Calderon & Shepherd - [2022] FedCFamC2F 606

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Calderon & Shepherd [2022] FedCFamC2F 606

File number(s): PAC 5306 of 2018

Judgment of: JUDGE NEWBRUN

Date of judgment: 11 May 2022

Catchwords: FAMILY LAW – Parenting - best interests of child - Orders made

Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited: Knight & Knight [2016] FamCA 1085

Division: Division 2 Family Law

Number of paragraphs: 263

Date of last submission/s: 29 April 2022

Date of hearing: 27, 28 and 29 April 2022

Place: Parramatta

Counsel for the Applicant: Mr Juhasz

Solicitor for the Applicant: Claire Heaton Solicitor

Counsel for the Respondent: Mr Nowlan

Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor

Solicitor for the Independent Children’s Lawyer: Mark Macdiarmid Family Law Specialist
ORDERS

PAC 5306 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CALDERON

Applicant

AND:
MR SHEPHERD

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:
Discharge of prior Orders
1.All prior parenting orders are discharged.

Equal Shared Parental responsibility
2.The parents shall have equal shared parental responsibility for the child X born in 2013 (‘the child’).

Live with
3.The child shall live with the Father.

Spend time with
4.Subject to the following Orders, the child shall spend time with the Mother as agreed in writing between the parents and failing agreement as follows:
(a)During school term time:
(i)commencing on Friday 13 May 2022, each alternate weekend from after school or 3.00pm on non-school days on Friday until the commencement of school or 9.00am on non-school days on Monday;
(ii)commencing on Wednesday 18 May 2022, each Wednesday from after school or 3.00pm on non-school days until the commencement of school or 9.00am on non-school days on Thursday;

(b)For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the first half of the child’s school holidays in even numbered years, and for the second half of the child’s school holidays in odd numbered years;
(c)For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(d)From 7.00pm Christmas Eve until 10.00am Christmas Day in 2022 and each alternate year thereafter;
(e)From 10.00am Christmas Day until 10.00am Boxing Day in 2023 and each alternate year thereafter;
(f)From 10.00am until 6.00pm on Mother’s Day in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;

5.The child’s time with the Mother be suspended on the following occasions:
(a)For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the second half of the child’s school holidays in even numbered years, and for the first half of the child’s school holidays in odd numbered years;
(b)From 10.00am Christmas Day until 10.00am Boxing Day in 2022 and each alternate year thereafter;
(c)From 7.00pm Christmas Eve until 10.00am Christmas Day in 2023 and each alternate year thereafter;
(d)For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Father’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(e)From 10.00am until 6.00pm on Father’s Day in each year that the child is not ordinarily in the Father care pursuant to these Orders;

6.For the purpose of the School Holidays Orders above, the following will apply:
(a)Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the child and shall conclude at the commencement of school on the first day of required school attendance for the child;
(b)Changeover is to occur at 5.00 pm on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c)In the event that there are two consecutive mid-point days, then changeover is to occur at 5.00 pm on the first of those two mid-point days.

Changeovers
7.Changeovers that do not occur at the child’s school shall occur as agreed between the parents and failing agreement the Father and the Mother shall do all things necessary to ensure that the maternal grandfather, the maternal grandmother or the maternal aunt collect the child at the commencement of time and the Father will collect the child from the maternal grandfather or maternal Aunt’s residence at the conclusion of that time and both parents shall ensure that during changeovers:
(a)Neither parent will enter the other’s home;
(b)Each parent and any other person who may be present will behave in a civil and courteous manner to the other parent;
(c)Each parent and any other person who may be present will conduct themselves in a child focussed manner;
(d)Each parent and any other person who may be present will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other;
(e)Neither parent nor any other person who may be present will discuss issues of any controversy between them.

General Orders
8.Both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address and contact telephone number.
9.Each parent shall be permitted to communicate directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and this Order shall constitute sufficient authority for such communication.
10.Each parent is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
11.Each parent shall do all reasonable things necessary to ensure that they facilitate the child participating in their scheduled extra-curricular activities during such periods that the child is spending time with them.
12.Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
13.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the child communicating with the other parent by electronic means on a regular basis.

Ongoing treatment
14.The Mother is to continue seeing her treating psychologist and is to comply with any treatment plan/medication prescribed or recommended to her by her treating psychologist and her medical practitioner.

Restraints
15.When the child is in their respective care, each parent is restrained from:
(a)altering the child’s usual place of residence outside of the Greater Sydney (Greater Capital City Statistical Area), as classified by the Australian Bureau of Statistics (‘Greater Sydney’);
(b)Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
(c)Consuming any prescription medication other than as prescribed;
(d)Consuming any illicit substance;
(e)Physically disciplining the child or permitting any other person to do so;
(f)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(g)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(h)Permitting the child having access to any of the documents filed in these proceedings;
(i)Communicating any information intended for the other parent through the child; and
(j)Causing the child to be a medium in any way between the Mother and the Father or between the Mother and the Father and any other person.

Continuation of Independent Children’s Lawyer’s Appointment
16.The Independent Children’s Lawyer’s appointment shall continue for a period of 12 months following the date of these Orders, AND THE COURT NOTES THAT the Independent Children’s Lawyer intends to seek funding for the convening of a further mediation between the parties within a further 10 months AND THE COURT REQUESTS THAT Legal Aid NSW give consideration to funding such mediation pursuant to the COMP program.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Calderon & Shepherd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final parenting hearing relates to the child X born in 2013, aged 8 years.
In 2013, the Father was arrested and incarcerated for an armed robbery offence. In 2014 he was granted bail and released from prison.
On 26 August 2015, final consent parenting Orders by the Court were made, inter alia, for the parties to have equal shared parental responsibility for the child, the child to live with the Mother, and spend time with the Father each alternate Tuesday during the daytime on alternate Saturdays from 9 AM to Sunday 6:30 PM.
On 18 December 2015 the Father, in relation to the above armed robbery offence, was jailed until 20 February 2018 when he was released on parole. He had spent some day release time in 2017 with the child.
In June 2017, the Mother was taken to B Hospital experiencing serious adverse mental health issues.
On 1 May 2019, final parenting Orders were made by the Court providing, inter alia, that the parties have equal shared parental responsibility, that the child live with the Mother and spend, inter alia, 5 nights per fortnight with the Father.
On 28 April 2020, interim consent parenting Orders were made providing, inter alia, that the child live with the Father, and spend fortnightly daytime time on Sundays supervised by one or other of the maternal grandfather or grandmother.
Since about early January 2022, the Mother has been spending regular unsupervised overnight time with the child. The Mother lives at the residence of the Maternal Grandmother.
PROPOSALS
The ICL’s proposals were set out in his proposed Minute of Orders handed up in Court at the final hearing. Inter alia, the ICL sought Orders that the Father have sole parental responsibility for the purposes of determining the child’s school from time to time, but otherwise the parties have equal shared parental responsibility; the child live with the Father; the child spend time with the Mother for 5 nights each fortnight during school term time; the child spend equal school holiday time with each parent; and the child spend time with each parent on special occasions.
The Father agreed with the ICL’s above proposals.
The Mother’s proposals were the inverse of the ICL’s above proposals in that the Mother proposed, inter alia, that the child live with her and spend time with the Father for 5 nights each fortnight.
MATERIAL RELIED UPON
The Mother relied upon the documents set out in her Case Outline filed 26 April 2022 being:
(a)Affidavit of Mother filed 29 October 2021;
(b)Affidavit of maternal grandmother filed 29 October 2021;
(c)Affidavit of maternal grandfather filed 29 October 2021;
(d)Family Report of Ms C, Family Consultant, dated 11 February 2021;
(e)Tender bundle; see Exhibit B.
The Father relied upon the following documents set out in his Case Outline filed 24 April 2022:
(a)Affidavit of Father filed 29 October 2021;
(b)Family Report (see above);
(c)Father’s written submissions dated 29 April 2022.
The ICL relied upon the following documents set out in his Case Outline filed 11 March 2022 being:
(a)Child Dispute Conference Memorandum dated 3 August 2020;
(b)Child Inclusive Conference Memorandum dated 21 September 2020;
(c)Family Report (see above);
(d)ICL’s Tender Bundle; see Exhibit C.
The following Exhibits became evidence in the proceedings:
(a)Exhibit A: Family Report dated 11 February 2021, Child Dispute Conference Memorandum dated 3 August 2020, and Child Inclusive Conference Memorandum dated 21 September 2020;
(b)Exhibit B: Mother’s Tender Bundle;
(c)Exhibit C: ICL’s Tender Bundle;
(d)Exhibit D: Three Certificates of the Father from D Centre, E Counselling and F Counselling;
(e)Exhibit E: Report of Ms G;
(f)Exhibit F: Orders of Judge Myers dated 15 March 2022;
(g)Exhibit G: Orders of Judicial Registrar Altavilla dated 30 November 2021.
EVIDENCE
In the determination of this case the Court has had regard to all of the written evidence referred to above, together with the oral evidence given by each of the parties, the maternal grandparents, and the family report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context or as set out in the Court’s discussions under s 60CC of the Family Law Act 1975 (see below). In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the s 60CC factors (see below).
At the outset, the Court should state that it does not accept that the Father deliberately lied to the Court during his oral evidence, as submitted by the Mother. The Court does not accept that the Mother deliberately lied to the Court during her oral evidence. Both parties impressed the Court as trying to give their evidence honestly. The Court observes in this context that there was very specific cross-examination of the parties, in particular addressed to the Father, in relation to events that happened many years ago.
The Mother’s trial Affidavit
The Mother was born in 1991 and is now aged 31 years. She describes her usual occupation as retail. She lives at Suburb H at the residence of the maternal grandmother.
The Mother was the primary carer of the child from birth until 28 April 2020. The Mother was well supported by the maternal grandparents, and her sister, and their support continues.
The Mother does not have a drivers licence and she relies on public transport, or the maternal grandmother, to assist her with transportation.
The parties’ relationship commenced in about 2012. They did not live together. When the parties were together the Father smoked ice every day. The parties separated in about March 2013.
From June 2018 the Father started to spend regular time with the child being usually every second weekend.
The Mother stated that the Father verbally threatened her on 10 March 2018 by stating that he was going to kill her following which the Mother hit the Father with a plastic Coke bottle to his face. Prior to the Father’s verbal threat, the parties had begun to argue after the Mother had become upset because the Father was sitting separately and the child was upset because the Father was not with her. An interim AVO was placed on the Father for the Mother’s protection which was withdrawn and dismissed by the police on 12 June 2018.
On 17 May 2019 there was a dispute between the Mother and Ms J which occurred after the Mother had asked Ms J to leave the child’s kindergarten section. Ms J is a former partner of the Father. Ms J had verbally abused the Mother and kicked her to the leg following which the Mother then punched Ms J to the face. The Mother was charged with common assault and in September 2019, after the Mother pleaded guilty, she was sentenced to a Community Corrections Orders to be of good behaviour.
In September 2019 the Mother was separating from her then partner Mr K. The Mother was upset and cross at that time because she did not want him to leave. The maternal grandfather held the Mother down on the ground while Mr K got his things and left the home.
The Mother retained the child in her care on 25 December 2020 out of frustration because the Father had refused to pick up the child from her residence at Suburb H. The child was returned to the Father’s primary care following the Father obtaining a recovery order and the police intervening to assist in returning the child. Just prior to the police attending, the Mother had intended to return the child to the Father on 9 January 2021.
The Mother understands that when the Father was called out for his work the child was usually left with her ex-aunty Ms L. The Father’s brother Mr M and Ms L are no longer in a relationship.
The Mother has a mild intellectual disability which was first diagnosed at school, depression and bipolar. The Mother takes the medications Seroquel and Aroprax on a daily basis. She is compliant with her medication and treatment.
The Mother states she has not had any mental health episodes for more than a few years now. She states that she is in a stable relationship, and in a stable job working part-time in retail for about 10 hours a week.
The Mother has used speed in the past. She stated that she has not consumed drugs for more than a few years, and she only ever used drugs socially. She stated that she has never used ice. She has never used drugs when the child was with her. The Mother has not consumed alcohol since October 2019 after an incident involving her then boyfriend.

In February 2020, the Mother attended her GP for the purpose of obtaining a referral to a psychologist. She attended upon a psychologist for three sessions which ceased by reason of the coronavirus. In April 2020 she obtained a referral to another psychologist but which she was not comfortable with, and since 2019 the Mother has been seeing Ms G, psychologist who assisted the Mother in terms of 2 aggressive acts that the Mother had committed.
The maternal grandparents are supportive of the Mother. They have separated and they are still amicable between themselves. In February 2020, the Mother moved in with the maternal grandmother at her residence at Suburb H.
The child attends N School. (The child is now in Year 3.) The child is doing well at school. The Mother would prefer the child to attend Suburb H School which is closer to her home. It takes the Mother about one hour on public transport to have the child attend school on time. The Mother has to take a bus to Suburb O train station, then a train to Suburb P train station, and then a walk of about 20 minutes to get the child to school.
The Mother states that she cannot see how the Father can successfully raise the child because he works full-time for a services company and does callout work as well.
The Mother states that she would be able to manage the child “where she is being homeschooled” although she would need support from the maternal grandparents and family as well. The Mother states that her parents and her sister are there to assist her with the care of the child and they all have a good relationship with each other.
Affidavit of Ms Q the maternal grandmother
The Mother finished school after Year 10. She worked in childcare for about a year and then returned to retail. She found a job at Employer R. She then continued to work in retail.
The Mother at times during her teenage years would be angry and argumentative with the maternal grandparents if she did not get what she wanted. The maternal grandmother did not experience any major issues with the Mother until later years in about 2017 shortly before the Mother was diagnosed with bipolar disorder and depression.
The maternal grandmother states that the Mother was on and off her medication for some time, however, since the Mother has started seeing a psychologist on a regular basis, the Mother has been taking her medication daily and this has greatly improved the Mother’s behaviour and mood.
Affidavit of Mr S the maternal grandfather
The maternal grandfather is separated from the maternal grandmother.
When in Year 2, the maternal grandparents discovered that the Mother suffered from a mild intellectual disability; the Mother had trouble reading, writing and comprehending, which affected her ability to understand things. When this was identified the Mother changed schools which had facilities and teachers for children such as the Mother. She was put into a class (whilst at primary school) with others with disabilities like the Mother. The Mother attended P School and received her School Certificate. During her last years of school the Mother did part-time work.
Affidavit of psychologist Ms G dated 20 July 2020
The psychologist stated that her report was prepared following a consultation with the Mother on 9 June 2020. She stated that there were about 3 sessions spent with the Mother with each session being about one half hours.
The psychologist stated that there was no overt evidence of a formal thought disorder although the Mother did not comprehend all aspects of the assessment process.
The Mother reported that she had gained a place in a supported learning class at N School in 2001 based on her auditory processing deficits.
The Mother reported that she started a TAFE course in childcare when she was 20 years of age and later withdrew due to difficulty with the material. The Mother reported she was currently employed in the retail industry.
In relation to the Mother’s mental health history, the psychologist states that in June 2017 the Mother admitted herself to a mental health facility in Suburb B due to, inter alia, depression and stress in relation to being a single mother. The psychologist states that at this facility the Mother received an assessment by a psychiatrist and was diagnosed with Bipolar II Disorder and Depression. The Mother reported being prescribed bipolar medication in June 2017 and had been using medication since with only an increase in Seroquel. The Mother stated that she had been consistently taking her prescribed medication.
The psychologist stated that the Mother had stated that she had a past history of drugtaking beginning in 2012. She stated that she never used drugs whilst the child was in her care. The Mother reported that she had ceased using drugs in August 2019 and had been consistently stable and drug-free since this time.
The Mother reported to the psychologist an intolerance with vodka. She reported an incident when she became aware of adverse reactions in relation to medication when she consumed vodka. She stated she became violent and was charged with assault. She then ceased to drink vodka. The Mother states her alcohol use is low.
The psychologist carried out a Personality Assessment Inventory (PAI) in relation to the Mother. The psychologist stated that the Mother’s clinical profile was marked by an elevation on the Persecution Subscale. The psychologist stated that the Mother’s self-description suggested that she was quick to feel that she was being treated inequitably and easily believed that there was a concerted effort among others to undermine her interests. The psychologist stated that this elevation was above the normal range, however this was consistent with the Mother’s experiences of parental alienation when her partner (allegedly) acted unlawfully to restrict access to the child on numerous occasions.
The psychologist stated that based on the Mother’s background history, Personality Assessment Inventory, and the Parenting Sense of Competency Scale, it was her opinion that the Mother was psychologically stable as indicated by the PAI assessment.
The psychologist stated that the Mother’s current diagnoses was Bipolar Disorder and Depression. As to the effect, if any, of any mental health issues the Mother may have on her social functioning, the psychologist referred to a history of issues which stemmed from the Mother’s Bipolar II Disorder especially when the medication and vodka were mixed. She stated that the Mother’s social functioning had been stunted until this year. The psychologist stated that the Mother has insight into her Bipolar vodka interactions, and insight with regard to continuing taking her medication and what will happen if she doesn’t.
As to the Mother’s prognosis, the psychologist stated that with ongoing medication and avoidance of vodka interactions with her medication, the Mother will be stable.
The psychologist recommended that the Mother stay compliant with medication for her Bipolar II Disorder and attend therapy sessions to improve her boundary setting and insight skills.
The Father’s trial Affidavit
The Father was born in 1987 and is currently 35 years. He works as a tradesman.
The Father states he lives at Suburb T.
The Father commenced working full-time within a week of being released from prison.
The Father and his former partner Ms J are the biological parents of U born in 2019.
In early February 2013, the Mother laid down behind the Father’s car so that the Father could not leave in his car. The maternal grandmother grabbed the Mother by the hair and dragged her away from the back of the Father’s car. Then both the Mother and the maternal grandmother started fighting with each other. The Father stopped the fighting and broke them apart. The maternal grandmother yelled at the Father to leave and he did so.
In about mid June 2013 the parties had an argument in a car. The Mother scratched and punched the Father while she was driving. The Father tried to stop the Mother. The Mother undid her seatbelt and tried to jump out of the car whilst moving. The Father restrained the Mother and came to a stop in the car.
The Father stated that in relation to the incident involving the Mother and Ms J on 17 May 2019, the assault by the Mother upon Ms J occurred when Ms J was holding the child. Later that day, the Mother and the maternal grandmother attended the Father’s house. They blocked his driveway with their car and started yelling for the Father to come outside and return the child as it was not his dedicated weekend with the child. On advice from the Father’s lawyer, the Father declined to return the child and advised the Mother he would return the child on Sunday after the Mother had time to calm down.
On 12 September 2019, the Father received a text message from the Mother which read, “You need to take X full-time.” The Mother told the Father that Mr K had left her and she could not do it anymore and did not want the child anymore.
On 16 September 2019 the Mother contacted the Father to see the child and the parties met at McDonald’s. The Mother told the Father that she had been using ice for over two weeks. The next day the Father spoke with the Mother about the Mother getting help at a rehab facility for both mental health and drug use. The Mother told him that she wanted to get better. The next day the Mother told the Father that she needed help.
On 17 May 2021 after the child’s dance class the Father states that he was holding the child when the Mother rushed towards him and requested the Father to give her the child. He states that a melee then occurred between himself and the Mother, with the Father holding the child, and the Father seeking to prevent the Mother taking the child. The Father was able to physically retain the child. The child had received some bruising. Thereafter an ADVO was put in place against the Mother for the protection of the Father and the child.
Oral evidence
The Mother gave oral evidence.
The Mother stated that her time with the child changed on 4 January 2022. At that time she spent five days with the child and thereafter every second weekend from Friday to Sunday.
The Mother stated that in 2021 she regularly spent time with the child, on a weekly basis, on Wednesdays from 3 PM to 7 PM, and on Sundays for three hours. This time was supervised by the maternal grandfather or the Mother’s sister.
In terms of the Mother’s mental health treatment, the Mother stated that she speaks to her psychologist Ms G on the telephone each fortnight and which is ongoing. She has a mental health plan for this treatment. She still ingests antidepressant medication and Seroquel, on a daily basis. She still sees her GP, Dr V of Suburb P. She does not readily consult with a psychiatrist.
The Mother was cross-examined by counsel for the Father.
The Mother confirmed that she has been diagnosed with bipolar disorder. She was diagnosed on admission to W House (June 2017). She referred to her medication as mood stabilising medication.
The Mother stated that in 2013 she admitted herself to the B Hospital mental health unit. She stated that she knew something was wrong.
In relation to her bipolar disorder, the Mother confirmed that (if untreated) she may experience long periods of depression with short periods of mania.
The Mother stated that her medication Seroquel was to treat her depression and bipolar disorder.
The Mother stated that since 2013 she has taken her medication. She disputed that she did not ingest her medication regularly.
The Mother agreed that she had assaulted the Father in the past.
The Mother agreed that there had been incidents in the past when she used illicit drugs but stated that such use did not affect her mental health.
The Mother stated that in 2021 she worked at Employer Y at Suburb Z.
In relation to the incident at the child’s dance classes on 17 May 2021, the Mother stated that she had not tried to take the child away with her but rather she went to hug her.
The Mother disagreed that it was in the child’s interests to be enrolled in a local school closest to the Father’s home. The Mother confirmed that the child had been at the N Public School since kindergarten and was now in Year 3.
The Mother stated her understanding that Ms L takes the child to school. The Mother stated that it should be the Father to take the child to school. The Mother stated that it was her family who assists her to take the child to school.
The Mother was asked when was the first instance of family violence between the parties. She alleged that it was when the Father put a gun to her head in 2012/2013 when she found out she was pregnant. It was put to the Mother that there was no mention of a firearm in her trial Affidavit. The Mother agreed but stated that she had not told the police because the Father had threatened her when he did it.
The Mother stated that she last used illicit drugs when she found out she was pregnant in 2012. It was put to the Mother that she had taken illicit drugs since 2012 to which the Mother denied.
The ICL cross-examined the Mother.
The Mother stated that it was about a 25 minute drive from her residence at Suburb H to the child’s school. She stated that it was about a 15 to 20 minute drive from the Father’s residence to the child’s school.
The Mother stated that it was about a 30 minute drive from her residence at Suburb H to the AA School at Suburb T. It was about a five minute drive from the Father’s residence to that school.
The Mother stated that Suburb H Public School was a five-minute walk from her residence. She stated that it would take about a 30 minute drive for the Father to travel from his residence to that school.
The Mother stated that the child was happy at her present school, being the N Public School at Suburb P. She stated the child has friends there, and the child had attended that school since kindergarten. She stated that the child makes friends easily. She stated that that school was good for the child. The Mother stated that she had not specifically spoken to the child about choice of school.
The Mother stated she was in the process of getting her Learner driver’s licence. She was asked when she estimated she might get her Provisional driver’s licence, to which the Mother replied that it might be in the next six months but she was not presently confident with driving.
The Mother stated that the child has a relationship with Ms L. The Mother stated that Ms L does everything for the child and the child says so. The child refers to Ms L as Auntie Ms L. The Mother had met Ms L before. The Mother stated that if the child was living with the Mother and spending five nights each fortnight with the Father, she was happy for the child’s relationship with Ms L to continue.
The Mother was questioned in relation to parental responsibility. In relation to the child’s medical issues, the Mother stated that the child had her tonsils surgically removed in October 2021. The Father took the child to the hospital. The Father had previously told the Mother about the proposed surgery and the Mother had paid half the fees.
The Mother stated that presently the parties’ communication was going well. In this context, the Mother stated that the Father had recently allowed her to take the child to Queensland for six days. They had communicated via text messages in relation to that travel. Later she stated that things had been going well between herself and the Father since December 2021.
The Mother stated that recently on Christmas Day the child had had Covid and the Father later organised make up time for the child to spend time with the Mother.
The Mother stated that she only works casually whereas the Father works full-time and is subject to night calls. The Mother stated that she was more available, compared to the Father, to care for the child. She stated there were no other reasons as to why she did not agree that the child live with the Father as opposed to herself.
The Mother stated she presently has a good relationship with the maternal grandmother. She does not have a present partner. She intends to continue living with the maternal grandmother.
The Mother confirmed that her blood testing for illicit drugs had been broadly compliant with the ICL’s requests for illicit drug testing. She referred to her recent negative results relating to the ICL’s request for illicit drug testing made on 19 April 2022. She confirmed that other than a urinalysis test result for 29 June 2020, all tests (requested by the ICL) were negative. In relation to the test result for 29 June 2020, the Mother stated that the positive reading for morphine and codeine was by reason of her ingestion of cold and flu tablets prescribed by her doctor.
In re-examination, the Mother stated that in relation to the alleged gun incident involving the Father, the Father had threatened to kill her. She stated that she had not reported the incident to the police as she was scared of the Father.
The maternal grandmother gave oral evidence.
The maternal grandmother was cross-examined by counsel for the Father.
The maternal grandmother confirmed that in the past there had been violent incidents involving herself and the Mother. She stated that there had been an AVO in relation to an incident between herself and the Mother. She stated that she had previously been in an unhappy marriage for a long time.
The maternal grandmother stated that the Mother has been taking her medications regularly over the last couple of years. She stated that when the Mother is not on her medication, she can become agitated and you could say something to the Mother and the Mother would fly at you. She stated that since the Mother had been taking her medications regularly there had been no problems.
In relation to the incident of the child’s dance classes on 17 May 2021, the maternal grandmother stated that the Mother had not tried to take the child from the Father but rather had sought to pick the child up to cuddle. The maternal grandmother stated that the Mother had been pulling at the Father’s shirt because she wanted to cuddle the child.
In relation to the Mother retaining the child for about two weeks from Christmas Day 2020, the maternal grandmother stated that at the beginning she had told the Mother not to take the child with her to the Region BB.
The maternal grandmother was cross-examined by the ICL.
The maternal grandmother stated that she had seen an improvement in the Mother’s behaviour. Her relationship with the Mother was really good since the Mother began taking her medication. She stated that since the Mother’s medication the Mother has not been drinking like she used to. She stated that if she thought the Mother was not taking her medication she would tell the Mother to go and live with the maternal grandfather.
She stated that she drives a motor vehicle and would assist the Mother in getting the child to school and to her friend’s homes. She had assisted the Mother with the child in the past including picking up the child from preschool.
She stated that she was supportive of the child’s relationship with the Father. She stated that she didn’t really have any concerns about the child’s relationship with the Father apart from co-sleeping. She said that the child co-sleeps with her on holidays and co-sleeps with the Mother as well.
She stated that she would protect the child if the child was living at her residence with the Mother. She stated that if the Mother was not taking her medications she would remove the child from the Mother. She stated that she would step in if the Mother took illicit drugs or consumed alcohol. She stated that she would prioritise the child over the Mother.
The maternal grandfather gave oral evidence.
The maternal grandfather stated that he lives in Suburb OO which is about a 20 minute drive from the Mother’s residence at Suburb H.
He stated that he has a good relationship with the Mother now. The Mother does not drive and he assists her in getting the child to activities and school.

He stated that he would act protectively towards the child if the child was at risk with the Mother.
He stated that he has an amicable relationship with the Father. He supports the child having a relationship with the Father.
The Father gave oral evidence.
The Father stated that he had changed his position regarding the child spending time with the Mother since swearing his trial Affidavit on 27 October 2021. He stated he was now allowing the child to spend unsupervised time with the Mother and had recently, for example, allowed the child to spend half the school holidays with the Mother. During this holiday time the Father permitted the child to go on a trip to Queensland with the Mother and maternal grandmother.
Counsel for the Mother cross-examined the Father.
The Father stated that he lived with Ms L and his brother for one year and, after his brother went to Queensland, he had remained living with Ms L for a further two years.
The Father stated that he works full-time being a minimum of 40 hours per week but he sometimes works more.
The Father confirmed that Ms L helps him with the child’s pickups and drop-offs.
He stated that he was in a no romantic relationship now. He stated that there was no chance of his brother and Ms L reconciling.
It was put to the Father that he was reliant on Ms L for the care of the child. The Father replied by stating that he and Ms L help each other.
The Father stated that he and Ms L would not part ways. It was put to the Father that he had no contingency plan if Ms L was to leave, to which the Father replied that it would not happen.
The Father stated that he and Ms L had signed a lease (for their rental premises) for 12 months in January 2022.
In relation to his job, the Father stated that when he was on a roster, which he currently was, he could be called out at any time 24 hours a day. He stated that if there was a breakup between himself and Ms L, he would change the circumstances of his job; in this context he stated that in his job he can alternate being on or off the roster. He said there was a roster every three months but there was some flexibility in coming on and off the roster. He stated that if he came off the roster he could work standard hours during the daytime. He stated that he would not leave the child on her own. He stated that he would reduce his work hours if the child was living with him on his own.
The Father was questioned as to the commission of the armed robbery for which he was jailed. He stated that he had pleaded guilty to this offence. He stated that he was on ice at the time of the robbery in 2013 although he had been scaling back on his ice use. He stated that he had not used cocaine for a long time.
The Father denied ever holding a gun to the Mother’s head.
The Father was questioned as to not facilitating the child attending observations for the family report. He confirmed that he had been advised by his lawyer not to produce the child because the Mother had previously retained the child. In this context the Father stated that he did not know the significance of the family report.
The Father was questioned as to his conviction for “supply prohibited drug, indictable quantity (not cannabis)” the offence having been committed in 2009. He denied selling drugs in this context and stated the drugs were for the use of himself and another.
The Father stated his relationship with Ms J ended in November 2021.
In relation to the incident on 10 March 2018 at the sports game, the Father denied threatening to kill the Mother.
The Father denied ever slapping the child on the side of her head and across her face. He denied hitting her across the face leaving a mark.
The Father stated that on an occasion the child had walked into the shower with him. He stated that this has not happened for 18 months. He denied that he ever had an erection in bed with the child present in bed with him.
The Father denied ever pushing the child away as alleged in DCJ material on page 6 of the Mother’s tender bundle. The Father confirmed that the child CC fracturing his foot resulted from an accident after the Father had extended his arm out. The Father denied that his handling of this child was too rough. The Father stated that he had only slapped CC on his backside or leg and never on his head. This had occurred in the context of that child trying to hit another child. He stated that his former partner Ms J had never had any issue with his discipline of her children. The Father stated that he had last smacked the child a long time ago; in this context, the Father stated the child was not that naughty. He stated that the D Centre positive parenting program that he completed had shown him better ways of disciplining children.
The ICL cross-examined the Father.
The Father stated that there had not been any flareups between himself and the Mother over the last six months. He stated that the Mother has come to his home to do changeovers. He stated that the maternal grandfather did 90% of the changeovers.
The Father stated that when the Mother does not get what she wants, flareups occur. He stated that the less contact between the parties face-to-face was better in relation to changeovers.
The Father stated that a couple of nights a week the child might jump into his bed if she was not feeling right or sick.
The Father stated that the N Public School was about a 35 minute drive from his residence in the mornings. From his residence to that school was about 21 km. From Suburb H to that school was about 32 km.
The Father was questioned as to a week about arrangement. He stated that the problem with this arrangement was that the Mother had previously kept the child from him which was his biggest concern. He stated that that concern was also his concern in relation to the Mother’s proposals.
Child Dispute Conference held on 16 June 2020
This conference was conducted by a Family Consultant, Ms DD, and her Memorandum is dated 3 August 2020.
The Court does not propose to set out the entirety of the Family Consultant’s Memorandum.
The Father stated that he works full-time, 6 AM to 2:30 PM, Monday to Friday. He stated that he and Ms L, the Father’s former sister-in-law, assist each other in the care of their respective children. Ms L’s children are EE born in 2015, FF born in 2017, and GG born in 2019. (The Court observes that these children are now aged 7, 4, and 2). The Father stated he does not have a current partner.
The Father sees his child to Ms J, U (born in 2019), for daytime visits each Tuesday and Thursday, as well as on the weekends. He stated that he was the psychological parent for Ms J’s son, CC, born in 2013.
The child was spending time with the Mother each Sunday from 11 AM to 2 PM, supervised by either of the maternal grandparents.
The Father stated that any time the child spent with the Mother required supervision.
The Mother sought that the child live with her and that she spend time with the Father each alternate weekend, from after school Friday to before school Monday, as well as for dinner one night in the intervening week. The maternal grandmother said that in the event that the child is living with the Mother or herself, the child should spend an alternate weekend with the Father.
The Father made allegations of physical family violence against the Mother. He stated he was not fearful of the Mother. He denied being violent towards the Mother.
There was an ADVO in place to protect Ms J from the Mother.
The Mother made allegations of physical family violence against the Father during their relationship. She denied being physically violent towards the Father. She acknowledged that she had been verbally abusive towards him.
The Mother acknowledged that there had been tension between herself and Ms J and that she had been charged with assaulting her. The Mother stated that Ms J just wanted to get close to her daughter, and the Mother stated that she had “just lost my shit” in front of a small number of children at the child’s school. The Mother acknowledged that the children would have felt horrified by this.
The Mother denied that the maternal grandmother had been physically violent or verbally abusive towards her. The maternal grandmother admitted to pulling the Mother’s hair on one occasion. She stated that an ADVO had been made to protect the Mother from her but it permitted them to remain living together. This ADVO had now expired.
The Father referred to criminal charges of possession of illicit substances and armed robbery.
The Mother reported that she had been charged with assault in the past, saying this occurred when she had been intoxicated. The Mother reported that a former partner in October 2019 had contacted police because he was concerned about the Mother’s well-being and the Mother stated that “me and vodka do not mix.”
The maternal grandmother stated that she had concerns about the Mother’s ability to manage the child’s primary care and this was why she had remained living on the property with her, however, she maintained that she no longer had these concerns about the Mother’s parenting capacity.
The Father reported a past history of illicit drug use, including daily use of ice but he stated he had not used illicit substances in many years. He denied that he abuses alcohol.
The Mother reported that she had used methamphetamine on a recreational basis when she did not have the child in her care in the past and she stated she has not taken any illicit substances since 2019. She stated that she rarely consumes alcohol now.
The Mother reported that she has been diagnosed with bipolar disorder, depression and “a touch of anxiety as well.” She stated that she was medicated for these conditions and regularly attended upon a psychologist.
The Father stated that the maternal grandmother hides a lot of stuff from him about the Mother’s behaviour and thus he does not trust her.
The Mother raised no concerns about Ms L, saying that she is a nice person who would be treating the child well. She said that Ms L is anti-drugs which is why she separated from the paternal uncle. The maternal grandmother raised no concerns about Ms L, other than saying that she must be under stress with the primary care of her own three children and the other child, particularly now she is separated.
The Father stated that the child is settling in with him but he conceded that the child misses the Mother and asked him why she cannot see her. He reported that the child loves the maternal grandmother.
Family Report
The Family Report of Ms C is dated 11 February 2021. The Court does not propose to set out the entirety of such report.
The Family Report writer interviewed the parties in early February 2021.
The Father stated that he proposed that the child attend AA Public School, which is a new school, close to where he lives. He stated that he would continue in his current employment, working weekdays from 8 AM to 4:30 PM, and being on call every five weeks. He stated that the (former) paternal aunt would continue to do most of the school drop-offs and pickups.
The Father stated that the AA Public School is attended by Ms L’s child EE.
The Mother stated she would like the child to continue at N Public School because the child has been enrolled there since kindergarten, and it is also the school that the Mother attended as a child. She said that the school is 25 minutes’ drive from the home of the maternal grandmother and 15 minutes from the Father’s home.
Both parents admitted to the family report writer using illegal drugs in the past. The Mother reported ceasing taking drugs altogether in August 2019 and thereafter.
The Mother told the family report writer that she was diagnosed with depression and bipolar in 2017 when she was taken to W House. She stated that following her treatment at W House she had not seen a psychiatrist. The Mother stated her belief that she was stable on medication and that her mental health was being adequately managed by her local GP. She was also seeing a psychologist, Ms G at Suburb JJ. The Mother stated she would have seen the psychologist about eight times.
The Father stated that he moved in with his brother, sister-in-law, and their children two years ago. The family moved to a larger, five bedroom house at Suburb T. In mid 2020 the Father’s brother and his partner separated. The Father remained in the home with his sister-in-law and her three children. They are housemates and not intimately involved.
The maternal grandfather said that he has noticed his daughter to have mood swings. He observed that she masked her mental illness well for a long time. He recalled that he had to hold the Mother down once because she was breaking a mirror.
When asked about her relationship with her daughter, the maternal grandmother said that they had had their ‘ups and downs’ when living at Suburb P, her former marital home. She admitted to having an incident in which she pulled her daughter’s hair. She claimed that her current relationship with her daughter is ‘perfect’.
The maternal grandmother was asked about the altercation her daughter was alleged to have had with her boyfriend at ‘New Years’. She replied that it was a disagreement, ‘not a punch up’, because she was there and witnessed it. She recalled that her daughter had consumed four mixer drinks, which she considered not excessive, and not enough to inebriate her. She recalled that X has told her that she was ‘scared’ because of the yelling.
The maternal grandmother stated that it was 25 minutes’ drive from Suburb H to N Public School.
Ms L, (former) paternal aunt was interviewed by the family report writer.
Ms L is 27 years old. She stated that her role with the child was to do the school runs.
Ms L was of the view that the child was in a good stable place and a good happy home with her cousins currently. She stated that she perceives that, of her three children, the child may be closest to EE, or perhaps, to GG, the baby.
The child was interviewed by the family report writer.
The child presented as a vivacious, smiling and confident child. She said that she loved school and dancing.
The child expressed a preference to attend EE’s school because it was brand-new, there is a parklike playground there, with play equipment.
The child stated that usually Ms L takes her to school and picks her up or the Father does.
The child said that when people fight, she gets scared. She said that her mother and her mother’s boyfriend, Mr KK, fight sometimes, like at New Year when they were ‘both drunk’ and fighting. She recalled that her Nan looks after her and hugs her when this happens. She said that she and Mr KK’s children went outside when the parents were fighting.
The child said that when her mother is fighting, it makes her (X) cry. She recalled that her mother has said that she is ‘going to die, and then everyone will be happy’. The child then added that, actually, her mother is not really going to die.
The child was asked if she had seen her mother hurt herself. She replied that one time, when she was five, she saw her Nan grab her mother by the hair, and her mother’s [hairline] was ‘dripping with blood’.
In relation to the child relationships, the family report writer stated:
141. X loves both of her parents equally, and is confident that she is loved by them. She believes that her father can protect her. She perceives that her mother cares for her. She has at times been frightened by her mother’s erratic behaviour.
142. X loves her grandparents, but gave special mention to her paternal grandfather, who is ‘a great Pop’.
143. X feels loved, supported and cared for by her Aunty Ms L, who is her father’s ex-sister-in-law and housemate. Using projective techniques, X ranked Aunty Ms L closer to her than either of her parents. It was not clear whether this should be taken literally, or whether she was avoiding having to choose between her parents.
144. X has a number of cousins to whom she feels close. Notable among these are her maternal Aunt Ms LL’s oldest child, MM and her paternal Aunt Ms L’s child EE.
The child’s observations with the Father and the (former) paternal aunt were positive. No observation could be conducted of the child with the Mother because the Father refused to allow the Mother to bring the child to the report interviews.
Under the heading Evaluation, the family report writer provided certain commentary and opinions.
The family report writer stated that the Father explained that his barrister had warned him “not to let the Mother anywhere near the child” until the interim hearing 5 February 2021, when the Father was convinced that the Mother’s time with the child would be suspended.
In relation to the child, the family report writer stated:
150. Having her wish for equality of outcome did not prevent X from giving straightforward answers about things she has witnessed, for example, witnessing ‘fighting’ after people have been drinking; experiencing not being returned, as agreed, to the receiving parent; experiencing her mother threatening that she would die. X said that she was ‘scared’ or ‘frightened’ by many of the experiences she has had, and needed the reassurance of her carers that she would be safe.
In relation to the issue of safety, the family report writer stated:
151. Safety, rather than child-attachments, appears to be the most significant factor in this assessment, and was a recurring theme in the assessment. It is uncontested that the Mother has mental health issues. What is contested is whether the Mother’s mental health is well-managed. She does not appear to be under the care of a psychiatrist, and her medication is apparently monitored by her GP. Although her mental health may be much improved, it may be time for the Mother to consult with a psychiatrist, to have her diagnosis and medication reviewed by a suitably qualified person.
In relation to the Mother’s emotional regulation, the family report writer stated:
152. It does appear that Ms Calderon has issues with emotional regulation from time to time, and many of the narratives relating to family violence feature either the Mother’s acting-act behaviours, which have the potential to cause serious harm, or self-harm attempts, which also have the potential to cause serious harm. It appears that X has witnessed some of these events.
In relation to the parties use of drugs and/or alcohol, the family report writer stated:
153. Another safety issue relates to the parents’ use of drugs and/or alcohol. Each of the parents claims to have clean drug tests, yet there are allegations that the Father is using cocaine. It appears that the Mother drinks alcohol, which may be contraindicated while she is taking medication. There has been a very recent occasion in which Ms Calderon had an alcohol-fuelled argument with her boyfriend that made X ‘scared’. Ms Calderon needs to realise that this is not OK, and is in fact is poor parenting. Both parents should be restrained from using any drugs or alcohol while X is in their care.
The family report writer stated that the child needs, not just emotional stability and predictable parenting, but also stability in her living arrangements and schooling.
In relation to shared care, the family report writer stated:
155. In relation to shared care, which is X’s preference, there are several contraindications to this. Firstly, the parents do not live in close geographical proximity to one another. Secondly, the parents have a conflictual relationship with one another and communicate poorly with one another. For instance, the Father has just made a unilateral decision to take X away, and cancel the next occasion of X spending-time-with her mother, with no consultation or forewarning. This begs the question of whether Mr Shepherd will be able to abide by parenting Orders in the future. Shared care is not an option for these parents.
In relation to parental responsibility, the family report writer stated:
156. In relation to Parental Responsibility, it is noted that both parents expressed a wish for sole Parental Responsibility, although Ms Calderon revised this to a wish for shared Parental Responsibility in interview. Although there has been poor communication between the parents to date, it is assessed that an Order for sole Parental Responsibility risks X being separated from a parent, who could choose to move X away from the other parent, or otherwise make unilateral decisions that may affect her continuing to have a close and loving relationship with both parents. Shared Parental Responsibility with third party mediation, if necessary, is recommended for these parents.

In relation to live with and time with issues, the family report writer stated, inter alia:
159. It is recommended that X remains in her father’s primary care, and that she spends five overnights with her mother each fortnight. That is, every second weekend from Friday after school until Monday morning, when X will be picked up from school on Friday afternoon and returned to school by her mother and/or maternal grandmother, and the parents do not come into contact with one another. In addition, she should spend one week-day after school until she is returned to school the next morning by her mother and/or maternal grandmother.
In relation to drugs and alcohol, the family report writer stated:
160. It appears that drugs and alcohol may occasionally be used by one or both parents, and for X’s safety, it is recommended that there be a restraint in the Orders on either of the parents using any drugs or alcohol at all while X is in their care.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The ICL questioned the family report writer.
The family report writer was asked why she had recommended that the child live with the Father and spend time with the Mother. She stated that her recommendations were not based on attachments. She stated that the child was equally attached to both parents. She stated that the child gave a balanced view of each parent. She said her recommendation came down to safety issues; in this context she stated that she was concerned about reports relating to the Mother’s mental health history and reported dysregulated behaviour which had allegedly tipped over into violence at times which the child had apparently witnessed and she had even been injured accidentally in one of the Mother’s emotional outbursts. There had been no reports that the Father suffered from any mental health issues. In the last few years the Father seems to be mentally stable, employed and living a stable life. That stability was what the child needed.
The family report writer confirmed that generally an equal time arrangement, in the context of parties experiencing high conflict, is contraindicated. This is because equal time arrangements lead to more contact between the parties and thereby with a greater exposure to potential conflict.
The ICL related to the family report writer that both parties had given evidence that they did not hold fears that the child would be at risk in the care of the other although they both expressed some uneasiness in this regard. The family report writer stated that in relation to risk assessment for the child, the best predictor of future behaviour was the parties past behaviour. In this regard she stated that the child has been subjected to risk in the past when in the care of the Mother when the Mother exhibited dysregulated behaviours, including when drinking to excess, and when fighting with a former partner. She stated that she was not entirely comfortable with each parent stating that they do not perceive any risk to the child on an ongoing basis; she stated that one could not be so categorical about that.
The family report writer stated that week about shared care requires a greater level of cooperation between the parents. She stated that she did not think that the history of the parties necessarily indicated that there had been a great level of cooperation because in fact there had been quite a lot of conflict between the parents.
The family report writer stated that other characteristics of shared care included geographical proximity of the parties’ residences, and the child attending school without a long trip. Shared care would have to be developmentally appropriate for the child; in this context she stated that the child could cope with shared care at her age. There would have to be cooperation between the parties in relation to the child. A lack of conflict would be required. As to trust, the family report writer stated that the Father could not trust the Mother to remain psychologically stable. She stated that she would not support equal time in this case. The family report writer stated that she would support the ICL’s Minute of Order as drafted, with a primary carer and liberal time to the other parent.
The family report writer stated that the child should go to school closest to her primary residence. The distances were quite onerous to the child; N Public School was about 21 km from the Father’s home and about 32 km from the Mother’s home (and the child might travel to and from the Mother’s home from school by public transport). It was important for children to attend their local school because they can then have play dates, or sports, or mix with children that are close to their homes.
The family report writer gave this evidence relating to the Mother’s insight and the child’s exposure to family violence:
So there seemed to be plenty of violence within the mother’s life. Did the mother stress any insight to you about that?   No. I don’t believe that she did. Her accounts were just her version of, you know, why things happened.
So she never said anything like yes, this is bad for me, to fight for the child, and I need to change my life?   No. Could I just have a quick look at my notes, please.
Of course?   I mean, she said she was seeing a psychologist, that she had depression and bipolar, so she’s aware that she has a mental health condition. I did ask her how she perceived that X was coping. She said, “I think she will need help when she is older because of her father,” so in that sense I guess she is shifting the blame. He just likes to be in control. She said it was unfair because she raised the child because the father was in jail and she had done jail visits. No, I can’t say that during the interview the mother did show any insight into the impact on X, but, to be fair, I suppose the only opportunity I gave her for that was asking her how X was coping, and it is telling that she then shifted the whole blame of the impact on X on the father.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary whether express or implied, as discussed below under s 60CC.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
THE BEST INTERESTS OF THE CHILDREN
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The Court refers to Foster J’s discussion of “meaningful” and “meaningful relationship” in Knight & Knight [2016] FamCA 1085 as follows:
[151] In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[152] In McCall & Clark [2009] FamCAFC 92, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
[118]... the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, Orders can be framed to ensure the particular child has a meaningful relationship with both parents...
[153] The enquiry is a prospective one, looking forward for the children in the context of parental relationships.
The child has a meaningful relationship with both parents and will benefit from a continuance of those relationships. Whilst the Mother was the primary carer of the child from birth until 28 April 2020, the Father has been the child’s primary carer since 28 April 2020. Since that time the child spent supervised time with the Mother and which has progressed to regular unsupervised time.
Should the child continue to live with the Father and spend time with the Mother in accordance with the ICL’s Minute of Orders there is a significant prospect that the children’s meaningful relationship with the Mother can be maintained and enhanced.
The evidence of the family report writer is consistent with the above views.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother has alleged that the Father perpetrated family violence against herself and the child both during the parties’ relationship and post separation. The Father makes significant denials as to perpetrating family violence, as alleged by her.
For his part, the Father has alleged that the Mother perpetrated family violence against him both during the parties’ relationship and post separation. The Mother makes significant denials as to these allegations.
On the balance of probabilities, the Court is not persuaded that the Father:
(A)Ever held a gun to the Mother’s head and threatened to kill her.
This allegation was not contained within the Mother’s trial Affidavit which only emerged in oral evidence. The Father denied this allegation. The Mother did not report this allegation to the police (whilst acknowledging that women, the subject of domestic violence, often do not report instances of domestic violence to the police for fear of retribution).
(B)Threw the Mother’s nail polish at a window breaking the window and punched the Mother to her face causing a bruise.
(C)Pushed the Mother downstairs in about May 2013.
(D)Verbally abused and threatened the Mother following his release on bail from prison in about June 2014 and up to his incarceration on 18 December 2015.
(E)Threatened to kill the Mother on 10 March 2018 at the NN Oval.
(F)Ever hit or slapped the child’s head or face, or pushed her away.
The Court does not accept that the Father imposed excessive physical discipline upon the child or other children. The Court does not accept that the Father ever had an erect penis in bed with the child; the Court accepts the Father’s evidence in this regard.
Prior to the Mother’s diagnosis of bipolar disorder and depression in June 2017 (during her admission to W House) the Mother had experienced significant difficulties in relation to her mental health. Her mental health has probably significantly improved since her regular ingestion of mental health related medication since that diagnosis in 2017 and up to the present time. However, despite such ingestion of mental health related medication, there have been instances since 2017 where the Mother has still experienced significant emotional dysregulation and which has led to physical violence being proffered by her against others, albeit within the context of interpersonal conflict and often in relation to the child. For example, these events occurred:
(A)On 10 March 2018 at the NN Oval when the Mother hit the Father with a plastic coke bottle to his face during an argument with the Father in relation to the child.
(B)On 17 May 2019 during a dispute between the Mother and Ms J in relation to the latter’s attendance at the child’s kindergarten, when the Mother had punched Ms J in the face, albeit after the latter had verbally abused the Mother and kicked her in the leg. The Mother had subsequently pleaded guilty to one count of common assault and was sentenced to a Community Corrections Order to be of good behaviour.
(C)In September 2019 the Mother was upset and cross when she was separating from her then partner Mr K resulting in the maternal grandfather holding the Mother down on the ground while Mr K got his things and left the home.
(D)In about October 2019 the Mother was probably adversely affected by alcohol when she was involved in an incident with her then boyfriend, Mr KK, and which involved fighting by both the Mother and her boyfriend.
(E)On 17 May 2021 at the child’s dance classes venue when the Mother sought to hug or kiss the child and to which the Father refused. The Mother became emotionally dysregulated and a physical melee broke out between the parties. It is likely that at this time the Father was quite apprehensive that if he had permitted the Mother to do this, the Mother might have sought to retain the child in her care, but the melee may well have not eventuated had he permitted the Mother to hug or kiss the child. During this melee the child was being held by the Father and was distressed and scared.
The Court observes that the child has often been present during occasions of the Mother’s dysregulated behaviour.
The Court has had regard to the Father’s summary of subpoenaed material from B Hospital and the Department of Communities and Justice in relation to the Mother which tends to confirm the Mother’s mental health issues, particularly when she has ingested significant alcohol or illicit drugs.
The Mother presently has insight into the adverse effects upon her of consuming alcohol in conjunction with her regular ingestion of mental health medication. It is likely that the Mother was having difficulties with alcohol in December 2019 when she was binge drinking with related aggression (see page 23 of Exhibit C, the ICL’s tender bundle). However it is likely that the Mother has not been abusing alcohol since about that time taking into account her negative urine tests from April 2020 to April 2022 (see the ICL’s reference to the parties’ tests results on page 1 of Exhibit C).
The Court accepts that the Mother has probably not ingested illicit drugs since about September 2019. Again, the Court refers to both parties negative urine test results, requested by the ICL between April 2020 and April 2022.
The Mother has insight into her mental health diagnoses of bipolar disorder and depression and understands that it is necessary for her to take her prescribed mental health medication. She has sought mental health treatment through her GP (who prescribes medication) and treating psychologist. It is likely that the Mother has some but not complete insight into the adverse effects upon the child being exposed to family violence and the Court refers to the evidence of the family report writer in this context. It is likely that the Mother has some but not complete insight into the adverse effects upon her mental health of ingesting illicit drugs.
The Father has previously ingested illicit drugs, including the illicit drug ice, and was probably affected by ice of the time of the armed robbery in 2013. It is likely that he had a dependency upon methamphetamine in 2013. On the balance of probabilities, the Court finds that the Father has not ingested illicit drugs for a significant number of years and again the Court refers to his negative urinalysis test results between April 2020 and April 2022. The Court finds that the Father enjoys stable mental health, and has taken positive steps (with positive results) to manage anger, including completing the D Centre program in late 2021 and completing a Managing Anger eight week program in early 2022. In this context it is not without relevance that the Father remained quite composed during a lengthy and quite robust cross examination of him by counsel for the Mother.
The Father enjoys stable mental health. The Mother has experienced emotional dysregulation with related adverse behaviour, as discussed above. The Court is of the view that on balance the Father, compared to the Mother, will afford the child more consistent stability of life should he continue to be the child’s primary carer. The Court observes, in passing, that the child’s school report for Year 2, Semester 2, was satisfactory with the child’s teacher commenting that the child had been a delight to teach in 2021.
Further, in the view of the Court, the risk of the child being exposed to adverse emotionally dysregulated behaviour by the Mother (which could be psychologically harmful to the child) can be minimised by these protective Orders:
(A)The child living with the Father and spending time with the Mother as discussed above under the meaningful relationship primary consideration;
(B)Changeovers for the child during school term time occurring at school, and otherwise making restraining orders in relation to changeovers as proposed by the ICL;
(C)The Court making the ICL’s proposed ongoing mental health treatment for the Mother;
(D)The Court making the ICL’s proposed restraining orders in relation to consumption of alcohol and illicit substances by the parties;
(E)The Court making the ICL’s proposed other restraining orders in relation to the parties (see the ICL’s proposed Order 16 in his Minute of Orders).
The Court should state that the Mother lives with the Maternal Grandmother and has no plans to cease living with her. The Mother and the Maternal Grandmother now enjoy a close relationship. It is likely that the Maternal Grandmother would act protectively towards the child if the child was exposed to harm whilst in the care of the Mother.
The Court should also state that it had previously discussed with the parties during submissions whether the child should spend block time with the Mother during school term time. On reflection, and as referred above in relation to the Court’s proposed protective Orders, the risk of the child being exposed to dysregulated behaviour from the Mother can be minimised, inter alia, by spending time with the Mother during school term time broken up into, firstly, the fortnightly block of time from the Friday afternoon to the Monday morning, and each Wednesday overnight.

The evidence of the family report writer is consistent with the above views of the Court.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view as to her parenting arrangements.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration in relation to the parents.
The child enjoys positive relationships with the maternal grandparents and maternal aunt. She enjoys a positive relationship with Ms L. She enjoys positive relationships with Ms L’s children.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties would appear to have each taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties maintained the child whilst they were in each parties’ respective care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the meaningful relationship primary consideration.
There should be no detrimental impact upon the child’s meaningful relationship with the Father should the child spend time with the Mother as discussed above under the meaningful relationship primary consideration.
Should the child remain attending the N Public School, she will likely be able to maintain her positive relationships with the children of Ms L.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Not applicable.
(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
Subject to the Court’s discussion above under the need to protect primary consideration in relation to the Mother, each of the parties has such capacities.
(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 Court refers to its discussions above under the primary considerations and additional considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the primary considerations.
The Mother sought to facilitate the maintenance of the child’s relationship with the Father by taking the child to see the Father when he was in jail on certain occasions.
Following the Father’s release from jail in February 2018, each party, on occasion, limited the time that the child could spend with the other parent for certain periods. The Court finds that it is likely that each party was seeking to act protectively towards the child in so doing in circumstances where there was limited trust between the parties in relation to the child.
The Mother retained the child in her care on 25 December 2020 until about 8 January 2021 out of frustration after the Father had declined to pick up the child as requested by the Mother, whilst acknowledging that there had been a prior agreed different pickup arrangement.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
The Court refers to its recitation of the evidence relating to ADVO proceedings involving the parties in its above Reasons.
(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
The Court is of the view that the making of the ICL’s proposed Orders (as discussed above under the meaningful relationship primary consideration) as opposed to the Mother’s proposed final parenting Orders, would be least likely to lead to the institution of further proceedings in relation to the child. In this regard, the Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
It is convenient at this point to deal with the issue of the child’s school.
The ICL and the Father seek an Order that the Father have sole parental responsibility in relation to selection of the child’s school from time to time. The Father proposes that the child presently attend a school quite close to his residence; the AA public School at Suburb T. The Mother opposes such an Order; she seeks an order that the parties have equal shared parental responsibility for the child and her evidence was that the child should remain attending the N Public School at Suburb P.
The child has attended the N Public School at Suburb P since kindergarten and she is presently in Year 3. She has friends there, and is happy attending that school. The Court would not attach any significant weight to the child’s view to attend the AA Public School by reason of her tender age and her superficial reasons for wanting to attend that new school as related to the family report writer. The Court is not persuaded that the child continues to be subject to significant unaddressed bullying at her school. It is not persuaded that the Father’s preferred school is significantly superior in any relevant respect.
The family report writer gave evidence that the child should go to school closest to her primary residence giving reasons; the Father’s intention to have the child attend the AA Public School close to his residence would be consistent with this evidence of the family report writer. However, the Court has a real concern that should the child attend this school there is a significant risk that the Mother will experience significant practical difficulties in ensuring that the child is reliably dropped off and picked up from that school by reason of the Mother’s (prospective) need to undertake public transport from Suburb H to that school at Suburb T when the maternal grandparents are unable to assist her in that regard.
Presently the Mother does not have a driver’s licence and it is unclear as to whether the Mother will learn to drive a car in a timely fashion and obtain a provisional drivers licence. Further, should the child attend AA Public School she will have to endure either significant public transport from that school to Suburb H or additional drive-time when she is spending time with the Mother during school term times.
Again, the child’s present school, N Public School, is about halfway between the parties’ present respective residences. Should the child attend the Father’s preferred choice of school close to his residence at Suburb T and the Mother does experience such practical difficulties, there is a real risk that the parties may be embroiled in further conflict to the detriment of the child. And the child’s school attendance may be compromised.
The Court observes that the parties have coped to date with the child’s transport to and from her present school, whilst the Court acknowledges that there are not insignificant distances to be travelled by both parties presently in relation to the current school.
Whilst the Court has not overlooked the benefits to the child of attending a local school such as the school proposed by the Father at Suburb T, as discussed by the family report writer, in the view of the Court the above practical difficulties and related burdens upon the Mother and child, and other matters discussed immediately above, outweigh such benefits. It will be in the best interests of the child that she remain attending the N Public School.
PARENTAL RESPONSIBILITY
The ICL and the Father seek an Order for sole parental responsibility in relation to the child’s school but otherwise the parties have equal shared parental responsibility. The Mother, for her part, seeks a blanket Order for equal shared parental responsibility.
In view of the Court’s findings as to family violence, as discussed above under the need to protect primary consideration, the presumption of equal shared parental responsibility does not apply.
The Mother has previously been the child’s primary carer, however from about late April 2020 the Father has been the child’s primary carer. The parties’ trust of each other in relation to the child has historically been quite limited however, fortunately, in recent times, the parties’ mutual trust of each other in relation to the child has improved to some extent with the Mother spending significant unsupervised time with the child. The parties’ communication with each other has also improved in recent times, in particular in the context of the child spending time and travelling interstate with the Mother and maternal grandmother. The prospect of the parties prospectively reaching agreement in relation to major decisions affecting the child, in a timely fashion and without conflict, is probably satisfactory. It will be in the best interests of the child that the parties have equal shared parental responsibility for her. The evidence of the family report writer is consistent with the Court’s position on parental responsibility.
It will not be in the best interests of the child that she be subject to an equal time shared care arrangement between the parties. The Court accepts the evidence of the family report writer in this context. Orders for equal time would probably be reasonably practicable provided the child attended the N Public School. The Court’s proposed Orders in relation to the child spending time with the Mother will probably constitute substantial and significant time under the Act which will be in the child’s best interests, and such Orders will probably be reasonably practicable, again provided the child attended the N Public School.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child to make the following Orders:
Discharge of prior Orders
1.All prior parenting orders are discharged.
Equal Shared Parental responsibility
2.The parents shall have equal shared parental responsibility for the child X born in 2013 (‘the child’).
Live with
3.The child shall live with the Father.
Spend time with
4.Subject to the following Orders, the child shall spend time with the Mother as agreed in writing between the parents and failing agreement as follows:
(a)During school term time:
(i)commencing on Friday 13 May 2022, each alternate weekend from after school or 3.00pm on non-school days on Friday until the commencement of school or 9.00am on non-school days on Monday;
(ii)commencing on Wednesday 18 May 2022, each Wednesday from after school or 3.00pm on non-school days until the commencement of school or 9.00am on non-school days on Thursday;
(b)For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the first half of the child’s school holidays in even numbered years, and for the second half of the child’s school holidays in odd numbered years;
(c)For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(d)From 7.00pm Christmas Eve until 10.00am Christmas Day in 2022 and each alternate year thereafter;
(e)From 10.00am Christmas Day until 10.00am Boxing Day in 2023 and each alternate year thereafter;
(f)From 10.00am until 6.00pm on Mother’s Day in each year that the child is not ordinarily in the Mother’s care pursuant to these Orders;
5.The child’s time with the Mother be suspended on the following occasions:
(a)For one half of the child’s school holiday periods as agreed between the parties, and failing agreement for the second half of the child’s school holidays in even numbered years, and for the first half of the child’s school holidays in odd numbered years;
(b)From 10.00am Christmas Day until 10.00am Boxing Day in 2022 and each alternate year thereafter;
(c)From 7.00pm Christmas Eve until 10.00am Christmas Day in 2023 and each alternate year thereafter;
(d)For such period as is agreed in writing between the parents on the child’s birthday in each year that the child is not ordinarily in the Father’s care pursuant to these Orders, and failing agreement from after school until 6.00pm on school days, or if on a weekend or public holiday, from 2.00pm until 6.00pm.
(e)From 10.00am until 6.00pm on Father’s Day in each year that the child is not ordinarily in the Father care pursuant to these Orders;
6.For the purpose of the School Holidays Orders above, the following will apply:
(a)Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the child and shall conclude at the commencement of school on the first day of required school attendance for the child;
(b)Changeover is to occur at 5.00 pm on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c)In the event that there are two consecutive mid-point days, then changeover is to occur at 5.00 pm on the first of those two mid-point days.
Changeovers
7.Changeovers that do not occur at the child’s school shall occur as agreed between the parents and failing agreement the Father and the Mother shall do all things necessary to ensure that the maternal grandfather, the maternal grandmother or the maternal aunt collect the child at the commencement of time and the Father will collect the child from the maternal grandfather or maternal Aunt’s residence at the conclusion of that time and both parents shall ensure that during changeovers:
(b)Neither parent will enter the other’s home;
(c)Each parent and any other person who may be present will behave in a civil and courteous manner to the other parent;
(d)Each parent and any other person who may be present will conduct themselves in a child focussed manner;
(e)Each parent and any other person who may be present will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one parent’s care to the other;
(f)Neither parent nor any other person who may be present will discuss issues of any controversy between them.
General Orders
8.Both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address and contact telephone number.
9.Each parent shall be permitted to communicate directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and this Order shall constitute sufficient authority for such communication.
10.Each parent is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
11.Each parent shall do all reasonable things necessary to ensure that they facilitate the child participating in their scheduled extra-curricular activities during such periods that the child is spending time with them.
12.Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
13.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the child communicating with the other parent by electronic means on a regular basis.
Ongoing treatment
14.The Mother is to continue seeing her treating psychologist and is to comply with any treatment plan/medication prescribed or recommended to her by her treating psychologist and her medical practitioner.
Restraints
15.When the child is in their respective care, each parent is restrained from:
(a)altering the child’s usual place of residence outside of the Greater Sydney (Greater Capital City Statistical Area), as classified by the Australian Bureau of Statistics (‘Greater Sydney’);
(b)Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the child is in their respective care and for a period of 24 hours prior to such time taking place;
(c)Consuming any prescription medication other than as prescribed;
(d)Consuming any illicit substance;
(e)Physically disciplining the child or permitting any other person to do so;
(f)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(g)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(h)Permitting the child having access to any of the documents filed in these proceedings;
(i)Communicating any information intended for the other parent through the child; and
(j)Causing the child to be a medium in any way between the Mother and the Father or between the Mother and the Father and any other person.
Continuation of Independent Children’s Lawyer’s Appointment
16.The Independent Children’s Lawyer’s appointment shall continue for a period of 12 months following the date of these Orders, AND THE COURT NOTES THAT the Independent Children’s Lawyer intends to seek funding for the convening of a further mediation between the parties within a further 10 months AND THE COURT REQUESTS THAT Legal Aid NSW give consideration to funding such mediation pursuant to the COMP program.

I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 11 May 2022

File number(s):	PAC 5306 of 2018
Judgment of:	JUDGE NEWBRUN
Date of judgment:	11 May 2022
Catchwords:	FAMILY LAW – Parenting - best interests of child - Orders made
Legislation:	Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, 65D
Cases cited:	Knight & Knight [2016] FamCA 1085
Division:	Division 2 Family Law
Number of paragraphs:	263
Date of last submission/s:	29 April 2022
Date of hearing:	27, 28 and 29 April 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Juhasz
Solicitor for the Applicant:	Claire Heaton Solicitor
Counsel for the Respondent:	Mr Nowlan
Solicitor for the Respondent:	Jacqui Griffin Mobile Solicitor
Solicitor for the Independent Children’s Lawyer:	Mark Macdiarmid Family Law Specialist

PAC 5306 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CALDERON Applicant
AND:	MR SHEPHERD Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	11 MAY 2022