Danniell & Mounce - [2022] FedCFamC1F 531

Federal Circuit and Family Court of Australia
(DIVISION 1)
Danniell & Mounce [2022] FedCFamC1F 531

File number(s): SYC 5699 of 2016

Judgment of: ALTOBELLI J

Date of judgment: 27 July 2022

Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Finding that distrust permeates the co-parenting relationship and thus communication provides opportunities for parental conflict – Mother to have sole parental responsibility – With whom the child live– Where the father lives in Sydney and the mother lives in regional New South Wales – Where each parent seeks that the child live with them – Where both parents present a risk of harm to the child – Risk assessment – Finding that the mother’s risk posed by alcoholism and mental health issues can be managed – Finding that father’s lack of insight into his traits of narcissism poses risk to the child and inhibits the ability to manage that risk – Order for child to live with the mother and spend time with the father.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited: MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Division: Division 1 First Instance

Number of paragraphs: 112

Date of last submission/s: 7 February 2022

Date of hearing: 6–10 December 2021

Place: Sydney

Counsel for the Applicant: Mr Sansom SC

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: Mr Hill

Solicitor for the Respondent: Inner West Solicitors Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 5699 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DANNIELL

Applicant

AND:
MS MOUNCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

27 July 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The child, X born 2015 (“X”), live with the mother subject to the conditions set out in Order 10.
3.The mother have sole parental responsibility for X, subject to Order 4.
4.Prior to making a decision in relation to major long term issues concerning X, the mother is to consult with the father as follows:
(a)The mother is to advise the father in writing by way of email of the long term decision(s) to be made and of all related information as soon as practicable after becoming aware of same;
(b)Within 14 days thereafter, the father will respond to the mother in writing by way of email, providing his views and input, which the mother will genuinely consider; and
(c)Within seven days thereafter, the mother will notify the father in writing by way of email of her final decision and the reason behind the decision.

5.X spend time with the father as follows:
(a)During school terms, on each alternate weekend from after school or 3pm on Friday until 5pm on Sunday (or Monday if it is a long weekend or if the father is spending time with X in the City A area);
(b)During school holidays, for the first half of each school holiday period in odd numbered years and the second half in even numbered years;
(c)On the weekend that includes Father’s Day from after school on Friday until 5pm on Sunday (or Monday if the father is spending time with X in the City A area);
(d)On X’s birthday, from after school or 3pm until 7pm on a school day or from 2pm until 7pm on a non-school day, provided that the father is able to travel to the City A area on that day.
(e)On the father’s birthday, from after school or 3pm until 7pm on a school day or from 9am until 7pm on a non-school day, provided that the father is able to travel to the City A area on that day.
(f)At other times agreed in writing between the parties.

6.Notwithstanding Order 5, X spend time with each parent on special occasions as follows:
(a)During Easter:
(i)From 12pm on the Thursday immediately preceding Good Friday until 12pm Easter Sunday with the father in even numbered years and with the mother in odd numbered years; and
(ii)From 12pm Easter Sunday until 12pm on the Tuesday immediately following Easter Monday with the mother in even numbered years and with the father in odd numbered years.

(b)During Christmas:
(i)From 12pm on 24 December until 12pm on 26 December with the father in even numbered years and with the mother in odd numbered years; and
(ii)From 12pm on 26 December until 12pm on 28 December with the mother in even numbered years and with the father in odd numbered years.

7.X’s time with the father in accordance with Order 5 is suspended on the mother’s birthday and on the weekend that includes Mother’s Day each year.
8.For the purposes of Orders 5 and 6:
(a)The father is to notify the mother in writing as to whether he intends to spend time with X in the City A area or in Sydney at least 14 days prior to the scheduled time with X;
(b)If X is required to travel between City A and Sydney, then X is to travel by airplane;
(c)The mother is to deliver X to the father at Sydney Airport at the commencement of the time, and the father is to return X to the mother at City A Airport at the conclusion of the time;
(d)X may travel as an unaccompanied minor with the consent of both parties;
(e)Until such time as the mother commences full time paid employment, the father is to bear the cost of all airfares between City A and Sydney and his accommodation in City A (if required);
(f)Upon the mother commencing full time paid employment, the mother will bear the costs of airfares for herself and X between City A and Sydney on one out of every four weekends during school terms, and for the Term 2 and Term 4 school holidays;
(g)The mother is to bear the cost of her own accommodation in Sydney (if required);
(h)In the event that there are no suitable flights available to accommodate X travelling between City A and Sydney by airplane, or if the parties otherwise agree he is not to travel by airplane, then X is to travel by motor vehicle with changeover to occur at K Town McDonalds.

9.The mother and father facilitate communication between X and the parent with whom he is not residing by way of a video call each Tuesday, Thursday and Sunday between the hours of 6pm and 6.30pm, and each Saturday between the hours of 10am and 10.30am, and at such other times in accordance with X’s wishes.
10.Order 2 herein is subject to the following conditions:
(a)The mother is to live in the home of the maternal grandfather and step-grandmother for no less than two years from the date of these orders;
(b)The mother is to continue to engage in alcohol-specific counselling with Ms R at the City A Community Drug & Alcohol Service (or other counsellor recommended by Ms R) at such frequency and for as long as Ms R (or other counsellor) deems appropriate;
(c)The mother is to continue to attend upon Dr O, Psychiatrist (or other psychiatrist recommended by Dr O), and engage in treatment as recommended by Dr O or other psychiatrist, (including taking prescribed medication) at such frequency and for as long as Dr O deems appropriate.
(d)The mother is to continue to engage in therapy with Ms Q, Psychologist (or other psychologist recommended by Ms Q), at such frequency and for as long as Ms Q (or other psychologist) deems appropriate; and
(e)The mother is to submit to CDT testing once per month at the request of Dr O (or other psychiatrist recommended by Dr O) for no less than 12 months from the date of these orders, and thereafter in accordance with any request made by Dr O (or other psychiatrist).

11.The mother is directed to provide a copy of these orders and the reasons for judgment delivered on 27 July 2022 to the maternal grandfather and step-grandmother.
12.Within seven days of the date of these orders, the mother is to provide a sealed copy of these orders to Ms R, Dr O and Ms Q.
13.For the purposes of Order 10b, the mother is to arrange a meeting between herself, Ms R, the maternal grandfather and step-grandmother within 28 days of the date of these orders for the purposes of discussing the mother’s relapse prevention plan and the role of the maternal grandfather and step-grandmother in supporting the mother to adhere to that plan.
14.For the purposes of Order 10e, the mother is to authorise and direct Dr O to provide a copy of each of her CDT test results to Ms R (or any other alcohol-specific counsellor the mother is engaged with) and to the father, as such results become available.
15.Within 28 days of the date of these orders, the mother is to obtain a referral to a child and family therapist and is to arrange and meet the cost for the therapist to meet with X at such frequency as the therapist considers appropriate for the purposes of monitoring X’s overall wellbeing.
16.For the purposes of Order 15:
(a)The mother is to provide the therapist with a copy of Dr P’s report dated 28 April 2020 and a sealed copy of these orders;
(b)The mother is to provide the therapist’s name and contact details to the father; and
(c)Both parents are at liberty to communicate with the therapist and arrange individual sessions with the therapist to discuss X’s well-being from time to time.

17.In the event the mother is admitted to hospital for treatment for mental health or alcohol issues, she is to notify the father directly or via her nominee within 48 hours of her admission.
18.Each parent is to provide the other with their residential address, mobile telephone number and email address, and keep the other informed of any change as soon as practicable.
19.Except in urgent circumstances, the mother and father are to communicate with each other in relation to X by way of email.
20.Each parent is to notify the other as soon as practicable in the event that X is hospitalised or suffers a major illness or injury whilst in that parent’s care.
21.Both parents are at liberty to communicate with any health or medical professional providing treatment to X at any time.
22.Both parents are at liberty to communicate with any school at which X is enrolled; to receive information in relation to X’s school including copies of school reports, and to attend any school event or function to which parents are generally invited.
23.Each parent be and hereby is restrained from denigrating, or making critical or derogatory remarks, about the other parent or any member of the other parent’s family or the other parent’s partner, to X or within his hearing.
24.Subject to order 25 below, within 56 days of the date of these orders, each parent pay to Legal Aid NSW their contribution towards the costs of the Independent Children’s Lawyer in the sum of $5,989, less any amount already paid to Legal Aid NSW by way of initial contribution, and subject to that parent’s contribution being waived by Legal Aid NSW.
25.Leave is granted to the mother and father to apply to relist the proceedings within 28 days in the event submissions are sought to be made with respect to costs of the Independent Children’s Lawyer in Order 22. In the event such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 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 the pseudonym Danniell & Mounce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction

This case is about a child, X born in 2015 (“X”), now seven years old. X currently lives with the respondent mother, Ms Mounce, (“the mother”) in rural New South Wales and spends regular time with the applicant father, Mr Danniell (“the father”) in Sydney. The Court had to decide whether X continued to live with the mother in rural New South Wales and spend time with the father, or alternatively whether X should live with the father in Sydney, and spend time with the mother.
This was a difficult, finely balanced case. There are risks to X whether he lives with the mother or the father. The risks are different in each household. For the reasons set out below, the Court has decided that there is least risk for X continuing to live with the mother.
Background
The father is 53 years old and is a health professional. He lives and works in Sydney.
The mother is 45 years old and lives in a country town in rural New South Wales with her father and stepmother. She is not currently working, and is in receipt of monthly payments pursuant to a disability insurance policy.
The parents met in early 2011 and seem to have formed a relationship quite quickly thereafter. They cohabitated for a period. The relationship ended in 2016, probably shortly before the father commenced the present proceedings on 6 September 2016. It was a difficult and indeed sometimes volatile relationship. They argued. The mother alleges that the father was violent towards her.
After X was born in 2015 he lived primarily with the mother but spent substantial time with the father including overnight time. At this time, X and the mother lived with the maternal grandmother in the eastern suburbs of Sydney, and the father was present in X’s life on an almost daily basis at that time.
The first set of parenting orders were made by consent in the Federal Circuit Court of Australia (as it then was) on 21 March 2017. The orders provided, in summary, that the parents share equal parental responsibility, X live with the mother and spend time with the father, and each parent keep the other informed of medical and contact matters. The spend time arrangements were that X spend time with the father initially for three days per week, and from October 2017 for two and a half days and one overnight, and then from April 2018 two overnights.
On 7 December 2017 further consent orders were made in the Federal Circuit Court of Australia (as it then was) varying the father’s spend time arrangements in the consent orders made 21 March 2017. They were varied such that they provided for X to spend time with the father initially for two nights and one day per week and an additional day each alternate week, and then from April 2019 onwards, for one day and one overnight per week and an additional two overnights and three days on alternate weeks.
After separation the father re-partnered with Ms G who gave birth to their daughter, H, aged three, in 2018.
On 7 December 2018 Senior Registrar Campbell (as he then was) made an order permitting the mother to relocate the residence of X to the country town where he presently resides with the mother. Orders were made for X to spend time with the father each alternate weekend and during school holidays.
On 29 April 2019 Rees J in the Family Court of Australia (as it then was) dismissed the father’s application to review the decision of Senior Registrar Campbell (as he then was). The father appealed this decision, but ultimately did not pursue the appeal.
The current order for X to spend time with his father was made 24 July 2019 and it provides for time each alternate weekend from Saturday morning until Monday afternoon, one half of the school holidays, and on special occasions.
X commenced primary school in 2021 and is currently in year 1 in a public school close to where he lives.
The mother has struggled with alcoholism and mental health issues, and the father’s case is that these issues present a risk of harm to X.
The father, in the opinion of the single joint expert, Dr P, demonstrates significant personality dysfunction in the form of narcissistic personality traits. The mother contends that this puts X at risk of harm in the father’s care.
The Competing Proposals
By the time of the final written submissions the mother adopted the orders proposed by the Independent Children’s Lawyer. These orders are reproduced in Schedule A to these reasons. By way of summary, the orders provide that X would continue to live with the mother subject to conditions including: that she live in the home of the maternal grandfather and step-grandmother for no less than two years from the date of these orders; that she continue to engage in alcohol-specific counselling; that she continue to attend on her treating psychiatrist; that she continue to engage in therapy; and that she submit to monthly CDT testing for no less than 12 months from the date of these orders. The mother was to have sole parental responsibility subject to notification and consultation with the father. The father would spend time with X on each alternate weekend from after school on Friday until Sunday during the school terms, and for half of each school holiday period. The orders also provide for Mother’s and Father’s Day (but not for other special occasions), electronic communication and a number of ancillary matters.
The father proposed that the parents share parental responsibility with specific provisions in relation to education. X would otherwise live with the father in Sydney and spend time with the mother each alternate weekend and half the school holidays. These orders, which are reproduced in Schedule B to these reasons, also deal with the details of travel arrangements, special days, electronic communication, orders in relation to the mother’s alcohol consumption and a number of ancillary matters.
Having regard to the comprehensive and very helpful written submissions filed on behalf of the parents and the Independent Children’s Lawyer, the main issues for determination by the Court centre around the risk of harm to X, whether in his mother’s care or father’s care. This, of course, is a complex issue. The risk of harm issues are very much related to issues of parental capacity, and parental attitudes towards X, and to the responsibilities of parenthood. Issues abound in this regard, as regards both parents. The mother’s case also raised issues of family violence, as broadly defined in the Family Law Act 1975 (Cth) (“the Act”).
What becomes apparent to the Court is that there are a number of considerations that are not determinative, whilst being at least minimally relevant. For example, the Court is satisfied that X will have a meaningful relationship with both his mother and father whether he lives with either of them, having regard to their respective proposals for substantial and significant contact. Having regard to the age and maturity of X, his views are only minimally relevant. It is clear that X has a good relationship with both parents, the maternal grandfather and step-grandmother, the father’s partner Ms G, and their daughter H. There are some minor issues relating to the extent to which the parents have facilitated, or failed to facilitate, the other’s participation in decision-making, or time and communication with X. There are no issues about child support. Whilst the Court recognises the significance of considering the impact of change on X in terms of orders made, if orders are made it will be because risk has been identified. Thus, whilst the likely effect of change is not to be ignored, the Court will ultimately conclude that protecting X from risk of harm is more important. X is an Aboriginal child, but it was no part of either parent’s case that this was a significant, let alone determinative, consideration.
The applicable law

The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:        Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(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;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The evidence
In support of his case, the father relied on the following material:
(a)His Initiating Application filed 16 September 2016;
(b)His affidavit filed 16 July 2021;
(c)Affidavit of Ms G filed 16 July 2021;
(d)Affidavit of Dr Z filed 21 July 2021;
(e)His affidavit filed 18 October 2021; and
(f)Documents tendered and marked as exhibits A1–A6.
In support of her case, the mother relied on the following material:
(a)Her affidavit filed 30 July 2021;
(b)Affidavit of Mr V filed 30 July 2021;
(c)Affidavit of Ms W filed 30 July 2021;
(d)Affidavit of Ms Q filed 5 July 2021;
(e)Affidavit of Mr E filed 12 October 2018;
(f)Affidavit of Dr D filed 5 September 2018;
(g)DD Company Income Protection Claim Form Completed by Dr O (“Dr O”) dated 27 April 2021;
(h)Orders of Altobelli J made 27 August 2021;
(i)Her affidavit dated 18 October 2021;
(j)Report of Dr S dated 29 July 2021;
(k)Report of Dr S dated 7 September 2021;
(l)Letter of Dr O dated 6 May 2021; and
(m)Documents tendered and marked as exhibits R1–R5.
In support of their case, the Independent Children’s Lawyer relied on the following material:
(a)Single Expert Report of Dr P dated 28 April 2020; and
(b)Documents tendered and marked as exhibits ICL1–ICL18.
meaningful relationship
X enjoys a meaningful relationship with both the mother and father. The Independent Children’s Lawyer correctly observed the significance of this in circumstances where X has never lived with the father. The mother must receive credit for this, despite the personal adversity that she has faced. This meaningful relationship survived relocation from Sydney to where they currently live. Despite the difficulties in the parent’s relationship, the mother has succeeded in putting aside her own views about the father, as there is no indication of her views undermining in any way the meaningful relationship X has with the father. The father also deserves credit for doing nothing to undermine the relationship between X and the mother.
The Court is also satisfied that both of the proposals advanced to the Court by the parents would mean that X continues to have a meaningful relationship with both parents.
Protecting The Child From Risk of Harm
Risk of harm from the mother
The mother suffers from long-standing alcohol and mental health issues. These issues, in a historical sense, were not in dispute. The main issues that emerged from the evidence is how these issues affect the mother’s parenting capacity, and what is the risk of relapse?
The evidence about the mother’s long-standing alcohol and mental health issues was found in the single joint expert report of Dr P, the affidavit of Dr D, documents produced by Dr O, the records of the U Hospital where the mother was an inpatient on several occasions, Dr S (a Drug and Alcohol staff specialist), and various toxicology reports. The most useful evidence was that of Dr P, not just because of his expertise, but also because he was independent and was able to conduct his assessment with the benefit of the multiple perspectives referred to in his report.
Dr P explained that the mother suffers from post-traumatic stress disorder (“PTSD”), persistent depressive disorder (dysthymia), alcohol use disorder, and borderline personality traits. Dr P was clearly concerned about the interaction between these various conditions and how, in effect, PTSD could drive alcohol dependence, and the mother’s borderline personality traits could be adversely affected by her alcohol use.
At paragraph 584 of his report Dr P states:
A significant factor exacerbating and perpetuating disruption of maternal availability, sensitivity and responsiveness to [X] over time will have been the mother’s excessive alcohol consumption. Alcohol will have had a direct negative effect on maternal availability through disruption of mental functions including alertness, reasoning and judgement, and disruption of neurological/ motor functions such as speech and coordination, and also an indirect negative effect through amplification of negative maternal mental states, including cognitive preoccupations and emotional dysregulation.

Dr P had concerns about the mother which, with respect to her, were apparent in her cross-examination. Dr P was concerned that the mother’s lack of insight into the seriousness of her alcohol dependence and its impact on her functioning were a major concern in relation to her parenting capacity. He described her attitude as “dangerously minimising, externalising and naive”. Indeed, the mother’s cross-examination revealed that she had been dishonest about disclosing her alcohol use to the very people who she had been consulting in relation to the problem and whose role was to assist her.
Nonetheless, Dr P believed that it was still in the best interests of X that he continue to live with his mother. However, a number of conditions would need to be imposed in relation to her care of X, and her living circumstances. These can be summarised as follows:
·the mother and X continuing to live with the maternal grandfather for at least six months;
·the mother committing to complete abstinence from alcohol for at least 12 months;
·the mother completing initial detoxification from alcohol followed by an inpatient program of alcohol education and rehabilitation;
·the mother undertaking alcohol-specific counselling for 12 months;
·consideration of the use of medication treatment to support abstinence;
·regular CDT and liver function testing;
·the mother undertaking therapy for PTSD and to address her personality vulnerabilities; and
·ongoing adherence to prescribed medication for depression and anxiety.
Dr P’s report was dated 28 April 2020. As will be seen, the mother relapsed after the report, the details of which will be discussed below. Of course, by the time Dr P was cross-examined he had been fully appraised of events that took place after his report interviews. It became clear that the mother has taken on board some, but not all of the recommendations made by Dr P. For example, she has continued to live with the maternal grandfather, and by the time of closing submissions had indicated to the Court, through her counsel, that she would abide with any order of the Court as to where she and X would live. The mother had completed inpatient detoxification and alcohol treatment at the U Hospital on two occasions, in mid-2020, and then in early 2021. The mother had engaged in regular alcohol-specific counselling with a psychologist at the Drug and Alcohol service in the town where she lives. She has engaged with her psychiatrist, Dr O, and is taking both antidepressant medication and medication to assist with alcohol abstinence. Moreover the mother has undertaken regular CDT testing, all of which have consistently shown decreasing readings, with results being below the threshold indicative of excessive alcohol use. In addition, the mother has been engaged with another psychologist, who provides regular therapy.
The mother did not, however, undertake to, or achieve, complete abstinence from alcohol as was recommended. She attempted controlled drinking, which failed and resulted in an admission to hospital in April 2021. In cross-examination it became apparent that even after her second hospital admission at that time, she continued to consume alcohol occasionally. Based on her evidence she ceased alcohol consumption in June 2021. The Court cannot be entirely confident that the mother remained abstinent from that date, to the date of the hearing. The mother impressed the Court as being committed to deal with her alcohol abuse but was unable to be abstinent. The Court accepts that there are indicators that she has, at the very least, and to use her words, been “largely abstinent”. The results of the CDT testing are consistent with this. If she is using the alcohol abstinence medication prescribed by her psychiatrist Dr O, that is naltrexone and acamprosate, this too provides a basis for a cautious optimism in this regard about the mother. In cross-examination she herself agreed that there was no cure to alcohol addiction, and that she was still in the early days of her recovery process.
Dr P seems to have a measured confidence about the mother. He acknowledged the significant gains that the mother had made since when he interviewed her in March 2020, whilst at the same time emphasising her vulnerability.
On the question of abstinence, the evidence of both Dr P and Dr O was helpful to the Court. They both presented a realistic, pragmatic approach to the issue of abstinence. Dr O indicated in cross-examination that whilst abstinence leads to higher rates of remission, it was not necessarily a precondition to the absence of problematic drinking. Dr P seemed to portray abstinence as an ongoing process that at times involves different measures of progression and regression. Certainly Dr P sought to normalise the experience of lapse and relapse as common in the treatment for alcohol use disorders. He presented to the Court as sounding cautious about necessarily interpreting relapse as irrevocable signs of failure. Dr P seemed to accept that in the mother’s case, the risk of relapse was present, and could continue into the long-term. It is clear that Dr P felt that, on the facts of this case, the risk of relapse did not contraindicate X continuing to live with his mother. For example, he pointed to the reality that for most of X’s life his mother has abused alcohol, and yet he has been provided with what he described as “good enough” care, which has taken place in the context of the supportive environment of the maternal grandfather and the step-grandmother. As will be discussed below, however, the Court has some concerns about the insight of both the maternal grandfather and the step-grandmother in terms of the mother’s alcohol abuse.
The issue for the Court is whether the protective measures recommended by Dr P, and as reflected and modified in the proposal of the Independent Children’s Lawyer, are indeed adequately protective. If they are, the mother’s proposal is realistic. If they are not, then the risk to X may indicate that he should be living with the father.
It needs to be recognised (and to be fair to Dr P he did just this) that the father’s consistent and persistent role in his son’s life has been a very important protective factor. There is no doubt that the father has a strong grip on one corner of the figurative safety net for X. In this regard, however, it is important to recognise a few matters. Firstly the Court accepts from the father’s own evidence that he was well aware of the mother’s alcohol abuse issues in their relationship, and was certainly aware of this at the time he filed his Initiating Application which first came before the Court on 22 November 2016. Yet, in the final orders sought in that document he at no stage proposed that X would live with him permanently. His carefully considered and crafted application recognised that equal time would only be achieved from 5 October 2020 after X had turned five. It may well have been a developmentally appropriate proposal to make, but it is somewhat inconsistent with his risk of harm case articulated at the final hearing.
Returning to the issue of the maternal grandfather and the step-grandmother, the Court’s impression is that in many respects they were as much victims of the mother’s duplicity in hiding her alcohol use as were the mother’s treating professionals. The Court doubts very much whether they fully understood the nature and extent of the mother’s alcohol use until after her second admission to the U Hospital. This probably reduced their insight and understanding of the issue that they were dealing with. They minimised the use of alcohol in their own household. They did not realise how much the mother was drinking when they were not physically present, particularly after bedtime. Nonetheless, the Court accepts that they are fiercely committed to the care and wellbeing of X and will continue to be so especially after they are fully appraised of whatever decision the Court makes. Indeed, it may be important for them to receive a copy of these reasons for judgment, whether X lives with his mother or his father. It is significant that Dr P still believed that they had an important protective role for X. This continued to be the case even after he was cross-examined.
The Court notes that Dr P described their role more as challenging the mother, rather than being authoritarian. This is, the Court notes, both realistic and appropriate.
The father’s perspective on this risk issue was, in effect, that both the mother’s case and the single joint expert had minimised the risk to X of remaining in his mother’s care.
Senior counsel for the father in his written submissions, quite appropriately, criticised the mother’s credibility as a witness. Indeed, she was reactive and uncooperative at times. She was unresponsive at times, evasive at other times, trenchantly critical of the father, occasionally sarcastic, and sometimes showed a real lack of insight into the problems with her own life, and her own case. As senior counsel pointed out in written submissions, this is entirely consistent with Dr P’s assessment of the mother as being “particularly sophisticated” in presenting “a favourable self”. The mother lied about her abstinence. Her allegation that the father had caused X to, in effect, be born with a venereal disease was outrageous. The fact is that from shortly after X was born, she knew, or should have known, that this was patently wrong. The mother minimised the nature and extent of her alcohol use in her dealings with the professionals engaged to assist her with this very problem. She certainly did so with her father and stepmother.
Whilst these matters are all accepted by the Court, a number of contextual matters need also to be recognised. Both the evidence of Dr P, and the experience of this Court, indicate that the mother’s behaviour is not unusual for a person who struggles with alcohol abuse. This is by no means an attempt to normalise her behaviour which, even it were, was completely unacceptable. It provides a context, however, within which risk can be assessed. Dr P was aware of all these issues. It is also important to recognise that from the mother’s perspective, she experienced the father to be violent and controlling. She experienced him to be immensely more powerful than her as is reflected in her perception of him having vastly greater financial resources with which to pursue this litigation, including review applications and appeals. Whether any part of the mother’s perception is grounded in actuality is a matter that will be discussed elsewhere in these reasons.
The Court has already expressed concerns about the evidence of the maternal grandfather, and the step-grandmother. But no one submitted, nor could it be reasonably submitted, that they were somehow complicit in the mother’s alcohol abuse. The Court believes that its assessment of the maternal grandfather and the step-grandmother being victims of the mother’s deception to be closer to the truth.
But it does not follow, as is at least inferred in the father’s case, that credibility issues permeated the rest of the mother’s evidence. When making credit findings, a trial judge must paint with a fine brush not a broad brush.
The father’s case, quite understandably, sought to argue that the weight to be placed on the expert evidence should be minimised. As it is, nothing comes of this. For example, to suggest that Dr P’s report does not address the physical risk to X through misadventure associated with the misuse of alcohol by the mother is unfair. Dr P’s recommendations reflect a clear understanding of physical risk issues and address them. In any event, assessment of the physical risk to X of his mother’s alcohol abuse would necessarily have regard to the actual evidence of physical abuse—of which there is none. The risk though to X as a result of the poor role model portrayed by his mother falls into the same category. There is no evidence of any such existing issue that is manifested in the life of X, despite the thorough manner in which the father conducted this litigation.
The father’s case appropriately highlighted potential risks to X as a result of the mother’s mental health issues, especially what Dr P described as personality dysfunction in the form of borderline personality traits. At paragraph 724 of his report he describes these as follows:
Borderline personality functioning is a pattern of instability of interpersonal relationships, self image and emotion, and impulsive behaviours. In terms of borderline personality traits, the mother can show frantic efforts to avoid real or imagined abandonment, a pattern of instability in relationships including swings between idealising and devaluing, instability in self identity, impulsivity including the mother’s drinking, some suicidal thinking, emotional instability and reactivity of mood, feelings of emptiness and difficulty being alone, inappropriate intense anger, and transient, stress-related paranoid ideation.
In cross-examination he further referred to the mother’s “insecure sense of self”, the mood swings from positive to despair and her impulsivity. Dr P accepted that these could have a significant effect on X in the mother’s care. What is notably absent, however, the Court observes, is any evidence firstly, that X has been exposed to this, and secondly, that if exposed he has been adversely affected by it. Indeed, the evidence about X is precisely the opposite. At paragraphs 363–369, Dr P describes his presentation at interview. Specifically, at paragraphs 365–368 Dr P states:
365.There was no abnormality of mood, for example no overall state of depression or anxiety. [X] presented overall with happy mood. [X’s] affects were of normal range and congruent to the topic under discussion, including many happy, contented, interested or engaged affects, and some sadness or worry.
366. There was no abnormality of thought form.
367.[X’s] narrative overall was consistent with that of a secure and adequately nurtured child of his age, without intrusion or burden from adult matters. [X] presented as quite engaged, activated and interested, in both households.
368.My impression was that [X’s] cognitive, language and academic capacities were within the range of normal for his age, perhaps quite strong. I observed (as had both parents) that [X] demonstrated strongest capacity in a naturalistic, unself-conscious context, then tended to inhibit a little or withdraw when challenged to show evidence of capacity, to appraising others. Such a pattern is not uncommon in a child of his age.
A further independent insight into X’s life is found at paragraphs 460–474 where Dr P reports on his discussion with X’s classroom teacher. There is no suggestion of a child who has been exposed to trauma, despite his mother’s chaotic life. At paragraph 466 Dr P observes:
The teacher had not developed concerns about [X’s] basic welfare. [X] came to school appropriately dressed, had good food to eat, and without any concerning injuries or bruises. [X] presents as happy. [X] chatters about the farm, and appears to love the farm. The teacher has a farm too, so [X] and teacher discuss their calves, which both are caring for. [X] does get “a bit thingy” on the days that he has to catch the aeroplane to Sydney to see the father.
Assessment of future risk is necessarily based on, but not totally dependent on, the past. Future risk must necessarily take into account developmental considerations. As senior counsel for the father put to Dr P, which Dr P accepted, if the mother’s alcohol abuse worsens, as X gets older it is more likely that he will be exposed and adversely affected by it. In effect, the Court accepts this was a concession that in terms of the impact on X of the mother’s risk of relapse, the risk of adverse impact is much greater. Thus, for example, as he gets older, X will inevitably stay up later. The mother’s evidence is that she drank whilst X was asleep.
Despite the valiant efforts of senior counsel for the father to challenge Dr P’s expert evidence, and to convince the Court that it should not be given substantial weight, the Court finds that Dr P was:
(1)fully appraised of all the relevant evidence that post-dated his report interviews;
(2)recognised, accepted, but satisfactorily addressed each of the matters put to him by senior counsel; and
(3)adapted his recommendation to reflect what was a changed risk profile.
Moreover, the Court is satisfied that at all relevant times Dr P was aware of the totality of the risks presented by both the mother’s alcohol abuse and mental health issues.
The Court believes that it was fully appraised of the risks to X arising from his mother’s care. In due course, after having considered the risks to X in his father’s care, the Court will need to assess the extent to which the orders proposed satisfactorily address and mitigate these risks.
Risk to the child from the father
The risks to X in the father’s household are associated with the father’s personality and relational vulnerabilities. At paragraphs 230–234 Dr P states:
230.The father presented with poor insight and judgement with regard to the experience and needs of other persons, in particular the experience and needs of the other person within family or intimate relationships.
231.I observed at interview that the father showed poor reflective functioning in relation to other persons, that is a disrupted capacity to pause, to reflect upon, and to accurately appraise the thoughts, feelings, motivations and actions of others. By way of contrast, his reflective functioning with regard to his own thoughts, feelings, motivations and actions was reasonable.
232.Similarly, the father showed very poor affective empathy [ability to connect with and respond to the emotional state of the other] and deficits in cognitive empathy [ability at a rational level to understand the emotional state of the other] in relating to others, but reasonable cognitive empathy with regard to his own experience of emotion.
233.Reflecting the above disparity, the father’s narrative at interview was at times quite thoughtful and insightful, but was markedly self-referential. An example of the same was his reflection that his long {as he termed it) “adolescence” of maintenance of multiple intimate relationships with a significant component of deceit of the other, had been “taxing” for himself.
234.Reflective functioning and empathic attunement are fundamental capacities underlying good personality functioning, and underlying effective parenting.
(As per the original)
It is clear that even this assessment of the father was in the context of assessing the risk presented by the mother. For example, at paragraph 530 he states:
Without the above constraints, I conclude that I must recommend that the child return to Sydney in paternal care in order to manage short to medium term [and long term if unaddressed] risks in maternal care, even though this is a much less satisfactory option precarious to the child in terms of his long term wellbeing and character development, both because of the father’s significant but harder to treat personality and parenting vulnerabilities, and because a return to Sydney will be very damaging to maternal mental health, wellbeing and thus parenting capacity.
Thus, even though he believed that the father’s personality and parenting vulnerability were a risk to X, and were harder to treat, nonetheless the greater risk may still be from the mother.
The mother experienced the father to be narcissist. Dr P deals with this at paragraphs 741–743:
741.In the father’s case, my impression is that he carries some primary narcissism [an inherent belief in one’s superiority/ entitlement, often linked to childhood privilege], with some entitlement linked to his ambitious upbringing by his mother and his quite expectant, opinionated father.
742.But, mostly the father demonstrates secondary narcissism, meaning that his elevation of self has been a protective defence against despair, shame, or a sense of worthlessness or powerlessness, associated with childhood adversity and lack. The father described experiencing severe emotional abuse from his older brother during his upbringing, and adapting to this through compliance and suppression of negative affect, then later by commencing weight-lifting. He described his mother as bitter against his father, and his father as authoritarian, suggesting a general neglect of the father’s needs for acknowledgement and affirmation.
743.Secondary narcissism is in some ways an effective strategy, and in the father’s case has contributed to his pushing on to achieve personal and occupational success despite childhood adversity. But it has costs also, particularly seen in family/ intimate relationships.
(As per the original)

The theme is continued at paragraphs 747–749:
747.The mother described having experienced the father as quite demeaning, cruel and retributive, as well as deceitful, controlling and threatening. To the extent that the same is true, this suggests a more antisocial expression of the father’s narcissism.
748.It is unclear to me the extent to which [at one extreme] the mother’s narrative is accurate in full, and there is quite a significant antisocial expression of the father’s narcissism, or [at the other extreme] the father has been quite idealistic, gallant and generous in expression of his narcissism, and the mother’s experience of paternal cruelty arises more from her own projected distress and anger.
749.My impression is that there is at least some antisocial expression of the father’s narcissism, noting the mother’s experience of him as cruel, and his admitted deceitful behaviour. I note that the father described experiencing quite cruel and emotionally abusive behaviour from both of his siblings, but in particular his brother, during his upbringing, and this could have proven a conscious or unconscious model for him.
(As per the original)
At paragraph 736 Dr P acknowledges personality strengths in the father, but also notes that he demonstrates significant personality dysfunction in the form of narcissistic personality traits. At paragraphs 737–739 Dr P states:
737.I think it unlikely that the father has a personality disorder, but if the patterns problematically evident in his relationship with the mother are also problematically evident in other settings such as in friendships, broader family relationships and occupational relationships, then he may do. The differentiation between traits and disorder is one of degree, and is not central to the matters before the court. In order to make the differentiation, a clinician would need to see the father over a period of time, with input from those with whom he interacts, and appraise his functioning in broader contexts beyond the focus of this report on functioning in family relationships.
738.Narcissistic personality functioning is a pattern of grandiosity, need for admiration, and lack of empathy. In the father’s case, the father does not present as man who is particularly grandiose or needs to “talk himself up” in an overt way, but my impression is that the father has valued over time the experience of the desire, jealousy, admiration, appreciation and competition of female partners [including the mother], and the superiority inherent in his selective and intermittent largesse shown to them. He also values the toys and trappings of success and wealth. The father values his roles, but also how others observe and admire his roles.
739.In terms of narcissistic personality traits, the father has a sense of entitlement, can be interpersonally exploitative, and lacks empathy. My impression is that he values the experience of others being envious of him. He has sought to address complex issues within intimate relationships through quite superficial and idealised largesse, for example his hope expressed to me that taking the mother on the cruise in […] 2014 might “make [the mother] OK”. He values, and may to some extent require, the admiration of others with whom he has ongoing relationship.
(As per the original)
The significance of this is that Dr P gave evidence that the father’s vulnerabilities would poorly equip him to more deeply and genuinely assist X with the emotional transition into full-time care with him. Indeed, when the father was cross-examined about this very issue the evidence he gave was far from impressive. The strong impression formed is that he really had not given it much thought, but was prepared to rely on professional advice including that of Dr P. Curiously, the father was able to identify a range of impacts on X that were likely to be consequential on his proposal for him to live with him. Thus, he demonstrated an understanding of the potential problem, but had not demonstrated an understanding of how these problems would be dealt with. For example, the father accepted that X might be angry, and blame his father for the change. Whilst the father seemed to understand the importance to X of maintaining a similar routine in Sydney as he experiences with the mother, he did not convince the Court that he had really thought through these issues and how he would personally manage them, other than seeking professional advice. It must be remembered that the father’s proposal is that within seven days of the Court order, X would come into his care. That hardly gives sufficient time to gain the knowledge necessary before a dramatic change in X’s life occurs.
In cross-examination, when the father was examined about the nature of his relationship with his partner, Ms G, he gave as one reason as to why they do not cohabit is that after work he needs time alone to “recharge” and “decompress”. From the Court’s perspective, however, the time after work is a critical time for X in terms of his relationship with his father. Dr P was correct to implicitly raise issues about the father’s availability, certainly in an emotional sense but probably in a physical sense as well. Dr P expressed concern about X spending most of his time “with a parent who is less able to guide his development…”. Later in cross-examination he explained that the biggest risk to X would be in late childhood and adolescence. Dr P suggested that if the father only perceives his relationship with others through how he experiences the relationship, this is potentially problematic for X as he will progress through childhood, adolescence and adulthood seeing relationships through his own needs, rather than fully respecting the other person.
Given the reality that X will individuate as he progresses through childhood into adolescence and adulthood, the Court is also concerned about X growing up in a household where his father demonstrates narcissistic personality traits. One wonders whether the growing sense of entitlement that is a part of individuation would clash with the father’s own strong sense of entitlement.
The Independent Children’s Lawyer submitted that the Court would accept that the father is unlikely to take steps to address the personality issues identified by Dr P in circumstances where he does not acknowledge he has any deficits in relation to his reflective functioning or empathic attunement. The Court agrees.
The father was extensively cross-examined in relation to his views about Dr P’s report. The father was quite categorical: he did not agree with the report. He did not agree he had personality vulnerabilities beyond those common to most people. He did not agree that he had personality traits along a narcissistic spectrum. He accepted that he had the normal narcissistic traits that everyone else has. He disagreed that any of these things have influenced his life, or could influence X’s life. He disagreed with Dr P’s assessment of him as having impaired reflective functioning and empathic attunement. When asked about self-focus he explained that he had “undertaken a number of courses of therapy…to ensure that I am more able to identify and respond to X.” Dr Z was identified as the person providing the therapy. The father said that he had been working with Dr Z in relation to impaired reflective functioning or empathic attunement, but he insisted that it was not at such a poor level that it could negatively impact on either of his children. He accepted that he had deficits in relation to empathic attunement in relation to the mother, but not in relation to being a parent. He rejected Dr P’s formulation, but accepted that his observations were correct. He said that he had discussed Dr P’s report with his psychologist, Dr Z, but then acknowledged that she was not a child development psychologist. He insisted that he nonetheless “would have asked her”. When pressed, the father admitted that he had no recollection of Dr Z giving him any advice in relation to improving his parenting.
Dr Z’s affidavit was in evidence, and she was not required for cross-examination. A number of her clinical notes were tendered into evidence. The totality of all of this evidence leads the Court to find that, indeed, the father is unlikely to take steps to address the personality issues identified by Dr P because he does not acknowledge that he has any deficit in relation to his reflective functioning or empathic attunement, let alone that his parenting is lacking in these areas. This attitude of the father is consistent with Dr P’s description of him as suffering from narcissism. The father suffered from an inherent belief that his opinion about himself carried more weight than that of the single joint expert. The sense of elevation of self was evident in the cross-examination about this topic.
Thus, Dr P’s concerns about the father’s limited reflective functioning and empathic attunement, and how his narcissistic traits could possibly affect parenting of X are borne out by the evidence.
It bears reflecting on the risk that is posed to X from both his parents, in relation to parental lack of capacity. The mother’s deficits are more likely to be visible and tangibly manifested within a relatively short period of time. The father’s deficits are invisible, poorly identifiable, and their impact may take a long a time to observe. The risk presented to X by the father is more subtle. The riskiest period for X may well be as he enters adolescence and individuates.
Dr P was also concerned about the implication on the father’s personality functioning of his relationship with Ms G which does not involve cohabitation. Indeed, the father’s evidence is that he did not want to cohabit with Ms G. The father describes Ms G as his partner and deposes at length in his affidavits about their joint involvement with their child H, and the involvement of Ms G, H and X when he is in Sydney. He depicts family life as full, satisfying and child focused. In Ms G’s affidavit, she deposes to the “committed relationship” with the father. She depicts family life in much the same way as the father.
In cross-examination Ms G described their living arrangements. She explained that prior to 2022, she and the father lived in either her house or the father’s house for perhaps three to five nights a week. She clarified that they predominantly spend time at her house, not the father’s. As at the time of cross-examination, she described the relationship as friendly, caring, and loving, but not currently intimate. She explained that they have had some difficulties, particularly related to the present proceedings. She explained that they are still amicable, kind, caring, loving and sharing. She said there is very little or no animosity between them.
When asked to consider the future she hoped that:
…we end up living together and residing together, being co-parents, just like a normal family situation or, at the worst, it could be – it would be like it is now: happily – happy, kind, caring, loving co-parenting, but from separate residences.
(Transcript 8 December 2021, p.216 lines 6–9)
It is interesting that Ms G did not regard their current family arrangement as being a normal one.
Further in cross-examination Ms G explained that their living arrangements changed after Christmas and during the early January period in 2021 when the father did not stay overnight at her home. In effect, they have been spending less overnight time at each other’s homes. She considered herself to still be in a relationship with the father as partner.
The strong impression formed from Ms G’s evidence is that if her relationship with the father continues she will be a regular positive presence in X’s life, but not a permanent presence in the sense of mitigating the risks and vulnerabilities identified by Dr P.
Moreover the impression of the relationship between the father and Ms G is that it is fragile. The father seems unable, or unwilling, to commit to a longer term relationship with Ms G. This is not inconsistent with some of the narcissistic personality traits that Dr P describes in his report.
Dr P concludes as follows in relation to the father’s parenting capacity at paragraphs 654–663:
654.In my view, the father has adequate, and probably quite strong, capacity to meet [X’s] basic needs for food, shelter and protection from harm.
655.The father has adequate, and probably quite strong, capacity to meet [X’s] intellectual needs, and his developmental needs in terms of active, challenging and stimulating engagement with learning and life experience, and pleasant, collaborative and effective non-intimate relationships.
656.The father has adequate, and probably quite strong capacity to meet [X’s] basic emotional needs for engagement, acknowledgement, responsivity and affirmation. A strength of the father’s is his ability to model logical, pragmatic, efficient modes of living and decision-making, with associated containment of problematic negative emotion. This is potentially a useful and balancing counterpoint to the mother’s more emotive personality style.
657.But, I am concerned that because of his personality and relational vulnerabilities, including his self-focus and impaired reflective functioning and empathic attunement, the father may struggle to meet [X’s] more complex emotional and relational needs, particularly as [X] progresses into and through adolescence. A complex issue here is that the father may model to [X] patterns of thinking about relationships and patterns of relating that appear effective and rewarding in the short- to medium-term and hence may be attractive to [X], but are disrespectful and damaging to the other, and hence can be damaging even to self, in the medium to long- term.
658.In my view, in terms of [X’s] welfare in paternal care, this is an issue of “dose”.
659.If the child spends well less than 50% of his time with the father, then that time is likely to remain busy, positive, mutually valued and mutually affirming, which is the context that brings out the best in the father.
660.The child will make some relational adaptations in the areas where the father lacks reflective functioning or empathic attunement. The same is not damaging and in fact can be developmentally enriching in terms of the child’s range of relational experience and adaptive capacity, if it is experienced for well less than 50% of the time, and if the child has a foundation of more reflective, emotionally attuned, respectful, responsive parenting with the mother.
661.In some ways, the father’s more emotionally constrained, logical, more predictable, and often pragmatically effective, patterns of relating may be a good counterpoint to the maternal vulnerabilities to emotional and relational reactivity.
662.The stability provided by the father’s predictable paternal patterns of relating will help to meet the child’s special needs in the emotional, relational and developmental areas, but the father’s own incapacity in these domains will disrupt his broader capacity to meet these special needs.
663.If the child was required to spend 50% or more time with the father, then these relational adaptations can be more problematic in terms of the child’s own development of emotional and relational capacities over time. This may particularly be evident in late childhood and adolescence, where the child’s emotional needs will be more complex, where children do sometimes go through periods where they shift from affirmation/ idealising to rejection/devaluing of the parent, which the father may find challenging, and where adult modelling and guidance are important.
Risk assessment in this case is particularly challenging because of the different nature of the risks emanating from each parent. The Court accepts Dr P’s evidence in relation to managing risk to X whilst in the mother’s care. On balance, provided this risk can be adequately managed, and subject to other considerations to be discussed below, the Court is satisfied that the risk is marginally less in the mother’s care than in the father’s care.
The views expressed by the child
It is clear from Dr P’s report that X did not wish to be drawn into expressing a view about the main issue in this case. That is entirely understandable. It is possible to discern from the report, however, that X experiences the considerable travel associated with spending time with his father to be burdensome. Nonetheless, he clearly wants to spend time with both parents and enjoys his relationship with Ms G, and with H. This consideration is not determinative in this case.
The child’s relationships with his parents and other significant persons
As so foreshadowed earlier, X clearly has a good relationship with both his parents. He enjoys his time with Ms G and with H, as well as his time with his grandfather and his wife. None of this will change, on any of the proposals before the Court. The Court accepts that X’s relationship with H is an important, and lifelong one, but the Court does not accept that this is, of itself, a matter suggesting he should live with his father.
Participation in decision-making, spending time and communicating with the child
There is no evidence before the Court suggesting that this consideration has any particular significance on the facts of this case. Whilst the parents certainly struggle at times to communicate with each other, there are obvious trust issues, and they do not necessarily agree about important things relating to X (for example, where he should go to school), they have nonetheless managed notwithstanding the tyranny of distance, and this has resulted in X having the wonderful relationship that he has with both his parents.
Extent to which each parent has fulfilled or failed to fulfil the parent’s obligation to maintain the child
There is no evidence suggesting any failure on the part of either parent, but particularly the father. This consideration is not determinative in this case.
Issues of parental capacity, and attitudes towards the child and to the responsibilities of parenthood
These considerations necessarily overlap and interact with the risk issues previously identified. The mother struggles with alcohol abuse, and with mental health issues, both of which have been clearly identified in the report of Dr P. Her struggles with alcohol, and her refusal to embrace abstinence, not only reflect on her struggles to meet her own needs, but also those of X as well. This also suggests a lack of responsible parenting. Nonetheless, the mother showed insight, a willingness to change, and had an encouraging recent track record. She was well supported by those around her. The orders proposed by the Independent Children’s Lawyer would provide a significant framework for relapse management. Despite these obvious shortfalls, the fact is that the mother’s parenting of X has been “good enough” (to use the words of Dr P), but in reality, and given the circumstances, X’s parenting from his mother has been much more than simply good enough, as is apparent from his behaviour and progress at school. Indeed, the mother had made the “massive gains” referred to by Dr P.
In addition, Dr P identified the father’s own significant personality dysfunction in the form of narcissistic personality traits. The father would not accept the opinion of Dr P in this regard. His lack of insight precludes the possibility of managing the risks identified to X, both in the short and long-term, arising out of his father’s personality dysfunction.
With both parents there is the risk that they will, from time to time, place their own perceived needs above that of their son. Despite the obvious challenges facing the mother, the Court was more impressed with her ability to reflect on how her behaviour could have an adverse impact on X, than the father. Both are committed to X in their own ways, but there was a warmth about the relationship between mother and child that was not as readily apparent in relation to the father and child. The father’s strength would be in meeting more of the tangible needs of his son, for example, perhaps the physical and intellectual needs, but absent the warmth of parenting needed to meet the child’s emotional needs, there is a risk that in the father’s care, X would grow up to be much like the father who functions at such a high level in so many realms of his life, but seems to struggle with the emotional and relational.
The likely effect of change in the child’s circumstances

The mother’s proposal would mean the least change in the life of X. At one stage she had contemplated moving to independent housing within a relatively short distance of the home of the maternal grandfather, but by the close of the evidence it was clear that she was willing to remain under his roof if the Court had any concerns about her moving out. Indeed, the conditions proposed by the Independent Children’s Lawyer require the mother to live in the home of the maternal grandfather for no less than two years from the date of these orders. Through her counsel, the mother indicated that she was prepared to do so. This condition was part of the package of conditions proposed by the Independent Children’s Lawyer to optimise the mother’s prospects of recovery, and minimise the chances of relapse. It would, of course, also ensure an optimal amount of stability for X.
The Court accepts that on the father’s case X would be offered a lifestyle in Sydney very different to that which could be offered by his mother in the country town where they now live. X would have access to a much broader range of activities, and schooling, than he has now. Nonetheless, it would remain a very significant change in his life, particularly away from his primary carer, his mother. The father demonstrated little insight about the impact of these changes on X.
Thus, the mother’s proposal provides the least prospect of change for X.
Issues of practical difficulty and expense
Senior counsel for the father was quite correct in submitting that this consideration is neutral in the sense that the formidable logistical problems associated with X spending time with the parent with whom he does not live will apply on either scenario. This consideration is also not determinative of this case. The fact is that the parents have admirably managed to deal with the otherwise formidable logistical problems associated with X spending time with his father. As proposed by the Independent Children’s Lawyer within her minute of order, supported as it was by the mother, air transport will be the preferred medium for travel for X. Whilst the Court recognises that X has expressed some reservations about this, it still remains the most practicable and time-economical method of transport. Unaccompanied travel will occur as soon as the parents both agree that this can take place and, presumably, in accordance with the requirements of the relevant airline.
The order proposed by the Independent Children’s Lawyer in relation to cost clearly reflects the respective capacities of the parents to meet this cost.
As X is an aboriginal child, and has the right to enjoy his culture, what is the impact of proposed parenting orders on that right?
X is an Aboriginal child whose heritage is through his mother and maternal grandfather. The mother’s evidence is that he has been told of his heritage in general, but not in specific terms. She is open to developing his culture should X wish to. The Court accepts the submission of the Independent Children’s Lawyer, that the child’s Indigenous cultural background is important, but is not yet a significant aspect of his day-to-day life or identity. No submission was made that the mother would not be able to foster this. The Court’s impression is that, at the appropriate time, this is much more likely to occur in the care of his mother, and in the proximity of the maternal grandfather, than through the father. Nonetheless, this is not a determinative consideration in this case.
Family violence
The mother experienced the father to be controlling. The Court accepts this. The father was not cross-examined about this. It is not otherwise possible to make findings on this consideration. In any event both proposals advanced by the parents appear to be inconsistent with any ongoing concerns about family violence.
The order least likely to lead to the institution of further proceedings
The mother gave the Court the strong impression that she was concerned that the father would appeal any decision that he considered an adverse to that which he desired. As the Court has accepted the evidence of Dr P about the father’s personality vulnerabilities, should the Court favour the mother’s proposal, as indeed it does, there is a high risk of appeal which is not only litigation in its own right, but raises the prospect of further litigation if the appeal is successful.
The father quite properly raised the possibility of further litigation should the mother relapse and the father becomes aware of the same. Even Dr P accepted the possibility of relapse. It is not possible for the Court to control whether further litigation arises, but what the Court can say quite confidently is that any future event, relapse or otherwise, will be determined having regard to its facts, and by reference to what is in the best interests of X at the relevant time.
Even if the Court were to accept the submission made on behalf of the father, which is that the risk of relapse is much greater for X in his mother’s care and thus there is a greater chance of re-litigation, of itself this consideration would not be determinative of the issue of where he lives. It is just another factor which has been taken into account. Whilst the best thing that can happen to this family is that there be a cessation of litigation on a permanent basis, clearly it is not possible to be absolutely confident of that.
Conclusion as to the best interests of X
Having regard to the matters identified above, the Court believes that on balance, and with particular regard to the Court’s view that there is least risk to X in his mother’s care, and least disruption to X’s life if he remains with his mother, the orders proposed by the Independent Children’s Lawyer and adopted by the mother are in the best interests of X.
Orders in the best interests of X
The starting point will be to examine the order proposed by the Independent Children’s Lawyer, adopted by the mother.
By the time the evidence had closed, the mother and Independent Children’s Lawyer proposed sole parental responsibility, subject to notification and a degree of consultation. At the commencement of the hearing, however, the mother had proposed equal shared parental responsibility. The father proposed equal shared parental responsibility.
Curiously, Dr P followed the same trajectory as the mother. In his report he proposed equal shared parental responsibility, but in cross-examination it was clear that he was leaning strongly towards sole parental responsibility.
A statutory presumption of equal shared parental responsibility applies, unless this is rebutted by evidence that satisfies the Court that it is not in the best interests of the child, or that there has been abuse or family violence. As the Court is not satisfied that there is evidence about abuse or family violence, the focus must be on evidence indicating that it is not in the best interests of X for his parents to have equal shared parental responsibility.
This case presents a paradox in that whilst a very strong impression is created of lack of trust and inability to consistently effectively communicate, the fact is that both parents have managed to implement a relatively complex arrangement that sees X spend regular time with his father notwithstanding the formidable obstacles of distance. Nonetheless, having regard to the different proposals about education, and the father’s preference not to pay private school fees if X lives with his mother, but to pay for him to attend BB School if he lives with him, parental responsibility is not a hypothetical issue, it is a real one.
The mother’s palpable distrust of the father permeated the responses she gave in cross-examination by his senior counsel. As mentioned elsewhere, she was angry and defensive and certainly seems to have experienced the father as controlling, even if it is not possible for the Court to make that finding on the evidence. The mother seemed particularly vulnerable arising out of some of the father’s communications with her, for example, his text messages about the birth of H. She found this distressing, hurtful and re-triggering of her sense of being controlled by him.
The mother’s experience of the father, regardless of its legitimacy, makes the prospect of successfully implementing equal shared parental responsibility quite problematic, from the Court’s perspective. Until her attitude diminishes, presumably over time, equal shared parental responsibility presents a myriad of opportunities for conflict between the parents. Whilst X has been fortunate enough to be spared overt exposure to parental conflict, as he grows older it may be harder to shield him from such exposure. Dr P seemed concerned that the mother’s risk of relapse was in fact greater proportionate to the extent to which she needs to communicate with the father. On the evidence, the Court agrees.
In those circumstances the Court finds that it is not in the best interests of X for his parents to have equal shared parental responsibility. However, orders will be made in stronger terms than that proposed by the Independent Children’s Lawyer, which require the mother to notify the father of major long-term decisions she intends to make about X, and to engage in a measure of controlled consultation. Ultimately, she will have the final say. Thus, the Court will make Orders 1–3 of the minute proposed by the Independent Children’s Lawyer, but such orders will be replaced with more prescriptive orders.
The orders for X to spend time with his father will be in accordance with the orders proposed by the Independent Children’s Lawyer which are not significantly different from that of the father. Additional special occasion time as proposed by the father will also be incorporated. The Court prefers accompanied travel rather than unaccompanied unless the parents otherwise agree. The orders as to the costs of travel reflect the Court’s understanding about the current and future earning capacity of the parents.
Most of the remaining orders proposed by the Independent Children’s Lawyer are directly, proportionately and appropriately focused on risk management for X whilst he is in the mother’s care. Some of these orders are quite intrusive, but it is of reassurance to the Court that the mother has herself agreed to them.
Order 22 of the minute proposes that each party contribute towards the Independent Children’s Lawyer’s costs in the sum of $5,989 less any amount already paid, and subject to contribution being waived. The Court will make this in the first instance and grant leave to relist at any time within 28 days of the date of judgment to make further submissions in this regard.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 27 July 2022
schedule a
ICL’S PROPOSED MINUTE OF ORDER
1.That all previous parenting orders in relation to the child, X, born 2015, be discharged.
2.That X live with the Mother subject to the conditions set out in Order 9.
3.That the Mother have sole parental responsibility for X.
4.That, prior to making a decision in relation to a major long term issue concerning X, the Mother is to:
4.1Notify the Father in writing as soon as practicable prior to her proposed decision;
4.2Take into account any views expressed by the Father, and
4.3Notify the Father in writing of her final decision.

5.That X spend time with the Father as follows:
5.1During school terms:
5.1.1On each alternate weekend from after school on Friday until 5 pm on Sunday (or Monday if it is a long weekend or if the Father is spending time with X in the City A area);

5.2During school holidays:
5.2.1For the first half of each school holiday period in odd numbered years and the second half in even numbered years;

5.3On the weekend that includes Father’s Day from after school on Friday until 5 pm on Sunday (or Monday if the Father is spending time with X in the City A area), and
5.4At other times agreed in writing between the parties.

6.X’s time with the Father in accordance with Order 5 is suspended on the weekend that includes Mother’s Day each year.
7.For the purposes of Order 5:
7.1The Father is to notify the Mother in writing as to whether he intends to spend time with X in the City A area or in Sydney at least 14 days prior to the scheduled time with X;
7.2If X is required to travel between City A and Sydney, then X is to travel by airplane;
7.3The Mother is to deliver X to the Father at Sydney Airport at the commencement of the time, and the Father is to return X to the Mother at City A Airport at the conclusion of the time;
7.4X may travel as an unaccompanied minor with the consent of both parties;
7.5Until such time as the Mother commences full time paid employment, the Father is to bear the cost of all airfares between City A and Sydney and his accommodation in City A (if required);
7.6Upon the Mother commencing full time paid employment, the Mother will bear the costs of airfares for herself and X between City A and Sydney on one out of every four weekends during school terms, and for the Term 2 and Term 4 school holidays;
7.7The Mother is to bear the cost of her own accommodation in Sydney (if required);
7.8In the event that there are no suitable flights available to accommodate X travelling between City A and Sydney by airplane, or if the parties otherwise agree he is not to travel by airplane, then X is to travel by motor vehicle with changeover to occur at K Town McDonalds.

8.That the Mother and Father facilitate communication between X and the parent with whom he is not residing by way of a video call each Tuesday, Thursday and Sunday between the hours of 6 pm and 6.30 pm, and each Saturday between the hours of 10 am and 10.30 am, and at such other times in accordance with X’s wishes.
9.Order 2 herein is subject to the following conditions:
9.1The Mother is to live in the home of the maternal grandfather and step-grandmother for no less than 2 years from the date of these Orders;
9.2The Mother is to continue to engage in alcohol-specific counselling with Ms R at the City A Community Drug & Alcohol Service (or other counsellor recommended by Ms R) at such frequency and for as long as Ms R (or other counsellor) deems appropriate;
9.3The Mother is to continue to attend upon Dr O, Psychiatrist (or other psychiatrist recommended by Dr O), and engage in treatment as recommended by Dr O (or other psychiatrist), including taking prescribed medication;
9.4The Mother is to continue to engage in therapy with Ms Q, Psychologist (or other psychologist recommended by Ms Q), at such frequency and for as long as Ms Q (or other psychologist) deems appropriate, and
9.5The Mother is to submit to CDT testing once per month at the request of Dr O (or other psychiatrist recommended by Dr O) for no less than 12 months from the date of these Orders, and thereafter in accordance with any request made by Dr O (or other psychiatrist).

10.That within 7 days of the date of these Orders, the Mother is to provide a sealed copy of these Orders to Ms R, Dr O and Ms Q.
11.For the purposes of Order 9.2, the Mother is to arrange a meeting between herself, Ms R, the maternal grandfather and step-grandmother within 28 days of the date of these Orders for the purposes of discussing the Mother’s relapse prevention plan and the role of the maternal grandfather and step-grandmother in supporting the Mother to adhere to that plan.
12.For the purposes of Order 9.5, the Mother is to authorise and direct Dr O to provide a copy of each of her CDT test results to Ms R (or any other alcohol-specific counsellor the Mother is engaged with) and to the Father, as such results become available.
13.Within 28 days of the date of these Orders, the Mother is to obtain a referral to a child and family therapist and is to arrange for the therapist to meet with X at such frequency as the therapist considers appropriate for the purposes of monitoring X’s overall well-being.
14.For the purposes of Order 13:
14.1The Mother is to provide the therapist with a copy of Dr P’s report dated 28 April 2020 and a sealed copy of these Orders;
14.2The Mother is to provide the therapist’s name and contact details to the Father, and
14.3Both parents are at liberty to communicate with the therapist and arrange individual sessions with the therapist to discuss X’s well-being from time to time.

15.In the event the Mother is admitted to hospital for treatment for mental health or alcohol issues, she is to notify the Father directly or via her nominee within 48 hours of her admission.
16.Each parent is to provide the other with their residential address, mobile telephone number and email address, and keep the other informed of any change as soon as practicable.
17.Except in urgent circumstances, the Mother and Father are to communicate with each other in relation to X by way of email.
18.Each parent is to notify the other as soon as practicable in the event that X is hospitalised or suffers a major illness or injury whilst in that parent’s care.
19.Both parents are at liberty to communicate with any health or medical professional providing treatment to X at any time.
20.Both parents are at liberty to communicate with any school at which X is enrolled; to receive information in relation to X’s school including copies of school reports, and to attend any school event or function to which parents are generally invited.
21.That each parent be and hereby is restrained from denigrating, or making critical or derogatory remarks, about the other parent or any member of the other parent’s family or the other parent’s partner, to X or within his hearing.
22.That within 28 days of the date of these Orders, each parent pay to Legal Aid NSW their contribution towards the costs of the Independent Children’s Lawyer in the sum of $5,989.00, less any amount already paid to Legal Aid NSW by way of initial contribution, and subject to that parent’s contribution being waived by Legal Aid NSW.

Schedule B
1.That all previous orders be discharged.
2.That the parties have equal shared parental responsibility for the child, X ("X"), born 2015 in respect of major long-term issues effecting X save and except with respect to education

X’s Education
3.That the Mother and the Father shall consult, and keep each other informed, in relation to all matters concerning X's schooling, including schools at which they propose X attend.
4.That in the absence of agreement as to a suitable school to be attended by X within fourteen (14) days of the date of the Orders, the following shall apply:
4.1in the event the Court Orders that X live primarily with the Father in Sydney, the Father shall have sole parental responsibility with respect to choosing any school to be attended by X; and
4.2in the event the Court Orders that X live primarily with the Mother in the City A region, the Mother shall have sole parental responsibility with respect to choosing any school to be attended by X;

5.That notwithstanding any other Order herein and regardless of X's primary place of residence, the Father and the Mother shall be and hereby are restrained from enrolling X in a boarding school, be it in Sydney or in country NSW or any other location, without first obtaining the prior written consent of the other parent.

Living arrangements

6.That within seven (7) days of the date of Orders, the Mother shall cause X to be delivered to the Father at his residence in Suburb J. That X shall live with the Father, and spend time with the Mother during school term, as agreed, or failing agreement, as follows:
6.1Each alternate weekend, either:
6.1.1From after school on Friday evening until Sunday afternoon (with X to travel by aeroplane); or
6.1.2From after school on Friday afternoon until before school on Monday morning, (if the Mother is spending time with X in Sydney).

7.For the purpose of Order 6 above:
7.1The Independent Children's Lawyer be directed by the Court to explain to X his new living arrangements, in order to assist his transition into the Father's primary care;
7.2That the Father hereby submits and undertakes to:
7.2.1attend and comply with any family therapy directed by the Court in order to assist X with his transition into the Father's primary care; and
7.2.2participate in any transitional arrangements deemed as necessary and appropriate by the Court to reduce the impact of the transition on X.

7.3X shall travel as an unaccompanied minor (unless the Mother so electstopay100% of the travel and accommodation cost associated with her accompanying X to travel by aeroplane) with the costs of the flights to be shared.
7.4In the event that there are no suitable flights available to accommodate X travelling by aeroplane, or if X is not capable of unaccompanied travel by aeroplane, X shall travel by motor vehicle, with changeover to occur at 6pm on Friday night at K Town McDonalds and 4.30pm on Sunday afternoon at K Town McDonalds.
7.5In the event that the Mother elects to spend time with X in Sydney, then changeover shall occur on Friday afternoon after X concludes school until before school on Monday morning, with changeover to occur at X's school.
7.6X's time with the Mother shall occur in accordance with current NSW Health guidelines.
7.7Changeover may be effected from time to time by the parties and/ or their nominees, including a family member or a child care professional in either party's employ.

School holidays and special days
8.Notwithstanding any other Order, X shall spend time with each of his parents by agreement, or failing agreement, as follows:
8.1During school holiday periods:
8.1.1For one half of each school holiday period with each of the parties being:
8.1.1.1The first half with the Father in odd numbered years and the second half in even numbered years; and
8.1.1.2The second half with the Mother in odd numbered years and the first half in even numbered years.

8.2During Easter as follows:
8.2.1From 12 noon on the Thursday immediately preceding Good Friday until 12 noon Easter Sunday with the Father in even numbered years and for that period with the Mother in odd numbered years; and
8.2.2From 12 noon Easter Sunday until 12 noon on the Tuesday immediately following Easter Monday with the Mother in even numbered years and for that period with the Father in odd numbered years.

8.3During Christmas as follows:
8.3.1From 12 noon on 24 December until 12 noon on 26 December with the Father in even numbered years and for that period with the Mother in odd numbered years; and
8.3.2From 12 noon 26 December until 12 noon 28 December with the Mother in even numbered years and for that period with the Father in odd numbered years.

8.4With the Mother from 4pm on Saturday immediately preceding Mother's Day until 4pm on Mother's Day;
8.5With the Father from 4pm on Saturday immediately preceding Father's Day until 4pm on Father's Day;
8.6On X's Birthday, X shall spend time with the parent with whom he is not already living, from after school or 3pm until 7pm on a school day or from 2pm until 7pm on a non-school day;
8.7On the Mother's Birthday (in the event that X is not already spending time with the Mother and the Mother is able to travel to X's city of residence on that day) from after school or 3pm until 7pm on a school day or from 9am until 7pm on a non-school day; and
8.8On the Father's Birthday (in the event that X is not already living with the Father and the Father is able to travel to X's city of residence on that day) from after school or 3pm until 7pm on a school day or from 9am until 7pm on a non-school day; and

9.For the purpose of Order 8 above:
9.1X shall travel as an unaccompanied minor by aeroplane (unless the Mother so elects to pay 100% of the travel and accommodation cost associated with her accompanying X to travel by aeroplane) with the costs of the flights to be shared
9.2In the event that there are no suitable flights available to accommodate X travelling by aeroplane, or if X is not capable of unaccompanied travel by aeroplane, then X shall travel by motor vehicle, with changeover to occur at K Town McDonalds.

Video Calls
10.That X shall communicate with the parent with whom he is not residing, by way of a video call each Tuesday and Thursday between 6.30pm and 7pm, each Saturday between 10am and 10.30am, each Sunday between 6pm and 6.30pm and at such other times in accordance with X's wishes.
11.For the purpose of Order 10 above, the parent with whom X is living shall initiate the video call.

Restraints on Mother's alcohol consumption and testing regimes: Restraints on Mother's alcohol consumption and testing regimes:
12.That the Mother be, and is hereby restrained, from consuming alcohol for a twenty-four (24) hour period prior to X entering her care and whilst X is in her care.
13.That the Mother shall continue to attend upon her current treating psychologist, Dr O and psychologist, Ms Q, and shall do all acts and things to comply with the recommendations of these and/ or her future treaters.
14.In the event that the Mother ceases attending upon her current treaters, she will provide the Father with the names of new treaters within seven (7) days of so attending upon that treater.
15.That the Mother shall undergo random blood tests to identify the level of carbohydrate deficient transferrin in the Mother's blood (CDT testing), in addition to liver function tests (LFTs) and Full Blood Count (FBC), with such testing to occur as follows:
15.1The Respondent Mother shall do all acts and things necessary to obtain within seven (7) days of the date of these Orders, pathology test request forms from her general practitioner for CDT testing, LFTs and FBC;
15.2The Respondent Mother shall submit to CDT testing, LFTs and FBC for a period of time in accordance with the recommendations of the Single Expert, Dr P;
15.3The Mother shall submit for:
15.3.1CDT testing not less than one (1) occasion per month with such testing to be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse;
15.3.2LFTs and FBC not less than once in every six (6) week period;

15.4That the Mother shall do all acts and things and sign all documents to authorise and direct the testing laboratory and/ or her treating practitioner (as the case may be) to release the results of the tests undertaken in accordance with Order 15.2 to the Father’s legal representatives within twenty-four (24) hours of receipt of the results.

16.In the event that the Mother returns an elevated CDT result, X's time with her pursuant to these Orders shall be supervised, until such time as she returns a result within the normal range by such supervisor as may be agreed between the parties and failing agreement, by AA Service and the Mother shall meet 100% of the costs (if any) of the supervision.

Other Orders
17.That the Mother shall facilitate X receiving gifts and necessary items from the Father and/ or from members of X's paternal family, X's friends and their families, by providing a nominated delivery address within twenty-four (24) hours' notice of request by the Father or members of X's paternal family.
18.Each party shall notify the other party promptly of any medical emergency or significant illness suffered by, or relating to, X including sufficient details to enable both parties to be consulted in respect to, and being fully advised regarding, such illness or condition and any treatment.
19.Both parties are entitled to attend X’s healthcare appointments including consultations and any treating facilities and each party is to provide such authorities as X’s healthcare providers may require to authorise the other party to have access to X’s medical records.
20.Each of the parties be restrained from speaking to X or to any other person in X’s presence or hearing in derogatory terms about the other party or their partners or their family members.
21.Each of the parties be restrained from speaking to any third parties, including teachers and staff at any future school to be attended by X, in derogatory terms about the other party or their partners or their family members.

NOTATIONS
A.IT IS NOTED THAT the parties shall meet 50% of the costs associated with X's tuition and associated expenses, save and except if X's primary residence is reinstated to Sydney and he is enrolled at BB School, the Father shall meet 100% of the costs associated with same.

File number(s):	SYC 5699 of 2016
Judgment of:	ALTOBELLI J
Date of judgment:	27 July 2022
Catchwords:	FAMILY LAW – PARENTING – Parental responsibility – Finding that distrust permeates the co-parenting relationship and thus communication provides opportunities for parental conflict – Mother to have sole parental responsibility – With whom the child live– Where the father lives in Sydney and the mother lives in regional New South Wales – Where each parent seeks that the child live with them – Where both parents present a risk of harm to the child – Risk assessment – Finding that the mother’s risk posed by alcoholism and mental health issues can be managed – Finding that father’s lack of insight into his traits of narcissism poses risk to the child and inhibits the ability to manage that risk – Order for child to live with the mother and spend time with the father.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:	MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division:	Division 1 First Instance
Number of paragraphs:	112
Date of last submission/s:	7 February 2022
Date of hearing:	6–10 December 2021
Place:	Sydney
Counsel for the Applicant:	Mr Sansom SC
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent:	Mr Hill
Solicitor for the Respondent:	Inner West Solicitors Pty Ltd
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 5699 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DANNIELL Applicant
AND:	MS MOUNCE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	27 July 2022