Decker & Thames - [2023] FedCFamC1F 990

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Decker & Thames [2023] FedCFamC1F 990

File number(s): ADC 2187 of 2018

Judgment of: MEAD J

Date of judgment: 20 November 2023

Catchwords: FAMILY LAW – CHILDREN – Best interests of the child – Family Violence – Intervention order – No time spent with father for two years at time of trial – Child now aged 7 years – Mother to have sole parental responsibility – Child to live with mother – No order for time spending with father.

Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60B(1), 60B(2), 60CA, 60CC(a), 60CC(2), 60CC(2A), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DA(5).

Cases cited:
Mazsorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

Division: Division 1 First Instance

Number of paragraphs: 305

Date of last submissions: 8 March 2022

Date of hearing: 17-19 August 2020, 6-8 & 11-12 January 2021, 27-30 September 2021, 1 October 2021, 29-30 November 2021 and 3 December 2021.

Place: Adelaide

Counsel for the Applicant: Mr McQuade

Solicitor for the Applicant: Stevens Law

Counsel for the Respondent: Mr Anderson

Solicitor for the Respondent: Culshaw Miller Lawyers

Counsel for the Independent Children's Lawyer: Mr Hemsley

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 2187 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DECKER

Applicant

AND:
MS THAMES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MEAD J

DATE OF ORDER:

20 NOVEMBER 2023

THE COURT ORDERS THAT:
1.All previous orders made herein be and the same are hereby discharged.
2.The mother have sole parental responsibility for X born 2016.
3.X live with the mother.
4.There be no order providing for X to spend time with the father.
5.The parties be restrained and injunctions are hereby granted restraining each of them from:
(a)Discussing these proceedings and the other party on social media sites or posting any information about these proceedings or the other party or X on social media sites or posting any information about these proceedings on such sites which will have the consequence of identifying either X or the other party to these proceedings or permitting any person associated with them including friends and relatives from doing so; and
(b)Carrying out or arranging or facilitating the carrying out of any form of surveillance whatsoever of the other of them or of the residence of the other of them or utilising any form of personal detection in relation to the other of them.

6.The mother be restrained and an injunction is hereby granted restraining her from denigrating, insulting or abusing the father in the presence or hearing of X or permitting any other person to do so.
7.The parties continue to utilise their personal email addresses created in compliance with paragraph 4 of the Order of Judge Brown made on 7 March 2019 for the sole purpose of the mother informing the father of the following:
(a)Significant day to day events in X’s life;
(b)Regular updates on X’s progress at kindergarten and thereafter at school; and
(c)Significant health issues relating to X from time to time that require specialist treatment or hospital admission.

8.That such email correspondence be forwarded to the father by the mother each alternate Friday commencing 17 November 2023 no later than 7pm, with the father to be at liberty to respond to such email communication.
9.The mother forward to the father by way of the same email address a clear copy of all formal kindergarten or school reports forwarded by the relevant kindergarten or school to parents within seven (7) days of receipt of same, with the mother to be at liberty to redact the name of the kindergarten or school from such report and any other material that could identify the name and location of the kindergarten or school.
10.The mother provide to the father (on each of 31 December and 30 June in each calendar year commencing on 1 January 2024) a full photograph of X in which her whole face is clearly visible.
11.The father and the paternal grandmother be at liberty to forward cards and presents to X by way of Australia Post addressed to X at the home of the maternal grandparents on the occasion of her birthday in each year, at Easter in each year and at Christmas in each year.
12.The mother be at liberty to ensure that the message contained in any such card or the contents of any such present is age appropriate for X but otherwise shall be obliged to provide the cards and presents to X and advise her clearly that they have been forwarded to her by her father or paternal grandmother.
13.The mother ensure that a photograph of the father is appropriately displayed in X’s bedroom at all times, clearly identify the subject of the photograph to X but be at liberty to remove the photo should X express any level of distress at the presence of the photograph in her bedroom.
14.The mother be at liberty to retain X’s passport in her possession and to renew such passport without the consent of the father if such consent is not given within fourteen (14) days of a written request for same.
15.The mother be at liberty to take X out of the Commonwealth of Australia for the purposes of family travel on no more than two (2) occasions in each calendar year commencing as and from 1 January 2024 provided however that she is to give the father not less than twenty-one (21) days’ notice in writing of her intention so to do and include the destination and anticipated length of such overseas travel in such notice and further provided that she shall continue to comply with the terms of paragraphs 7, 8, 9 and 10 of this order during any such period of travel.
16.The order for the appointment of the Independent Children’s Lawyer made herein is hereby discharged.
17.All extant applications are otherwise dismissed.

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

Mr Decker (“the father”) and Ms Thames (“the mother”) are unable to agree as to appropriate parenting arrangements for their child X who was born in 2016. She is currently 7 years old, but at the time judgment with respect to final orders was reserved on 8 March 2022 she was aged 5 years.
When evidence in the final hearing commenced on 6 January 2021 X had not spent time with her father for almost two years. Litigation between the parties with respect to parenting issues commenced with the father’s application filed on 5 June 2018. In addition to the parenting and property dispute in this Court the parties were involved in litigation in the Adelaide Magistrates Court. This took place over a total period of nine days during late 2018 and mid-2019 and arose from the mother’s application for a private intervention order filed in mid-2018.
BACKGROUND
The parties met in early 2014, at which time the father was still married to Ms NN. The parties were not agreed as to when they commenced a relationship or when they commenced cohabitation, but it was agreed that in late 2015 they commenced living together in a home they purchased jointly in Suburb O and that they finally separated on 18/19 April 2018.
It was the mother’s case that she was subjected to physical violence from the father on various occasions during the agreed period of cohabitation between late 2015 and April 2018, and to verbal abuse, psychological abuse, aggressive behaviour and control prior to, during and after that same period.
Over 18 and 19 April 2018, the parties separated and shortly after the police sought and obtained an interim intervention order on behalf of the mother. The application for final orders was listed for trial on 2 August 2018.
Upon separation X and the mother took up residence in the home of the maternal grandparents. Shortly after, and by agreement between the parties and the maternal grandparents, X commenced spending time with her father approximately three times per week for one to two hours, at the home of the maternal grandparents and under the supervision of either the mother or one or both of the grandparents.
The father conceded in cross examination that in mid-2018 he was charged with two breaches of the intervention order made in favour of the mother in early 2018.
Some two days later, he swore an affidavit in support of a complaint to SAPOL alleging the mother had assaulted him on three occasions.
An incident occurred at the home of the maternal grandparents in mid-2018 during which the mother alleged the father attempted to remove X from the property.
The father confirmed in cross-examination that directly after the incident in mid-2018 he sought an intervention order against the maternal grandmother on advice from the police, and further that he sought the maternal grandmother be charged with assault. It was his evidence that neither of those issues were taken further by the police.
The mother ceased facilitating X’s time with the father on 1 June 2018. It was her evidence that she did so on the advice of police.[1]
[1] Mothers trial affidavit filed 21 August 2019, [55].
On 5 June 2018, the father filed an application in the Court seeking parenting orders.
On 6 June 2018, the day after the father filed his application for parenting orders, he pleaded guilty to the two counts of breaching the interim intervention order made in early 2018. The counts related to incidents that occurred on two dates in mid-2018. No penalty for the breaches was imposed and they were finalised without conviction.
The interim intervention order in favour of the mother made in early 2018 was withdrawn by SAPOL in mid-2018. It was the mother’s evidence that she was unaware of the reason for the withdrawal.
The following day the mother filed an application for a private intervention order in the Adelaide Magistrates Court. In mid-2018 an interim intervention order was granted in her favour, with the matter being listed for trial to commence in late 2018 for two days.
Ultimately the intervention order proceedings occupied some nine days in the period between late 2018 and mid-2019. The mother was cross examined by the father’s counsel on two days in late 2018 and by the father acting in person on two days in mid-2019. Following the conclusion of that cross examination the father declined to give evidence and consented to a final intervention order being made naming the mother as the protected person and the father as the defendant.
The order included provisions that the defendant must not:
·Assault, threaten, harass or intimidate the protected person(s);
·Follow or keep the protected person(s) under surveillance;
·Not be within 100 metres of the protected person(s);
·Not contact or communicate with the protected person(s) either directly or indirectly in any way (including phone, letter, cards, SMS messages, email, facsimile, Facebook, Skype etc);
·Enter or remain within 100 metres of the boundary of the place of residence or place of employment of the protected person(s);
·Damage or interfere with the premises where the protected person(s) is staying, residing or is employed;
·Damage or take possession of personal property belonging to the protected person(s);
·Enter or be within 100 metres of the boundary of the following location(s);
·OO Street Suburb DD.
·Publish on the internet or by any electronic means any material about the protected person(s); and
·Cause, allow or encourage another person to do anything forbidden by this order.[2]
[2] Mother’s book of documents, document 30.
On 7 August 2018 the father filed an (Amended) Initiating Application.
The first order concerning X spending time with her father was made with the consent of the parties on 10 September 2018. That order provided for X to spend time with her father supervised by Mr A each Saturday for a period of two hours commencing at 3:30pm at the home of the maternal grandparents. The order was continued by Judge Brown on 4 December 2018, pending the receipt of the Family Assessment Report. The matter was further adjourned to 21 February 2019.
In early 2019, the mother was served with a summons in relation to three counts of aggravated assault arising from the father’s complaint filed mid-2018, with the trial in relation to those issues being listed for 29 May 2019.
The parties remained in dispute as at 21 February 2019 and submissions were made by counsel for each of the parties. On 7 March 2019 Judge Brown delivered a substantial and detailed interim judgment comprising some forty-nine pages and made the following orders:
1.The child of the relationship [X] born […] 2016 “the child” live with the mother.
2.The father spend time with the child at the following times and subject to the following conditions:
(a)For the next six (6) Saturdays commencing 9 March 2019 between 3:30pm and 6:00pm subject to the supervision of [Mr A] and [Ms B];
(b)Thereafter on each Saturday commencing 27 April 2019 between the hours of 3:30pm and 6:00pm and each Tuesday commencing on 29 April 2019 between the hours of 3:30pm and 6:00pm subject to the supervision of [Ms B].
3.The time stipulated in order 2 hereof take place at the home of the father and to give effect to the order the child be exchanged under the auspices of [Mr A] (order (2)(a)) and thereafter [Ms B] (order (2)(b)) at a location to be agreed between the parties and failing agreement at the [Suburb Y] Public Library.
4.The parties each create a personal email address and inform the other of it within four days of the date of these orders, which addresses are to be used for the sole purpose of exchanging parenting information concerning the child between them in a formal manner, with the information to be exchanged between them to consist of the following together with any other matter germane to the child’s care, welfare and development: her dietary requirements and any relevant preferences and allergies; any necessary modifications to handover arrangements; sleeping patterns; any illnesses or significant accidents or mishaps suffered by her; together with details of any medication prescribed for her; and any necessary medical appointments arranged for her.
5.To give effect to order (4) hereof the parties exchange relevant emails with the mother to initiate the applicable email exchange at 6:00pm each Friday commencing 15 March 2019.
6.The parties are each restrained and an injunction issues restraining each of them from denigrating, insulting, provoking or abusing the other in the presence or hearing of the child or permitting any other person to do so.
7.The parties are each restrained and an injunction issues restraining each of them from discussing these proceeding and the other on social media sights or posting any information about these proceedings, on such sights, which will have the consequence of identifying either the child or the parties to these proceedings or permitting any person associated with them, including friends and relatives from doing so.
8.The proceedings are adjourned to 25 July 2019 at 9:30am for directions.[3]
[3] Order of Judge Brown made on 7 March 2019.
Time did not occur on 9 March 2019 as a result of the mother’s interstate travel, nor on 16 March 2019 as a result of a dispute between the parties.
By 19 March 2019 the father had filed an application in a case, and by 22 March 2019 the mother had filed a Response to that application.
The matter was re-listed to Judge Brown on 22 March 2019, some four months prior to the adjourned date that his Honour had ordered on 7 March 2019. At the hearing a further order was made with the consent of the parties in the following terms:
1.That make-up time occur between the father and [X] on or before 11 April 2019 at times and dates to be agreed between the parties for the time not proceeding on 9, 16 and 23 March 2019 subject to the availability of [Mr A].
2.That make-up time occur between the father and [X] on 21 April 2019 at 3:30‑6:00pm for the time not proceeding on 13 and 20 April 2019.
3.That the supervision costs of [Mr A] be shared equally between the parties upon the father discharging his arrears of child support in the sum of $1,215.00 and pending payment of such arrears the father shall pay the said costs of [Mr A].
4.The parties do keep the other informed of their current residential address in writing at all times.
5.That on a without admission basis, the parties agree that they will not undertake any physical surveillance of the other at their home.
6.That on a without admission basis the mother shall not:
(a)Enter or remain within 250 meters of the boundary of the father’s residential address or;
(b)Allow any person acting on her behalf to enter or remain 250 metres of the boundary of the father’s residential address.
7.The interim applications be dismissed.[4]
[4] Order of Judge Brown made on 22 March 2019 by consent.
On 30 March 2019 X’s time with her father concluded early.
Time occurred on 6 April 2019 in accordance with the order and for a shortened time on 7 April 2019.
On 17 April 2019 the mother filed an application in a case seeking extensive variations to the interim parenting order and procedural orders in relation to financial matters, as well as orders relating to the obtaining of a passport for X and leave to travel with her outside of the Commonwealth of Australia.
X was next due to spend time with her father on 21 April 2019, but no time occurred on that day or on either 27 April 2019 or 4 May 2019.
On 1 May 2019 the father filed a Response to the mother’s Application in a Case, seeking a resumption of X’s time with him pursuant to the order of 7 March 2019 as well as various restraining orders against the mother and her parents and interim property settlement orders. He objected to any order being made that would enable the mother to remove X from the Commonwealth of Australia.
The application and response were listed before Judge Brown on 6 May 2019. His Honour ordered the appointment of an Independent Children’s Lawyer (“the ICL”) and a transfer of the matter to the then Family Court of Australia, in circumstances where the parenting dispute between the parties was becoming further entrenched and the matter increasingly complex.
In mid-2019 the mother pleaded guilty to one charge of basic assault against the father, occurring in early 2018. No conviction was imposed and no penalty was recorded. The remaining two charges alleging assaults by the mother on the father in late 2015 and early 2018 were withdrawn on that same day.

On 30 May 2019 the father filed a contravention application alleging numerous contraventions of the order of Judge Brown of 7 March 2019 by the mother.
Following procedural hearings before a Registrar on each of 9 and 21 May 2019 the matter first came before me on 20 June 2019. On that same day the mother filed a further interim application amending the application in a case filed by her on 17 April 2019. Eventually the interim issues prosecuted by the mother in that amended application and the issues prosecuted by the father in his original response filed on 1 May 2019 were argued before me on 27 June 2019. On that date interim judgment was reserved. I listed the matter for trial on 14 October 2019 allowing five days and in addition ordered that pending further order neither party file any further applications or affidavits without the leave of the Court.
On 4 July 2019 I delivered interim judgment and made the following orders:
1.That paragraphs 2(a), 2(b) and 3 of the order of Judge Brown of 7 March 2019 be discharged.
2.That pending trial [X] born […] 2016 spend time with her father:
(a)On Saturday of each week between 2:30pm and 5:00pm commencing 13 July 2019; and
(b)On Tuesday of each week between 3:30pm and 6:00pm commencing 9 July 2019.
3.That the time referred to in paragraph 2 hereof be taken in the presence of and under the supervision of [Mr A].
4.That the parties share the cost of [Mr A’s] supervision as to one (1) quarter thereof to be paid by the mother and three (3) quarters thereof to be paid by the father.
5.That pending trial handovers be effected:
(a)By way of the mother delivering [X] to [Mr A] at [S Playground] 15 minutes prior to the commencement time in the absence of the father with the mother to forthwith depart the [playground] and its environs and with the father not to attend within 500 metres of the [playground] until he receives a telephone call from [Mr A] confirming that the mother has departed; and
(b)By way of [Mr A] returning [X] to the mother at the conclusion time at [S Playground] in the absence of the father who is to depart [S Playground] and its environs immediately upon the conclusion of the time, with the mother not to attend within 500 metres of the park until she receives a telephone call from [Mr A] confirming that the father has departed.
6.That in the event of inclement weather [Mr A] be at liberty to change the place of handover upon giving not less than one (1) hours’ notice to each of the parties of the changed venue but that the order for handover contained in paragraph 5 hereof apply in all respects to the alternate place of handover.
7.That paragraphs 6(a) and 6(b) of the consent order made herein on 22 March 2019 be discharged.
8.That the father do within 14 days of today’s date make an appointment and attend upon [Dr T] of [BB Clinic], [CC Street] [Suburb DD] to receive instructions on how to administer an epi pen and to discuss [X’s] allergy or allergies generally, at his expense NOTING THAT this order is not to be regarded by the mother as a condition precedent to any other order contained herein.
9.That both parties apply for acceptance into and attend at the first available [U Services] post-separation parenting program.
10.That paragraph 5 of the consent order of Judge Brown of 22 March 2019 be discharged.
11.Until further order and without admission the parties be restrained and injunctions are hereby granted restraining each of them from carrying out or arranging or facilitating the carrying out of any form of surveillance whatsoever of the other of them, including but not limited to recording telephone calls or other communications, photographing handovers or the residence of the other of them or utilising any form of personal detection in relation to the other of them.
12.That paragraph 6 of the order of Judge Brown of 7 March 2019 be varied by inserting the words “or any members of the extended family of the other of them” in the second (2nd) line thereof after the word “other” and before the word “in”.
13.That the mother be at liberty to travel with [X] outside of the State of South Australia and the Commonwealth of Australia for a total period of 16 days including travel time between 1 August 2019 and 31 August 2019.
14.That on or before 5:00pm on 8 July 2019 the father sign all such documents necessary to enable the mother to obtain a passport for the child [X].
15.Failure by the father to comply with the terms of paragraph 14 above in such a manner as to enable the mother to obtain the passport will result in the terms of paragraphs 16, 17 and 18 coming into effect.
16.That leave be granted for the issue of a passport in the name of and for the child [X] born […] 2016 and that the said child be permitted to leave the Commonwealth of Australia.
17.That the Passports Office of the Department of Foreign Affairs and Trade issue a passport in the name of the said child upon the filing of the appropriate completed application form exhibiting the permission of the mother [MS THAMES].
18.The requirement for the permission of the father [MR DECKER] to the issue of the said passport be dispensed with.
19.That SAVE AS TO any dates on which [Mr A] is unavailable to supervise time, any time for [X] to spend with her father that does not occur because of the mother’s absence from the Commonwealth of Australia be “made up” within 6 weeks of the missed time or times on dates and at times agreed in consultation with [Mr A].
20.That paragraphs 8, 9 and 10 of the mother’s application in a case filed 17 April 2019 and paragraphs 9 and 10 of the father’s response filed 1 May 2019 and trial directions be adjourned to 18 July 2019 at 4:15pm.
21.That within 14 days of todays’ date the parties solicitors facilitate a joint informal conference involving both parties and counsel instructed for trial with respect to property settlement issues.
22.That if possible all counsel attend at the hearing on 18 July 2019 at 4:15pm.
23.That the father be at liberty to provide a copy of the family report of [Ms G] to [Mr W], upon providing to the mother’s solicitor a receipt for payment of his outstanding share of the costs of [Ms G’s] report.
24.That costs generally with respect to the application in a case and the response be adjourned to trial.
25.That the application in a case and the response thereto be otherwise dismissed.
At the commencement of the reasons for that judgment, I noted that from the date the father filed his initial application on 5 June 2018 to the hearing on 27 June 2019 some seventy-seven documents had been filed. I referred to this being “an indication of the toxic conflict between the parties”.[5]
[5] Mead J, Reasons for Judgment delivered 4 July 2019, [1].
By order of 10 July 2019 the trial date was brought forward from 14 October 2019 to 16 September 2019 with five days allowed.
Notwithstanding existing orders, X did not spend time with her father between 7 April 2019 and the date the trial commenced on 16 September 2019. It was the mother’s position that X became more and more distressed about the prospect of spending time with the father, such that ultimately neither the mother nor Mr A were able to facilitate the time spending.
On 21 August 2019 final orders for settlement of property between the parties were made by consent.
On 26 August 2019 the mother also filed an (Amended) Response to the father’s (Amended) Initiating Application.
On 2 September 2019 the father filed a second (Amended) Initiating Application.
Negotiations took place between the parties on 16 September 2019 and following thereon the court ordered by consent on an interim basis as follows:
1. All previous parenting orders are discharged subject to paragraph 4 herein.
2.The child [X] born […] 2016 shall live with the mother.
3.The parties do jointly instruct [Ms GG] to undertake reunification therapy as between the child [X] and the parents for such time as [Ms GG] shall consider appropriate.
4.So as to facilitate the said therapy each party shall provide to [Ms GG] a copy of the trial affidavits on which they rely (without the tender documents), and the Independent Children's Lawyer shall provide to [Ms GG] a copy of the Family Assessment Report of [Ms G].
5.In the event that [Ms GG] is unavailable for any reason, the parties shall instruct an alternate therapist and in the absence of agreement, the Independent Children's Lawyer shall nominate that therapist.
6.The parties shall share equally in the costs of any attendance involving [X] and each party shall bear the costs of their own attendance on [Ms GG].
7.NOTING THAT the mother will continue to see [Ms MM] and that the father will continue to see [Dr D], each party shall authorise [Ms GG] to speak to their respective therapists and to any other medical practitioner or allied medical practitioner to whom she may reasonably request to speak.
8.To the extent that [Ms GG] may recommend that either party engage in further therapy in addition to the therapy which they are currently undertaking then each party shall comply with those recommendations.
9.At the completion of the therapy provided for in paragraph 3 herein, [Ms GG] shall provide a report at the joint expense of the parties detailing:
9.1.The progress of the therapy and the response of each of the parties and of [X];
9.2.Any recommendations for the parties to undertake further therapy, either individually or jointly;
9.3.Any recommendations for the father’s time with [X] going forward.
10.The child [X] shall spend time with the father in such manner and subject to such conditions as shall be proposed by [Ms GG] as part of the therapy set out in paragraph 3.
11.Upon the provision of [Ms GG’s] report the parties shall attend upon a Family Dispute Resolution (“FDR”) Conference to be convened by the Independent Children's Lawyer on a date to be fixed by agreement and at the offices of the Legal Services Commission.
12.So as to facilitate the said FDR Conference both parties shall provide to the Independent Children's Lawyer a draft of the orders that they are seeking seven days prior to the FDR Conference.
13.That pending the completion of the reunification therapy and the FDR Conference, these proceedings shall stand adjourned to a directions hearing before Justice Mead on 4 March 2020 at 9:30am.
14.That paragraph 11 of the orders of 4 July 2019, 4 and 5 of the orders of 22 March 2019 and 4, 6 and 7 of the orders of 7 March 2019 do continue until further order.
15.That the father’s Contravention Application filed 30 May 2019 be dismissed.[6]
[6] Order of Mead J in Decker & Thames (Family Court of Australia, ADC2187/2018, 16 September 2019).
The order provided for X to spend time with her father in such manner and subject to such conditions as proposed by a therapist Ms GG.[7] Ms GG was the therapist the parties agreed would undertake reunification therapy as between X and her parents for such time as she considered appropriate.[8]
[7] Ibid, [10].
[8] Ibid, [3].
The order of 16 September 2019 further provided for the contravention application filed by the father on 30 May 2019 to be dismissed.[9] Directions were adjourned to 4 March 2020.[10]
[9] Ibid, [15].
[10] Ibid, [13].
The parties and the Independent Children’s Lawyer ultimately agreed that the reunification therapy should be undertaken by Ms HH. She undertook that process between 22 October 2019 and 10 February 2020. During that time X did not spend any time with her father. In her undated report filed by the Independent Children’s Lawyer on 26 March 2020, Ms HH opined “that continuing with the reunification process will be to the detriment of [X’s] wellbeing”.[11]
[11] Family report dated February 2020, p.6 annexed to affidavit of Ms RR filed 26 March 2020.
On 4 March 2020 the father filed an application in a case seeking specific orders for time spending.
On 8 April 2020 the mother filed a response to that interim application seeking an order for its dismissal.
On 7 May 2020 the mother filed a further (Amended) Response to the father’s Initiating Application.
The competing interim applications were argued before me on 7 May 2020. On 8 May I delivered reasons and made orders, the effect of which was to decline the father’s application for interim parenting orders and to order that the trial recommence for a period of two weeks commencing on 17 August 2020.
On 15 May 2020 the father filed a third (Amended) Initiating Application.
On 14 August 2020 the father filed a fourth (Amended) Initiating Application.
The trial recommenced on 17 August 2020. After further extensive negotiations a further interim order was made by consent in the following terms on 19 August 2020:
UPON NOTING that the Father has indicated his intention to undertake a course of [PP Therapy] with [QQ Health Service].
AND UPON FURTHER NOTING that the Mother intends to continue to attend upon her therapist, [Ms MM].
THE COURT ORDERS BY CONSENT:
1.The child [X] born […] 2016 live with the Mother until further order.
2.The Father shall advise all parties upon him commencing the [PP Therapy] Programme and shall obtain a short report every month at his expense thereafter confirming the details of his attendance.
3.NOTING that the trial of this matter shall be adjourned, the Father shall obtain (at his own cost) a report to be released one (1) week before the resumed trial date directed to the nature of the work that he has undertaken as part of the [PP Therapy] programme, his engagement in the programme and any other matters that may be relevant to the completion of the programme.
4.Concurrently with the Father obtaining his report as set out in paragraph 3 herein, the Mother shall obtain, file and serve (at her own cost) a report from her therapist as to the progress and her engagement in therapy.
5.Liberty to the Independent Children’s Lawyer to apply at short notice in the event of non-compliance with these Orders.
6.The trial dates of 19 August 2020 to 28 August 2020 be vacated and this matter be listed for trial directions on 4 November 2020 at 9:15am and the matter be listed for a resumption of the trial on 6 January 2021.
The matter was listed to resume on 6 January 2021. There was no order providing for X to spend time with her father during the period of the adjournment.
The parties remained in dispute and the taking of evidence in the trial finally commenced on 6 January 2021. By that time X had not spent time with her father since 7 April 2019.
The matter continued on 7, 8, 11 and 12 January 2021. It was clear by that time that significant further hearing time would be required.
On 26 February 2021 I made an order that the trial resume on 24 May 2021 with five further days allowed.
On 20 May 2021, in circumstances where all counsel were agreed that more time would be required for the trial than the five days listed to commence the following Monday, I ordered that it continue at 10am on Monday 27 September 2021 for a further three days.
I was unfortunately admitted to hospital for emergency surgery in May 2021 and the matter ultimately resumed before me part heard for five days commencing 27 September 2021 at 10am and continued for a further five days commencing 29 November 2021. The evidence concluded on 3 December 2021, written submissions were ordered on that day and duly filed and ultimately counsel spoke to the submissions on 2 March 2022 at which time judgment was reserved.
The trial, including days spent in negotiation, ultimately occupied approximately sixteen hearing days, with both parties’ positions being bitterly entrenched when evidence finally commenced. It was obvious from the parties’ evidence and presentation during trial that neither party genuinely conceded any responsibility for the conflict to which X had been exposed for almost all of her life.
Neither party impressed as being able to put the best interests of X above their mutual visceral antipathy and dysfunctional relationship.
It was the mother’s position from the time the proceedings commenced that the father suffered from a mental health disorder. That was disputed by the father. The only person who made that formal diagnosis was a Dr F, psychologist who was unable to attend at trial and whose evidence was not before the court.
The father also attended on occasions on Dr D, Mr W, Dr E and Ms SS. The issue of whether or not the father suffered from a mental health disorder remained a major focus at the final hearing and occupied an unhelpful proportion of trial time.
During the litigation the mother attended upon Ms MM for therapy.
COMPETING PROPOSALS
Father
In the fathers Initiating Application filed 5 June 2018 he sought only parenting orders. In his first (Amended) Initiating Application filed 7 August 2018 he also sought orders for settlement of property as did the mother in her response thereto filed 14 August 2018.
Property settlement issues were ultimately resolved by consent, leading to final orders being made in that regard on 21 August 2019.
On the first day of the original trial listing of 16 September 2019 the father sought final orders as set out in a second (Amended) Initiating Application filed 2 September 2019. The significant difference between the orders sought in that further (Amended) Initiating Application and the earlier applications was that he no longer sought an order that X ultimately live with each of he and the mother on a week about basis.
He sought orders for incremental increases in time with X over a period of approximately twelve months, such that by the time she turned five years of age she spend time with him each alternate weekend from 5pm Friday until 9am the following Monday and in each week from 3pm Wednesday until 3pm Friday. He otherwise proposed that X live with the mother. In addition, he sought certain specific time spending orders on special occasions and what might be referred to as fairly standard specific issues orders.
In the mothers first (Amended) Response filed 3 September 2019 she sought final orders that X live with her and spend no time with the father. In the alternative she sought that X spend two hours on the first Saturday of each month with her father, supervised by either Mr A or the maternal grandfather, until such time as the father had completed twelve months of PP Therapy at QQ Health Service. Thereafter she proposed mediation in relation to time spending.
On the first day of trial on 16 September 2019, interim orders were made by consent, including a directions hearing being listed for 4 March 2020.[12]
[12]Order of Mead J in Daniele & Thomas (Family Court of Australia, ADC2187/2018, 16 September 2019.
On 15 May 2020 the father filed a third (Amended) Initiating Application wherein he again sought orders for X to live with the mother but to progress to be spending week about with each of her parents by the time she was approximately 6 ¾ years of age. There was no change with respect to orders he sought for specific time with X on special occasions and other specific issues orders.
By the time the final hearing resumed on 17 August 2020 the father relied on his fourth (Amended) Initiating Application filed 14 August 2020.
The father’s fourth (Amended) Initiating Application was in the following terms:
1.That all parenting orders be discharged.
2.That the parties have equal shared parental responsibility for the child [X] born […] 2016 (“the child”).
3.That the child live with the Mother.
4.That the Father undergo [PP] Therapy.
5.That whilst the Father is undergoing [PP] Therapy, the child spend time with the father as follows:
a.   For a period of 8 weeks, each Monday from 9am until 11:30am and each Saturday from 3:30pm until 6:00pm.
b.   Thereafter, for a period of 8 weeks, each Saturday from 10am until 5pm, and each Wednesday from 3pm to 7pm.
c.   Thereafter each alternate Saturday and Sunday from 10am to 5pm on each day and each Wednesday from 3pm to 7pm.
d.   And at such other times as may be agreed between the parties. with all such time to be supervised by [Mr A] or [Ms TT] at the joint cost of the parties or such other person as the parties may agree and in default of agreement as nominated by the ICL.
6.Upon the completion of the Father’s [PP] Therapy, the child shall spend time with the Father as follows;
a.   Until the child is 5 years of age, each alternate weekend from Saturday at 10am to Sunday at 5pm and each Wednesday from 3pm to Thursday at 3pm.
b.   When the child turns 5 years of age, each alternate weekend from Friday at 3pm to Sunday at 5pm and in each intervening week from Wednesday at 3pm to Friday at 3pm.
c.   At the commencement of the 2021 Christmas school holidays, each alternate weekend from Friday at 3pm to Monday at 9am (or the commencement of school) and in each intervening week from Wednesday at 3pm to Friday at 3pm.
d.   At the commencement of the 2022 June/July school holidays, each alternate weekend from Thursday at 3pm to Monday at 9am (or the commencement of school) and in each intervening week from Wednesday at 3pm to Friday at 3pm.
e.   At the commencement of the 2022 Christmas school holidays, pursuant to a week about arrangement from Friday at 3pm to Friday at 3pm.
7.In the event that the Mother does not comply with Orders 5 and 6 hereof a recovery order do issue pursuant to the provisions of s 67Q of the Family Law Act 1975 (Cth) as amended.
8.That handovers occur at such place as the parties may agree.
9.In relation to Christmas:
a.   In all even numbered years:
i.The child shall spend time with the Father from 11am Christmas Eve until 11am Christmas Day; and
ii.The child shall spend time with the Mother from 11am Christmas Day until 11am Boxing Day.
b.   In all odd numbered years:
i.The child shall spend time with the Mother from 11am Christmas Eve until 11am Christmas Day; and
ii.The child shall spend time with the Father from 11am Christmas Day until 11am Boxing Day.
10.In relation to Easter:
a.   Commencing in 2021 and each alternate year thereafter – the child spend time with the mother from the conclusion of school on Easter Thursday (or 5:00pm if a non-school day) until 5:00pm on Easter Saturday, on the provision that the child spend time with the father from 5:00pm on Easter Saturday until the commencement of school on Easter Tuesday (or 9:00am if a non-school day); and
b.   Commencing in 2022 and each alternate year thereafter – the child spend time with the father from the conclusion of school on Easter Thursday (or 5:00pm if a non-school day) until 5:00pm on Easter Saturday, on the provision that the child spend time with the mother from 5:00pm on Easter Saturday until the commencement of school on Easter Tuesday (or 9:00am if a non-school day).
11.That for the child’s birthday, the child spend time with the party that is not spending time with the child on the relevant day from the conclusion of school (or 3:00pm if not a school day) until 7:00pm.
12.The child shall spend time with the father in relation to Father’s Day, the father’s birthday, from the conclusion of school (or 5pm of a non-school day) on the day before the relevant day until 7:00pm on the relevant day.
13.The child shall spend time with the mother in relation to Mother’s Day and the mother’s birthday, from the conclusion of school (or 5pm of a non-school day) on the day before the relevant day until 7:00pm on the relevant day.
14.That each party advise the other party and keep the other party advised of their current address and telephone contact number and advise the other within seven days of any such change occurring.
15.That the parties shall ensure that the other is kept informed of:
a.   Any medical problems or illness suffered by the child while in the other’s care;
b.   Any medication that is prescribed for the child;
c.   Any social, school or religious functions which the child is to attend;
d.   The particulars of the others who may reside with the child; and
e.   Any other matter relevant to the child’s welfare.
16.In the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable by telephone after the first contact with either the medical practitioner, medical centre or hospital.
17.That each party do facilitate the child communicating with the other parent by telephone at any reasonable time.
18.That each party be at liberty to attend all usual school, sporting, hospital, medical, extracurricular, parent teacher interviews, assemblies and other activities engaged in by the child.
19.That each party be at liberty to obtain from any school or other organisation at which the child attends, that information ordinarily provided to parents including but not limited to school reports and photographs at their own expense in all things.
20.That the parties be restrained, and injunctions be granted restraining each of them from:
a.   Discussing these proceedings with or allowing the child to see or read any documents in the within proceedings or allowing any third person to do so.
b.   Denigrating, insulting, provoking or abusing the other in the presence or hearing of the child or permitting any other person to do so.
c.   Discussing these proceeding and the other on social media sites or posting any information about these proceedings, on such sites, which will have the consequence of identifying either the child or the parties to these proceedings or permitting any person associated with them, including friends and relatives from doing so.
d.   Changing the principal place of residence of the child from the Adelaide Metropolitan Area.
e.   Carrying out or arranging or facilitating the carrying out of any form of surveillance whatsoever of the other of them, including but not limited to recording telephone calls or other communications, photographing handovers or the residence of the other of them or utilising any form of personal detection in relation to the other of them.
21.That the child’s passport shall be held at the Adelaide Registry of the Family Court of Australia and shall not be released to either party without the written consent of the other.[13]
[13] Father’s fourth (Amended) Initiating Application filed 14 August 2020.

In final written submissions filed on behalf of the father on 21 February 2022 the father’s proposals for time spending with X were set out in paragraph 171 and on pages 32 and 33 of that document in the attached minute of order.
The father’s proposal for X’s time spending with him were as follows:
1.        All handovers shall occur at [X’s] school.
2.The child shall spend time with the father in relation to Father’s Day, the father’s birthday, from the conclusion of school (or 5pm of a non-school day) on the day before the relevant day until 7:00pm on the relevant day.
3.The child shall spend time with the mother in relation to Mother’s Day and the mother’s birthday, from the conclusion of school (or 5pm of a non-school day) on the day before the relevant day until 7:00pm on the relevant day.
4.That each party advise the other party and keep the other party advised of their current address and telephone contact number and advise the other within seven days of any such change occurring.
a.Any medical problems or illness suffered by the child while in the other’s care;
b.        Any medication that is prescribed for the child;
c.         Any school which she attends
d.        The particulars of the others who may reside with the child; and
e.         Any other matter relevant to the child’s welfare.
5.        That the parties shall ensure that the other is kept informed of:
6. In the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable by telephone, text message or email after the first contact with either the medical practitioner, medical centre or hospital.
7. That each party do facilitate the child communicating with the other parent by telephone at any reasonable time.
8. That each party be at liberty to attend all usual school, sporting, hospital, medical, extracurricular, parent teacher interviews, assemblies and other activities engaged in by the child.
9. That each party be at liberty to obtain from any school or other organisation at which the child attends, that information ordinarily provided to parents including but not limited to school reports and photographs at their own expense in all things.
10. Each parent shall advise the other of any medical practitioner, medical centre or hospital upon which [X] attends and be at liberty to contact the same and this order shall be their authority for doing so.
11. That the parties be restrained, and injunctions be granted restraining each of them from:
a.Discussing these proceedings with or allowing the child to see or read any documents in the within proceedings or allowing any third person to do so.
b. denigrating, insulting, provoking or abusing the other in the presence or hearing of the child or permitting any other person to do so.
c. discussing these proceeding and the other on social media sites or posting any information about these proceedings, on such sites, which will have the consequence of identifying either the child or the parties to these proceedings or permitting any person associated with them, including friends and relatives from doing so.
d. Changing the principal place of residence of the child from the Adelaide Metropolitan Area.
e. carrying out or arranging or facilitating the carrying out of any form of surveillance whatsoever of the other of them, including but not limited to recording telephone calls or other communications, photographing handovers or the residence of the other of them or utilising any form of personal detection in relation to the other of them.
12. That the child’s passport shall be held at the Adelaide Registry of the Family Court of Australia and shall not be released to either party without the written consent of the other.[14]
[14] Fathers written submissions filed 21 February 2022, p.32 – 33.
The father relied on the following affidavits at trial, namely:
(a)Original trial affidavit filed 7 August 2019;
(b)Affidavit of Ms B filed 7 August 2019;
(c)Affidavit of Mr A filed 7 August 2019
(d)Affidavit of Dr D filed 7 August 2019;
(e)Affidavit of Mr W filed 16 August 2019;
(f)Affidavit of Dr E 22 August 2019;
(g)Affidavit of Ms UU filed 2 September 2019;
(h)Father’s affidavit filed 2 September 2019 in reply to mother’s original trial affidavit filed 21 August 2019;
(i)Affidavit of Dr E filed 6 September 2019;
(j)Fathers updated trial affidavit filed 6 July 2020;
(k)Affidavit of Dr D filed 15 July 2020;
(l)Fathers’ affidavit filed 3 August 2020 in reply to mother’s updated trial affidavit filed 20 July 2020;
(m)Affidavit of Ms GV filed 2 November 2020; and
(n)Affidavit of Ms GV filed 4 January 2021.
The Mother
On 17 August 2020 the orders sought by the mother were essentially those contained in her third (Amended) response filed on 7 May 2020, namely:
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the child [X] born […] 2016. ("the child").
3.That the child live with the mother.
4.That the child spend no time the father.
5.That the mother is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for the child [X] born […] 2016 and she shall exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 (Cth) and the requirements of the Commonwealth Department of Foreign Affairs and Trade.
6.That a copy of these Orders be provided to the Australian Passport Office and Foreign Affairs and Travel.
7.That the mother be at libe1iy to travel with the child interstate and outside of the Commonwealth of Australia.
8.That the father be restrained and an injunction be granted restraining the father from:
8.1Discussing these proceedings or the outcome of these proceedings or the mother on social media sites or posting any information about these proceedings or the outcome of these proceedings or the mother on such sites, which will have the consequence of identifying either the child or the mother or permitting any person associated with him, including friends and relatives from doing so;
8.2Spending time with the paternal grandmother whilst the child is in his care;
8.3Spending time with the paternal aunt [Ms M] whilst the child is in his care;
8.4Denigrating the mother to or in the presence of the child or allowing any other person to do so in the presence of the children;
8.5Denigrating the mother’s family to or in the presence of the child or allowing any other person to do so in the presence of the children;
8.6Audio recording time spending with the child or any conversation with the mother or members of the maternal family.
9.That the father be at liberty to send the child cards and presents on her birthday, Easter, and Christmas and the mother shall ensure that the child receives same.
10.That the mother will inform the father within 24 hours by email of serious injury or illness of the child.
11.That the mother will provide the father with copies of all of the child's school reports as and when they become available.
ALTERNATIVE ORDERS
~~12.~~That in the alternative to paragraph 4 herein the father spend two (2) hours on the first Saturday of each month from 3:00pm to 5:00pm supervised by [Mr A], or alternatively by [Mr WW], at a location nominated by the mother until such time as the father has completed 12 months of [PP Therapy] at [QQ Health Service] at his sole expense.
~~13.That in respect to paragraph 12 herein, [Mr A's] costs be allocated as to one (1) quarter thereof to be paid by the mother and three (3) quarters thereof to be paid by the father.~~
~~14.~~That in respect to paragraph 12 herein, the father's attendance at [QQ Health Service] occur once per fortnight, or as recommended by his treating practitioner at [QQ Health Service] and such recommendation be confirmed in writing by the father's treating practitioner to the mother's solicitor.
~~15.That the father provide the mother with a report from [QQ Health Service] upon completion of said therapy.~~
~~16.~~That upon the father having completed [PP Therapy] the parties attend on [Ms XX], or [Ms GG] of [YY Psychologists] for the purpose of mediation and that the parenting arrangements be the subject of review through mediation with [Ms XX] or [Ms GG].
~~17.~~That in the event of no agreement being reached in terms of paragraph 16 hereof then upon issuance of a section 601 certificate, the Rule in Rice v Asplund as it applies to time spending arrangements only between the father and the child shall not apply.
12.That the father do pay the mother’s costs in the sum of $4,400 (inclusive of GST) with respect to the mother’s Amended Application in a Case filed on 17 June 2019.[15]
[15] Mother’s further (Amended) Response filed 7 May 2020.
In the outline of case document tendered to the Court on behalf of the mother at the commencement of the proceedings on 17 August 2020, she no longer sought the orders contained in paragraphs 8.2 to 8.6 inclusive of her third (Amended) Response but did seek an additional order that the father pay her costs (with respect to the application in a case filed on 11 March 2020) in the sum of $15,445 (inclusive of GST).
In final written submissions filed on behalf of the mother on 1 February 2022 the orders sought by her were set out in Annexure A thereto in the following terms:
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the child [X] born […] 2016. (“the child”).
3.That the child live with the mother.
4.That the child spend no time with the Father.
5.That the mother is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for the child [X] born […] 2016 and she shall exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 (Cth) and the requirements of the Commonwealth Department of Foreign Affairs and Trade.
6.That a copy of these Orders be provided to the Australian Passport Office and Foreign Affairs and Travel.
7.That the mother be at liberty to travel with the child interstate and outside of the Commonwealth of Australia.
8.That the father be restrained and an injunction be granted restraining the father from discussing these proceedings or the outcome of these proceedings or the mother on social media sites or posting any information about these proceedings or the outcome of these proceedings or the mother on such sites, which will have the consequence of identifying either the child or the mother or permitting any person associated with him, including friends and relatives from doing so.
9.That the father be at liberty to send the child cards and presents on her birthday, Easter, and Christmas and the mother shall ensure that the child receives same.
10.That the mother will inform the father within 24 hours by email of serious injury or illness of the child.
11.That the mother will provide the father with copies of all of the child’s school reports as and when they become available.
12.That the father do pay the mother’s costs in the sum of $4,400 (inclusive of GST) with respect to the mother’s Amended Application in a Case filed on 17 June 2019.
13.That the father do pay the mother’s costs in the sum of $15,445 (inclusive of GST) with respect to the Application in a Case filed on 11 March 2020.
14.That the appointment of the Independent Children’s Lawyer be discharged.
15.That all extant applications be dismissed.[16]
[16] Mother’s closing written submissions filed 1 February 2022, annexure A.
The orders sought included the specific order that X spend no time with her father, as contained in her (Amended) Response filed 7 May 2020.
The mother relied on the following affidavits at trial, namely:
(a)Mother’s trial affidavit filed 21 August 2019;
(b)Affidavit of Mr WW filed 21 August 2019;
(c)Affidavit of Ms MM filed 14 July 2020; and
(d)Affidavits of Ms JJ filed 16 December 2020 and 19 May 2021.
Independent Children’s Lawyer (“the ICL”)
Neither the extensive final written submissions of Counsel for the ICL filed on 25 January 2022 nor the ICL submissions in response to the written submissions filed on behalf of both parties contained a specific minute of the orders sought by the ICL (on behalf of X) at the conclusion of the trial.
Nevertheless, it was clear that the ICL had genuine concerns about X’s ability to enjoy a meaningful relationship with her father in the face of implacable opposition to that course on part of the mother, as supported by her parents, and the inability of the father to genuinely acknowledge and address his own behaviour towards the mother during the period of the parties’ relationship and post separation.
It was submitted by the ICL however that all three of the witnesses, Ms G, Ms HH and Ms MM, experts in the field of parent and child relationships, agreed that it would be preferable for X to have a relationship with her father for her own long-term benefit.[17]
[17] Independent Children’s Lawyer’s written submissions filed 25 January 2022, p.41.
Ultimately the submission, as contained on page 41 of the ICL’s written submissions, was that taking into account the concerns arising about the ability of either of the parties to focus on the best interests of X, “the Independent Children's Lawyer is left with the only alternative which is to recommend to the Court that there be no order for time in the short term.”
Counsel for the ICL also submitted that existing interim orders should be continued as a final order, enabling the father to send cards, gifts and letters at important times and requiring that the mother continue to provide a regular email update regarding X’s progress to the father. It was also the position of the ICL that the mother should advise the father of any school or schools attended by X, provide unredacted copies of school reports to him and that he should be permitted access to school websites, newsletters etc in the same circumstances as any other parent would normally be entitled.
Counsel for the ICL however also submitted that he was “inclined” to promote an order that the father be restrained from attending at the school or contacting the child or permitting or encouraging anyone else to do so at least for a period of time.[18] On the same page the ICL submitted that he was concerned “to protect [X] as much as possible from the actions of both of her parents which are seen to be inconsistent with her best interest.”
[18] Independent Children’s Lawyer’s written submissions filed 25 January 2022, p.41.
The documents relied on by the ICL were as follows:
(a)Affidavit of Ms G filed 19 August 2019; and
(b)Affidavit of Ms RR filed 26 March 2020 (annexing report of Ms HH dated February 2020).
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the legislative framework within which the Court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children's orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the 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 children; 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 the 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.
The principles underlying the objects are set out in Section 60B(2) and provide that, except when it is or would be contrary to the 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).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[19] To determine the best interests of a child the Court must consider the factors set out in s 60CC(2) and (3) of the Act.
[19] Family Law Act 1975 (Cth) s 60CA.
Section 61DA of the Act provides that 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's parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence and may be rebutted if the Court is satisfied that it would not be in the child's best interests for the child's parents to have equal shared parental responsibility.[20]
[20] Family Law Act 1975 (Cth) ss 65DA(1), (2) and (4).
In the event that an order is made for equal shared parental responsibility the Court must consider whether it is in the child's best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[21]
[21] Family Law Act 1975 (Cth) s 65DAA(1).
If the Court determines that such an order is not in the child's best interests, it must consider whether it would be in the child's best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[22]
[22] Family Law Act 1975 (Cth) s 65DAA(2).
The Act defines what is meant by substantial and significant time,[23] and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.[24]
[23] Family Law Act 1975 (Cth) s 65DAA(3).
[24] Family Law Act 1975 (Cth) s 65DAA(5).
All of those issues must be considered against the backdrop of the requirement that the parenting order the Court makes must be in X’s best interests, as determined in accordance with the provisions of Section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
Primary considerations
s 60CC(2)(a) – The benefit to the child of having a meaningful relationship with both of the child’s parents.
Unfortunately, at the time of the trial X was not enjoying a meaningful relationship with her father. Other than X spending some limited time with her father supervised by the maternal family between the parties’ separation on 19 April 2018 and 1 June 2018, and later limited time spending supervised by Mr A between mid-September 2018 and 7 April 2019 pursuant to orders of Judge Brown, X had been in the sole care of the mother since the parties’ separation.

Subsequent to the parties’ separation on 19 April 2018 and up to and inclusive of the date the trial concluded on 8 March 2022, both the mother and X lived in the home of the maternal grandparents.
The interim consent order made on the day of the commencement of the original trial listing of 16 September 2019 did not provide for X to spend specific time with her father but rather provided, in paragraph 10, as follows:
The child [X] shall spend time with the father in such manner and subject to such conditions as shall be proposed by [Ms GG] as part of the therapy set out in paragraph 3.[25]
[25] Order of Mead J in Decker & Thames (Family Court of Australia, ADC2187/2018, 16 September 2019, [10].
Paragraph 3 of that order provided that:
The parties do jointly instruct [Ms GG] to undertake reunification therapy as between the child [X] and the parents for such time as [Ms GG] shall consider appropriate.[26]
[26] Order of Mead J in Decker & Thames (Family Court of Australia, ADC2187/2018, 16 September 2019, [3].
X did not spend time with her father pursuant to that order either during the reunification therapy process or otherwise.
The trial was due to resume on 17 August 2020. Again, no evidence was taken and after extensive negotiations a further interim order was made by consent on 19 August 2020. That order did not provide for time spending between X and her father.
The trial resumed on 6 January 2021, at which time the taking of evidence commenced. By that time X was aged approximately 4 years and 4 months. Based on the case presented to the Court by the mother, together with my observation of her demeanour, particularly in the witness box, it was clear that at the time of trial she was implacably opposed to X spending any time with her father. I will expand on that issue later in these reasons.
The concept of what constitutes a “meaningful relationship” has been discussed in many cases before this Court including in McCall & Clark (2009) FLC 93-405 ("McCall & Clark") at [118] and [119] where the Full Court of the Family Court said, after a discussion as to a definition of the word “meaningful”:
118. It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child's parents by examination of evidence of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made ('the present relationship approach');
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ('the presumption approach'); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents ('the prospective approach').
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is 'the prospective approach' although, depending upon factual circumstances, the present relationship approach may also be relevant…
In [121] of the same judgment their Honours referred to and accepted as appropriate "the interpretation of 'meaningful relationship' set out by Brown J in Mazsorski",[27] and went on to say in [122]:
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
[27] Mazsorski & Albright (2007) 37 FamLR 518 (“Mazsorski”).
In Mazsorski, which had been determined some to years prior to McCall & Clark, Brown J had expressed the following at [26] when considering the concept of a meaningful relationship, namely:
What these definitions convey is that 'meaningful', when used in the context of 'meaningful relationship', is synonymous with 'significant' which, in turn, is generally used as a synonym for 'important' or 'of consequence'. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one…
In this case, for reasons relating to X’s very young age at the time of the parties separation and the limited time she spent with her father post separation prior to trial (noting the vigorous dispute between the parties as to the reasons for that circumstance), it was unfortunate for X that she had experienced little opportunity to forge a “meaningful relationship or a meaningful involvement…which is important, significant and valuable…”[28] (with her father).
[28] Ibid.
When evidence commenced in January 2021 the parties had been involved in litigation for over half of X’s life.
Whether or not X can or will derive positive benefit from the Court attempting to craft orders to foster her relationship with her father is a matter to consider later in these reasons, following consideration of the other relevant factors.
s 60CC(2)(b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required, by the provisions of s 60CC(2A) of the Act to give greater weight to this factor than to the factor referred to in s 60CC(a).
The mother filed two trial affidavits, the first on 21 August 2019 and the second on 20 July 2020. In the first trial affidavit the mother deposed to the following specific examples of conduct by the father towards her and/or X or in X’s presence that she relied on in relation to this factor, namely:
·The father pushing her up against a wall, yelling at her and waking X in January 2017;[29]
[29] Mother’s trial affidavit filed 21 August 2019, [111].
·Her belief that in July 2017 the father intentionally dropped X on her bedroom floor and then shook her and tossed her onto the couch;[30]
[30] Mother’s trial affidavit filed 21 August 2019, [49].
·The father being aggressive and yelling at her while X was asleep in November 2017;[31]
[31] Mother’s trial affidavit filed 21 August 2019, [93.5].
·The father yelling at her at a level that woke X in early 2018;[32]
[32] Mother’s trial affidavit filed 21 August 2019, [93.6.5].
·The father “yelling and swearing at everyone, including saying that he would ‘burn the house down’ if I were to stay in it”[33] in February 2018 during a family meeting at the parties home involving the parties and both sets of grandparents, during which time X was in the room;
·The father yelling and calling her names in the presence of X in February 2018 after which X looked at her and said “bitch”;[34]
·The father becoming agitated and aggressive towards her and her mother in the presence of X in April 2018 including:
·Becoming agitated and aggressive towards her mother including yelling at her and telling her that she was “ugly” to the extent of her becoming frightened the father would assault her mother;[35]
·The father saying in a raised voice to the mother “I will not leave my fucking house” when she asked him to leave the house and further saying “you will not leave this house with my fucking child” when she suggested she would go to her parents’ home, during which outburst “the veins in his neck were popping, he was red in the face and he was spitting when he was speaking”.[36]
·The father being aggressive and abusive towards her and her mother in the presence of X in April 2018 including yelling obscenities at them, not allowing them to leave the house, blocking the mother when she attempted to walk past him from the bedroom into the hallway and then feigning the circumstances to appear that the mother had pushed him into the wall, such that the mother requested and received police assistance to pack and leave the home;[37]
·The father arriving at the home of the maternal grandparents in May 2018, taking X with force from her arms and walking to the back yard, retrieving X’s “trike” which he had originally left at the front door but which the maternal grandmother had relocated to the backyard, putting X under his arm, the trike under his other arm and when the maternal grandmother intercepted him at the front door and asked him to play in the backyard with X responding “you people are sick. I will do what I want with my own child”[38]; and
·During the same incident the father spitting as he yelled, the veins bulging from his neck, and saying to X words to the effect “‘it won’t be long till (sic) I get you and take you away for ever’”.
[33] Mother’s trial affidavit filed 21 August 2019, [175].
[34] Mother’s trial affidavit filed 21 August 2019, [37.3].
[35] Mother’s trial affidavit filed 21 August 2019, [32].
[36] Mother’s trial affidavit filed 21 August 2019, [42.4].
[37] Mother’s trial affidavit filed 21 August 2019, [42.6]-[42.8].
[38] Mother’s trial affidavit filed 21 August 2019, [52].
There were no further specific allegations relating to this factor in the mother’s second trial affidavit filed 20 July 2020.
In paragraph 117 of her first trial affidavit, the mother further deposed as follows “Given the family violence and control perpetrated against me, I am frightened for [X’s] safety and wellbeing when spending time with the father. Based on the father’s behaviour, I believe that the father will hurt [X] to hurt me.”
The mother elaborated on the issue of X being at risk of being subjected to physical and psychological harm in the context of the father attempting to hurt her (the mother) when asked by the father’s counsel in cross examination what she meant by expressing concern the father would hurt X to “get at you”. She replied with words to the effect that she hated to think what he would do but it included burning X or hurting her in a horrific way “that you hear about in [the media]” as the father had threatened she and X in their house.
When it was put to her that she had deposed in her affidavit to the father threatening to burn the house down and not to burn she and X, she replied that was not the case and the threat was to burn the house down with them in it.
She denied the father had never said anything about burning anyone other than at a family meeting and said he had threatened all sorts of burnings, even burning his sister. The mother confirmed that she did not make a complaint to the police about the father’s threat made during the family meeting, and that neither of her parents had made complaints to the police notwithstanding that they were present when the father allegedly uttered the threat.
It was her evidence in cross examination that she did not seek an intervention order to protect X at that time. When it was put to her that even if the father had said those words she didn’t think it was a serious threat, she replied that she didn’t realise the danger at the time but now believed the father was serious in his threat. She agreed she believed that the father’s threat were “words said in anger” at the time.
When asked why she had reinterpreted the danger in the threat since that time she said it was because of the way the father “lies and manipulates”, which in turn had helped increase her fear that the father would hurt X. She further said the father’s behaviour exhibited during the relationship both towards her and at times in the presence of X had become very concerning and she had become more fearful.
She agreed that the father had never threatened to her that he would hurt X. When it was put to her that he had likewise never threatened to burn X, the mother replied that he had in a sense, namely if she was the house X would be with her and therefore she would be burned.
The mother agreed in cross examination that neither she, her parents or Mr A had ever “frisked” or asked the father if he had a lighter on him at any time when he was spending time with X, but said that was because X’s time with her father was supervised at all times and if there had been a fire in her parent’s home it could have been dealt with. In addition, she said that if she had asked Mr A to ask the father if he had a lighter or matches she would have “been crucified”, and it was bad enough that she had to sign a waiver that if Mr A was supervising X’s time with her father and the father left with X, Mr A would not “chase” them.
When it was put to her that questions were not asked of the father about a lighter or matches when he was seeing X because she did not genuinely think there was a risk of him burning X, she replied that she did hold that belief, but that the main risk was that the father would “run off” with X.
The mother denied that she had no real concerns about the father physically hurting X, in particular burning her, and said that she had many concerns, including that the father would take X “to get at me”. When asked again what the father would do to X to “get at” her she replied he would hurt her, and agreed with propositions put to her by the father’s counsel that she thought the father would possibly torture X, physically hurt her or break her bones.
She also said that it was possible that the father would kill X because that was the “ultimate act of control”. The mother agreed with the proposition that because of those fears she intended that the father would have no further contact with X.
The mother said in cross examination that the first time it occurred to her that the father would physically harm X was when he squeezed her around the waist when she was pregnant. She said from then on it was an accumulation of circumstances and in particular hearing a “thud” upstairs whereafter X had facial spasms. She agreed that X no longer suffered from facial spasms, but the incident had occurred when she was around two years old, that she and the father had the issue investigated and there was no finding that the spasms were as a result of X being dropped. She said that the matter of dropping X had not been mentioned to the treating doctor or Dr F.
She agreed that it was only after the relationship had ended that she had formed the view that the father had lied about so many other things he had probably also lied about whether or not he had dropped X. When asked why she had not told Dr F about the incident prior to separation she said what mattered to her at that time was “us staying alive”.
She said that another issue that fed into her fears was the father refusing to hand X to her to be breastfed when she was approximately six months old, resulting in X screaming for approximately ten minutes. The mother agreed that there were perhaps some times when X enjoyed her father’s company but that it was only in a controlled environment. She said this was terribly sad. She said her fears as to X’s safety with her father would not be allayed if time spending occurred in a controlled environment, and denied that X had not suffered harm when she was seeing her father but rather was “psychologically damaged in a big way”.
When asked by the court if there were any circumstances under which she believed it would be beneficial for X to see her father she replied “not at all – it is incredibly dangerous for her to spend time with him”. She went on to say that she was referring to both physical and psychological harm but was unsure if X was afraid of her father as she was not able to speak for her.
Notwithstanding being given numerous opportunities by the father’s counsel and counsel for the ICL to consider any circumstances where spending time with her father would be beneficial for X she was unable to consider that possibility. It was her adamant view that the reason the father was pursuing an order to spend time with X was to control her (the mother). She said that the father knows that the thing she fears most is X spending time with him, and believes that he is of the view that the best thing he can do is to “get that child from me”.
She went on to say that it was her belief the father does not want to spend time with the child but wants to “get at me” and further that the father does not love X. When asked whether he was making his application to the court to “get up your nose” the mother replied that was not the case but rather, his action was intended to abuse her.
She said that whether or not it would be detrimental for X if she could not see her father was a difficult question to answer, because it would be detrimental if she did get to see him so she didn’t know how to answer. She agreed however that in her view bigger things were at stake, namely X’s life.
She agreed that it was her fear that once the father started to see X he would kill her, and denied her fear was irrational in terms of what had happened. In answer to questions about benefits to X of having contact with the paternal family she said that X had never enjoyed the company of her paternal grandparents and that she had always been frightened of her paternal grandmother. She said X shook when her paternal grandmother came into the house prior to separation when she was one year old and hid behind her (the mother’s) legs, which she considered to be very unusual in her own home. It was her evidence that if the father killed X the paternal grandparents would do nothing to help her and would hide his actions.
When asked if she would do her best to ensure that X has a good relationship with her father she said that it was impossible, that she had tried and that she didn’t know how to do that without X suffering psychologically from having been put in an “awful position”. When elaborating on that issue she gave extensive evidence in cross examination about the impact on X of the efforts she and her family and Mr A needed to make to try and persuade X to see her father, in response to which efforts X became more resistant.
She said she had hoped that X did not notice her (the mothers) distress when the mother was crying and they were cuddling each other on the couch at handover times, but agreed it was virtually impossible for X not to have observed the situation. She said those situations arose when she was comforting X when she was screaming and forcefully arching her back during efforts to put her in the car seat.
It was the mother’s evidence that prior to 7 April 2019 she was comfortable, as she thought X was enjoying time with her father and she (the mother) was not crying or sobbing as she knew X was happy. She said her own emotions reflected X’s “horror and terror” at the situation. When asked if X had been affected by her distress the mother replied that she didn’t start it but rather reacted to X’s distress at being forced into a car when she didn’t want to go. She ultimately agreed that prior to 7 April 2019 X was happy to be seeing her father on most occasions, but sometimes was not happy.
When asked what fate would befall X if time with her father was supervised by the paternal grandmother and Mr A as ordered by Judge Brown on 7 March 2019, the mother replied that she was really concerned regarding X’s safety and that the father would “drive off with her” to “get her away from me”. It was her evidence that it was a threat that the father continued to impose on her, that he was determined to get X out of her parents’ house, that she was only one or two years old at the time and there was no need to get her out of the house when “things were going well”.

It must be noted that the interviews for the report were completed almost two years prior to the commencement of the taking of evidence in this matter. Ms G confirmed in cross examination that X’s primary attachment at that time was her mother, although she observed X to be definitely familiar and comfortable with her father, to the extent that she considered a relationship between them definitely existed. She was further of the view that the relationship could be developed. Nevertheless, she opined that the father’s reactive behaviour and his anger was inappropriate to the extent that she wondered at times what capacity he had to develop appropriate behaviour. She confirmed that she was of the view that he needed counselling to address that issue.
When asked if she considered that X may be at physical risk as a result of the father’s reactive behaviour in some circumstances she replied that she was more concerned about issues of emotional risk, for example him making “offhand” comments even in supervised time spending but she was less concerned as to issues of physical harm.
Ms G confirmed in cross examination that she had, since the preparation of her report, read the reports of:
·Mr W;
·Ms MM;
·Ms SS;
·Dr D;
·Dr E; and
·Trial transcripts in circumstances where her cross examination did not commence until 29 November 20211.
It was Ms G’s opinion that a diagnosis of a mental health disorder on the part of the father would not be so important to her as looking at observations, because parents can parent even if they suffer from a mental health disorder. When asked if she had concern about interactions in the future between X’s parents she said she wondered if they were triggers for each other, and their interactions were a concern for her to the extent that the less communication they had the better.
When asked if she felt more comfortable at the time of giving evidence as to the father having time with X she replied that it was complicated nearly three years on from the preparation of the Family Report. Having read the additional information, X appeared to be refusing efforts to spend time with her father such that things were no longer at the same point as they were in 2019.
She said that X was living in a family dynamic where there was a strong narrative about the father and she was concerned as to how X would make sense of the father in that environment. She was also concerned that X had refused to interact with her father in the presence of Ms HH and that matters were no longer as simple as when she had prepared her report. She said it was difficult to now say how X would react to efforts to facilitate her spending time with her father in that as at November 2021 she was starting at a point of refusing that time.
Mr A was the supervisor for the time spending between Judge Brown’s first order in September 2018 and the last time spent on 7 April 2019. In his extensive affidavit filed 7 August 2019, reporting both on occasions when X had spent time with her father and those subsequent to 7 April 2019 where X had been unable to be persuaded to spend time with her father, it was clear that X’s refusal to participate in the process was becoming more determined.
Mr A was called on behalf of the father and confirmed in cross examination that at all times, notwithstanding the difficulty of the situation, he had tried as the supervisor to work collaboratively with all parties. He agreed with Mr Hemsley that there were problems on both sides, but said that his role was to supervise time and record those supervisions, as opposed to providing an opinion or a summary of the parties’ parental qualities. I am satisfied that notwithstanding the best endeavours of Mr A to facilitate the time spending X became more resistant as time passed. I find Mr A was a reliable witness and that his evidence was of assistance in assessing the pressures faced by X as a result of her parents’ conflict.
Ms HH was instructed by the parties, pursuant to a consent order made 16 September 2019 to engage the mother and the father for the purpose of reunification therapy between X and Mr Decker. Ms HH prepared a report filed in the court annexed to an affidavit of the ICL on 26 March 2020. On the first and second pages of that report she lists the various appointments she conducted namely:
•22/10/19 individual appointment with [Mr Decker];
•15/11/19 individual appointment with [Ms Thames];
•19/11/19 appointment with [X] with [Ms Thames] present;
•27/11/19 appointment with [X] with [Ms Thames] present;
•10/1/20 appointment with [Ms Thames] and then appointment with [X] with [Ms Thames] present;
•17/1/20 appointment with [X] with [Ms Thames] present; and
•21/1/20 telephone consult with [Mr Decker].[64]
[64] Family report dated February 2020, p.5 annexed to affidavit of Ms RR filed 26 March 2020.
Ms HH’s recommendations were set out on the final page of the report as follows:
•The therapist holds the opinion that continuing with the reunification process will be to the detriment of [X’s] well-being.
•[Ms Thames] would benefit in continuing with individual therapy.
•[Mr Decker] would benefit in engaging with [Mr KK] or [Mr LL], with the view of [Ms Thames] being included in this therapy.
•For contact between [X] and [Mr Decker] to be reviewed post any outcomes regarding the allegations made in this matter.
On the second page of Ms HH’s report she recorded that:
[Mr Decker] felt that [Ms Thames] has sabotaged his relationship with his daughter. He asserted that [Ms Thames’] behaviours were not congruent with her stated intention that she is supportive of [Mr Decker] having a relationship with their daughter.[65]
[65] Family report dated February 2020, p.6 annexed to affidavit of Ms RR filed 26 March 2020.
On the fifth page of her report Ms HH recorded the mother as having:
…a dominant, rich and embedded narrative of [X] being at significant risk in the care of [Mr Decker]. She contains a strong view that she is a survivor of domestic violence and that [X] was not only exposed to, but was also a victim of domestic violence.[66]
[66] Family report dated February 2020, p.8 annexed to affidavit of Ms RR filed 26 March 2020.
The positions of both of the parties as described by Ms HH and referred to above were clearly evident to the court during the trial.
She further noted on the fourth page of her report that the mother:
…demonstrated insight when she reflected that [X] was also likely to be attuned to her own anxiety about the reunification process and [X] spending any time with [Mr Decker].[67]
[67] Family report dated February 2020, p.7 annexed to affidavit of Ms RR filed 26 March 2020.
This was an issue which the mother, to her credit, conceded during cross examination.
In cross examination Ms HH agreed that X was highly attuned to her mother, and the attachment appeared secure. When asked why the issue of conflict between her parents would be a problem for X she replied that X moving between her parents in a situation of high conflict could cause a psychological crisis for X.
Having listened to the evidence of both parties and their respective witnesses as well as the professional witnesses there is little doubt that this is a matter of extremely high conflict.
On the penultimate page of the report Ms HH said:
There is significant evidence that the conflict between the parents remains intense and considerable. The length and the intensity of the parent’s conflict are the factors that will have the most significant impact on a child’s mental health outcome. It is apparent that it is unlikely that the conflict between the parents, given the allegations, is going to dissipate in the foreseeable future. Therefore, whilst the intensity of the conflict exists, persevering with reunification will likely increase [X’s] exposure to the parental conflict. Particularly because both parents continue to manage their emotional regulation in regards to each other and [X]. [68]
[68] Family report dated February 2020, p.9 annexed to affidavit of Ms RR filed 26 March 2020.
The evidence of both parties and the presentation of each of their cases indicated clearly that Ms HH’s opinion as to the level of conflict between the parties was as relevant a year later as it was at the time she met with the parties and formed her opinion.
I find that the evidence of both Mr A and Ms HH was unshaken in cross examination and provided a very clear picture of the likely impact on X of the extremely high conflict and embedded views held by each of her parents, with Mr A’s evidence providing a clear picture of the impact on X of that conflict during the period of time in which he was involved with attempted handovers between X and her father.
Taking into account their evidence as well as the factual situation of X’s care arrangements and time with her father after the parties separated on 19 April 2018 I am satisfied that X would experience a significant level of psychological trauma if she was separated from her mother or her paternal grandparents for the purpose of spending time with her father. As at the time of trial I am satisfied, taking into account the cases presented by each party and the demeanour of the parties in the witness box during cross examination, that the conflict between them had not dissipated but if anything had increased.
It was clear from the mother’s evidence in cross examination that by the time of trial X had transitioned with little trouble into kindergarten and had also progressed to the stage of being content to undertake activities with her grandparents or be cared for them without her mother being present.
I find that this factor, namely the effect on X of any separation from her mother and her maternal grandparents, is one of the most important factors in my determination. At the time the trial concluded X was still only aged five. An order for X to spend time supervised or otherwise with her father would require her to navigate a path between each of her parents in circumstances where:
•There was no evidence before the court to suggest that [X] was other than secure and settled in the care of her mother and maternal grandparents;
•[X] had become increasingly resistant to spending time with her father from April 2019;
•[X’s] primary attachment at the time of her parent’s separation was with her mother;
•[X’s] time with her father was extremely limited between the parties’ separation on 19 April 2019 and the time of trial;
•Both parties to adopt the words of [Ms HH], maintained an “embedded narrative” of the other of them being at fault with respect to the breakdown of their relationship and with respect to [X’s] parenting arrangements post separation;
•Both parties illustrated an almost total lack of ability to accept responsibility for the toxicity of their relationship;
•Notwithstanding the father’s attendance on various counsellors, psychologists and psychiatrists both during the parties relationship and post separation, at trial he presented as extremely angry with the mother, maintaining that she had never been frightened of him notwithstanding his concessions as to his abuse of the mother which I find to be evidence of an inability of the father to genuinely consider the impact of is behaviour on the mother notwithstanding apparent progress in that regard as suggested by [Mr W] and [Ms SS];
•The father’s [PP] therapy with [Ms SS] whilst appropriate could by the time of trial best be described as “a work in progress;”
•The mother’s evidence clearly indicated a complete inability on her part to see any benefit whatsoever in [X’s] father being a part of her life at any level;
•Some thirty or more sessions with her psychologist [Ms MM] had not resulted in any alleviation of what could only be described as her utter contempt and detestation of the father, an attitude wholly supported by both of her parents and adopted by them such that the father is non-existent at any level in [X’s] life.
s 60CC(3)(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.
I do not consider this to be a relevant consideration in this matter.
s 60CC(3)(f) – The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
I find that the mother and when necessary her parents have the capacity to provide for X’s day to day needs and intellectual needs. The father’s capacity in providing for X’s needs is completely unknown. At the time of trial he was living alone albeit in a relationship with Ms UU who had three children at that stage aged seven years, five years and three years. At the time of trial Mr Decker had not met any of those children.
It was the evidence of Ms UU that there was no intention for the father to meet her children in the foreseeable future until, as she said in paragraph 13.3 of her trial affidavit filed on 2 September 2019 “the conflict has resolved.” Ms UU gave helpful evidence to the court as to the father’s interaction with his five nieces and other members of his extended family. I found Ms UU to be a reliable witness who did her best to answer questions put to her honestly and to assist the court.
I am satisfied that the paternal grandmother Ms B presented as a concerned grandmother who loves all of her grandchildren but who has had to navigate complicated relationships between her son and his sister, face complicated issues in the breakdown of the relationship between the father and the mother in these proceedings and who is understandably supportive of the father. I find she has limited capacity to protect X from exposure by the father of his views towards the mother and her family in the event that X was spending time with him in her presence.
I am not satisfied that X hiding behind her mother’s legs when she was twelve months old indicated that she was terrified of the paternal grandmother nor am I satisfied that the paternal grandmother poses any risk to X’s physical well-being. I am concerned as to the capacity of the paternal grandmother to provide for X’s emotional needs in circumstances where, notwithstanding having been told that time would not occur on 7 April 2019 if she attended at the Suburb Y Library, she persisted in driving into the area on the basis that she wanted to deliver some chips to the father that she had purchased at Hungry Jack’s on AE Street. It was her view that she just wanted to see her granddaughter from a distance, she was not doing anything wrong and that she had not been told to leave but just that she couldn’t see X.
She agreed that she remained for about an hour, that three of her other grandchildren were with her and in and out of her car and that she told Mr A when the issue was addressed with her that “rules are made to be broken”. In cross examination she clarified this as meaning that she “was on the orders – I was supposed to be there.”
Ms D was well aware of the high level of conflict that by then was making every attempt at time spending problematic for her son and by association for X. I find that she would be completely supportive of Mr Decker and may well be unlikely to be able to put X’s interests ahead of his. That is not to suggest in any way that she does not genuinely love X, but rather reflects on her capacity to provide for X’s emotional needs.
I have serious concerns about the capacity of either party to provide for X’s emotional needs arising from their extreme antipathy each to the other of them. The lack of ability of both the mother and the father to seriously address their ongoing toxic and dysfunctional relationship will inevitably put X’s emotional needs at risk.
I find that further exposure of X to attempts to engage in time spending arrangements with her father, supervised or otherwise, would carry the very real risk of X experiencing a psychological crisis, being the concern express by Ms HH in cross examination. I find that the mother, not withstanding the extent of her anxiety and fears arising from the father’s conduct towards her during the relationship is better able to support X’s emotional needs. I accept the evidence of Ms MM that in all the mother’s attendances upon her, her primary focus has been X’s wellbeing and safety, that the mother’s anxiety has ameliorated to some extent during periods X was not required to spend time with her father and that her primary concern has been X’s safety and security.
I find, taking into account the father’s evidence in cross examination including his concessions as to the numerous complaints he has raised at a formal level against people including the maternal grandmother, a police officer, Dr F, the mother’s solicitors; his conduct towards the mother in persisting with intervention proceedings for many days in the Adelaide Magistrates Court; and the evidence of Ms G and Ms HH previously referred to herein with regards to his capacity to manage his anger and these proceedings raise serious concern as to his ability to manage X’s emotional needs and her need for security and stability generally. I consider this to be a significant factor as referred to at length in my consideration of risk to X in terms of the legislation contained in s 60CC(2)(b) of the Act.
s 60CC(3)(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.
Mr Decker is of Country AG heritage and in his evidence his Country AG culture was important to him. With the mother being from a non-Country AG background it would of course be ideal for X to have the opportunity to experience the rich culture of each of her parents. The evidence of Ms UU was of assistance in understanding the close family ties of the father that would be able to be embraced by X in an ideal world. That of course includes cousins. Neither the mother nor her father were able to see any benefit whatsoever to X in forming relationships at any level with the father’s extended family. That attitude was not surprising in the face of what was a clear position in there being no benefit at all to X of her father playing any role in her life.
I find however that this factor is not one that can take precedence over the risk of psychological damage to X of continued exposure to her parents’ conflict. The court can only hope that it is an aspect of X’s life that she will have an opportunity to explore as she grows older.
s 60CC(3)(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.
This factor is not a relevant consideration in this matter.
s 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
There is no doubt that the mother is devoted to X’s care and loves her dearly. I am satisfied that she employs all of her best endeavours to ensure X has a secure and happy homelife including interaction not only with extended family members but with friends and that she is a responsible parent in that regard.
I am satisfied that at some level the father also dearly loves X. On several occasions during cross examination the father was observed crying. I find however that that was less to do with the issue of his love for X but more a reflection of a realisation on his part that the toxic nature of the relationship between he and the mother that was preventing X from having a relationship with him had its genesis in his conduct towards the mother during the course of the parties’ relationship. It is possible that the issues the father was required to face during the preparation for trial and in particular participation in the trial itself was more instructive for him in relation to the serious loss he felt from not having a relationship with X than the information from various professionals that he had obtained during that process.

The reality of this matter was that the father had very little exposure to parenthood of X with her only being very young when the parties separated, during which time he had worked full time and the mother had undertaken the role of primary care giver.
The father’s presentation in the matter reflected observations of both Ms G and Ms HH to which I have already referred as regards to his capacity to put X’s needs for emotional stability ahead of his anger and frustration arising from his limited contact with her and the processes involved in trying to achieve that contact.
I find that during the parties’ relationship the father had exhibited a clear pattern of attempting to control the mother through verbal and physical abuse, attempting to restrain her movements and making extreme emotional demands upon her such that the relationship was ultimately untenable for the mother.
One of the main responsibilities of parenthood is to be able to conduct a post separation relationship with the other parent such that the child involved is able to partake in special and day to day activities in each parents’ life, enjoy forming relationships with extended family members, enjoy each parent’s culture and have the emotional freedom to move between each parents’ household without exposure to toxic disputes and trauma. Neither parent had by the time of trial understood that responsibility or shown any capacity to embrace it such that X was freed from their war for control of the other of them.
As I have said earlier herein, the dispute intensified rather than dissipated at any level. In the case of the mother, I am satisfied that her observable visceral loathing of the father had its genesis in his conduct towards her during the course of the relationship. I am satisfied that she became genuinely frightened of the father and reject his evidence in cross examination that she was never frightened of him. I am unable on the evidence to find however that X was ever at any physical risk of harm from the father either to “get at” the mother or otherwise.
I find that the father’s threat to burn the house down was said by him in a rage and that at the time the mother understood that to be the position. The father’s actions in mid-2018 in attempting to take X to the front of the house when all time taken prior to that post separation had been at the invitation of the mother and her parents and under their supervision and on both parties’ case had worked well was foolish, and simply fed into the mother’s by then all‑pervasive fear.
The father conceded in cross examination to Mr Hemsley that time spending post separation had stopped on the occasions that it had because of ill considered actions taken by him, in circumstances when he had the view that he should not be controlled by the mother or her parents. A courteous and civil approach to the issue by the father when time spending stopped shortly after mid-2018 in particular may have resulted in a completely different trajectory not only for this matter but for X’s long term psychological well-being.
s 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
A final Family Violence order is in place and was made in the Adelaide Magistrates Court in mid-2019. The father had opposed the order being made and subjected the mother to some nine days of hearing, including her being cross examined for several days firstly by his legal representative and them by him personally, before he ultimately elected not to give evidence and conceded the making of the order on the basis of no admission of the facts and naming the mother as the protected person.
In paragraph 125 to 128 the mother set out the dates the trial occupied after commencing in late 2018. The trial proceeded on two days in late 2018 and was then adjourned to mid-2019. Cross examination of the mother by the father took place between two dates in mid-2019.
s 60CC(3)(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.
I accept the mother’s evidence that the trial process in the Adelaide Magistrates Court was traumatic for her, involved her remaining under cross examination between late 2018 to mid‑2019 and in addition involved considerable expense.
I am not satisfied that considering this factor further will assist in my determination of this dispute. The final intervention order is in place, there have been no further allegations of family violence. In the event that I was to find that orders for time spending, either in the form sought by the father or otherwise, were appropriate I find that they could operate with necessary and appropriate provisions to accommodate the terms of the intervention order.
I have already referred at length to the father’s abuse of the mother, his at times uncontrollable rage and emotional harassment of the mother and attempts to control almost all aspects of her life. Further discussion of this factor will not assist in my determination.
s 60CC(3)(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.
In any parenting matter that comes before the court, particularly one where there is high conflict between the parties to which children are exposed, it is preferable to make an order that will avoid proceedings coming back before the court at a later time. That of course was one of the significant fears the mother expressed during her evidence in cross examination. Nevertheless, taking into account:
·X’s young age;
·Serious concerns that have been raised earlier herein as to the conduct of the father towards the mother;
·The impact of that on the mother’s psychological wellbeing; and
·The impact of the mother’s emotional state on her ability to provide optimum care for X
I find that the passage of time could result in changes to the question of the benefit to X of having a personal relationship with her father if there are significant changes to any of these factors.
CONCLUSION
Having considered all of the factors to which I have referred and returning to s 60CC(2A) of the Act, namely the benefit to X of having a meaningful relationship with both of her parents, I find for the reasons given there will be no positive benefit to be derived by X at least at this time in her life by the court attempting to craft orders to foster her relationship with her father.[69]
[69] McCall & Clark (2009) FLC 93-405, [122].
I do not intend to order that the parties share parental responsibility for X. I find, taking into account:
·The toxic relationship between the parties from its very inception through to the time of trial;
·The complete lack of regard and respect between each of the parents;
·The inability of the parents to effectively communicate at any level save as to the grudging exchange of information by email concerning X’s progress;
·The fact that the parties have been involved in litigation at the level of toxic complexity evident in this matter; and
·Where a final Family Violence order is in place naming the mother as the protected person and the father as the defendant
that it would not be in X’s best interest for the parties to be required to communicate at the level required to share parental responsibility and that the presumption in s 61(DA)(1) of the Act is accordingly rebutted.
I take into account in making that finding that I am satisfied the mother, with the assistance of her parents, is ably equipped to make appropriate and suitable decisions with respect to issues involving parental responsibility as well as X’s day to day care and to convey those decisions to the father through the communications I intend to order. In those circumstances it is not necessary for me to consider the provisions of s 65DAA of the Act.
I find that the absence of some acknowledgement of her father will likely cause X confusion as she becomes older. On the mother’s case the father would simply disappear from X’s life. Such an outcome cannot be in X’s best interests. My concerns extend to the mother’s view that having a photograph of the father in X’s bedroom is entirely inappropriate. It is for that reason that I intend to make orders regarding an appropriate photograph of the father to be displayed in X’s bedroom and for the mother to continue to provide regular information to the father by way of email with respect to X’s progress and to provide major school reports as to X’s progress and details as to any serious medical issues faced by X.
I likewise intend to order that the mother provide six monthly photographs of X to the father such that he is clearly able to see her facial features and make orders that enable the father and his mother to send cards, appropriate family photographs and presents to X on specific occasions, with a requirement that the mother ensures that X receive those communications and or presents.
I consider however that X’s best interest would be met by the mother having the ability to ensure that any such cards, photographs and presents are suitable for a child of X’s age and do not include any messages that may expose X to further conflict, such as the message contained in the Christmas card the father attempted to give to X just prior to Christmas in December 2018 as reported on page 143 of the affidavit of Mr A filed 7 August 2019. Clearly X was not at an age at that time to understand the contents of the card but it was indicative of the father’s inability to protect X from conflict.
I intend to order that X live with her mother and that there be no order for time with her father, understanding that such an order is not without potential long-term problems for X, as referred to at length in particular by both Ms G and Ms HH in their evidence.
I do not intend to make an order that the mother use her best endeavours to ensure that X responds to the receipt of such communications or presents in circumstances where for all of the reasons given I do not intend to make an order for time spending. I consider that such a requirement could cause X even more confusion and possible associated psychological instability.
I likewise do not intend to require the mother inform the father of the school attended by X at any time, such that I accept the evidence of the mother that the father may not feel constrained by injunctive orders preventing him from attending at the school. I find that at X’s young age she should be protected from any possible instability in her school environment.
I do intend to continue the injunctive order with respect to restraining the parties from discussing these proceedings and the other of them on social media sites or posting any information that may identify these proceedings on such sites and further, that the mother retain X’s passport but give the father not less than twenty-one days’ notice of any intention to leave the Commonwealth of Australia with X, including the destination and anticipated length of travel and providing for a continuation of the regular updating communications from the mother. I also intend to discharge the order providing for the appointment of the ICL.
For those reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding three hundred and five (305) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 20 November 2023

File number(s):	ADC 2187 of 2018
Judgment of:	MEAD J
Date of judgment:	20 November 2023
Catchwords:	FAMILY LAW – CHILDREN – Best interests of the child – Family Violence – Intervention order – No time spent with father for two years at time of trial – Child now aged 7 years – Mother to have sole parental responsibility – Child to live with mother – No order for time spending with father.
Legislation:	Family Law Act 1975 (Cth), Pt VII, ss 60B(1), 60B(2), 60CA, 60CC(a), 60CC(2), 60CC(2A), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DA(5).
Cases cited:	Mazsorski & Albright (2007) 37 FamLR 518 McCall & Clark (2009) FLC 93-405
Division:	Division 1 First Instance
Number of paragraphs:	305
Date of last submissions:	8 March 2022
Date of hearing:	17-19 August 2020, 6-8 & 11-12 January 2021, 27-30 September 2021, 1 October 2021, 29-30 November 2021 and 3 December 2021.
Place:	Adelaide
Counsel for the Applicant:	Mr McQuade
Solicitor for the Applicant:	Stevens Law
Counsel for the Respondent:	Mr Anderson
Solicitor for the Respondent:	Culshaw Miller Lawyers
Counsel for the Independent Children's Lawyer:	Mr Hemsley
Solicitor for the Independent Children's Lawyer:	Legal Services Commission of South Australia

ADC 2187 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DECKER Applicant
AND:	MS THAMES Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MEAD J
DATE OF ORDER:	20 NOVEMBER 2023