly and also has parenting sessions with [the father] and [Ms J]. Unfortunately [the mother] has never engaged in sessions other than the initial assessment sessions and one in August 2019 when she attended with [X]. [The mother] from the beginning of this process reported she could not afford the cost of attending sessions in the Private sector. I have had a few conversations with [the mother] on the phone around the time [X] was presenting with suicidal ideation in May 2019 and August 2019.
(As per the original)
Ms AC does not purport to be independent. She gave evidence that her obligation was to the child, not to the parents. She is a treating practitioner not a court appointed expert. It is clear that from at least August 2019 she has regarded herself as the treating therapist for X, not the parents and her evidence must be considered in that framework.

However, I do not accept the contention on behalf of the mother that her evidence should be disregarded because of the perceived change in her role.
Her reports make it clear that it is her opinion that the mother's behaviour has a negative effect on X.
Ms AC is not a psychologist. She has qualifications in occupational therapy. In her report dated 11 October 2020 she stated:
I am a Consultant Family Therapist in Private Practice at H Group, Suburb AJ. I have worked for over 30 years in Public and Private Child & Adolescent Mental health settings. I work with families using a Family Systems Model alongside various parenting and attachment models to support parents and their children. I have completed the AK Program designed by Professor AL and continue to be involved with professional development in the area of working with children and assisting families affected by separation.
Ms AC was recommended as a suitable therapist by Dr D.
I do not accept that she is not qualified to perform the role of therapist or to give the evidence she gave.
I accept the submission on behalf of the mother that Ms AC is not qualified to make a diagnosis of X, however, she has reported on her observations of X's behaviours and concerns and it is of little assistance to attach a diagnosis. Both parents agree that X has mental health difficulties including ADHD, suicidal ideation, dysregulated behaviours and anxiety.
As a treating practitioner, Ms AC can give the evidence proscribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 7.01, of her interactions with X and with other relevant people; the treatment she has carried out; her recommendations and her prognosis.
Although it was not submitted on behalf of the mother that the evidence of Ms AC goes outside those proscriptions, I will take into account only such of her evidence as is within them.
Ms AC has provided two reports dated 11 October 2020 and 1 September 2021.
In her report dated 11 October 2020, Ms AC stated:
[X] had been having supervised contact with her mother as stipulated in previous Family Court Orders. This arrangement changed after the Family Court handed down new recommendations in December 2018. It was recommended that [X] resume contact with her mother without supervision. It became a concern for [the father] and [Ms J] that once the unsupervised contact began for [X] with her mother… there were noticeable signs that [X’s] behaviour was changing. She began soiling her underwear, having nightmares and was overly anxious, particularly after visits with her mother. I remained open minded about this as I had not developed a relationship yet with [X’s] parents…
However over time and with regular sessions with [X], I was observing that [X’s] presentations were becoming more and more worrying. She was looking dishevelled and incredibly sad and her affect was flat. [X] would also talk about needing to leave clothes and special items at her mothers as this was a request of her mother. This distressed [X]. In May 2019, [X] had begun expressing suicidal ideation in sessions.
A conversation with [X’s] Paediatrician, Dr E on 12th July 2019 validated my concerns. She too was very concerned that there had been a marked deterioration and regression in [X’s] presentation.
(As per the original)
In relation to the events leading up to and on 23 August 2019, Ms AC reported:
On 23rd August 2019 I became aware that whilst [X] was with her mother during a contact visit, [the mother] had been taking [X] to a local youth service, Suburb W Youth Centre (WYC). This service was helping [X] find a refuge to stay in. [X] had told the Counsellor at the WYC her father was abusing her and she needed a placement because she could not live with her mother due to Court Orders. [X] was also taken to Suburb U Police, Suburb W Police and AG Hospital by her mother around the same period of time and reporting the same, that her father was abusing her and she was suicidal and she needed to be with her mother. It was following these incidences that I sought guidance from an ICL to discuss if we could cease all contact between [X] and her mother and Supervised Contact be reinstated. I had also notified Department of Family & Community Services, as I had no doubt that [X] was now a child experiencing psychological trauma and was at risk of significant harm (ROSH). These were similar issues that occurred in 2015 when [the mother] took [X] to Police Stations to give evidence that her father was abusing her. The allegations were unfounded.
This process of [the mother] taking [X] to Police Stations, hospitals and youth services has undeniably been traumatic for [X]. The session where [X] and her father came in together after these events (September 2019) was hard for [X]. She spoke of her guilt about saying things about her father. [The father] reassured [X] he did not blame her.
(As per the original)
Ms AC observed a change in X's presentation after the Court ordered that the time with the mother be professionally supervised. She stated:
Once this occurred there was a noticeable shift in [X’s] presentation. She was presenting in sessions as happier, much more settled and her presentation was back to what is considered within age expected developmental norms. She was no longer looking unkempt and pale. This noticeable change was also observed by her Paediatrician, Dr E and her C Group Counsellor, Ms AH.
Of the supervised contact, Ms AC reported:
It has been reported by the staff at G Group that [the mother] continues to bring up Family Court. [The mother] also talks to [X] about "standing up for herself" which [X] understands, as she has reported to me in sessions, that she needs to be the one to tell the professionals she wants more time with her mother. [X] has told me she wants the contact with her mother to remain supervised and not to be increased.
As to X's presentation in October 2020, Ms AC reported:
This most recent return to the Family Court has once again unravelled [X] and her presentation this time around is even more concerning as she is now an adolescent and her symptoms are heightened and risky. Her suicidal ideation is increasing and her personality construct is looking more like she will have a Personality Disorder.
In her report dated 1 September 2021, Ms AC stated:
It is evident that since [X] has moved to Canberra, January 2021 with her father…and [Ms J]… she has settled into a routine with her home, school and social life. [X] is presenting in sessions as much more settled with her emotional and psychological functioning. She rarely shuts down in sessions like she used to when she was residing in Sydney. [X] is tolerating conversation with me about difficult issues. She will still go quiet and take time to answer, often in a whispery voice, but she is able to hold a conversation and respond to questions.
I continue to review [X] regularly via Telehealth (Zoom) sessions. [The father] and [Ms J] have also been present for the sessions. Since the move to Canberra we have had six sessions. My current assessment, as of 31st August 2021, is that there has been a significant and noticeable positive shift in how [X] is functioning and managing with her daily life and achieving expected developmental tasks.
[X’s] suicidal ideation has decreased and she is getting better at articulating to her father and [Ms J] when she is feeling distressed or worried about an issue. There are definitely times when [X] has not been able to let her father and [Ms J] know that she is worried, often before visits and phone calls to her mother… Instead she presents with anxious behaviours and dysregulated mood. That said, she has become much more vocal about her feelings towards her mother, telling her father and [Ms J] more about what she is remembering and how she feels. In sessions she is reporting feeling very angry towards her mother… and this is something new. Previously [X] would shut down and silently cry and not say anything when I asked her to tell me how she was feeling about the situation with her mother.
The fact that [X] is not using harmful strategies to alleviate her emotional distress, such as wanting to self harm, like in the past, is reassuring. Instead she is finding positive ways to let her father and [Ms J] know she needs support.
In relation to X's views about time with the mother and its effect on X, Ms AC reported:
[X] continues to have supervised contact with her mother as stipulated in the Family Court Orders. Unfortunately [X] continues to report feeling highly anxious and worried prior to the contact which has now moved to Zoom due to Covid. The phone calls have remained as per Orders but more recently [X] chose not to have a call with her mother as she reported feeling angry with her mother. This anger that [X] is feeling has started to come to the surface for her more recently as she reports having clearer memory of her mother's behaviour. [X] gave me permission to report that she has not liked the way her mother has asked her questions about Court and has kept telling her to stand up for herself and say she wanted to leave her father.
Ms AC reported that X feels settled and safe in Canberra. She stated:
It is important to also report on how well [X] is doing. She has made friends at her new school in Canberra, she is coping well academically, she continues to engage in her Karate, she has applied for a job at a local major retail store and has received an interview and most importantly she is presenting most of the time as a happy adolescent.
Ms AC concluded:
[X] is being very clear with me that she would like to choose when she has contact with her mother… and I support her decision. [X] should rightfully be able to have a voice in…how she wants her relationship to be constructed with her mother… moving forward.
In cross-examination, Ms AC said that X has engaged well with her, "… but I would say more so in the last probably six months X has been more articulate and engaged to have a conversation about more difficult matters".
Ms AC said that X had matured and developed and, in addition:
Well, I think that she’s actually feeling safer. As I’ve said in my last report on 1 September, I have seen a significant shift in X’s presentation, quite marked actually, where she is actually talking quite openly about her situation with her parents and the past. She’s able to articulate when she’s feeling scared and what is making her feel scared or worried or anxious. In the past, she was never able to do that. She would just silently cry and she would sit there quietly and I would find it very difficult for her to be able to actually even give me a word. So in the last six months that has changed, and we are now even working on strategies that when she is feeling worried or fearful or frightened or anxious or overwhelmed, she can articulate and then we’re actually working on strategies to manage how she can help herself, not just me assessing her.
Later in her evidence, Ms AC said that X is "quite a different child" since the move to Canberra. She said that X is doing better now in terms of her functioning and her mental health than at any time since the start of therapy.
As to X's present views Ms AC said:
I think X has been very, very clear with me that she would like to have contact with her mother that is supervised and continues to a point along a similar lines of what it is now. A phone call and visits. At the moment… with [zoom] during [COVID]. But she would like it to be, again, supervised, and at times, if she feels like she does not want to follow through with that contact on that required day for the phone call or the visit, that she is able to say that, “I would like not to have that contact today”. So again, her having choice in the matter.
Asked whether she would be concerned for X's mental health if an order were made that X have contact with the mother as X wished, Ms AC said:
I think it would be quite liberating for her. I think she would feel like she has got some control and it’s not being imposed on her… This has been going on since she was three, but her whole childhood development she has had conditions imposed upon her about the type of relationship she has to have with her parents.
In relation to the issue of ongoing supervision, Ms AC said:
Well, I think that’s a safety issue for X, because she’s quite scared. She has talked about being fearful of if the contact is not supervised, then the possibility of situations that occurred for her previously with her mum, like … having contact with refuges and being taken to police stations, that that would start to occur again.
Ms AC said that although X is clear about wanting to be able to make the choice of whether and when to see the mother, X is also definite in wanting the contact to be supervised.
On X's view of the move to Canberra, Ms AC said:
…she talked about it more externally, that… she would like a different school and it might be a nice break from Sydney. But if I was to… think about it a bit deeper, I believe that X had thought – which is partly what I’ve actually sensed since they’ve moved to Canberra, that having some geographical distance from her mum has provided some safety for her. She has had a lot of fears over the time I’ve been seeing her and continues to do so even in, again, my last session with her, that her mum may just pop up one day at her school or come unannounced and that frightens her.
Ms AC opined that the effect on X of changing living arrangements as proposed by the mother would be "disastrous".
By way of explanation she said:
…She’s doing extremely well. She’s doing the best she has done in the few years I’ve been working with her. Since she has actually settled into a new school she feels safe, she has got friendships… she’s involved in extracurricular activities. She is doing well academically. In the sessions I have with her and the parenting sessions I have with [the father] and [Ms J], I see them all as working well together. They’re settled. They’re happy. And they’re not X’s wishes. They’re not her wishes at all.
DR AM
X was referred to Dr AM, a consultant psychiatrist, in late 2020 and had her first consultation on 11 November 2020 with a second assessment on 25 November 2020.
Dr AM reported to X's paediatrician, Dr E, on 2 December 2020; 1 March 2021; and to the general practitioner on 12 April 2021 and 14 July 2021. Those reports were tendered by the ICL.
When the referral was made to Dr AM, the father, as he was required to do by the December 2018 orders, contacted the mother and gave her the contact details for Dr AM. He also authorised Dr AM to give information to the mother as she requested. The mother has never contacted Dr AM or sought any information from her.
In her report dated 2 December 2020, Dr AM stated:
The reason for referral was for a psychiatric review with particular consideration to medications that might be helpful in view of a recent increase in depressed and dysregulated mood. This has been associated with self-harm, suicidal ideation and crisis presentations to A&E. This occurs on a background of early childhood trauma associated with dysfunctional parenting and disrupted attachments which are very likely to have contributed to the current clinical presentation.
Dr AM stated:
The family fortunately have had long-term good quality therapeutic support over the past two years. Subsequent to these consultations, I was able to speak to both
Ms AH from C Group who is X's individual therapist and Ms AC from H Group who has been working with the family and provided a report for the Family Court. Perhaps through the therapeutic work already done, X appeared to have a reasonable level of insight into the origins of their emotional vulnerability particularly difficulties dealing with interpersonal experiences perceived as rejecting or invalidating. The clinical picture is consistent with complex post-traumatic stress, likely leading to an emerging borderline personality disorder.
I note that Dr AM's assessment of the "clinical picture" is consistent with that of Ms AC. Dr AM stressed the benefit of continuing in therapy with X's "treatment team" of Ms AC and Ms AH from C Group and reviewed X's medications.
In her report dated 1 March 2021, Dr AM stated that X reported having started her new school in Canberra and having managed the transition reasonably well. X's medication was again reviewed and adjusted.
After a consultation on 12 April 2021, Dr AM reported that X's medication had been adjusted again and that X had settled into the new school "reasonably well and been maintaining good attendance".
On 14 July 2021, after a consultation on that day, Dr AM reported that X had settled in well in the Canberra school and commented favourably on the supportive attitude of the school. She reported that "there has not been any sense of urgency based on current mental state".
X continues to have consultations with Dr AM electronically.
THE EVENTS OF 23 AUGUST 2019
Although this event occurred over two years ago, it assumed disproportionate importance in the trial.
The father and Ms AC believe that the mother caused X to contact refuges and the police. The mother asserts that she did not and that X drove the events.
At this time, X, who was 13 years old, was receiving counselling from Ms AH of C Group and therapy from Ms AC. The two professionals were in regular communication and exchanged information in relation to X.
It is not in dispute that X had contact with the Suburb W Youth Centre ("WYC"); with the AN Refuge; with a lawyer from the Suburb W Centre and with the Suburb W police in the days leading up to 23 August 2019 when X was in the care of the mother.
The mother's evidence of these events is contained in her trial affidavit. She denied having instigated any contact with refuges or with the police. The mother deposed:
45.This fiction regarding my allegedly taking X to various refuges is entirely untrue. The 15 October 2020 affidavit of Ms AC reproduced this fiction. It has been said many times and to many people, but that does not make it true.
46.I did not take (or “drag” or “force” or any other such euphemism) X to any refuges. As far as I know, the only time X was at any refuge was long ago when I was temporarily accommodated there. The suggestion that I was trying to get rid of X or abdicate my parental responsibility is patently untrue. I would happily - now or then - have had them stay with me, but I could not do that without breaching the court orders. X knew that and tried to “solve” the problem of staying with their Dad by making phone calls to refuges. I had persuaded them not to run away and had returned them to [the father] at the required times, until this last occasion of 24 August 2019 where they attended the police. I think the first call X had made to a refuge was Saturday August 17 2019.
47.X and I were at an event at the AP Theatre for much of that day. I returned X to [the father] on time as usual. I didn’t see X until the following Wednesday 21 August 2019 (as set out in the orders), when X made a call to another refuge during the day. On that day, X had an event at school which began at 5pm. Rather than leaving school at 3pm, going home and then coming back we decided to stay in the area.
48.X suggested that we go to a local park that we both like, which was next to Suburb W Youth Centre (WYC). This centre is not a refuge and has no accommodation. X was hoping that they had some activities on, as they often did.
49. X has been to WYC before with me, and I believe has also been with
[the father]. It turned out be a very cold and windy afternoon and there were no outdoor activities, so we went indoors to get out of the weather and to see if there was anything going on inside. While there X spoke to some staff about what had been going for them (as they had previously). One of the staff asked me if I’d be interested in having X get some counselling there but I declined because my understanding was the court orders do not permit me to sign X up for such things and X already had a therapist.
50.The weather was still bad so we caught an Uber back to X’s school, even though it is only a twenty minute walk. X stayed with me (in accordance with the court orders) the next two days. We did not go to any refuges or back to WYC. X also spoke to a lawyer from Suburb W Legal Centre on Friday 23 August 2019.
51.Their actions may not have been ideal, but I do not see how they justify punishing X by forbidding them to have a relationship with their mother or sister.
52. …
53.Paragraph 115 of my 2019 affidavit states, as part of my response to an allegation made by the [father], that:
I took [X] to the Police to tell them that I needed to return [X] to [the father] but [X] was refusing to go back and pleading with police not to force her back to her father's care because she was "afraid” of him. [X] told police that "if you force me to go back to dad, I will stab myself”. Police then had to call the Ambulance out to assist [X] because they were concerned for her mental health.
54.This is not an accurate summary of what took place. I wish to clarify that I did not take X to the police, X ran off there and I followed. I did not take them there for the purpose of saying I had to return them and they refused to go - I just stated that was the case when I had arrived there and was asked for clarification. X had spoken to a lawyer who had advised them that their father’s actions were illegal and they should tell the police. I was aware of this because the lawyer had called my phone and spoken briefly to me.
55.I had actually taken X to [the father’s] house, and was about to say goodbye and walk away when they said they were not going inside and were instead taking the lawyer’s advice and going to “run away” to the police. X had been talking about running away and their mental health was not okay and I thought I should not let my 13 year old go to the police station alone. I actually tried to dissuade them by asking “Are you sure?”.
56.I asked this because I knew that their previous attempts at talking to the police had not had the results they were hoping for. They were not there just to say they didn’t want to go back to their Dad - they were making allegations of abuse and of domestic violence between [the father] and [Ms J]. It was only after the police officer did not appear to be interested in taking a formal statement and said they were going to call their Dad to come get them, that X responded with a statement threatening to stab themself.
(Italics in original)

Documents tendered do not support the mother's version of events.
On 21 August 2019, Ms AC sent an email to Ms AH saying:
I got a text message from mum saying that [X] had been to the AN Refuge on the weekend and tried to get a place but they were full and that a FACS report has been made.
A note made by Ms AH of C Group on 21 August 2019 states:
I spoke to the staff at the AN Refuge to follow-up a text message from [the mother], that [X] had approached the refuge over the weekend of the 17th and 18th of August. I replied by thanking her for advising me and let her know I would follow up when I returned to the office. I wanted to clarify with refuge staff whether the contact had been from [X] herself or from [the mother].
The refuge staff advised that both [the mother] and [X] had both called the refuge to discuss [X’s] accommodation options. The refuge had advised both [X] and [the mother] that they had no places. The refuge staff had noted that mum then went into a lot of detail about the situation.
I notified [Ms AC], [X’s] Psychologist of my discussion with the refuge.
(As per the original)
Records produced by New South Wales Police state:
About 4:30pm on Friday the 23rd of August 2019 the MOTHER and CHILD presented to Suburb W PS stating the CHILD was fearful of her father. Police made extensive enquiries as to the nature of these fears where the CHILD stated that her father is currently having marital issues with his current girlfriend and arguments have been more frequent lately, causing distress. The CHILD verbalised physical interactions with the FATHER involving grabbing of her arms, however further enquiries indicate this instances to be disciplinary in nature. The MOTHER verbalised concerns for the mental health of the CHILD. The CHILD furthermore stated to police that “Sometimes I just don't want to go on” and that she has been feeling very depressed lately. The CHILD further stated that these suicidal ideations would get worse if she went home to her FATHER. Police enquired further, where the CHILD did not verbalise any specific plans for suicide. Police contacted the AMB for a mental health assessment. Police contacted the…, who informed police that she is uncertain of the truth of the comments made by the MOTHER. Police contacted the FATHER, who provided the number for the PSYCHIATRIST. Police spoke with the PSYCH who advised that she was very satisfied with have a mental health assessment on the CHILD and has provided her contact information for after hours contact where required. In accordance with the Court Orders, the MOTHER left Suburb W PS as AMB arrived and the FATHER was in attendance to accompany the CHILD for a mental health assessment. Police note that the MOTHER may be influencing the opinions and mental health of the CHILD and the PSYCH has further emphasised that the court orders are in place for a very good reason. Furthermore, the FATHER is highly capable and cares well for the CHILD.
(As per the original)
I note that there is no mention in the police record of X threatening stabbing.
I infer that the person to whom the police refer as a psychiatrist was Ms AC who said in her oral evidence that she had spoken to police on that day.
X was taken by ambulance to AQ Hospital. The records show that X presented with suicidal ideation and note "Presented to Police station with mother as feeling more anxious, felt as if she was unravelling inside, some thoughts of self harm…"
The notes of the Emergency Department Registrar record:
•in Dads care as per court order; able to stay with mother 2 days per fortnight
•recently residing with mother for past 2 days (as planned per court order)
•in this time she has been attending crisis refugees more due to mothers coercion and today in an effort to potentially stay longer with mum has gone to police station reported vague SI
•states that Dad's partner has gone away for 3 weeks and is upset over this
•has now retracted SI; no active plans, no TOSH
•also upset that stepmom and dad have had arguement recently and worried they might break up
•denies physical abuse or concerns for safety at home with dad
•denies medical illness / infective symptoms
•denies drug ingestion / attempts at self harm
(As per the original)
The notes of the Clinical Nurse Consultant record being told by X, inter alia:
mum has recently been taking [X] to refuges seeking accommodation for her to try and get her away from dad. Also taking her to hospital claiming she is not safe with dad.
today mum took her to police station and reported that she had suicidal thoughts in context of not wanting to live with dad
initially [X] reported that dad and his partner criticise her and call her lazy and that she wanted to go and live in a rfuge. However shortly after this stated that dad and partner recently had a fight and she was worried that they might split up. [Ms J] has gone overseas for 3 weeks to a wedding, [X] misses her.
Tearful throughout interview, worried that dad will be angry that she has said that she doesn’t want to live with him
would like to spend more time with Mum.
Admits that she doesn’t really want to go and live in a refuge, feels safe with dad.
(As per the original)
Under the heading "Formulation and Diagnosis" the records state:
…14 yr old girl with dx ADHD and complicated traumatic social history present with abulance after Mum took her to police station to report suicidal thoughts and wish to leave dad’s care and live in a refuge…
On 26 August 2019, Ms AH noted a conversation between herself and Ms AR of WYC:
I was contacted by Ms AR, who had seen [the mother] and [X] the previous week. Ms AR advised that [the mother] and [X] had attended counselling at WYC and then been referred to Ms AR for Case Management. Ms AR had referred [X] to a number of refuges as well as Suburb W Legal Centre. Ms AR advised that she had made a report to FACS based on [X] and [the mother] reporting emotional and physical abuse by [X’s] dad… Ms AR advised that both the school and Ms AC had been in contact to challenge what had happened with [X] and [the mother] and that that the FACS report had been amended to reflect the historical issues involved in the case and the relationship between [the parents] and [X].
Later on 26 August 2019, Ms AH spoke to X and noted:
I met with [X] and she advised that a lot had happened since we had last spoken. [X] confirmed that she had contacted the AN Refuge and had had contact with WYC in order to try and get a referral to the AN Refuge. [X] advised that she had also been to the police station which had been recommended by the Suburb W Legal Service as an option if [X] did not want to return home to
[the father’s] house. [X] reported that she had attended the police station but that they had referred her to the hospital due to her reporting that she was suicidal. When asked, [X] advises that she felt like she was unravelling. When asked, [X] could not answer what had triggered her contacting the AN Refuge but that she had been "putting up" with things the way they were at [the father’s] "for half a decade". And that … her dad's partner had gone away and that she had called the AN Refuge who had told her that they did not have any vacancies. When probed [X] could not articulate what was happening or what she had been putting up with. When asked what lead up to her contacting the AN Refuge she advised that she had told her mum she wanted to run away but instead of runaway and be on the street her mum had suggested that she live at a refuge for a little while. [X] advised that she had not seen
[Ms AC] because she had been sick the previous week.
None of the records to which I have referred supports the mother's evidence that X, not the mother, instigated these contacts.
It is more likely, that, as she had done in the past, the mother instigated those contacts and that her evidence at paragraph 115 of her 2019 affidavit is a more accurate picture of events.
THE SUPERVISED CONTACT REPORTS
I am satisfied that, after the orders made on 29 October 2019, supervised contact occurred monthly in accordance with those orders. On each occasion, the supervisor provided a written report and those reports were in evidence.
The initial reports were positive and described a loving and appropriate interaction between X and the mother and between X and AE. The reports from January 2020 are more concerning.
On 12 January 2020, the supervisor reported:
[The mother] told [X] if she just wanted to talk to her outside of the times they talk now, maybe she could just ask her dad, because she might just want to talk to her Mum. She said she knows [X] has support anyway if she needs to talk to someone. She said things change as you get older, even at 14 so if [X] ever needs to talk to anyone [X] knows [X] can. [X] didn’t say anything just agreed.
In cross-examination the mother did not concede that her suggestion of additional calls, that suggestion not having been previously discussed with the father, put X in a difficult position or put X in the centre of the conflict. She did not concede that the conversation was inappropriate.
On 12 July 2020, the supervisor reported:
[The mother] asked [X] if [X] knew they had Court next Wednesday, [X] said she didn’t. [The mother] asked if she still spoke to her Lawyer, [X] said no… [The mother] asked [X] if there was anything she wanted her Mum to ask for, [X] said she would like to see her Mum’s house. [The mother] asked [X] if she knew what she really wanted to do, [X] said no not really, and changed the subject.
Later in the contact session, the mother again asked X if there was anything that X wanted the mother to request in Court. After a short time X said "no".
Order 12 made on 12 September 2019 restrains the mother from discussing the proceedings with X and those conversations are a contravention of that order by the mother.
On 16 August 2020, the supervisor reported that before the session commenced, she spoke to the mother and asked her not to have discussions with X about the court proceedings, as had previously been discussed by the Service Manager with the mother. The mother agreed and said she "never talks about Court until the end of the visit…unless X brings it up". The supervisor reported that the mother agreed that she wouldn't upset X.
Shortly before the end of the session, the mother raised the proceedings with X saying:
So you know Court is this Tuesday right? [X] said yes and that she’s made it clear what she would like. [The mother] asked [X] if she wanted to tell her, X said not really. [The mother] said, that’s ok I will find out on Tuesday. [X] said that she had said she wanted to see [the mother] more and visit her home. [The mother] said, good, at least we want the same things, I don’t want to ask for anything you don’t want.
Again the mother saw nothing inappropriate about that conversation.
At the commencement of the session on 20 September 2020, the mother was again instructed not to speak to X about the proceedings and was told that, if she did so, the supervisor would stop the visit. The mother complied.
At the commencement of the session on 17 January 2021, the supervisor asked the mother not to discuss X's impending move to Canberra or ask X questions about the move. The supervisor noted:
[The mother] appeared unhappy with this, and said she knew I would say that and she has a right to talk to her daughter about moving, and see how she feels about it. She said [the father] would have asked [the mother] not to talk to X about it because then [the mother] would find out X isn’t happy about the move. I said that yes, [the father] suggested it because he doesn’t want X stressed and X has agreed.
I said I understood [the mother] wanting to know how X feels about it, but we need to be guided by her. I told her that when I see X, I will let her know as well, that I will stop the conversation and the visit if needed, if X starts to feel uncomfortable.
[The mother] said there are no Court orders which state she can’t discuss these things with her daughter, and as her mother, [the mother] needs to know how she feels… I then said but it’s about the fact that X is 14 and is a child and shouldn’t be the go between, between her two parents. I said that X shouldn’t be stressed out about this, she has three hours with you… and it should be enjoyable.
The mother in cross-examination, said that the supervisor's instruction was unreasonable.
The supervisor spoke to X before taking X to the mother and told X that she had asked the mother not to discuss the move and would stop the session if X was uncomfortable. The supervisor observed that before the session started, X appeared to be anxious and quiet. The supervisor reported:
As we walked to the Library, I asked X how she really felt about moving. She said good, it had four bedrooms, and a trampoline, she sounded more animated as she spoke about it. She said, at the new school, they will either go to her and ask her questions like everyone does with new kids at her school now, or she will be left on her own, but she didn’t mind that…
The mother raised the move to Canberra almost immediately, asking X if X was happy about the move and X replied "Yes". X told the mother that the new house had four bedrooms, a trampoline and a backyard. The mother asked X "How long have you known that you're moving?" X hesitated and said "Well it's only been finalised in the last month". The mother said "It's not finalised yet". X did not respond.
The mother raised the topic again later in the visit saying "So you're happy about the move?" and X again said "yes".
The mother said to X, "I wanted to see you on your birthday, but I'm not allowed to". The supervisor intervened.
At a later time the mother again raised to topic of the move, suggesting that X save the school emails as the new school is in another state. The mother said to X "I know you don't want to talk about the move but I just wanted to remind you about that". X changed the subject.
The supervisor reported that the conversation then continued:
[The mother] said that she had been researching the area [X] is moving to and it has a high crime rate, so she needed X to be careful, because she is new and it’s very different to Inner City living. [The mother] said there isn’t a lot of things around for [X] to do. [The mother] said don’t trust everyone, X said I know about peer pressure Mum. [The mother] said, well I’m just saying trust your gut instinct. X said Mum I know ok, I know. [The mother] said I’m your Mum I worry that’s all and you’re leaving all your friends, which is hard. X said, are we finished now Mum? [The mother] said yes.
After a short time the mother resumed. The supervisor reported:
… [the mother] said, did you need to move to another State for a school? What is wrong with the ones here? X didn’t answer. Then [the mother] asked, why didn’t you say anything on the phone about moving when I was speaking to you? I interrupted and said maybe her Dad asked her not to just yet until they knew for sure. [The mother] said, well it’s still not for sure anyway. I said yes, but it’s not up to X to be caught in the middle either. [The mother] said I know that, I just wondered how long they had planned it. X put her hand up and said, are we finished now? [The mother] said yes.
The mother went to put their rubbish in the bin and the supervisor asked if X was okay. X said "Yes, a bit stressed".
Towards the end of the visit, the mother said to X that, by moving away, X will probably see less of her and AE.
As X was returning to the father, X said to the supervisor "…it's annoying, Mum just doesn't listen and wants to control my life". X said "I want to move, it's not far away, it's just a couple of hours…"
The supervisor in her report stated:
Despite my conversation with [the mother] at the beginning she continued to ask X about the move and a few of the conversations appeared to make X uncomfortable.
The supervisor commented that the visit did not appear to be relaxed and X was observed to ensure that the supervisor was nearby at all times which was not usual.
At the end of the next visit, on 14 February 2021, the mother said to X "apparently you told [the supervisor] that I don't listen to you and try to control your life". X did not respond. The mother asked if the supervisor had "got that right, wrong had misunderstood or misrepresented" to which X said "I don't think I said that". The mother asked if X felt that way and X did not respond. The supervised noted:
There was a short period where the atmosphere was quite heavy and neither of them said anything.
The supervisor commented:
Mum put X on the spot at the end of the visit and wanted a conversation that X was not prepared for and didn’t appear to want to have.
After the visit on 11 April 2021 the supervisor noted:
The visits tend to follow similar patterns each time. When Mum overdoes her responses X tends to shut down and the visit takes on a tense tone. When Mum is more circumspect, the visit has a more relaxed flow to it.
After the visit on 23 May 2021, the supervisor commented that X did not want to talk about new friends, Canberra or school.
During the visit on 27 June 2021, which was by Zoom, X asked the supervisor to end the session 20 minutes before it was due to end. The supervisor reported:
I let X know there was 20 minutes left and asked if X was sure they wanted to end the visit. X said yes but wasn’t sure how Mum would react and didn’t want Mum to take it out on X. I assured X it would be fine and said I would put X in the waiting room and talk to Mum.
The supervisor asked if X wanted to say goodbye to the mother but X looked uncomfortable and declined. The supervisor commented that after the contact visit, X appeared unhappy and didn't want to talk. She wrote:
This online visit was very different to the last one as X appeared more mature and reserved with conversation.
On 25 July 2021, the supervisor commented after the session, which was by video, that X appeared more assertive.
X appeared to enjoy the video session on 22 August 2021.
Nothing in the observations of the interaction between X and the mother led the supervisors to suggest that the length of the visits was insufficient or that X wanted more time with the mother.
THE MOVE TO CANBERRA
The father deposed:
18.… Prior to relocating [X] discussed their reasons and the consequences of any move with the family therapist, [Ms AC]. After talking with Ms AC [X] researched the ACT school system. With [X’s] consent, Ms AC discussed the proposal with [Ms J] and me; and later with [X’s] counsellor Ms AH at which [X] was not present. Ms AC and Ms AH supported relocation each advising, that on balance the move would be beneficial for [X] and they did not foresee any problem in facilitating a changeover of therapists/counsellors to the ACT and/or maintaining therapy with themselves until alternative therapists could be sourced.
On 6 January 2021, the father's solicitors wrote to the mother's solicitors advising that the father intended to relocate with X to Canberra. The letter stated, inter alia:
…
We note the Order providing for our client to have sole parental responsibility is subject to paragraph 3 of the Orders which provides that in the exercise of his
parental responsibility, our client shall advise your client in advance of any decision he proposes to make, take into account any views expressed by her and otherwise inform your client of the decision he makes in the exercise of his parental responsibility.
In discharge of our client's obligations pursuant to that Order, we are instructed to advise as follows:
1.Our client proposes to relocate, with his partner, [Ms J], and [X] to the ACT in January 2021 and to reside in the Suburb AW area, preferably in the suburb of Suburb XX.
2.The idea of relocating was initiated by [X] in 2020 and something our client urged [X] to think through and weigh up. Our client has discussed with [X] the reality of moving to a different city, the disadvantages and challenges, and the contrast between suburban Canberra and the Inner West of Sydney. [X] remained committed to the idea.
3.[X] discussed her reasons and the consequences of any move with the family therapist, [Ms AC]. We are instructed that after talking with Ms AC [X] has, undertaken significant research with respect to the ACT school system. With [X’s] permission, Ms AC discussed the proposal with our client and [Ms J]. However, no firm decision was made. Our client later raised the prospect of relocation in a private consultation with [X’s] counsellor Ms AH at which [X] was not present. Both Ms AC and Ms AH supported the concept of relocation each advising, that on balance, the move was likely to be positive. Both counsellor and therapist advise they do not see any problem in facilitating a changeover of therapists/counsellors to the ACT and/or maintaining therapy with themselves, including by way of telehealth, for the foreseeable future and or until alternative therapists are sourced.
4.In the short to medium term, our client proposes to continue to utilise the existing health care providers for [X’s] treatment and will drive to Sydney for appointments and/or facilitate appointments by way of telehealth if required.
5.Our client proposes to enrol [X] at YY School (website This is a public school which offers the International Baccalaureate Diploma Program for students in Years 11 and 12 and which we understand [X] is interested in participating in. [X] will be guaranteed a place at the school based on her residence in Suburb XX.
6.Our client proposes to travel to the ACT following [X’s] next scheduled visit with your client on 17 January 2021. This will allow time for a 14 day mandatory quarantine period, should it be necessary before school starts for the year.
7.Our client's employment will be unaffected by the move in that our client will be working remotely from the ACT and based at home. This job may be undertaken from either Canberra or Sydney. It will be 100% remote work for the duration of the pandemic, with one day in the Sydney office every 2 - 3 weeks thereafter.
It will be necessary for our client to apply for and obtain an exemption from travel restrictions before entering the ACT. To do this our client needs to provide a signed lease for a period of 6 months and, if granted, our client, [Ms J] and [X] would be required to quarantine in the new residence for a period of 14 days. This will enable [X] to start school on 1 February 2021 being the commencement date for new students or 2 February 2021 being the commencement date for existing students.
The timing of all of these matters is tight and would require our client to commence implementation of the necessary steps as soon as possible and without unnecessary delay.
Our client will provide particulars of his residential address as soon as those details are available. Our client will otherwise continue to facilitate [X’s] scheduled visits with your client in accordance with the existing Orders.
Our client would propose that the Independent Children's Lawyer speak to Ms AC about [X’s] views. Should the Independent Children's Lawyer have any concerns or questions in relation to the proposed relocation, our client requests any further interviewing of [X] by the Independent Children's Lawyer be subject to the recommendations of Ms AC.
We would be grateful if you would obtain your client's urgent instructions in relation to the aforementioned proposal.

The mother's solicitor responded on 13 January 2021 indicating that the mother did not agree.
The move was made on 17 January 2021.
The father, in his trial affidavit, deposed:
98.… [X] attends [named] Secondary School in Year l0. [X] has in the last few days been accepted into the College campus of [the school] for years 11 and 12, which they seem excited about.
99.[X] has continued to make friends and build new social circles in and out of school. They go to the local youth centre every week with a regular group to play games. [X] also goes to a Queer youth social group with other teens around their age every Saturday afternoon called “AX Group”. [X] has made new friends at school, arid when some of them turned out to be “So full of drama”, eventually found some new friends “We totally come up with crazy ideas. It’s like our brains work in the same way. We’re ‘different’. But in that good way”.
100.There have not been any suicide attempts since we moved to Canberra. The house in which we live has 3 bedrooms. [X] has her own room. There is also a study but [X] has a desk in her room to do homework.
Ms J deposed, in her affidavit sworn 2 August 2021:
20.Since [X], [the father] and I have relocated to Canberra, I have observed an improvement in [X’s] behaviour. [X] has a group of friends at school, some of whom come over for sleepovers and many of whom [X] has enjoyed afternoon outings to movies and shopping at the local mall. [X] is a member of the AY Group at [named] Secondary School, which is the school sponsored LGBTQ student club. This year [X] is on the committee for planning the Year Formal in November. [X] also attends regular social events at the local Youth Centre including the Open Mic/Instrument afternoon, Pizza and Games Access sessions and the weekly gaming group. Since February, [X] has also been a member of the AZ Youth association, which meets weekly in Suburb BA and coordinates social, educational and outreach activities for queer youth across the ACT. [X] has already coordinated a queer tv series marathon for the group to great success.
21.As a family [the father], [X] and I enjoy going for hikes and afternoon drives in and around Canberra. We have explored National Parks, Reserves and other attractions. We continue our regular family breakfasts, in which we all work together to cook a special breakfast and enjoy in our pyjamas, and our family movie nights. We have also enjoyed spending more time with our family friends who live in Canberra meeting for weekend catch-ups and bookshop hopping. [The father] and [X] have continued with their karate training, [X] was awarded their Green Belt in July 2021, something they worked very hard for, and I am very proud of them.
22.[The father] and I are also members of an Australia wide online book club. The book club meets monthly and during school holidays hosts regular morning tea socials on Zoom. [X] often joins in for these, enthusiastically sharing about the books they have recently read and saying hello to the other children of group members. In place of the annual book club face to face, which was cancelled due to COVID-19, our book club hosted a weekend long series of online social events. [X] particularly enjoyed joining in for the bookshelf scavenger hunt and the evening social time. Several book club members were excited to hear about [X’s] use of manifest cards for mindfulness and 1 was impressed and proud to see [X] confidently hold their own in a conversation about Tarot, something else they have been reading about recently.
23.Since moving to Canberra, there have been no suicide attempts by [X]. There have been occasions when [X] has felt upset but has been able to talk to me and has said to me, “I'm feeling a little like I did before, when I tried to hurt myself, but I don't want to. What can I do?” We will talk about the strategies [X] has learned for self-soothing such as jumping on the trampoline, going for a walk or asking to go for a drive and spending time with the cats. More recently, [X] has begun to pre-emptively state that they are going to try to self-soothe. [X] is getting better with getting themselves through a negative feeling on their own initiative.
24.Since our move to Canberra, [X] has not soiled their underwear and rarely hidden food. When on a few occasions they were thinking of hiding food, [X] disclosed the thought beforehand. For example, just prior to a visit with [the mother] in June 2021 [X] came to me and said, “…I started to feel really bad and was about to hide my lunch that I made but I noticed what I was doing”. When this has happened, I have offered to [X] to go for a walk or put some music on and sit with them while they finished their meal. More often than not, [X] has thereafter been able to eat the food.
25.Since moving to Canberra, I have observed that when [X] has been distressed prior to a visit, rather than withdrawing as they previously did, [X] will recognise their own signs and actively seek help and support. For example, [X] has said to me “I am not feeling great. I know I've got a visit this weekend,” or “I'm really anxious today, I've got that phone call with Mum tonight” and “I know I'm just trying to distract myself to try and not think about the visit/phone call. I'm going to have to keep myself distracted today and get through tomorrow”. [X] has also said, “I know I often feel really tired and bummed after a visit. I'm going to arrange with friends to do something later in the evening so I can also have some flop time beforehand” ([X’s] term for very chill time, usually when they snuggle up with one of the cats and a book or a TV show).
This evidence was not challenged. Whilst I accept the submission of counsel for the mother that he was not in a position to challenge that evidence, I also note that the mother, in cross-examination, said that, although she had been given the contact details for X's treating psychiatrist and for the new school, she had not contacted either. She had not sought any information from Dr AM about X's progress and she had not sought from the school any information about how X was settling into school. In cross-examination by the ICL about her failure to make those contacts, the mother said "I accept I could have been more pro-active" but she gave no explanation of her failure to do so.
CONSIDERATION
This is a matter where the primary considerations, expressed in s 60CC of the Family Law Act 1975 (Cth) ("the Act") come to the fore.
Whilst it is a requirement that the benefit to X of having a meaningful relationship with both parents be considered, that consideration is subject to:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It is insufficient that the Court should find that that there is a likelihood that X would suffer psychological harm in the care of the mother, as the father and the ICL assert, but, in order for the second consideration to override the first, it would be necessary that there be a finding that the psychological harm arises from being subjected to "abuse, neglect or family violence".
The evidence before me establishes that X has significant vulnerabilities and that there is a need to protect X from psychological harm, but it does not establish that X has been subjected to abuse, neglect or family violence.
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
It is the mother's case that there is no reliable evidence of X's views and that no weight should be given to the evidence of Ms AC on that issue. For the reasons I have already expressed, I reject that submission.
In cross-examination, the mother said that she does not accept that X does not want to live with her or, I infer, continue to have the time X spends with her supervised. However, the mother conceded that since August 2019, X has not taken any steps to live with the mother. Further, there is no evidence that, since August 2019, X has initiated any contact with the mother other than the court mandated contact.
X has a mobile phone and is computer literate. Although the mother gave evidence that she believes that X's phone use is restricted, that proposition was not put to the father or Ms J.
I do not accept that a teenager with access to a mobile phone and a computer could have been prevented from contacting the mother.
The primary evidence of X's views is the evidence of Ms AC. In so far as the ICL was criticised for his decision to put evidence of X's views through Ms AC, I do not accept that criticism.
X has seen and sees multiple therapists and has expressed frustration at having to tell the story over again to new people. The ICL's assessment that X is either in danger, or the subject of, systems abuse is a valid assessment.
Had those representing the mother been of the view that there should be a report prepared by a (as it then was) Chapter 15 expert or a Family Consultant, rather than by Ms AC, then it was open to them to make an application for the preparation of such a report. No such application was made.
The evidence of Ms AC is that X wants limited, supervised contact with the mother and that X wants some autonomy about how often that contact occurs.
There is no evidence that X wants to live with the mother.
X is fifteen and a half and is intelligent and substantial weight should be given to those views.
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 evidence does not allow any findings about the precise nature of X's relationship with each parent.
The evidence of the father and Ms J about X's distress both before and after contact visits was not challenged.
The evidence suggests that X has a secure and trusting relationship with Ms J.
AE is a very important person in X's life and X worries about AE.
However, because of AE's age, it is not possible for X to spend time with AE in circumstances that do not include the mother. As AE grows older, it may be possible for X to have an independent relationship with her but, for the present time, X's relationship with AE will be constrained by the time that X is prepared to spend with the mother and the circumstances in which X is prepared to spend that time.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother, who is in receipt of Commonwealth benefits, has been assessed to pay a small amount of child support for X. However, the father has indicated that he does not want the child support to be collected from the mother and he is solely responsible for X's support.
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;
I have no doubt that separation from AE is a matter of sadness for X but that separation is a consequence of X's decision not to spend more time with the mother.
On behalf of the mother, it was submitted that there is no evidence that establishes that any aspect of the mother's behaviour is detrimental to X or causes X's mental health to decline.
Ultimately, however, I accept the evidence of the father, Ms J, Ms AC and Dr AM that there has been an improvement in X's mental health and functioning since the move to Canberra.
Significantly but sadly, the father deposed, "There have not been any suicide attempts since we moved to Canberra". The stark significance of that statement is contrasted with the father's evidence that X attempted suicide by strangulation twice in September 2020.
I am not prepared to make any alteration to X's current parenting arrangements where there is even the slightest possibility that a change would have a deleterious effect on X's mental health.
The change proposed by the mother is very significant.
X has lived with the father and Ms J for almost six years.
The mother is not in settled accommodation. She has been approved to move to larger premises but she does not know where or when the move would take place. Thus a change of parental care would involve two changes of residence for X.
Because the mother does not know where she will ultimately be living, she cannot know what school X might attend, except to say that it will be a public school in the area where she eventually lives. That would have the effect that X might have to change schools from the Canberra school where she is doing well, to a school near the mother's home and then change again when the mother moves to new premises.
If X were to live in the mother's care, then the mother would terminate the relationship with Ms AC with whom X has had a therapeutic relationship for almost three years. I infer that at least some credit can be given to Ms AC for the present improvement in X's functioning. There is no evidence that X wants to end that relationship and Dr AM is supportive of it.
No evidence was led in the mother's case that could satisfy the Court that the cumulative effect on X of all of those changes would be beneficial.
It is reasonable to foresee that, having regard to X's vulnerabilities, the effect would be, as Ms AC said in cross-examination, "disastrous".
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;
At the present time, contact occurs by Zoom. Once face to face contact resumes, the father will arrange for X to travel to Sydney and back.
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;
The mother's lack of insight into the effect of her behaviour on X was apparent during cross-examination.
She did not concede that her insistence on questioning X about the move to Canberra; suggesting that X could telephone her outside the Court ordered times and discussing the upcoming Court appearances with X could be stressful to X.
In relation to each of those matters, the mother was aware of the terms of the orders made restraining her from those behaviours but chose to ignore them. She also chose to ignore the supervisors' requests that she refrain from those discussions. In the case of the discussion about the move to Canberra, the mother said in cross-examination, that she regarded the request as unreasonable.
I am also satisfied that the mother either encouraged X to contact refuges and police in August 2019 or, at least, did not discourage her from so doing. The mother's parenting decisions surrounding those events were harmful to X and caused X to be fearful and destabilised.
The mother could not be relied upon to make parenting decisions which were appropriate, especially in circumstances where her wishes did not coincide with X's interests.
The father and Ms J must be given credit for X's current presentation.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother's actions, both in August 2019 and in March and April 2018, by retaining X and involving police and other organisations, demonstrate her inability to make good parenting decisions.
There could be no confidence that, left with unfettered access to X and in the absence of supervision, the mother would not act in a similar fashion.
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.
The father deposed to a conversation in early September 2020 where X said, "I am sick of people saying things will get better when they just happen over and over again. I am sick of this court stuff". That conversation took place immediately after X had attempted suicide by strangling.
X has been the subject of litigation in this Court since 2015. It is clear that the continued proceedings are taking a toll on X's mental health. X has significant challenges imposed by mental health issues and it is imperative that if anything can be done that will lessen the burden of X's anxieties and stresses, then it must be done. Ensuring that this litigation comes to an end is one thing that might assist.
The orders that will be made will be made with that intent.
I propose to deal here with the issue of parental responsibility. The father has had sole parental responsibility for X since the orders December 2018. The mother seeks equal shared parental responsibility.
The father has exercised his responsibility in accordance with the orders. He has provided the mother with information and authorised relevant treating practitioners and X's school to give information to the mother as he was obliged to do.
In late 2020, when X was referred to Dr AM, the father advised the mother of the referral, the reasons for it, and the contact details. He authorised Dr AM to provide any information requested by the mother.
Similarly, he gave the mother the details of the school in which X was enrolled in Canberra and authorised the provision of information to her.
The father is committed to X's ongoing therapeutic relationship with Ms AC. The mother seeks an order that Ms AC not continue as X's therapist and that another, yet to be located, therapist be substituted.
When challenged in cross-examination that the issue of Ms AC's continued engagement was incapable of resolution and that, if there were equal shared parental responsibility, it is likely that the issue would have to be determined by a court, the mother rejected that proposition. The mother said she was confident that she and the father would be able to reach an agreement.
That response was either naïve or disingenuous. Nothing in the evidence or in the history of this family suggests that there is any prospect of agreement about this issue.
For that reason alone it is necessary that the father continue to exercise sole parental responsibility.
However, that is not the only reason.
I am satisfied, on the basis of the evidence of the father, Ms J, Ms AC and Dr AM, that X has thrived since the move to Canberra. I am not prepared to make any change to X's current parenting arrangements which has potential, however slight that potential may be, to disrupt that progress.
CONCLUSION
I consider that X's mental health, and the continuation and consolidation of the gains which have been made since the move to Canberra, must be the foremost consideration.
It would not be appropriate to change the current parenting arrangements in any significant way, as the mother proposes, unless there was cogent evidence that such a change would have a positive effect on X's functioning and mental health.
There is no such evidence.
It is not in X's best interests to make any significant changes to the current parenting arrangements.
SHOULD THE CHILD BE ABLE TO INITIATE CONTACT WITH THE MOTHER?
In the course of the hearing, I raised with the parties the proposition that X should be able to initiate contact with the mother if X wanted to do so. The mother embraced that position although she expressed her view (unsupported by evidence) that X would not be permitted by the father to do so. The ICL agreed that it was appropriate that X be able to initiate communication. The father opposed the proposal.
On behalf of the father, it was submitted that the mother would misuse any means of communication and that she would not comply with any orders restraining her from initiating contact, thus increasing X's anxiety and stress.

There is merit in the father's position. The mother has acted in disregard of orders in the past and has initiated communication with X that was unwelcome.
It is necessary, however, to balance X's right to have communication with AE against the necessity of protecting X from unwanted communication from the mother.
These orders will remain on foot until X is 18 years old in 2024. By that time, AE will be almost four years old and before that time AE will be old enough to have contact with X by telephone or by video call. The orders proposed by the father would have the effect that X was not permitted to contact AE outside the specified times for contact with the mother.
X has a loving relationship with AE and worries about her. It is appropriate that X should be able to contact AE if X wants to. Further, if X's views about contact with the mother change at any time in the future, it is appropriate, given X's age, that those views should be respected and given effect.
The orders will require the mother to provide a telephone number and email address which X can use to contact the mother but will not require X to provide contact information to the mother. The mother will be restrained from initiating contact with X.
ORDER RESTRAINING THE MOTHER
The father seeks an order in the following terms:
10. The Mother shall be and is hereby restrained by injunction from:
10.1Discussing the Court proceedings, or any of the issues raised in the proceedings, with [X];
10.2Initiating any discussion with [X] in relation to varying the parenting arrangements set out in these Orders, including suggesting, requesting or expressing a desire for any increased time or communication with [X];
10.3Discussing with [X] how they may access additional services that [X] is not currently engaged with, including but not limited to police, refuges, youth resource centres, legal advice, medical and therapeutic services, and
10.4Coming within 250 metres of [X], other than for the purpose of spending time with [X] pursuant to these Orders, including at any location at which [X] may be present and including but not limited to WW Street, Suburb XX ACT, or such other address as [X] may reside at with the Father, and YY School at ZZ Street, Suburb AB ACT, or such other school as [X] may be enrolled in.
I am unclear whether the mother opposes the making of that order. Counsel for the mother made no submissions about this issue.
Ms J deposed to an occasion on 26 February 2020 when one of X's friends told X that X's mother was "hanging around outside the school". X contacted Ms J who deposed that X was, "in a panic, breathing heavily and quick…"
On that occasion, X did not see the mother who denied that she had been at the school.
Ms AC said in cross-examination that one of X's fears is that the mother might "just pop up one day at her school or come unannounced and that frightens her".
Ms J deposed to a conversation with X in June 2021 where X, after learning that the contact visit would be by Zoom, said "But that means Mum's going to be in my space! At least when we had to travel to Sydney I had the drive home to remind me that she lived somewhere else". After that visit, X asked to go for a drive around Canberra and afterwards said "We live here now. It helps to see that we are here".
It is appropriate that X have the assurance that X will not be confronted by the mother unexpectedly.
COSTS OF THE ICL
The ICL, as he was obliged to do, sought an order that the father pay $5,000 being half of the ICL's costs. The father opposed that application.
The mother is in receipt of legal aid and no application was made for her to pay.
The father paid half of the ICL's costs after the hearing in December 2018. He has paid some $73,000 to his lawyers in relation to these proceedings. He is solely responsible for X's financial support.
I do not propose to make the order sought by the ICL.

I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.
Associate:
Dated: 8 October 2021

File number(s):	SYC 6278 of 2015
Judgment of:	REES J
Date of judgment:	7 October 2021
Catchwords:	FAMILY LAW – PARENTING – application by the father to vary final parenting orders made in 2018 – where the child is fifteen and a half years old and weight is to be given to their views – where the child has significant vulnerabilities – orders for the child to continue living with the father and for the father to have sole parental responsibility – orders for the child to spend supervised time with the mother not more than once per calendar month – orders for child to initiate communication with the mother as desired
Legislation:	Family Law Act 1975 (Cth) s 60CC Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.01
Division:	Division 1 First Instance
Number of paragraphs:	228
Date of hearing:	20, 21 & 22 September 2021
Place:	Sydney
Counsel for the Applicant:	Ms Shea
Solicitor for the Applicant:	Gordon & Barry Lawyers Pty Ltd
Counsel for the Respondent:	Mr Hopper
Solicitor for the Respondent:	Kincaid Legal
Solicitor for the Independent Children's Lawyer:	Mr Holmes, Holmes Donnelly & Co Solicitors

SYC 6278 of 2015
BETWEEN:	MR BRONWELL Applicant
AND:	MS BRONWELL Respondent
HOLMES DONNELLY & CO SOLICITORS Independent Children’s Lawyer

ORDER MADE BY:	REES J
DATE OF ORDER:	7 OCTOBER 2021