Derren & Schuyler - [2023] FedCFamC2F 1255

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Derren & Schuyler [2023] FedCFamC2F 1255

File number(s): NCC 471 of 2021

Judgment of: JUDGE BETTS

Date of judgment: 14 September 2023

Catchwords: FAMILY LAW – Parenting – one child, aged seven – where final orders were made in November 2018 after a contested final hearing – where this is the second round of proceedings between the parties – where the final orders have broken down – where the mother has a reluctance, inability or unwillingness to facilitate the relationship between the father and the child – where the father is seeking to become the primary carer, which is supported by the ICL – where mother proposes that she continue as the primary carer – where the Court considers that the mother does not have the capacity to promote a meaningful relationship between the father and the child – where the Court orders that the father become the primary carer – where the mother will continue to have a substantial, significant involvement in the child’s life – best interests of the child.

Legislation: Family Law Act 1975 (Cth), Pt VII

Division: Division 2 Family Law

Number of paragraphs: 197

Date of last submission/s: 13 September 2023

Date of hearing: 11, 12 and 13 September 2023

Place: Newcastle

Counsel for the Applicant: Mr Bateman

Solicitors for the Applicant: Wm Lloyd & Associates

Counsel for the Respondent: Ms McKensey

Solicitors for the Respondent: Joplin Lawyers

Counsel for the Independent Children’s Lawyer: Mr Mooney

Solicitors for the Independent Children’s Lawyer: Jennifer Blundell & Associates

ORDERS

NCC 471 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DERREN

Applicant

AND:
MS SCHUYLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

14 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The child, X born in 2015 (“the child”) live with the Father, effective from the conclusion of school today.
3.The Father have sole parental responsibility for the child.
4.The child will spend time with the Mother as agreed but failing agreement as follows:
(a)Each alternate weekend from after school Friday to before school on Wednesday, commencing the first week of term 4, 2023 and continuing the first week of each term thereafter.
(b)During school holidays:
(i)At the end of terms 1, 2 and 3 half school holidays commencing at the conclusion of school and concluding at 12.00 midday on the second Saturday.
(ii)At the end of term 4 in alternate weeks with changeover to occur at 10.00am Saturday, commencing on the second Saturday of the Term 4 holidays in odd numbered years and on the first Saturday of Term 4 holidays in even numbered years, subject to the Christmas orders noted below.

5.Notwithstanding any other orders, the child will spend time with the parties as follows:
(a)At Christmas:
(i)In odd-numbered years – from 2.00pm on Christmas Eve to 2.00pm on Christmas Day with the Mother and from 2.00pm on Christmas Day to 2.00pm on Boxing Day with the Father; and
(ii)In even-numbered years – from 2.00pm on Christmas Eve to 2.00pm on Christmas Day with the Father and from 2.00pm on Christmas Day to 2.00pm Boxing Day with the Mother in even numbered years.

(b)On Father’s and Mother’s day
(i)If Father’s Day falls on a weekend when X is not already spending time with the father, X shall spend time with the Father as agreed between the parties but failing agreement at 5.00pm on the Saturday before Father’s Day to return to school Monday;
(ii)If Mother’s Day falls on a weekend when X is not already spending time with the Mother, X shall spend time with the mother as agreed between the parties but failing agreement from 5.00pm on the Saturday before Mother’s Day to return to school Monday.

6.X spend time with the parent she would not ordinarily be with on X’s birthdays as agreed between the parties but failing agreement, from 3.00pm to 5.00pm if the birthday falls on a school day and from 10.00am to 1.00pm if the birthday falls on a non-school day.
7.Changeovers not at school will occur by the parties, or their nominees known to X, attending at Town B McDonalds.
8.The parties will keep each other advised of their current residential address, mobile phone number, email address and will notify the other of any change to same within 48 hours.
9.The Mother is authorised (and a copy of these orders shall be sufficient authority):
(a)To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the child may attend from time to time.
(b)To receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the child may attend from time to time.

10.Each party is restrained from denigrating the other or any member of their family in front of or in the presence of the child or permitting any other person to do so.
11.The Father will contact the Mother as soon as practicable upon the happening of any of the following;
(a)The child becoming hospitalised;
(b)The child being involved in an accident that requires professional medical treatment.

12.The Mother be restrained from facilitating the attendance of the child upon general practitioners, paediatrician, physicians, psychologists or other allied health care providers without the prior written consent of the Father except in the event of an emergency in which case the Mother is to contact the Father at the earliest opportunity. If the Mother takes the child for emergency treatment in accordance with this order, the Mother is obliged to provide a copy of this order to the practitioner at the time of the appointment or as soon as possible thereafter.
13.The Father will cause the child to continue to attend C School until the end of the 2023 school year.
14.The Independent Children’s Lawyer will provide a copy of these orders and reasons for Judgment to the Principal of C School, D School, the child’s general practitioner, the Commissioner of Police of NSW and the Department of Communities and Justice.
15.Commencing in term 2 2024:
(a)On any Wednesday that a parent is not seeing the child, the child have phone or video call communication with that parent, between 5.00pm and 5.30pm with the parent having communication to initiate the call.
(b)That the child be permitted to have phone or video communication with each parent at any reasonable time the child requests to do so and the parent with whom the child is spending time shall facilitate any such reasonable request.

16.There be no order as to costs.
17.The matter be removed from the list of active pending cases.

NOTATIONS:
A.The Mother has paid the child’s school fees at C School until the end of the 2023 school year.
B.The Independent Children’s Lawyer will contact the Principals of C School and D School to facilitate the creation of a transition plan for the child’s move to D School at the commencement of Term 1 2024.
C.Although the Court has ordered that the Father have sole parental responsibility for the child, the Court expects that both parents have an input into any ASD assessment for the child or any other medical assessment in which the treating practitioner considers that the participation of both parents would be warranted.

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
JUDGE BETTS

These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
BACKGROUND
These proceedings relate to the future parenting of a young girl, X born in 2015. X is seven (7) years of age. She is the daughter of the applicant father in these proceedings Mr Derren, and of the respondent mother Ms Schuyler.
The parties were in a relatively brief relationship which in fact ended at a time when the mother was pregnant with X, so X has never known her parents to live together under the one roof.
This is, in fact, the second round of proceedings involving X. The first round of proceedings commenced in this Court on 22 March 2016 and finally proceeded to a hearing before her Honour Judge Terry in November of 2018.
On 13 November 2018 her Honour made final orders regulating the future parenting of the child. In the course of her Honour’s reasons for judgment, her Honour noted the rather sad history of the mother’s reluctance to promote the child’s relationship with the father. It was a theme of her Honour’s reasons.
We are back here for the second time now, in my view as a direct result of:
·a continuing reluctance of the mother to facilitate the father’s relationship; and
·due to the 13 November 2018 orders, at least for a period of time, breaking down.
The current proceedings were filed on 17 February 2021, and they have proceeded to a hearing before me this week at City W. For the second time in just over two and a half (2 ½ ) years, the parties have effectively had two (2) fully contested final hearings before two (2) different Judges of this Court.
Indeed, for most of this child’s life, her parents have been litigating about her. It is, in fact, apparent from the reasons for judgment of her Honour Judge Terry that the dispute between them commenced before the child was even born, when the mother chose not to tell the father about the child’s birth, chose not to include him on the child’s Birth Certificate, and also disconnected or disengaged herself from Facebook so that the father could not easily contact her.
Ultimately in this case the Court is at a crossroads in terms of X’s life.
The father is seeking, given the mother’s longstanding reluctance, inability or unwillingness to promote a relationship between he and X, that he become the primary carer of the child, a role in which he is completely untested. He is supported by the Independent Children’s Lawyer (‘ICL’) in this matter, who goes further and suggests that the mother’s time with X may require professional supervision on a long-term basis because of the risk of the mother denigrating the father to the child, or permitting him to be denigrated to such extent as would result in the child suffering emotional abuse in her household.
The mother’s case, in a nutshell, is that she should continue as the primary carer of the child; that she is the only person in a position to maintain that role, as the father is not ready and does not have the necessary supports. She accepts that some criticism can be levelled at her in respect of her previous attitude to fostering the father’s relationship but says that there has been a significant change in the past twelve (12) months or so, in which it is quite clear that she has complied with the orders of her Honour Judge Terry. That is, the father has been able to spend time with X on alternate weekends, as ordered pursuant to the 2018 orders of her Honour, as well as having time with X during school holiday periods.
The Family Report writer in this case, Ms E, was gravely concerned about the mother’s attitude towards the father’s relationship with X and Ms E herself raised the possibility of the mother posing an unacceptable risk of harm to the child’s emotional wellbeing. This was largely by reason of various medical and ongoing investigations of the child which the mother has instigated and of which Ms E was roundly critical, suggesting that the mother may, intentionally or otherwise, be engaged in ‘systems abuse’. The mother vehemently denies this allegation.
The Court therefore has to make a difficult decision about a young child who clearly loves her mother dearly. The Court, in making a decision, wants to ensure that the best interests of the child are met, but this is not always an easy balance.
In terms of the relevant persons in the case, I observe that the father is a single man who lives at Town B. He is not employed. He shares a home with a flatmate, one Mr F. The father has another daughter, G, born in 2017, to a woman by the name of Ms H. The intimate relationship between the father and Ms H has since broken down. G spends time with the father on a fairly regular basis. He and Ms H have a good relationship.
As for Mr F, he too has been in a relationship with Ms H and he has a child of that relationship, K, who was born in 2019. So the sibling relationship is a little complex in the sense that:
·X has a half-sister, G, who I think for all intents and purposes would be seen by X as a sibling; and
·G has a half-brother, K, who again I suspect G would view as a sibling;
·How Ms Schuyler views K is perhaps unclear. He certainly is not a sibling in a strict legal sense, but he is someone who is known to X and who clearly has some interactions with her of a probably sibling-like nature.
The father is single. He is not presently partnered with anyone else.
In terms of the mother, she lives at Suburb L, about 20 minutes from where the father lives at Town B. She occupies a home with the maternal grandparents. Like the father, she is not employed outside the home, although I note that she is an apprentice, although apparently not working at the moment. Like the father, she is not in another relationship.
THE HEARING
For the purposes of the hearing before me, the father, who was represented by Mr Bateman of counsel, relied upon the following documents:
·a Case Outline Document;
·the father’s Amended Initiating Application filed 14 August 2023;
·the father’s affidavit filed 14 August 2023.
The mother was represented by Ms McKensey of counsel and she relied upon the following documents:
·a Case Outline Document;
·Amended Response filed 14 August 2023;
·affidavit of the mother filed 14 August 2023.
The ICL relied upon a Case Outline Document.
There were numerous exhibits tendered by the parties. I do not necessarily intend to refer to all of them in these reasons. I have read each and every one of them. The exhibits include the Family Report which was marked as exhibit 2, an earlier Child Dispute Conference Memorandum marked as exhibit 1, as well as the reasons for judgment of her Honour Judge Terry which were marked as exhibit 3.
In the course of the hearing, the parties’ positions and proposals changed somewhat. The mother tendered as exhibit 10 her proposed minute of orders. The ICL tendered as exhibits 35A and 35B respectively two (2) separate proposed orders. Exhibit 35A was the proposed order in the event the Court found that the mother posed an unacceptable risk of harm to the child requiring supervision; exhibit 35B dealt with the scenario in which the Court found that the mother did not pose an unacceptable risk of harm requiring supervision.
Notably and I think relevantly, Mr Bateman on behalf of the father did not seek to adopt exhibit 35A, ie. the order which required supervision. The father took the view that the Court should not find that there is an unacceptable risk of emotional harm to the child in terms of spending time with the mother, which, as will become apparent, I consider was an appropriate concession by the father, and, indeed, it does him credit. That is to say, the father did not ‘go for the jugular’ in a proverbial sense in this case. It very much reflects my view that he is pursuing what he considers to be the best interests of his daughter. Indeed, my own view of the matter, having heard all of the evidence, is that had the mother complied with the orders made by her Honour Judge Terry and had the mother heeded her Honour’s clear and obvious warnings in her Honour’s reasons for judgment, none of us would be here now, hearing this matter for the second time around. Alas, she did not.
CHRONOLOGY
It is as good to commence this case by referring to what her Honour Judge Terry said back in November of 2018.
I begin by observing that her Honour specifically ordered that the parents have equal shared parental responsibility; that X live with the mother and that she spend alternate weekends and school holiday time with the father on a graduating basis.
Her Honour observed in the reasons for judgment that the mother was a very good parent in terms of feeding and clothing the child and looking after her and that the child was well attached to the mother. Her Honour noted however that the mother did not accept that the father had anything like the same capacity (as she did) to care for the child and that the mother had quite a few concerns about what might happen to the child in the father’s care. To quote from her Honour’s reasons:
46.She is very focused on getting explanations for any little injuries the child comes back with after she spends time with him. She is concerned about the child’s eczema and about whether she may have food allergies and about whether she may have autism, and she believes that the father does not adequately take those possibilities into account. She gets upset if the father gives the child certain foods, such as chocolate, which the mother believes causes the child problems.
47.I am aware that the mother has those concerns, but there is no evidence that the father is careless or negligent about the child’s safety.
48.Scrapes and bruises are very common at this child’s age. Some of the things the mother produced in evidence, such as a photo of what I have called striated marks on the child’s bottom, are concerning in that any parent seeing them would feel for her child, but I do not share the mother’s view that I can automatically assume that those marks are a handprint. They could be from any number of things. They could have an innocent explanation.
49.The family report writer referred in her report to the fact that the mother needed to bear in mind that children can suffer those sorts of injuries quite innocently and it is very important that parents do not overreact to them.
Her Honour went on to say that there was no evidence of the father being neglectful of the child. Although the father did not always do things the same as the mother, according to her Honour:
He actually seems quite placid in terms of trying to go along with a lot of the mother’s requests of him.
Her Honour raised a concern about some of the medical issues the mother had brought before the Court in relation to X at that time. Her Honour referred to a possible food allergy causing some swelling of X’s legs, but essentially her Honour was unpersuaded that the child had any particular food allergies. Her Honour did refer to the child being tested for autism spectrum disorder, which was obviously a ‘loose end’ at the time of her Honour’s decision.

Most relevantly in relation to this case however, her Honour made a number of observations about the mother’s less-than-enthusiastic attitude to promoting the father’s relationship with X, and I am going to quote these verbatim.
78.Another relevant matter is the parents’ capacity to cooperate and to coparent their daughter in the future.
79.I have some concerns about how that is going to go. I do not have those concerns because the father is an overbearing, aggressive person; I have those concerns because the parties had a short relationship and do not know each other very well. They separated before the child was born, and they are clearly very different people. The mother is very suspicious of the father, notwithstanding that he has been very patient in building up his time with the child. She is certain that she knows what is right for this child, that she is right and that the only appropriate way forward in terms of the child being cared for is for the father falls in [sic] with every request that she makes and do everything that she asks him to do.
80.There is an underlying risk that the parents are not going to be able to successfully coparent this child and that there are going to be contravention applications and problems in the future. I am concerned about that and about a potential for this matter to come back to Court.
81.On the surface, the parents are not very far apart in the orders they are seeking, but the mother does not have much of a capacity to consider the benefit to the child of the father having an input into her life and to consider the possibility that other views about the child, including views about whether the child has certain conditions and whether there are different ways of doing things, should be considered.
82.She does not have much capacity to reflect on that, and although the father seems to be a peaceful person who takes a step back if the mother wants things done her way, there is a risk that the parents’ different personalities are going to result in disagreement in the future, which could lead the matter to coming back to Court.
…
89.What may imperil the meaningful relationship between the child and the father is if the mother is unable to let go of the child and be less possessive of the child.
90.The family report writer was concerned about some of the mother’s actions and statements. She mentioned the fact that the mother was unable to bring herself to refer to the father as “daddy” and went on to say this:
The mother was asked if she believed it was in the child’s best interests to have two parents in her life, and the mother reported that she believes that children cope fine with only one parent. The mother then stated “She doesn’t need them”, referring to the child and the paternal family.
91.In some respects, the mother has moved off that a little bit in that she has consented to orders for unsupervised time, she has been complying with those orders and she is certainly not asking me to take a backwards step in terms of the child spending time with the father.
92.However whether that indicates a quantum shift in the mother’s thinking or whether she is simply doing it because she knows the Court is not going to countenance a situation where the child is not permitted to have a relationship with her father, I cannot be sure. And unless the mother’s attitude has actually shifted, I have some concerns about what the future may hold for this child and for this matter staying out of the Court system.
93.The report writer felt that some of the difficulties may arise from the mother having a relatively inflexible cognitive style. She went on to say:
The mother may decide to reflect on this in the hope of developing some self-awareness, noting that a flexible approach to negotiations is central if she and the father are going to prioritise the child’s needs and coparent effectively.
94.People can change. Perhaps the mother’s agreement to the unsupervised time indicates some shift in her thinking; I hope it does. But if there is no shift in her thinking, if her underlying belief continues to be that a child only needs one of her parents, then the parties are headed for some choppy waters in terms of coparenting this child and giving her a good life from this day once again and staying out of the Court system.
Her Honour’s concerns about the mother’s attitude were writ large, were obvious and were there to be absorbed. Regrettably, subsequent events demonstrate the mother, in my view, failed to absorb the lessons at all.
I have before me numerous medical notes and records. A common theme of the medical records is that the mother takes the child to doctors or allied health practitioners and, in the course of so doing, she manages to impart information which connects issues of the child’s behaviour with visiting her father. In my view, on the weight of the evidence before me, the primary motivation for her doing so is because she was hoping that a doctor or allied health professional would tell her that the father’s time with the child was too generous or should otherwise be wound back in some way. No other reasonable conclusion is open to me when I look at the evidence as a whole.
I should pause here and observe that the child most definitely has a raft of medical questions swirling around her, about which the mother has very actively sought assistance. She has been diagnosed with a medical condition, anxiety, speech and communication delays, a sensory processing problem, issues relating to emotional regulation or dysregulation. Issues are raised concerning her behaviour. Issues are raised concerning whether she has a restrictive eating disorder of some kind. And swirling in the breeze for some years now has been the suggestion that X might have autism. And in that respect, the Family Report writer observed in interviews with the child that:
92.[X]’s presentation and mannerisms are consistent with ASD traits, and it seems likely that she would meet criteria for ASD at the level 1 support.
The report writer recommended various testing be carried out.
So there are real question marks at the moment surrounding the child’s exact medical diagnosis and the constellation of symptoms which she apparently exhibits on occasions.
I return then to the observation I made earlier about the mother attending upon doctors and, in my view, looking to establish or create evidence - or a case - that the father’s time with the child was problematic and causing or worsening the child’s condition. I refer to the following matters.
Before doing so, I should make this observation: that the mother had arranged for the child to start seeing a psychologist from when she was less than two (2) years old. No doubt the mother had received recommendations that this occur, but it would be fair to say that the child has been seen by, I am told, four (4) different psychologists already in her life. And as at the year 2020, she had engaged in thirty-eight (38) separate psychological sessions. She certainly started at a very young age.
I have before me as exhibit 19,[1] notes of session 7 of a psychological round of treatment between the mother and the child. About the first half a page of the notes are all about the mother reporting what has been happening in the family law jurisdiction at that time, being the proceedings before Judge Terry, and setting out the time the father was then spending with X. It is clear that the mother felt that X was not coping well with the changes. At that time, the mother sought referrals to a Sydney specialist in relation to autism spectrum disorder, further referrals to psychology, as well as a referral to a speech therapist.
It is quite apparent though from the note of session 7, that the mother was very much connecting the child’s difficulties with her attendances upon her father. This is not to say that the child would not have been impacted by changes in her routine. I accept the mother’s evidence that the child has not always coped particularly well with changes. But the family law situation is very much, in my view, the theme of the mother’s attendances upon medical practitioners.
Exhibit 25 is a speech pathologist report from 11 February 2019. In that report it is recorded that:
[Ms Schuyler]’s main concern regarding [X]’s communication is the regression in her speech. [Ms Schuyler] reported that [X] mainly screams and wants others to figure out what she wants, reporting that it becomes worse after access visits with the father. [X] currently sees her father of a weekend for a few hours a day, with [Ms Schuyler] also reporting that these visits with her father have regressed her speech, sleep routine and behaviours.
I have before me, as exhibit 21, some records that are perhaps more troubling. [2] They relate to psychological attendances upon the child.
There are two relevant parts to the notes. In one part, the mother is telling the psychologist that X was refusing to go to her father’s. The mother says that she initiated a call to the father because X was refusing to go and she was seeking the father’s assistance to get her to go. The mother put the father on loudspeaker while driving to the father’s home – or perhaps while the mother was at home; the difference does not much matter. But once the mother told X that the father was on loudspeaker, the child then told the father she wanted to go (to his home). It is interesting that when the mother had the father on the line, X indicated she in fact wanted to go.
Of more concern though, the mother reported to the psychologist that the father had apparently left X alone in his home. This was in turn reported by the mother to the psychologist, and the following notes appear. Firstly, being an interview between the psychologist and the child:
Dad left alone? - Yes, on Tuesday.
Where did he go? - To [G]’s house.
(This would be a reference to G.)
Leave you in the day? - Yes.
Who at home? - No-one.
Clarified: Dad left you at home by self? - No.
Mum said you told her about being scared that Dad was going to hurt you. - No. He doesn’t let [G] hurt me. He puts her in her room.
Reframed the question. - No, he never said that.
So, again, the child denying that the father had hurt her in some way or that he had behaved in some other abusive manner towards her. The psychologist then asked X:
Why did you tell Mum that? - Because Mum she would be mad at Daddy.
Why do you want Mum to be mad at Daddy? - I don’t know.
I consider that as early as August 2019 (the date of this record), the child had realised, having regard to the past history of the matter, including the history set out in the reasons of her Honour Judge Terry, that she would get a reaction out of the mother if she were to tell her something negative about the father. The child had realised at a very young age that this was something that ‘pushed the mother’s buttons’ and/or that it was something that the mother wanted to hear from her.
On 21 October 2019, and this is exhibit 26, the speech therapy notes record this:
[X] attended therapy session with mother [Ms Schuyler] and grandmother [Ms M]–
(Ms M being the maternal grandmother)
at their family home in [Suburb L]. [X] greeted clinician at front door. [X] was noted to say that she misses her dad. But mother, [Ms Schuyler], said that she was just saying that to be spiteful as, when it comes to going to her dad’s, she won’t get ready.
I pause here to observe that I find it disturbing and perplexing that the mother would consider that her then three (3) year old daughter telling her she misses her daddy would be said in a way that was intended by the three (3) year old to be ‘spiteful’. It is a disturbing reference.
The note goes on to say:
[X] had a visit with her dad over the weekend. It was noted that he feeds [X] a lot of salty food and [Ms Schuyler] has addressed this with him and asked him to reduce [X]’s salt intake as her diet and nutrition is poor at his house.
To put it into perspective, the father was only having the child on alternate weekends at that stage from 9 am Saturday until 5.30 pm Sunday.
Unfortunately, it seems that the 2018 parenting orders, to some extent, broke down in 2020 and 2021 and it is common ground that this occurred. This is really, in my view, why we ended up in a second round of contested litigation in this case. Put shortly, X was simply not going to visit her father anything like the amount of time that her Honour Judge Terry had ordered.
In June 2020, and this is from paragraph 29 of the father’s affidavit, he says that the mother obtained a medical certificate for his weekend visit. She said to him:
I would appreciate a response in how you would like to proceed with this weekend. [X] is also saying she doesn’t want to come as she’s in pain with the [medical condition] and just wants to stay home.
I pause here to observe that the child was only four and a half (4 ½) years of age.
In July of 2020, she kept the child back from the father because the child was continuing to have health issues.
In July of 2020, there was a difficulty in relation to COVID19. The mother was apparently concerned that where the father was living could be a ‘hotspot’. The position that she took at that time was that the father should not be seeing the child if it put her at any possible risk of catching COVID19. The mother considered that she had a duty of care and she felt that it would put the child at risk if she was to spend time with the father.
In August 2020, despite having an order for equal shared parental responsibility, the father had difficulty accessing prescriptions from X’s general practitioner as he had not been listed as the child’s ‘next of kin’. He told the mother about this, telling her that the medical receptionist had told him that all the mother had to do was contact them to give the father access. Her statement in response was:
Unfortunately, without the prescribed creams, you will not be able to provide [X] with the medical treatments required while in your care. Therefore [X] will not be able to attend on medical grounds.
The mother was being obstructive of the father’s relationship with the child.
In late 2020, an unpleasant event occurred at a changeover at McDonalds Suburb N, when both the mother and maternal grandmother were screaming at the father due to a problem with X’s Birth Certificate. The father had filled out forms to have his name included as father on the Birth Certificate and apparently that had caused some difficulty relating to the mother, namely, that her name may perhaps have been removed from the Birth Certificate. What happened is really all a bit unclear but I am satisfied and, indeed it is unchallenged, that the mother and the maternal grandmother were both yelling at the father at changeover when the child was present.
I also accept the father’s evidence that, after this event, X said to him: “It’s okay, Daddy. Mummy always yells at me when she is mad.” That evidence also gels with my earlier observation in relation to the child’s false statement about being left at home referred to in exhibit 21 [paragraph 40 of these Reasons].
On 2 November 2020, and this is exhibit 32 [3], there is a report back to the child’s GP from Ms O, who was the child’s then-treating psychologist. I quote from it. This is what it says:
Dear [Dr P],
Thank you very much for your referral of [X] to [Q Company] for concerns with regards to challenging behaviours, including defiance, aggression and anxiety. [X] has now used six sessions from her current mental health plan.
In order to more fully understand [X]’s difficulties, some psychometric assessments have been administered. These have included the teacher and parent version and also a parent adaptive behaviour measure […]. The teacher, found the autism spectrum problems and attention deficit hyperactivity problem scales to be borderline clinical on the DSM oriented scales. The parent form found most scales to be in the clinical range.
(my emphasis)
The report writer was asked about this report and noted that it was somewhat unusual that the mother would seem to have regarded the child as being in the clinical range across most scales, including issues such as depression and the like, suggesting perhaps hypervigilance on her part. In any event, I accept that the concerns about autism have been ‘live’ for some time.
The father missed a further weekend visit with X in November of 2020 based on questions of whether X had vomiting and diarrhoea. It would be fair to say that the father seems to have formed the view around this time that the mother was over-involving the child with medical practitioners and perhaps projecting her own anxiety on to the child.
In December of 2020, X said to the father that: “Daddy, Mummy gets angry a lot. She yells at me when I’m in trouble.” The father says that since that time, he has seen X on occasions unnecessarily behaving in an apologetic way and talking about how sorry she is.
In January of 2021, despite having an order for equal shared parental responsibility, the father did not attend the child’s first day of kindergarten and school enrolment. I accept his evidence that he contacted the mother on 27 January who told him:
[Mr Derren], under the advice of the Principal as well as the actual Court orders, points 1 and 2 with respect to the school's information and [X]’s first day of kindergarten will not be given. As [X] is already anxious about starting school when asked, [X] indicated she doesn't want you present on her first day.
The mother's attitude in this respect is noteworthy. I say this because she was not adverse to suspending the father’s time actually provided for in the orders of Judge Terry if she considered in her discretion that it was appropriate to do so for health reasons. Then, when the father asked for an ‘indulgence’ - just to be present for the first day of the child’s school - he was effectively shut out. In many ways, the school example reflects the mother's attitude to the father at that time, and indeed continuing for quite some time thereafter.
It is common ground, even on the mother's own evidence, that in the period 2020 through to perhaps early 2021, there was some 16 + weeks, and indeed it is more than 16, it is probably closer to 20 weeks, when the father spent no weekend time with his daughter. This was notwithstanding the orders of her Honour Judge Terry; the time simply did not occur. In my view, on all of the evidence before me, it did not occur because the mother was unable or unwilling to promote the father’s relationship with X.
An important point that I raised in the course of cross-examination at trial was whether the father had been offered make-up time. Now, to be fair, both of these parties are reasonably unsophisticated people, and I say that with all due respect to them. They are not legally trained; the father did not, it would seem, make any serious request for make-up time, perhaps he made no request at all. Likewise, the mother never offered him any make-up time whatsoever, and I consider that reflects far more seriously on the mother. If she was genuine about promoting the child’s relationship with the father, if her intentions were genuinely to promote that relationship, she could have given him some make-up time. She could even have agreed for him to attend on X’s first day of kindergarten, even if it was at a distance, perhaps, and out of the view of the child. The mother did not want to encourage the father/daughter relationship. She was ignoring - or was incapable of accepting - the warnings that her Honour Judge Terry had so loudly and clearly given her, as recently as November 2018.
In my view the Father was ‘fed up’ because he was simply not having the relationship with X that the Court had ordered, the father filed an Initiating Application on 17 February 2021 - and thus began the current rather mendacious round of proceedings. I can understand why the father brought the application in the circumstances that he found himself in.

Unfortunately, shortly after bringing the application, things seem to have escalated to a much greater degree in terms of allegations between the parents, as well as the father’s opportunity to, in fact, have a relationship with his daughter.
It seems that in March of 2021, the child made a disclosure to the mother which was to the effect that the father had held her at knifepoint and told her not to tell anyone, and that if X did so then the father would kill her. This was a most significant serious and disturbing threat by its nature, yet the mother was quite vague about whether she even remembered telling the Department of Communities and Justice about it. It emerged in the course of cross-examination that she had done so, at which point she was content to admit it. But the allegation is entirely ‘left field’; it had no proper or logical basis, and its timing causes real concern to me, given that the father had only just commenced Court proceedings.
The mother clearly made a report to the helpline at DCJ, although she said in the witness box that she did not know there was a ‘helpline’ and said that she had not had their number.
In relation to this alleged threat to kill his own daughter, I reject it out of hand as being total and utter nonsense. That is not to say the child did not say it; it is to say that the event most definitely did not happen.
Ironically, notwithstanding this alleged threat, just one month or so later the mother filed a Response. She filed it in early 2021 - and what an ‘odd’ document it is, and that is being kind. The Response sought orders that the mother have sole parental responsibility, that X live with her and that she spend time with the father as agreed between the parties.
I pause here to say that there had never been any time ever agreed that was additional to the orders.
The mother's fallback position was that time occur each alternate weekend 9 am Saturday until 5.30 on Sunday. There was no provision for holiday time, save for weekends falling during school holiday periods. There was a carve-out for Christmas, being 2 pm Christmas to 2 pm Christmas Day, there was a carve-out for Mother’s Day, Father’s Day and Easter. At Easter time, the father would, in fact, spend the maximum amount of time with the child which was two (2) nights, being either Easter Thursday to Easter Saturday or Easter Saturday to Easter Monday.
A more mendacious proposal as a final order is difficult to imagine, but it is also a bizarre order. If the mother truly believed that the child had been threatened with a knife, this was hardly the form of Response one would expect. In my view the mother was ‘stuck between two stools’: she did not want to promote a relationship between father and daughter. Her preference would have been that there not be a relationship, or at the very least that the relationship be ‘wound back’ very significantly, consistent with concerns she had expressed to various health practitioners in the preceding periods, including before and after the making of her Honour Judge Terry's orders.
Worse and more serious matters were to come, however, because the night before the Child Dispute Conference listed for 4 June 2021, the child then made a statement to the mother which was interpreted as a disclosure of sexual abuse by the father. This is referred to in exhibit 1, the Child Dispute Conference Memorandum which relevant paragraph I will set it in full:
12.Child Safety and Well-being – the mother reported she has recently made a report to DCJ regarding the child’s sleeping arrangements whilst at the paternal grandmother’s home (sharing a bed) and is waiting for DCJ to return her phone call regarding this. The mother then reported that about a month ago, the subject child was lying on her bed and inserted fingers into her own vagina. The mother then told her this behaviour was not appropriate and the child allegedly said, “Daddy did it”. The mother did not seem emotional or distressed whilst conveying this information, which was in stark contrast to her presentation on minor issues. She was asked if she had provided this information to DCJ and she said she had not done so, which seems inconsistent with a child protective stance. The mother reported the father had not had time with the child recently, due to the father’s illness and then, the child’s illness but she seemed extremely unconcerned for such a significant issue of risk. Prior to this allegation, the mother was complaining about the father not keeping the child warm enough when she was spending time (when ill) with the father at the paternal grandmother’s house and the reason for this was because the house was “by the beach”, which seemed an over the top response to a not concerning issue but her emotional response to this issue was heightened. There is no current DCJ involvement. This issues [sic] was not discussed with the father due to the order of interviews and it is thought this alleged risk issue will be a significant surprise for the father.
There is some confusion in the evidence here. The mother says that the author of the Memorandum made a mistake, and that in fact the disclosure had only been made the night before the interview, not a month before as has been reported.
In any event, the child was taken to Police about six (6) days after the disclosure in 2021 where she was interviewed by the Joint Investigative Response Team.
The subpoenaed records, which are quoted in paragraph 64 of the Family Report, record that X disclosed to Police that, once, when she was four (4) years old, her dad Mr Derren touched her private parts on the outside of her clothes. This happened after she had watched her dad and Uncle Mr R play sports. She could give no further context around the disclosure.
Police took out an AVO protecting X from her father. So the child did make a statement in the most bland terms, which, to be protective, the authorities had to substantiate as being a suspicious indicator of sexual abuse. It is clear that the mother was also telling the investigating authorities that X was displaying violent and challenging behaviour and did not like going to the father’s home.
The practical effect of this is that in mid-2021, the de facto arrangement of the father’s time with X - effectively being ad hoc - was then formally stopped by way of an AVO. It was a ‘no contact’ AVO. The mother was by no means the applicant. It was a Police application. In my view, however, the mother was relieved about the father’s time with the child being ended at this stage. It is not suggested to me, ultimately, that the mother concocted the allegation of sexual abuse - although the timing certainly raises some suspicions, given the unfortunate history of this matter. I do not find that the mother falsely concocted what the child said but, rather, that the mother was quite content to accept that this may have happened, and she took steps, then, just to follow it through with authorities.
There is a confusion in my mind about how the author of the Child Dispute Conference Memorandum could have so significantly erred in relation to the timing of an allegation, given its obvious seriousness, but, as I say, I will make no positive finding against the mother in terms of whether the child, in fact, said this. Moreover, the child did go on to make that fairly bland statement to the investigating authorities, as I have indicated.
So the father now found himself in a position where, having instituted proceedings, he had within four (4) quick months been accused of having held a knife to his daughter’s throat and now having potentially sexually abused her. His time came to an end. He defended the AVO application.
In the meantime, in late 2021, as appears at exhibit 29, the speech pathologist who was treating the child attended upon the mother’s home. According to that note, the mother discussed that her main concern was X’s speech and that sometimes X regresses and resorts back to her previous errors once she has listened to kids at school and comes home.
Relevantly, the note goes on. When the clinician asked how visits with the father were going,[4] the mother informed the clinician that X had not seen her father since May 2021 due to an AVO in place. When the mother mentioned this – and I pause here to say it must have been said in front of the child, X said:
Yes, because he touched me on my private parts.
It was evident to the clinician that X did not understand the seriousness of this event and was happy to openly tell the clinician about it. No more questions were asked after this, and the speech assessment then began.
It is clear to me that the speech pathologist was troubled by the fact that this was said by X and by the bland manner in which the child blurted it out in this way while apparently not understanding what she was even saying. It is strongly suggestive of, and I am satisfied on balance that, this was a topic being discussed with [X] in the mother’s household after the making of the statement by the child to the mother on 3 June 2021.
The relevance of the child being willing to say this to her speech pathologist becomes more apparent when I get to the final hearing of the AVO application shortly.
By late 2021, just a couple of weeks after the speech pathologist’s attendance, there was another speech pathology appointment which is before me as exhibit 30. This involved the child being taught the ‘Circle of Friends’ programme. Essentially, the ‘Circle of Friends’ programme teaches social distance and levels of intimacy through the use of six (6) colour-coded concentric circles. Starting from the centre circle, which is self, each new coloured circle represents behaviours, feelings and actions appropriate to the distance from the centre or self. The Circle programme assist students to discriminate different degrees of intimacy and adapt their behaviours accordingly.
On the list of possible circles where the father fitted with X, the possibilities were:
·private purple circle, where ‘You are the most important person in the world.’ This is clearly a reference to the child herself, so the father could never fit in that category.
·the next category is blue family circle. ‘These are the very few people that hug you and who you hug. For example, your mother or father.’
·the next circle is the green friendship circle who were ‘people who were close friends who might give far away hugs or a pat on the back.’
·the next circle is the yellow acquaintance circle. ‘These are people a child knows but isn’t friends with. They might give each other a high five or just say hello.’
·the next level down is the orange community helpers circle. ‘These are adults in a child’s life who are there to help and may get to know you very well, like teachers, hockey coaches, doctors, etcetera. Sometime the people may touch you as part of helping you, and the child is to decide how comfortable it makes them feel. You can ask them to stop.’
·And then there is the red strangers circle. ‘Strangers are never touched, nor do they touch the child.’
Well, after some lengthy discussion the child in this case identified the father as being a mere orange ‘acquaintance’. X said, “My dad is an acquaintance to me now. He is in the orange circle.”
What a tragic indictment on the nature of the father’s relationship with the child that, given the length of time that he had been deprived of an opportunity to spend time with her notwithstanding Court orders, including this most recent suspension of time, that the child’s opinion of him had dropped to that of a mere acquaintance? I regard this evidence as being generally probative of the view that I have, which is that the mother was not promoting the father’s relationship with X in any genuine way. I am mindful, of course, that the Family Report writer said that not a lot could turn on that particular piece of evidence.
Returning then to the Local Court AVO hearing, in late 2021, the matter went to hearing, and the AVO was dismissed. The AVO was therefore lifted. The father was able to resume his time with the child in accordance with the orders of her Honour Judge Terry made back in 2018.
I asked the mother in the witness box what she had said to the child about the father’s time resuming. She said words to the effect of: that she had told X she was going to see her father again. The way she said it in the witness box made it sound as though she conveyed that in a positive way to the child. I asked her: “You make it sound like it was a good thing?” to which she responded, “Yes.”
That answer was complete and utter nonsense. What in fact happened is that the mother spoke with the child the night that the AVO was struck out and explained to her that she would be seeing the father again. It is overwhelmingly likely that, in so doing, that she conveyed to the child a sense of fear or anxiety or reluctance.
The child attended at school the next morning and spoke to a receptionist there, expressing fears in relation to going back to see the father. The child’s own statement to the school receptionist, which appears at exhibit 11, was to the effect that:
[X] told me that the AVO against Dad has stopped and she is scared because her dad is mean to her and has said he will be having her this weekend, but she did not want to go. [X] also mentioned she is scared that Dad will kill her. I told [X] to try not to worry when she is at school, as we have nice big fences and we will do our best to protect her. This made her happy and she went back to class.
According to the school notes that are before me as exhibit 12, and, particularly, I refer here to an email sent by the principal of the school in November 2021, it records as follows:
Hi, [Ms S]. I have attached notes taken from a meeting in July with the independent children’s lawyer assigned to [X]. I spoke with [Ms Schuyler] yesterday afternoon.
Now, the ‘yesterday afternoon’ referred to in this email would be November 2021, the Thursday before the weekend visits were due to resume. And the note reads as follows:
AVO against Dad ([Mr Derren]) was dismissed on Wednesday due to lack of evidence. [Ms Schuyler] said that [X] would not talk, so the evidence could not be provided. Weekend visits start again today. Apparently, [X] is “terrified” and Mum feels she has to force her to go. Last visit with Dad was 14 March. Mum made DCJ report that Dad had “held [X] at knifepoint and told her not to tell anyone, if she did he would kill her”.
There is no way on earth that the mother was positive about the child going back to the father on weekends. There is no way that the child had that message conveyed to her. Quite the contrary. The child was, in my view, frightened. And, in my view, it is a direct result of the mother’s influence.
It seems to me, from watching the mother in the witness box, that she was ‘stuck between two stools’ in terms of her belief system as to these various risks posed by the father:
·on the one hand, she told me that she ‘accepted the umpire’s decision’ [in the Local Court] as it were, and she had moved on and simply gotten on with the job of sending the child to the father; but
·it was also clear that she clung to, and still clings to, a real concern that X would not lie to her about such matters. That is to say, the mother is somewhat ‘torn’ about these issues.
Logically, the mother would not have complained, for instance, about the alleged knife threat to the Department of Communities and Justice if she thought it was simply a dream or some nightmare or foolish thought occupying X’s mind. She must have thought that there was some rationality to it. Yet, when I asked her about this matter in the witness box, she seemed to suggest that the alleged knife threat was not rational. In my view, the mother simply did not know what to say. But her attitude was obvious enough. She was not encouraging the relationship.
In any event, what is clear is that after this event the father’s time resumed.
There was then a Family Report prepared by Ms E, and the interviews for that report were conducted on 26 July 2022.
Notwithstanding the mendacious and unreasonable proposal set out in the mother’s Response document of April 2021 to which I have referred, the mother indicated to Ms E, at paragraph 20 of the Family Report, that she was seeking that X spend time with the father after school Friday until commencement of school Monday in alternate weeks, but that there be no additional time for special events or during the school holidays.
This was an improvement (from her Response) but it was a long way from what the Court would expect to see from someone who genuinely – and I underline genuinely – wanted to promote the child’s relationship with the father.
The mother spoke about various concerns relating to the granting of additional time with the father. She said that X’s half-sister or half-sibling, G, did not get on with X, that X found it uncomfortable when G was there, that G was given special treatment. The mother also thought that Ms H was someone who denigrated her, and, in fact, she wanted an injunction to prevent the father from allowing X to come into contact with Ms H. This would of course have the obvious effect of stultifying, or potentially stultifying, whatever sibling relationship might have been able to develop between X and G. The mother complained that the child’s behaviours and health regressed after spending time with the father: see paragraph 51 of the Family Report. This is a theme in various medical documents as I have already referred to.
It is clear that the mother was not particularly enthusiastic about the father spending time with X, but where it really becomes apparent is at paragraph 53 of the Family Report, which I quote:
53.The mother believes that her proposal is in the best interests of [X] because she reports [X] does not like spending time with the father, and she suggested he was unfamiliar and disinterested in [X]’s health, medical, educational and emotional needs. She stated that her preference was for the father to spend no time with [X], but had been advised by her solicitor that she needed to offer the father some time with [X], as the Court was unlikely to accept such a proposal.
The mother was obviously cross-examined about that paragraph and claimed she had been ‘misquoted’. I do not believe her. I am confident that is exactly what the mother said. Indeed, whether one looks at the mother’s proposals for the father’s time with X as set out in the Response document of April 2021, or what she proposed to the report writer, both were consistent with a tokenistic offer of time to the father. This is consistent with a suggestion, perhaps, from a solicitor that: “You’d better offer him something as the Court will never give him no time.”
I reject the mother’s denial of what she said in paragraph 53 of the Family Report; I consider she was too embarrassed to admit to the Court what she had said. Moreover, the same comment or a similar comment was made by mother elsewhere in the report.
The mother also made various allegations to the report writer, none of which, I might add, were even put to the father in cross-examination. And in this respect can I be clear in saying that I am in no way critical of Ms McKensey who, in my view, conducted the case very well on the mother’s behalf. But the fact of the matter is that the mother had made a raft of allegations against the father, none of which went anywhere.
The mother’s allegations are set out at paragraph 63 of the Family Report, and they include that:
·X regularly tells her mother she does not want to go to the father’s home;
·some of the mother’s reports included concerns about sleeping arrangements at the paternal grandmother’s home and particularly the suggestion of X sharing a bed with an 18 year old male cousin;
·the father having put “brown water into his arm with a syringe”, as reported by the child;
·allegations that the father that the father called X “stupid” and belittled her during visits or that she was locked in a bedroom by Ms H for hours without drink or food or allowed to use a toilet.

The mother reported many of these matters to DCJ; none had been substantiated.
The Family Report writer was markedly concerned about the sheer number of practitioners the mother had taken the child to see, from psychologists to speech therapists to occupational therapists and the like. The report writer was concerned that the mother had largely excluded the father from this process - and she had. The report writer was concerned that the mother might be, deliberately or otherwise, engaging in ‘systems abuse’ of the child. That is to say, whether through anxiety or ill-will, positively looking for health issues in the child and then relating them back to the father in an attempt to minimise or reduce the nature of their relationship.
The report writer was very seriously concerned about the mother’s attitude to parenting. This is not surprising, given her statement that she would prefer, in her hearts of hearts, that there be no time at all between the father and X. This is the other paragraph in the Family Report which refers to the mother’s ‘no time’ preference:
101.The mother stated that her preference was for [X] to spend no time with the father and has demonstrated she is both unwilling and unable to facilitate [X]’s relationship with the father and is prepared to sacrifice [X]’s emotional and psychological safety to achieve this.
In that context, when this particular paragraph was put to the mother concerning a ‘no time’ proposal, she said that she had told the report writer words to the effect of:
I said that if the father couldn't step up and be the parent that [X] needed, then there should be no contact.
This statement was put to the Family Report writer, who said she “did not think” the mother had said that to her. I prefer the evidence of the report writer, and I reject the mother’s evidence as another attempt to try to ‘whitewash’ what she had said.
The report writer was so concerned about the mother’s behaviours and attitudes, particularly her involvement of various authorities in investigating the child, that she suggested that the mother may pose an unacceptable risk of harm. She said that the Court needed to consider this issue, but that if she did not pose such risk then the child should in any event be living with the father and spending up to five (5) nights with the mother in alternate weekends.
This was a damning Family Report on any view. There is no magic, of course, in a Family Report; it is just a piece of evidence. But what is noteworthy - and a point significantly relied upon by the mother - is that after this time or at or about the time this Family Report was released, the mother then proceeded to ensure that she complied with the 2018 orders. That is to say, there is no serious complaint from the father that the mother has breached the orders since that time. To the extent there has been any absence of a weekend visit here or there, it has been for good reasons related to health or other issues and it cannot be suggested that the mother has set out to defeat the orders.
Subsequent to the release of the Family Report, the parties entered into some consent orders on 29 August 2022. These effectively prohibited the mother from taking X to all therapists that she was engaged with, and further, the mother was restrained from taking X to any new therapists, other than her GP, with the exception of attending upon the T Clinic at Suburb U for reassessment. There was also a specific order, however, that the mother was to make an appointment with a GP for the purpose of arranging a paediatric assessment to see whether X has autism.
The mother moved promptly on that GP appointment, and it is clear that she obtained the relevant referral.
I accept the father’s evidence that the specialist in question, Dr V, was unwilling to see the child, given that there was a swirling family law dispute. Perhaps the paediatrician assumed, maybe with good reason, that he might end up finding himself caught in the crossfire in these proceedings. Likewise, other efforts to engage other specialist practitioners have been equally unsuccessful.
It might be said that this was the first opportunity the father had to ‘step up to the plate’ and organise the assessment, but equally I accept his evidence that he made real efforts to find someone with no success. By the same token, it was a joint requirement that this autism assessment be carried out, and it seems to me that neither parent was, in fact, able to achieve this.
And so we find ourselves, then, at the point at which the Court has to make decisions about where this child should go and what should occur. Can she remain living with the mother? Is it in her best interests to do so? Does there need to be a change in residence?
THE LAW
In terms of the law, parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), and I do not intend to slavishly set those out.
I am well familiar with the Court’s obligation to make orders that are in a child’s best interests, as required by s 60CA. I am well familiar with the statutory pathway relating to parental responsibility and the making of parenting orders as set out in s 61DA and s 65DAA. I am well familiar with the best interests considerations set out in s 60CC(2) and s 60CC(3) of the Act.
I have already traversed significant past history in the matter, including matters of attitude relating to the mother in particular. I now turn to the specific findings that I must make under section 60CC(2).
Before doing so, I observe that it is common ground in this case that the Court can make no findings about the perpetration of family violence and that neither parent wants an order for equal shared parental responsibility. It is quite apparent that previous orders for equal shared parental responsibility did not work. It is quite apparent that the mother, who is a much more intense and actively involved parent when it comes to medical and allied health issues, very much ‘ran the show’. It is also apparent that the father was very much excluded.
I will be making an order for sole parental responsibility in favour of whichever parent has the day-to-day primary care of the child. This is the logical way to proceed, and so I will not say more about that issue at this time.
BEST INTERESTS
Turning then to s 60CC of the Act and starting with the primary considerations, I am satisfied in this case that the child has a meaningful relationship with both parents.
Her relationship with her mother has been her primary relationship and source of support throughout her life; there can be no two ways about that. She also does, however, have a meaningful relationship with the father, but he has had to fight the mother every inch of the way to achieve that, both in the proceedings before her Honour Judge Terry and in these proceedings right up until her apparent ‘change of heart’ at or about the time that the rather devastating Family Report was released in this case - devastating from her perspective, that is.
The child benefits from having a meaningful relationship with both of her parents. The child will only benefit from continuing a meaningful relationship with both parents. My concern in this case, as I expressed to Ms McKensey in submissions, was that the child has had ‘years of acid rain’ in the mother’s home in terms of her attitude to genuinely promoting the father’s relationship, and, again, I underscore the word ‘genuinely’. The child has already missed so much time with her father that she should have had pursuant to the 2018 orders.
Ms McKensey submitted that although some criticism could be advanced of the mother, the fact remained that the mother had shown a significant change of attitude, if you like, in the last twelve (12) months or so and there is some merit in that. Ms McKensey contended that the mother could be relied upon to promote a relationship, given the evidence of the change in the last twelve (12) months or so.
With that in mind, I am reminded of what the Family Report writer’s evidence was.
When asked specifically about the mother’s change in attitude or perceived change in attitude and the possibility of the child remaining with the mother, the report writer said she would be looking to see the congruence between the mother’s attitude, her behaviour and her narrative, particularly given the long history of the mother’s less-than-enthusiastic and, at times, frankly quite obstructive attitude to promoting the father’s relationship with the child. Indeed her attitude is evidenced in the Family Report itself from July 2022 when her stated preference was a ‘no time’ order.
On the plus side of the ledger for the mother, it is true that she has complied with the 2018 orders. On the minus side of the ledger, however, there are some real lingering problems that remain. I begin with something described by the father in his evidence in the following way:
Why do you say the mother doesn’t facilitate a relationship with you? - The little things, resistance at handover. The mother says to the child, “It’s not up to me”.
To me, that is not a ‘little thing’ at all. The father may see it that way and in some ways I can see why he does, but that is really more a reflection on his part of perhaps a lack of legal training or knowledge. It is incumbent upon a parent to promote a relationship with the other parent and to actively encourage a child to go with the other parent at handovers. I accept that this can be a difficult thing to do and I make no bones about that. But the orders themselves made by this Court include a specific annexure under the heading ‘Parenting Orders, Obligations, Consequences, Who can help’, and, under the heading or subheading ‘Your Legal Obligations’ it reads:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available, but must also positively encourage them to go and do so.
The mother’s statement to the child that, “It’s not up to me”, does not reflect encouragement in the least. It reflects the very passivity warned against in the ‘parenting obligations’ referred to. Moreover, those parenting obligations themselves derive from older Family Court authorities to much the same effect.
I do not regard the mother saying “It’s not up to me” as a little thing; I regard it as a very serious problem.
Moreover, it is also apparent that even though the child has been going with the mother to handovers (since the Family Report) that it has been a constant struggle. The child is reluctant to go, at least that is how she expresses herself when she is with the mother. It should not be this difficult. It would not be this difficult if the mother actively and genuinely encouraged the child to go instead of giving her, at best, mixed signals and, in my view, on balance, negative signals.
The mother took a photograph, which is exhibit 6, a whiteboard entry made by the child herself in mid-2023. It is effectively something that the child wrote down and which the mother saw fit to photograph. It was raised in correspondence between the solicitors as being something of concern to the mother. The note says.
I hate my dad, family. I hate it so much.
It also said:
I want to punish.
It is alarming that the child would be writing such notes in the mother’s home. This is not a child, in my view, who has the unconditional permission to have a relationship with her father. It is a child who is torn, as evidenced by her behaviour at handovers and by her mother’s reiteration that it is not her choice.
In mid-2023, the mother attempted to have a Mental Health Care Plan taken out for the child. This document is before me as exhibit number 22. That document is effectively based on a report from the mother about the child. It reads:
Ongoing issues with anxiety and behaviour as per Mum, more so after she comes back from her father’s house. Has been losing weight of late and she is not eating well for a few days before she goes to her Dad’s house once a fortnight and for a few days after coming from there as per mother. Recent ED presentation with concerns of poor appetite and weight loss in context of her visit to her father. Doing better now as she is back to her Mum’s house now. Feels anxious and apprehensive before she has to go to her father’s house and does not eat well for a few days. Some bullying at school as well of late. Denies any suicidal plans – ideas or plans for now. Previous seen by psychologist; considered diagnosis of avoid restrictive food intake disorder. However, father discontinued appointments? DCJ involvement previously. Father and mother currently in proceedings relating to custody, arrangement for [X].
I pause here to say that this doctor’s note, just three (3) months out from the hearing, is further evidence of the very phenomenon that has been on display for years, namely that the mother suggests to practitioners that the child’s problems relate to seeing her father. Though the mother draws a fine distinction in saying, “I’m not blaming the father for her problems”, she, in a practical sense, very much is blaming the problems on the fact of the child having to see her father.
Notably, although the mother portrays the child as having significant problems, including eating issues, the child is observed in the school environment as being perfectly fine. This is exhibit 23, where the School Principal decided to conduct a check on the child. At pages 183 & 184 of the tender bundle, under the heading ‘Check In’ the Principal records that:
The child loves school, is very happy, wishes she could have naps. She sleeps until 7am. Often has breakfast: Weetbix, changes every day. Definitely has breakfast every day. Asked how her world was. All good. Bright/chirpy. She hugged me on the way out.
The mother consistently paints a darker or more negative or anxious picture of the child than is generally observed by practitioners, although having said that, I accept that there are some indicators that the child has ASD.
The bigger point, though, and the critical point for the purposes of section 60CC(2)(a), is that I do not see congruence between the mother's attitudes and her behaviours. I do not consider her statements to the child “it’s not my choice” as being congruent with taking the child to the visits and congruent with actually genuinely promoting the father's time. I do not regard her observations in the mental health care plan as congruent. I do not regard the child’s own statements on the whiteboard as congruent.
I just do not regard the evidence as establishing the congruence referred to by the Family Report writer necessary for me to genuinely place reliance that the mother has had a ‘change of heart’ in a real sense as distinct from the ‘while the Court is watching’ sense. The mother had every reason to change her tune while the Court was watching – she had an adverse Family Report, indeed a devastating report in some ways. Judge Terry had noted that in the leadup to the hearing before her Honour that the mother had a potential ‘change of heart’ and similar issues were raised at that time.
The mother has a very long history of not promoting the relationship with the father, and the last 12 months are most definitely an improvement, but by no means do they allay my very serious concerns that the mother does not have the capacity to properly promote the father in the role of residence parent. That is, the mother in her role as residence parent does not have the capacity to promote the child’s relationship with the father.
My finding is bolstered by the relentless negativity that I find the mother’s affidavit in relation to her comments about the father and his parenting, his alleged lack of interest and numerous other complaints she makes about him. And also by the somewhat mendacious complaints she makes about little G, who, while clearly she has had some difficulty in her relationship with X, is just a little girl. The mother is at pains to tell me everything negative that is ever reported back to her about G and every little minor spat between the siblings is blown up into something significant.
The mother’s attitude to G is mendacious. Many examples can be found in the exhibits showing her attitude dates back, including in earlier years. For example, exhibit 27, the mother had said as early as February 2020 that X did not like G. X was four (4), G was two (2). The mother's attitude is not really any different now.
When I weigh up all of the evidence in this case, I have come to the melancholy view - but it is unavoidable on the evidence - that as resident parent, as primary carer, the mother cannot or will not promote a meaningful relationship with the father. And although he admits that at the moment his relationship with the child is ‘meaningful’, the relationship is tenuous and capable of being crimped, stunted or otherwise diminished by the mother very quickly and very effectively, particularly once the proceedings are over.
The mother does not have the capacity to meet the obligations that the Court expects of her in s 60CC(2)(a). She simply does not.
Turning to s 60CC(2)(b), the ICL suggested to me, not without evidence, that there are real risks of harm to the child in being trained or taught that the father is emotionally abusive of her. There were concerns about the timing of the sexual allegation, as I have referred to. There was a concern about the ‘casual discussion’ about the sexual assault allegation, which is evident from the speech therapist's observation in late 2019. It was submitted to me that the mother is anxious about risks to the child in the father’s home and has negative views about the father, likely shared by the maternal grandmother and to which the child is exposed. I agree with all of those submissions.
Having said that, I am also swayed by the submissions made by Ms McKensey on behalf of the mother who made the forceful case that unlike many people who are vexatious pursuers of allegations, the mother in this case has not pursued the sex abuse allegation at all since late 2021 when the Local Court dismissed the AVO, and apart from a reference to the school in mid-2021 about the earlier 2021 alleged knife incident, it cannot be said that the mother has really pursued that issue either. I agree with Ms McKensey about that.
Ms McKensey submits that the risks inherent in the mother spending time with X are non-existent, and certainly not ‘unacceptable’. She makes the point, and again I think a legitimate point, that although the child has seen countless practitioners over many years, the referrals to those practitioners were made by various other practitioners; that is to say the mother is not acting entirely ‘off her own bat’ here. A good example appears in early 2018 psychological notes, which are exhibits before me, wherein at that time, the opinion of the treating psychologist for X was that it was not any issue that X had but rather the mother’s own anxiety that was the major issue and needed to be addressed.
Unfortunately, and to complicate things, the letter back from the psychologist to the treating GP simply asked that there be four (4) further sessions for X. Had the letter said that the mother needs to work on her own anxiety then much more could have been made out of this letter, but the letter is equivocal and could easily have been misinterpreted by the mother, indeed logically misinterpreted by her, to mean that X needed treatment for her own sake. The mother denied that the psychologist had ever told her that it was the mother’s own anxiety rubbing off onto the child, although to be fair, I do not know whether in the end it matters much. I struggle to accept the mother's evidence that she was not cognisant of the concerns about her own anxiety, particularly given that those concerns appeared in the judgment of her Honour Judge Terry as well. But I make no adverse finding about the mother on this point, merely to observe that, as Ms McKensey submitted, there were other referrals from other practitioners and there was some basis for there to be investigations of the child, so I do not think it would be fair or appropriate for me to find that the mother has engaged in ‘systems abuse’ in this case, although she has certainly taken the child to an awfully large number of doctors.

My main concern about such matters is that the mother has, in my view, been waiting or hoping that someone somewhere will tell her that whatever perceived problem the child has relates back to the parenting orders and so she can have them changed in a way that reduces the father's time.
I have weighed up the question of risk in this case. I make this observation - no case is without risk. Judges frequently have to make orders about the welfare of children where there are no perfect outcomes. This, like many others, is one such case. The only way to manage the risk of the mother either denigrating the father, or potentially engaging in systems abuse which I am not satisfied she has done, would be for there to be a formal supervision order for the foreseeable future, and perhaps indefinitely. Certainly, an order would need to be in place until at least the child’s teenage years. This outcome would be stultifying of the mother/daughter relationship and carries its own risks, which, in my view, outweigh the risk of the mother doing the wrong thing, and continuing to denigrate the father or to permit denigration to occur in her household.
I have to balance risk in this case. There is in a nutshell a genuine risk that if the mother has unsupervised time, that she will revert back into her bad habits of the past of undermining the father’s relationship with the child, not evidenced so much since August 2022. That is to say, although the evidence from August 2022 is an improvement for the mother, it still is nowhere near sufficient, and she still lacks the capacity, in a primary parent role, to promote the father’s relationship. But to take it to the next step and to find that she would cause emotional harm to the child in such a way as to warrant supervision of her own time with X, in my view, is taking it too far.
In short, to the extent there is a risk the mother may emotionally abuse the child in having unsupervised time, it is a risk the Court considers it has to take, given all of the other risks and concerns in this case, and particularly how the child will react in dealing with the change in residence, which would be obvious to anyone hearing me is going to be ordered as part of the orders in this case.
Turning to s 60CC(3), I have no reliable evidence of the child’s wishes and nobody suggested there was any such evidence.
I have already addressed relevant relationships. The mother is the child’s primary carer by far. X has close relationships with the maternal family. In my view, she also has close relationships with the father and with G. She has developing relationships with K, with Ms H, and with various other paternal family members as referred to in paragraph 66 of the father’s affidavit.
The mother has largely ‘run the show’, in terms of the child’s medical and other treatment. She enrolled the child in a school the father did not want the child to go to, namely a Catholic school which he philosophically disagrees with. Having said that, the mother has also paid for the schooling to be fair to her.
The father’s involvement in decision-making for the child should have been much greater than it is, but for:
·the mother’s attitude; and
·I would also think, to some extent, the father’s own approach of being something of a ‘pushover’, as referred to by her Honour Judge Terry in the earlier judgment, in tending to step back and let the mother run the show, rather than get in the way and cause trouble.
The father needs to be more involved in the child’s medical treatment and care. He needs to take a more active role than he has. My sense of the evidence in this case is that the parties are at different ends of the parental vigilance spectrum. In terms of medical intervention, the mother is at the extreme end of that scale, and the father is probably right at the bottom, or close to the bottom of the ‘relaxed’ end. I suspect that an approach somewhere in the middle is much more logical, and the father is going to have to step up. I consider that he can do so. Although the mother did not think that the father would listen to her, she did accept that he would listen to doctors’ advice.
In terms of supporting the child, the mother has borne most of the child’s costs through her life. The father was not originally assessed for child support. The mother did not apparently want child support, likely because she did not want him to have a particular relationship or role in the child’s life, at least in the early days. But in any event, the father’s child support, such as it is, is somewhere between zero and very limited, given his income position and the fact that he has another child, G.
In terms of changes in circumstance, this is a major issue for the Court.
The mother’s argument is that whatever difficulties she has, there is no evidence the father will manage the change. The concern is that he simply is ‘not up to the task’ of looking after the child full-time, given all of her various medical and allied health issues.
The child has not in fact seen any medical or allied health practitioners since August 2022, when the injunction was put in place. The concern raised in the Family Report is that the father, like many parents who think that they can offer a superior household, might have something of a ‘she’ll be right’ attitude. The Family Report writer said this was a common perception on the part of parents.
The concern raised by the report writer was that an immediate change in residence may be too difficult for the child and the father would need a lot of support, as would the child. Indeed, she thought the mother would need support as well.
To be fair, the report writer did however also say that psychologists, while helpful, cannot treat hypothetical clients for hypothetical problems. That is to say, there is not much the father can do to actually access help, unless and until the time comes, and there is merit in that statement as well.
If I leave the child where she is, in my view, we are drifting back into the dangerous territory where the father’s relationship with the child will be at threat and will become less than meaningful. I cannot permit that to happen. By the same token, if I place the child with the father, I have little doubt there will be a degree of trauma and perhaps even heartbreak of the child in the short to medium-term. But it is a much preferable risk, and it is much better manageable than is the alternative of simply maintaining the status quo.
I appreciate the father wants to change the child’s school. This should not happen this year, because the reality is that the child is settled at C School. In some ways, it is regrettable that the father wants to change schools. I can see great benefit to the child in staying at the same school. But, equally, the father says, not unreasonably, that after the AVO was made against him on the basis of alleged sexual assault of his daughter, that he felt stigmatised or judged by the school and has really preferred to have nothing to do with them. On a human level I can understand that. The father is not a particularly sophisticated man, as I have indicated. A fresh start makes sense, in terms of his perspective. And I also accept the father’s evidence that the school he proposes, D School, will be a feeder school for the high school the child will go to later.
The father’s objections to religious education are pragmatic and logical. He does not want the child undertaking religious studies if she could be learning grammar, mathematics and the like instead. It is true though that at C School the child was spending some time doing an additional educational enhancement programme, and she was doing so during what would otherwise have been her religious studies time.
And I am not critical of the mother in any way about the choice of Catholic school, save that the father was given no input and no real opportunity to do or say anything about it. I accept the father is genuine about the child’s education, notwithstanding his limited involvement with that school. He himself has writing and learning disabilities, as he indicated in evidence. He wants his daughter to have a good education. I believe him. No doubt the mother wants the child to have a good education too.
In terms of practical difficulties and expenses, no issue arises.
In terms of parental capacity and attitudes, I have made many observations as to the mother’s negative attitude towards fostering the father’s relationship with X and will not repeat myself. The issues are longstanding. And there are current and continuing issues, as I have indicated, although the mother has provided compliance with orders in the last twelve (12) months.
The father has a much lesser awareness of the child’s day-to-day needs, and he is going to have to better educate himself and attend the child’s GP and get things moving in that respect. Hopefully, the ASD assessment can now be carried out, given that the family proceedings are being brought to an end.
One other point I wish to make that I think is important, in terms of attitudes, is that the father could, as I indicated earlier, have attempted to ‘go for the jugular’ in this trial, and to really try to push for a finding of unacceptable risk of emotional harm by the mother. He refrained from doing so. That is to his credit. Although I accept that the father does not trust the mother, I do not detect that he is motivated by animus or ill will towards her, notwithstanding the significant problems the mother has put in his way in terms of having a relationship with his child throughout her life.
In terms of the child’s characteristics, I have already set out her issues. She is a complex child. There is also evidence that she has behavioural issues from time to time. And, indeed, on one occasion, the neighbours called the Police because of screaming the child was engaging in at the mother’s home. There is no suggestion that she has ever behaved that way in the father’s care. It was suggested to me by Ms McKensey that this is because the mother’s home is a ‘safe space’ where the child can show her true or most vulnerable self to her mother, in a way that maybe she cannot with her father. I cannot make a positive finding about that, beyond observing that I do not doubt that the father has the capacity to manage the child’s behaviour and that, to the extent he has a learning curve.
I am not entirely convinced that the mother is always able to herself manage the child because, as set out in the Family Report, she accepted that on occasions they send the child to her room but, if the child will not go, then she and the maternal grandparents themselves vacate the area.
No-one is a perfect parent. The mother is not perfect, nor is the father. It will be a learning curve for the father. There will be issues to navigate. I do not consider that the issues are beyond his grasp or capacity to manage, particularly with help and intervention, which he will now be able to access as a result of the orders I make and the ending of this litigation.
In terms of s 60CC(3)(h), the mother refers for the first time in her affidavit, to having Aboriginal heritage relating to her great-grandmother on the maternal side. This is not something that has been explored by her in any significant way throughout the child’s life and, as I understand it, the first time it was mentioned in any material was in this most recent trial affidavit. I do not doubt that the mother has this connection in the sense that I have no reason to doubt her, but I do not consider it makes a difference to the overall outcome in this case.
For reasons that will become apparent, I, in fact, intend for the mother to continue to have a substantial, significant involvement in the child’s life. This is because, for all of the criticisms I make of the mother in these reasons, I am very mindful that she and her daughter love each other dearly. And their relationship needs to continue to be strong, but in a way that is emotionally safe for everyone and promotes and encourages and keeps, in a positive way, the momentum going in the relationship between child and father. This is the parent/child relationship at risk in this case, not the reverse.
There are no family violence issues in this case or any relevant family violence orders.
In terms of future litigation, this is a major concern I have. The parties are in that very small percentage of people who have found themselves, for the second time in their life, conducting a final contested hearing before a judge of this Court. As I indicated in the course of the hearing, approximately five per cent (5%) of litigants end up in a fully contested parenting hearing. These parties are now five per cent (5%) of that five per cent (5%), or perhaps that one in four hundred (400) litigious couples. The statistics are, of course, as Winston Churchill might have said, “lies, damn lies and statistics” but they make the bigger point that we really should not be doing this the second time around. It is a tragedy for X that we have gotten to this point. But it is a tragedy, essentially, of the mother’s own doing.
The situation could have been much worse for the mother but for what she has achieved in the last twelve (12) months, which is at least comply with the court orders. She would do well to reflect on that.
The risks of future litigation cut both ways in this case. I cannot stop the mother making an allegation to the Department of Communities and Justice if she is troubled about something, nor would it be in the child’s best interests to restrain someone from making such a disclosure.
But one thing I can say in this case is that the common thread of both this litigation and the litigation before Judge Terry is the risk to the father’s relationship with the child. That has been a common thread and a common cause of problems. By making the father the primary parent, as I will be doing today, I consider that, at least to that extent, I reduce the risk of future litigation. His relationship with his child will be safeguarded to the maximum extent I can, while, at the same time, balancing the need for the child to have a good and a meaningful relationship with her mother.
Yes, I accept that, in making orders that I propose to make, there will be a degree of upset, distress and, perhaps, even trauma to the child, but it is a necessary evil. It is a necessary evil because the greater evil is to leave the child with the mother, given her history of not promoting the father/daughter relationship and given the various findings which I have made about her.
I know that the report writer said I should not move the child immediately, but fundamentally, I do not see that I have much choice. If I were to have some sort of transition where the child goes to the father in a week or two or three or a month, I would almost guarantee enormous increases in everyone’s stress. For the child to simply be waiting for the inevitable day when she goes to her father and for the mother, who would be traumatised at the thought of it happening, it would be impossible to imagine the child would not suffer a lot more than if I simply cut the Gordian knot today.
I consider that the appropriate course is for the father to pick this child up from school today, notwithstanding the reservations of the report writer. And in so doing, I am mindful of all the risks. As I said, no case is free of risk.
In terms of s 60CC(3)(m), I make the observation that the mother has been given every chance to avoid this case getting to where it did. She has been a slow learner, and that is putting it kindly. Even in the July 2022 Family Report interviews, her preference that the child have no relationship with the father shows that she learnt nothing, and I mean nothing, from what Judge Terry had said all those years ago.
It is not in the interest of children that their parents fight about them forever. Indeed, it is squarely contrary to their best interests. I cannot stop the parties bringing another application on a Rice & Asplund basis, but I would urge everyone to heed a few words of warning.
If the matter comes back before the Court on frivolous or unmeritorious allegations of concern about the father, the mother may not get today’s result that, although she will find devastating, is a lot better than it could have been. A lot better. It would not be in her interests to come back to this Court a third time without ironclad evidence in her favour.
By the same token, the father should not adopt a triumphal approach here. There are no winners in family law litigation, save for the lawyers, and the lawyers do what they are instructed to do and they run a case as they are instructed to run it and each counsel and solicitor in this case did their job and did their job well.
The reality is that children, however, do not benefit from their parents fighting in a Court, except where it is absolutely unavoidable. This case was absolutely avoidable. Coming back again in the future is absolutely avoidable. The mother did not heed Judge Terry, but I urge her to heed what I am saying now. The most important thing for this child is that her parents stop fighting. If this young girl can love both of her parents, can have a good relationship with both, can live a normal or as normal a life as she can with two separated parents, she will be able to thank both of you.
And I say to the father, as well, continue to show the good grace that you have shown in the face of fire coming from the mother’s side because, in my view, this is a case in which the Court can make orders which, in fact, enable the relationship with both parents to be meaningful but without being unduly restrictive of either party’s relationship.
CONCLUSION
With that in mind, I propose to make the orders set out at the commencement herein. These are based primarily on exhibit 35B, being the ICL’s proposed orders in the event that the Court was to find that there was not an unacceptable risk of abuse.

I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 14 September 2023

[1] Tender Bundle, pp.120 - 121
[2] Tender Bundle, pp.128 - 132
[3] Tender Bundle, pp. 142 - 143
[4] There is a typographical error in the notes but this is clearly what was meant

File number(s):	NCC 471 of 2021
Judgment of:	JUDGE BETTS
Date of judgment:	14 September 2023
Catchwords:	FAMILY LAW – Parenting – one child, aged seven – where final orders were made in November 2018 after a contested final hearing – where this is the second round of proceedings between the parties – where the final orders have broken down – where the mother has a reluctance, inability or unwillingness to facilitate the relationship between the father and the child – where the father is seeking to become the primary carer, which is supported by the ICL – where mother proposes that she continue as the primary carer – where the Court considers that the mother does not have the capacity to promote a meaningful relationship between the father and the child – where the Court orders that the father become the primary carer – where the mother will continue to have a substantial, significant involvement in the child’s life – best interests of the child.
Legislation:	Family Law Act 1975 (Cth), Pt VII
Division:	Division 2 Family Law
Number of paragraphs:	197
Date of last submission/s:	13 September 2023
Date of hearing:	11, 12 and 13 September 2023
Place:	Newcastle
Counsel for the Applicant:	Mr Bateman
Solicitors for the Applicant:	Wm Lloyd & Associates
Counsel for the Respondent:	Ms McKensey
Solicitors for the Respondent:	Joplin Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Mooney
Solicitors for the Independent Children’s Lawyer:	Jennifer Blundell & Associates

NCC 471 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DERREN Applicant
AND:	MS SCHUYLER Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	14 SEPTEMBER 2023