Dhavale & Adwani - [2023] FedCFamC2F 1251

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhavale & Adwani [2023] FedCFamC2F 1251

File number(s): SYC 3607 of 2022

Judgment of: JUDGE KEARNEY

Date of judgment: 28 September 2023

Catchwords:
FAMILY LAW - Interlocutory parenting orders – Review of Senior Judicial Registrar’s decision – five-year-old child with complex diagnoses – extreme parental conflict – history of mental health issues – a finding of family violence perpetrated – highly prescriptive interim parenting orders to ameliorate risk of exposure to conflict – need to maintain relationship with both parents until the final hearing – best interests of child

FAMILY LAW – PROCEDURAL – observations and notations - non-compliance with Court rules as to evidence preparation for interlocutory hearing – complex issues – case management consideration highlighted

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Deiter & Deiter [2011] FamCAFC 82

Dunst & Dunst [2016] FamCAFC 15

Eaby & Speelman (2015) FLC 93-654

Eastley & Eastley [2022] FedCFamC1F 212

Goode & Goode [2006] FamCA 1346

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane [2020] FamCA 99

Keats & Keats [2016] FamCAFC 156

MRR v GRR [2010] HCA 4

Napier & Hepburn [2006] FamCA 1316

Re Andrew [1996] FamCA 43

Russell & Close [1993] FamCA 62

Sedgley and Sedgley [1995] FamCA 154

SS & AH [2010] FamCAFC 13

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 134

Date of hearing: 17 August 2023

Place: Newcastle

Counsel for the Applicant: Ms Mallett KC

Solicitor for the Applicant: Broun Abrahams Burreket

Counsel for the Respondent: Ms Gillies SC

Solicitor for the Respondent: Steiner Legal
ORDERS

SYC 3607 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DHAVALE

Applicant

AND:
MS ADWANI

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

28 SEPTEMBER 2023

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.

Parental Responsibility
2.The respondent, MS ADWANI (‘the mother’) shall have sole parental responsibility for the child X born in 2018 in relation to the following aspects of X’s welfare:
(a)Schooling (including early learning childhood education);
(b)Medical and allied health treatment.

Lives With
3.X shall live with the mother.

Spends time With
4.Until Tuesday 21 November 2023, X shall spend time with the applicant, MR DHAVALE (‘the father’) each fortnight as follows:
(a)From 9.00am to 6.30pm on Sunday 1 October 2023;
(b)From after school (or 3.00pm if X is not at school) to 6.00pm on Wednesday 4 October 2023;
(c)From 9.00am Saturday to 6.30pm Sunday on 7 to 8 October 2023;
(d)In week one - From after school (or 3.00pm if X is not at school) on Wednesday to the commencement of school (or 3.00pm if X is not at school) on Thursday commencing 11 October 2023.
(e)In week two - From 9.00am Saturday to 6.30pm Sunday commencing 21 October 2023.

5.From Wednesday 22 November 2023, X shall spend time with the father each fortnight as follows:
(a)In week one - From after school (or 3.00pm if X is not at school) on Wednesday to the commencement of school (or 3.00pm if X is not at school) on Thursday commencing 22 November 2023.
(b)In week two - From after school (or 3.00pm if X is not at school) on Friday to 6.30pm on Sunday commencing 1 December 2023.

Special occasions
6.Subject to Order 12 but otherwise notwithstanding the provisions of any Order to the contrary, if X is not otherwise in the father’s care, X shall spend time with the father for special occasions as follows:
(a)Father’s Day – from 9.00am on Father’s Day to the commencement of school (or 9.00am if X is not at school) the following day;
(b)Christmas – from 2.00pm on Christmas Day until 2.00pm on Boxing Day in odd-numbered years commencing in 2023 AND from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in even-numbered years commencing in 2024;
(c)Easter – from 2.00pm on Easter Sunday until 2.00pm on Easter Monday in even-numbered years commencing in 2024 AND from 2.00pm on the Saturday immediately before Easter Sunday until 2.00pm on Easter Sunday in odd-numbered years commencing in 2025;
(d)Diwali – from after school (or 3.00pm if X is not at school) on Diwali to the commencement of school (or 9.00am if X is not at school) the following day in odd-numbered years commencing in 2023;
(e)X’s birthday – from after school (or 3.00pm if X is not at school day) until 6.30pm.
(f)The father’s birthday - from after school (or 3.00pm if X is not at school) until the commencement of school (or 9.00am if X is not at school) the following day.

7.Subject to Order 12 but otherwise notwithstanding the provisions of any Order to the contrary, if X is not otherwise in the mother’s care, X shall spend time with the mother for special occasions as follows:
(a)Mother’s Day – from 9.00am on Mother’s Day to the commencement of school (or 9.00am if X is not at school) the following day;
(b)Christmas – from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in odd-numbered years commencing in 2023 AND from 2.00pm on Christmas Day until 2.00pm on Boxing Day in even-numbered years commencing in 2024;
(c)Easter – from 2.00pm on the Saturday immediately before Easter Sunday until 2.00pm on Easter Sunday in even-numbered years commencing in 2024 AND from 2.00pm on Easter Sunday until 2.00pm on Easter Monday in odd-numbered years commencing in 2025;
(d)Diwali – from after school (or 3.00pm if X is not at school) on Diwali to the commencement of school (or 9.00am if X is not at school) the following day in even-numbered years commencing in 2024;
(e)X’s birthday – from after school (or 3.00pm if X is not at school) until 6.30pm;
(f)The mother’s birthday - from after school (or 3.00pm if X is not at school) until the commencement of school (or 9.00am if X is not at school) the following day.

Changeovers
8.To facilitate X’s time with both parties, changeover shall occur as follows:
(a)Where the commencement or conclusion of X’s time coincides with when X is attending school (including any early learning childhood centre) THEN changeover shall occur at that place of education;
(b)On all other occasions changeovers shall occur at Suburb B Train Station by the parties or either one of them and/or their respective nominee/s PROVIDED such nominee is a person not only known to X but with whom he is comfortable being in the company of.

Communication
9.Subject to Order 10, the parties are to continue to communicate matters relating to the care, welfare and development of X by way of the OurFamilyWizard application (‘OFW app’) and remain responsible for their own costs of using the OFW app.
10.Notwithstanding Order 9, the parties shall immediately inform each other by telephone call of any serious illness or injury sustained by X whilst X is in their respective care as well as providing any particulars of any treatment received by X together with the name and address of the treatment provider and/or location at which X is a patient.
11.The parties shall administer any medication prescribed or recommended for X by his treating medical or allied health professionals and to facilitate this Order:
(a)The parties shall each notify and make available to the other any such prescribed or recommended medication; and
(b)The parties shall ensure that such prescribed or recommended medication is passed between them so that it is in the possession of the party with whom X is either living with or spending time with at that time.

Overseas Travel
12.For the purpose of s 65Y(1)(b) of the Family Law Act 1975 (Cth), the mother shall be permitted to travel with X to the United Kingdom and Europe for a period of up to 28 days in 2023 PROVIDED THAT the mother shall provide to the father:
(a)Not less than 60 days’ notice (via the OFW app) of the intended date upon which X will depart from and return to the Commonwealth of Australia; and
(b)Not less than 14 days prior to travel:
(i)The details of what countries X shall visit;
(ii)An itinerary of when X will be in each country;
(iii)Copies of return flight tickets for X; and
(iv)The addresses at which X shall reside and a telephone number on which the father can communicate with X.

13.In the event that the mother does travel with X overseas, THEN within three (3) months of the date of departure, the mother shall facilitate X spending ‘make up time’ with the father to account for any ordered time between X and the father that is missed as a result of the overseas travel.

Miscellaneous
14.The father is restrained, and an injunction shall issue prohibiting the father from changing X’s residence until after 28 March 2024.
15.Within 24 hours of any change, the father is to notify the mother via the OFW app of any change to his contact telephone number and/or residential address.
16.Within 24 hours of any change, the mother is to notify the father via the OFW app of any change to her contact telephone number.
17.The mother shall do all things and sign all documents to allow the father to add X to the father’s Medicare card.
18.Notwithstanding Order 2, the mother shall notify the father (via the OFW app) of any new or additional treating medical, therapist or allied health professionals with whom X is currently or prospectively engaged, and this Order shall serve as an irrevocable authority for such treators (at their sole discretion) to provide oral and/or written information upon request from the father (and at his sole cost) about X’s symptoms, diagnosis, treatment plan and/or prognosis.
19.Notwithstanding Order 2, by 26 October 2023, the mother shall notify the father (via the OFW app) of the school where X is enrolled to commence his primary education in 2024 and keep the father informed of any other educational service provider with whom X is engaged from time-to-time and this Order shall serve as an irrevocable authority for such educational service providers to provide oral and/or written information upon request from the father (and at his sole cost) about X’s progress including copies of school reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to X’s education to which parents would ordinarily have access.
20.Notwithstanding Order 2, both parties are permitted to attend any 2023 graduation ceremony in which X is a participant; as well as any significant events to which parents would ordinarily attend at X’s primary school in 2024 including his first day of school, any Easter Hat parade, any school assemblies, any school sports days, any school concerts, performances or other culturally significant events and any parent-teacher interviews PROVIDED THAT the parties are not contemporaneously attending the same parent-teacher interview and this Order shall serve as an irrevocable authority to X’s educational service providers.
21.The father shall continue to attend upon his treating consultant psychiatrist Dr C and his treating clinical psychologist Mr D as may be required by them (or any subsequent treating psychiatrist or psychologist) and shall follow all treatment plans and other recommendations that they may respectively prescribe.
22.X’s time with father is conditional upon the father continuing to attend upon Mr D (or any subsequent treating psychologist) on a fortnightly basis or as recommended by the treating psychologist.
23.X’s time with father is conditional upon the father continuing to attend upon Dr C (or any subsequent treating psychiatrist) as recommended by the treating psychiatrist.
24.The father shall attend and complete a men’s behaviour change program.
25.The mother shall continue to attend upon forensic psychologist, Ms E (or any subsequent treating psychologist) as recommended by the treating psychologist.
26.To facilitate these Orders, the parties are permitted to provide a copy of these Orders to any third parties or class of third parties specified in these Orders including but not limited to their respective treating service providers, X’s treating service providers and X’s educational service providers.
27.The parties have leave to provide a copy of the single expert report prepared by Ms F dated 18 November 2022 to their respective treating psychologists and psychiatrists.
28.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders

IT IS FURTHER ORDERED THAT:
29.The compliance and readiness hearing on 13 October 2023 at 10.00am is confirmed.
30.The contravention order list hearing on 13 October 2023 at 10.00am is confirmed.
31.Save for any prospective costs application/s, all outstanding applications in relation to the mother’s review application filed 19 June 2023 are otherwise dismissed.
32.By 4.00pm on 26 October 2023, any party seeking an order for costs shall file and serve an Application in a Proceeding and supporting affidavit(s) and financial statement (if applicable).
33.By 4.00pm on 9 November 2023, the other party shall file and serve a Response to an Application in a Proceeding, with supporting affidavit(s) and financial statement (if applicable).
34.Should an application for costs be filed, THEN pursuant to rr 5.02(2)(c) and 5.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Family Law Rules’), the application will be listed for hearing before Judge Kearney in chambers with no appearances required.

THE COURT NOTES THAT:
A.In the event that the existing apprehended domestic violence order requires amendment to include an exception for the father to approach X’s early learning childhood centre (or for any other reason related to the implementation of these Orders) the mother shall provide her consent to such amendments.
B.Given the high conflict between the parties, the existing current apprehended domestic violence order and X’s diagnoses and symptoms, the parties should consider having a support person with them at changeovers.
C.In the event that whilst in either party’s care, that party deems it necessary for X to be presented to X’s current treating general physician (for example, X has flu-like symptoms), then Order 10 does not apply but the Court would expect that the party with care of X would use the OFW app to notify the other party of this consultation including symptoms, diagnosis, treatment plan and prognosis.
D.The men’s behaviour change program specified at Order 24 shall be conducted face-to-face and the sessions are to be group sessions.
E.In the absence of any previous order about the communication between X and the father during the time that X may be overseas, the Court expects the parties to come to some sort of agreement that will support X’s relationship with the father and meet X’s capacity to engage effectively with the father whilst X is abroad including on any special occasions.
F.Given the timeframes specified in Order 12, there is a prospect of X not spending time with the father on one if not more upcoming special occasions including Christmas.

THE COURT FURTHER NOTES THAT:
G.The parties’ evidence before the Court was not in the form approved by either the Family Law Rules and/or the Federal Circuit and Family Court of Australia (Family Law) (Division 2) Rules 2021 (Cth) which caused considerable delay in the pronouncement of judgment.
H.In light of Notation G, consideration should be given to transferring this matter to Division 1 because of the high parental conflict, the issues in dispute, the relief sought by the mother (premised on a finding of unacceptable risk and/or premised on Re Andrew), the voluminous evidence already filed and the likelihood that there will be at least 10, possibly 12 witnesses including –
(a)at least five (5) lay witnesses (the parties, the father’s previous partner and most likely at least one each of the maternal and paternal grandparents);
(b)four (4) treating expert witnesses (including each party’s respective treating psychologists and psychiatrists);
(c)another two potential experts called by either the father (Dr G) and/or the mother (Dr H) – for whose evidence leave has either not been sought and/or granted to adduce; and
(d)the single expert witness Ms F.

I.During the review hearing and upon invitation from the Court, the father submitted the matter was suitable for transfer to Division 1 and the mother was unsure.
J.There may be some merit in considering the appointment of an Independent Children’s Lawyer because of X’s complex diagnoses, the high conflict between the parties and the significant changes that will have occurred since X was observed (but not interviewed) by the single expert in October 2022 including his transition to primary school in 2024, his experience of unsupervised time with his father and his overseas travel requiring him to adjust to significant changes in his day-to-day routine.
K.In the event that a party fails to comply with the orders made regarding the costs hearing and/or fails to appear at such hearing, THEN consideration will be given to the hearing proceeding on an undefended basis.

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 KEARNEY:
INTRODUCTION

A five-year-old boy with complex diagnoses is caught in a toxic battle between his parents. The latest round of litigation involves the mother wanting to review orders made by a senior judicial registrar (‘the delegate’) including orders that expanded the previous regime of time the boy was spending with his father to unsupervised time. The father opposes the review application but also seeks the discharge of an earlier order about the boy being able to travel overseas. What should I do?
Out of respect for each person’s gender and social status, other than parties and the child, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
The proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) (‘the Act’). Where there are other legislative references in this decision, unless I specify otherwise, they are a reference to the Act.

The father and applicant to the substantive proceedings is MR DHAVALE (‘the father’). The mother and respondent in the substantive proceedings is MS ADWANI (‘the mother’).
The subject child is X born in 2018 (‘X’).
In the mother’s application for review filed 19 June 2023 the mother sought to discharge various orders made by the delegate on 15 June 2023 (‘the June 2023 orders’) as well as some orders made by consent on 12 December 2022 (‘the December 2022 orders’) which can be fairly grouped into the following broad categories:
(a)Unsupervised time between X and the father;
(b)The time X spends with the mother on special occasions;
(c)The arrangements for changeovers of X between the parties;
(d)The appointment of a parenting co-ordinator;
(e)The manner of communication between the parties;
(f)How the parties are to be kept informed about issues pertaining to X’s care, welfare and development that involves third parties.
Pausing there, to say the breadth and scope of the mother’s review application was extraordinary would be an understatement, as indeed was the father’s - who in part sought to supplant his version of ancillary orders with those within the June 2023 orders seemingly because of form rather than substance.
Turning then to the father’s Outline of Case document filed 15 August 2023, he also sought to vary the June 2023 orders which can be fairly grouped into the following broad categories:
(a)Unsupervised time should occur over consecutive nights;
(b)The specified “extra” time X spends with the mother at Easter should only occur if Easter does not fall on school holidays;
(c)School holiday time;
(d)The arrangements for changeovers of X between the parties;
(e)The appointment of a parenting co-ordinator;
(f)The provision of the Orders to X’s educational service providers;
(g)Discharge of order 22 made as part of the December 2022 consent orders and in lieu thereof the making of other overseas travel orders.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
62….A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
As a result of reading all the voluminous documents relied upon by the parties and carefully considering the oral submissions of senior counsel for the parties the following issues require my determination:
·Does the father pose an unacceptable risk of harm to X from an accumulation of factors being –
o The father’s past threats to kill X or the mother which would cause X to potentially be exposed to abuse[1] (physical and/or serious psychological harm through subjection or exposure to family violence) or exposure to family violence causing X to be fearful or being coerced or controlled[2] (assault and/or from overhearing threats of death to the mother or himself);
[1] Section 4 definition of abuse
[2] Section 4AB
o The father’s emotional dysregulation potentially exposing X to serious psychological and/or emotional harm[3];
[3] Section 4 definition of abuse and see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 (“M v M”) at 77
·Will there be an adverse impact on the mother’s parental capacity to the detriment of X?
·What will be the impact upon X from a change of circumstances either as promoted by the mother and/or by the father;
·In the event that no finding of unacceptable risk is made, what is the father’s capacity to provide for X’s needs?
·Are there any practical issues arising from either party’s proposed relief?
·Is there a prospect of either party defaulting on orders made by the Court so as to (for example) cause the Court to make orders that will least likely lead to future litigation?
·Should the mother be allocated sole parental responsibility?
·Should a parenting co-ordinator be appointed?
·Should X’s time with the father as per the June 2023 orders be altered as to either the quantum and/or the restraints imposed to support it?
·What arrangements should be made for changeovers?
·What orders and notations should be made to support the arrangements for X?
·What overseas travel orders should be made?
When distilling a dispute down to what is actually important to X (and not their self-gratification or self-justification) I have to follow the statutory pathway (Goode & Goode [2006] FamCA 1346 and MRR v GRR [2010] HCA 4) and relevant case law.
Because these are interlocutory proceedings with inherent time constraints meaning that evidence cannot be tested, apart from relying upon either uncontroversial or agreed facts, I have little alternative other than to weigh the probabilities of competing claims and the likely impact on X in the event that a controversial assertion is acted upon or rejected. In cases such as the one before me, it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue: Keats & Keats [2016] FamCAFC 156 and SS & AH [2010] FamCAFC 13 (‘SS & AH’) at [100].
However, even in such constrained circumstances (where evidence is untested), the Court is still required to determine the applications before it. To that end I find business records prepared by non-partisan third parties tend to give a far clearer picture than the evidence of parties caught up in the conflict. This case is no different and is perhaps amplified by X’s complex diagnoses.
That said, in making what findings I can, I have approached my fact-finding with considerable circumspection: Eaby & Speelman (2015) FLC 93-654, at 80,331 (‘Eaby & Speelman’).I have reflected on the approach to be taken by a Court in relation to interlocutory orders where the contested facts relate to an assessment of risk was described in Deiter & Deiter [2011] FamCAFC 82 (‘Deiter’) as follows:
61.Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
So, with all of the above in mind, I turn to the issues I considered important to making parenting orders in X’s best interests.
It was uncontroversial that X enjoys a strong (meaningful?) relationship with both his parents: s 60CC(2)(a). The question really boiled down to whether that relationship should be promoted through a change to the prior regime of informal supervised time so that it either becomes professionally supervised or not supervised at all?
ISSUES
Does the father pose an unacceptable risk of harm to X?
Family Violence
It was uncontroversial that the father is the defendant to NSW apprehended domestic violence order issued by the Local Court in early 2023 for 12 months (‘the 2023 ADVO’). The mother and X are the persons in need of protection. The terms of the 2023 ADVO protect the mother and X from –
(a)Being assaulted, threatened, stalked, harassed and/or intimidated;
(b)Having their property recklessly destroyed or damaged and/or any pet animal harmed;
(c)Being approached or contacted by the father unless via a lawyer, for accredited or court-approved processes, because of court orders regarding contact with X or as agreed in writing between the mother and the father about X’s time with the father;
(d)the presence of the father within 50 metres of their home and the mother’s workplace unless in accordance with a parenting order made pursuant to the Act.
On that same day, two charges were withdrawn and dismissed, and the father pleaded guilty to the following charges:
(a)Sequence 1 – Domestic violence offence -– T2;
(b)Sequence 2 – Domestic violence offence - – T2.
From my perspective, the fact sheet relied upon for sentencing demonstrated that:-
(a)The alleged events occurred some three years earlier with sequence 1 occurring in early 2020 and sequence 2 in mid-2020;
(b)The sequence 1 offence related to the father threatening to kill X after picking him up from his cot in the early hours of the morning after the parties were woken by X’s crying. Before rising to attend to X, the father threatened to throw the child off the balcony and/or smother him with a pillow;
(c)The sequence 2 offence related to what the father said to the mother about two weeks after X was diagnosed with Autism Spectrum Disorder (‘ASD’). At that time the father told the mother words to the effect of “I’ve been thinking, it would be better if I just ended my life, and took you both with me.”;
I have considered and reflected upon the mother’s submissions about the other sequences that ultimately were not heard by the Local Court, as well as the mother’s experiences of family violence not the subject of the family violence proceedings but otherwise outlined in her affidavit material.
In tandem with the 2023 ADVO, the result of the father’s guilty pleas was him being discharged into the care of clinical psychologist Mr D on condition that a treatment plan be implemented for 12 months (early 2024) which required the father to:
(a)Remain under the care of his treating doctor, Dr J and take up any specialist referrals made by Dr J;
(b)Continue counselling with Mr D at intervals determined by Mr D noting there was a therapeutic treatment plan contained with Mr D’s report dated August 2022 (‘the course of therapy’);
(c)Consult again with Dr J if his mood does not improve after completing the course of therapy to obtain advice as to the “next steps” in the treatment of the father’s depression (possibly by way of prescribed anti-depressant medication and/or psychiatric referral).
There was no evidence upon which I could make a finding that the 2023 ADVO had been breached.
To the extent that I can, given the limitations imposed by way of untested evidence, it appears to me that the 2023 ADVO is protecting the mother and X because given the intensity of the conflict between the parties (most recently reflected in the bringing of this review application and the stay application that followed); I apprehend the mother would have no hesitation in acting protectively by making a complaint to the Police if she considered that the father had done anything other than to comply with the 2023 ADVO.
Insofar as the more historical convictions, orders and circumstances, these events occurred in 2007. Ultimately in 2008 the father pleaded guilty to offences. In 2009 the father was sentenced to a section 9 bond: s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The untested evidence both from the father and/or a reporting of his accounts by Ms F (‘the single expert’) and at least Mr D suggest that he is remorseful and continues to harbour feelings of guilt about his actions. The mother may well wish to test the veracity of his feelings and rehabilitation (so to speak) at trial.
As may be relevant to the definition (s 4AB), the father’s convictions and the 2023 ADVO, satisfy me that the father has perpetrated family violence.
Significant psychological harm or emotional harm
Mr D attested to an affidavit which included answers to questions posed to Mr D by the father’s lawyers dated 26 May 2023. In summary the evidence was that:
(a)The father has been a client of Mr D dating back to 2008 when he is referred for treatment of anxiety, depression and “relationship issues”;
(b)The extent of consultations and the father’s clinical history over the resulting 15 years is not entirely clear but from what is before me it seems that:
(i)At their initial engagement (2008-2009), the father saw Mr D on a regular basis over the next 12 months and I infer that the father gained benefits from the therapy he received during this time, (apparently during which he pleaded guilty in the historical matters mentioned above);
(ii)In late 2019 the father was the subject of a mental health care plan (‘MHCP’) which resulted in the father seeing two psychologists for six (6) sessions in total, between late 2019 and late 2020.
(iii)In late 2020 the father was the subject of another MHCP this time for treatment of extremely severe symptoms of depression and stress and moderate symptoms of anxiety. Despite whatever the terms of the MHCP might have been, the father did not resume psychological treatment until (it seems) he conferred with Mr D almost a year later (late 2021) which has resulted in multiple sessions, the last appointment scheduled for 2 June 2023;
(iv)Following the re-engagement, Mr D recounts the father’s reported experience of the earlier time (around X’s diagnosis in mid-2020) - the difficulties in caring for X who was described as having high support needs and of him (the father) suffering from various complaints including severe sleep deprivation. The father is described as accepting full responsibility for his behaviour and as motivated and involved in psychological treatment since returning to consult with Mr D;
(v)Mr D described the father’s progress during these sessions as consistent and well maintained;
(vi)Mr D described the father’s current presentation as largely symptom free and he remains with intermittent symptoms of anxiety and depressed mood, which are well controlled for, the result of increased acceptance of his changed life circumstances, response to therapy, self reflection and commitment to implementing techniques and strategies learned in therapy, and undertaking daily mediation.
On average every three (3) months, treating consultant psychiatrist Dr C has consulted with the father since 2000. Dr C provided an affidavit in these proceedings. In summary the report attached to Dr C’s report includes:-
(a)Dr C diagnosing the father with attention deficit hyperactivity disorder (‘ADHD’) at some point during their clinical relationship;
(b)A description of the various symptoms of ADHD and the father’s compliance with a 12-month treatment plan, which in the opinion of Dr C has led to the father gaining “a measure of control” over his confusion, to understand the challenges and to build resilience;
(c)Re-confirmation of the ADHD diagnosis in recent times and that the father now has an awareness of his condition and understanding of the causes and an ability through life skills to manage and minimise the effects of ADHD on his life;
(d)Dr C’s confidence in the father following his recommendation for the father to continue to engage with Dr C every three (3) months for the next 12 months because I have an additional responsibility to the court, to [Ms Dhavale] and to [X].
Based on their observations, diagnoses and expertise – to the limited extent that Mr D and Dr C can – they both opine that the father’s parental capacity is not limited by his diagnosis, current symptoms and prognosis. To be clear, there is only limited weight I can give to that aspect of their reports for the obvious reasons.
In addition, a report was exhibited from psychiatrist Dr G dated 30 August 2022 which opines the father has a diagnosis of depressive illness. Dr G says that the father’s condition is readily amenable to treatment in the form of evidence-based counselling and if necessary treatment with antidepressant medication. A treatment plan is then specified and by all accounts, it would seem that the father’s ongoing engagement with Mr D and Dr C ticks all the boxes. Whilst I understand the mother’s submission about medication, the reality is that Dr G did not include medication in the treatment plan and qualified the father prescribing of such as being only if necessary.
The father is not in an intimate relationship and says he lives with his parents. X has progressed developmentally in the years since the events that resulted in the father’s convictions. He has been diagnosed with ASD and other medical conditions.
Is there an unacceptable risk?
There is a contest about whether the father’s historical offending and more recent acts of family violence and/or mental health past symptoms/current diagnosis/current prognosis will mean that X is at unacceptable risk in the unsupervised care of the father as a result of either being exposed to or being a victim of abuse (serious psychological and/or emotional harm) or family violence.
Through that prism, I have to approach fact-finding with considerable circumspection: Eaby & Speelman. When assessing the alleged risk posed, I have to firstly predict the likelihood of the occurrence of the harmful event/s and secondly the severity of the impact caused by those events: Deiter at [61].
The mother presses for me to make a finding of unacceptable risk because the evidence demonstrates a material possibility of risk, which need not be demonstrated according to the civil standard of proof: see Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46]-[51] and [81] and Eastley & Eastley [2022] FedCFamC1F 212 (‘Eastley’) at [45].
I have weighed up the competing evidence that supports each party’s contentions. On one hand:-
(a)I have the father’s treating psychologist and psychiatrist informing me that the father is aware of his diagnoses/symptoms and is adhering to their respective treatment plans in such a manner that would suggest he is compliant and able to regulate his behaviours;
(b)I have the single expert’s report which included interviews and observations of the relevant persons by themselves and with X and who supports unsupervised time because of the lack of risk posed by their proposed regime[4] and specifically identifies the changes in the family’s circumstances since the family violence events occurred[5];
(c)I have about three (3) years of immediate history during which I cannot make any findings either that the father has engaged in behaviours that would constitute family violence or abuse; and
(d)I have the 2023 ADVO, for which there is no evidence upon which I could make a finding of breach, and which does not expire until March next year.
[4] Exhibit ‘A’ and for example paragraph [164] & [166]
[5] Exhibit ‘A’ at for example paragraph [154]-[155]
On the other hand, the mother made a number of submissions about unacceptable risk, and I have reflected on all of them including the father’s antecedents (ranging from his convictions in 2009 and 2023 and the 2023 ADVO). There were various allegations made by the mother in her material, but it is untested and whilst I have taken that evidence into account, there are limitations on what I can do with it – as there are with the father’s (for the same reasons).
Overlaying all of these observations is the untested nature of the evidence but ringing true is the non-partisan single expert’s evidence. I heard nothing which would dissuade me from placing more weight on that evidence as opposed to the competing allegations of the parties.
So having gone through the evidence and noting the various decisions referred to earlier; and having weighed up the competing claims and the risks from an adverse outcome including X’s complex diagnoses - at this interlocutory stage I am unable to find that the father poses an unacceptable risk of harm to X.
Will there be an adverse impact on the mother’s parental capacity to the detriment of X?

In the alternative to a finding of ‘unacceptable risk’, I was invited to consider whether the mother’s genuine subjective fear of the risk of harm posed by the father was so pervasive that if the father was to spend any unsupervised time with X, the mother would be unable to cope - causing compromise to X’s welfare: see Sedgley and Sedgley [1995] FamCA 154 (‘Sedgley’) and Re Andrew [1996] FamCA 43 (‘Re Andrew’).
Helpfully for me, in Keane & Keane [2020] FamCA 99 (‘Keane’) at [82] – [93] McEvoy J considered this issue which I have relevantly summarised below –
(a)In Re Andrew the Full Court observed that the welfare of the child remains the paramount consideration and in considering such welfare, the Court must take into account, any anxiety held by the primary carer concerning the child’s potential harm where such anxiety is likely to adversely impact that person’s care-giving ability. In taking account of the beliefs of the primary carer and the effects of such beliefs on that person and the consequent harm to the child, a subjective test is required.
(b)However, it must be established that the belief is genuinely held and where the entirety of the evidence demonstrates that the belief is entirely irrational and baseless, the genuineness of the subjective believe will be open to doubt: Russell & Close [1993] FamCA 62 (‘Russell & Close’).
(c)It is not necessary that the belief should be reasonably and objectively based, but rather whether it is genuinely held: Russell & Close.
(d)Despite no apparent expert evidence in support of the primary carer’s apprehension, the Full Court in Dunst & Dunst [2016] FamCAFC 15 at [119] did not criticise the trial judge for concluding that whilst the available evidence fell short of proving the primary carer’s capacity would deteriorate and impinge the children’s best interest (there having been a diagnosis of post-traumatic stress disorder (‘PTSD’) and expert evidence of the genuineness of the apprehension but not about such apprehension impinging capacity); the trial judge nonetheless found that the primary carer’s fear was genuine and objectively reasonable and remained a feature of the evidence favouring curtailment of the children’s interaction with the other party.
Following a consideration of the case law - in Keane, McEvoy J concluded that –
93.It will be necessary to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra[6], the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
(my emphasis)
[6] Marra & Marra (unreported Full Court decision 8 September 1993, Fogarty, Baker and Butler JJ) (‘Marra’)
The mother says that she was formally diagnosed with ADHD in 2022. In her first affidavit she sets out her symptoms and the medication she is prescribed (including for ADHD). In addition, the mother says she has symptoms of PTSD and sets out a detailed history of her experience of symptoms leading up to and then following the delegate’s decision to permit unsupervised time. The mother says that following cessation of her ADHD medication, her day-to-day functioning has diminished in the domains of decision-making, processing and functioning (whatever that means). There was limited (if any) information from any of her treators to support her contentions.
On 24 June 2022, the mother was referred to her (now) treating forensic psychologist, Ms E. As at May 2023, the mother had participated in 18 psychological sessions with Ms E. Below is a summary of some of the information gleaned by me from the affidavit attested to by Ms E on 25 May 2023:
(a)Whilst not making a formal diagnosis of PTSD, Ms E opines that the mother has symptoms best described and consistent with an additional diagnosis of PTSD;
(b)Physical symptoms are triggered unexpectedly including times when the mother is enjoying herself;
(c)A comprehensive treatment plan has been implemented with fortnightly sessions reduced to monthly sessions as of October 2022 for several reasons including –
(i)The mother’s decision to change residence;
(ii)The mother’s increased parental stress in having to manage X’s adverse (regressive) behaviours arising from the change in his living and schooling arrangements;
(iii)The mother’s increased parental stress in having to manage X’s adverse (regressive) behaviours arising from a re-instatement of time between X and the father;
(iv)The mother’s sometimes overwhelming experience of stress associated with the court process itself;
(d)The mother’s trauma recovery therapy (and mental health recovery) being impeded by her ongoing parental communication with the father;
(e)The mother’s increase in certain symptoms was precipitated by having to liaise with, meet with, or communication with the father;
(f)The mother’s therapy has been adjusted to meet the mother’s immediate needs for emotional release, debrief, emotional containment, stress management, and overall coping support in lieu of trauma processing (which reflects Ms E’s remit which was ultimately the provision of 22 counselling sessions via the K Support Service);
(g)Once the 22 sessions have run their course, the mother intends to continue attending sessions by reverting to the original referral as contained within an MHCP;
(h)The mother’s parenting capacity is at a good enough parenting standard despite the functional impacts reported.
Just as I outlined earlier, there is only limited weight I can give to what Ms E says about the mother’s parenting capacity.
The single expert observes/opines that:
(a)the mother has received extensive counselling and psychiatric support;
(b)the mother has benefited from the changes in her circumstances instigated by her decision to leave the relationship and implement various strategies since;
(c)X should commence having unsupervised overnight time with the father with ancillary recommendations to support the parties’ co-parenting but also maintain (to a limited degree) the mother’s primary role in making professional appointments for X;
(d)Each party should continue their engagement in therapy.
Is the mother’s fear genuinely held and if so, would the mother’s caregiving capacity be adversely impacted so as to compromise X’s welfare?
As I recall, the submission from the mother was to the effect that in acting with circumspection I should comfortably be able to find that subjectively the mother has a genuine fear about the father having either informally supervised time (by family members) or unsupervised time. I have reflected on SS & AH insofar as it is not always feasible when dealing with the immediate welfare of children to simply ignore an assertion because its accuracy has been put in issue.
The mother’s evidence is untested. The father disputes the veracity of the mother’s beliefs relying (for example) on a statement made in the context of NDIS matters, the communications between the parties via the OFW app and the alleged hyperbole contained within the mother’s material as opposed to the observations of the risk posed by the father as assessed by the single expert. I am not satisfied that I can make the finding as sought by the mother given the constraints imposed by the conduct of this review hearing. That does not mean that I am ignoring it, or put another way, it may mean that I impose certain conditions on the parenting orders I make to reflect the mother’s untested assertions.
However, even if I were to make that finding, there is no evidence upon which I could safely find that the mother’s caregiving capacity would be discernibly impaired: Marra and Re Andrew at 83,201. This is because, save for the untested evidence of the mother - there was nothing within the expert material to suggest that the mother is unable to manage her symptoms and continue to appropriately parent X; particularly given the manner in which she has willingly engaged with treators whenever she has felt the need to do so.
It seems that the mother has accessed not only her general physician Dr L when required; but also, psychiatric assistance on a regular basis. Indeed, the last report from consultant psychiatrist Dr M back to Dr L on 6 March 2023 says that despite her symptoms, the mother is functioning well, maintaining her performance at work and caring for X. Dr L’s consultation notes suggest that whilst the mother’s heart rate is elevated at times when the mother thinks about unsupervised time, there are no recommendations or observations that would suggest her parenting capacity has been discernibly impaired and/or that there is a risk of consequent compromise to X’s welfare. Instead, Dr L refers the mother for various tests, identifies no neurological symptoms or deficits, gives her various strategies to manage some of the physical ailments and ultimately refers the mother to see a cardiologist. Various triggers are identified including the risk of unsupervised time, the ongoing court proceedings, and the dropping of various criminal charges against the father.
From Dr E’s evidence, I understand that the nature of the therapy has morphed to manage the more immediate impacts from a range of factors affecting the mother including but not limited to these proceedings, the ongoing parental communication and contact between the parties, the self-imposed changes in her living circumstances and their impacts upon X and X’s reactions to seeing his father after a period of no contact.
So, to be clear, the evidence suggests that there are not only a range of factors causing the mother’s symptoms (some of which I cannot possibly cure by way of an interlocutory order) but also a lack of evidence to enable a finding that the effect is having a discernible impact on the mother’s parental capacity and/or that there is a risk of consequent harm to X.
Whilst I recognise that the mother will be upset by my finding, there was nothing to suggest that she would not otherwise be able to continue to successfully parent X. She has demonstrated that she is insightful of her deficits and is willing to engage with treators to manage any difficulties she experiences. That insight and those supports remain with her now, along with the support of her family (whether they are staying in Australia or live abroad).
What will be the impact upon X from a change of circumstances either as promoted by the mother and/or by the father?
It seemed uncontroversial that X can experience a range of adverse behaviours when exposed to change.
Although their evidence is untested, given their role in these proceedings, I have placed weight on the single expert’s evidence, a summary of which included:
(a)that any difficulties experienced by X with transition and adjusting to change are common challenges for ASD children;
(b)X will benefit from receiving predictable parenting arrangements effected with as few transitions as possible in which the parties are as relaxed, supported and as well-organised as possible;
(c)X’s reported meltdowns and behavioural and emotional dysregulation cannot be attributed to just one factor but rather are likely to be multi-faceted as a result of various issues including his diagnosis, exposure to family stressors and changes in the time he has not spent with the father;
(d)X has a secure attachment to both his parents;
(e)X will benefit from spending longer periods with the father because there will be the capacity for the child to experience downtime rather than their time being characterised by constantly activated and busy;
(f)If the regime of time remains supervised and/or limited in the way that the child had been experiencing to-date (supervised daytime only), then the development of X’s relationships (I infer including with the father) would be limited and that there would be a promotion in feelings of loss in his experience of the father not playing a significant role as a caregiver.
I am satisfied that X is likely to experience emotional dysregulation from either party’s proposal because they both seek to change his recent lived experience. However, based on the single expert’s opinion, there appears to be more adverse impacts for X should he continue to experience only limited supervised time with the father as is sought by the mother. Having said that, the father proposes huge changes to the duration of the time spent and this too, poses risks not only to X but also to how the mother responds to her son being in extended care with someone she does not trust. It may be that I have to strike a balance between trying to enhance the time spent by X with his dad and the real and potential difficulties for X and/or the mother from frequent transitions and regular contact with the parents at changeovers.
In the event that no finding of unacceptable risk is made, what is the father’s capacity to provide for X’s needs?
The single expert comprehensively assessed the father’s capacity – not only from their observations of father and son, but also from the father’s interview and the subpoenaed material. A lot of this has already been canvassed by me previously and although I recognise the evidence is untested, I am unable to make any adverse finding as sought by the mother and instead, prefer the evidence of the single expert as the father having sufficient parental capacity to provide for the needs of X.
Are there any practical issues arising from either party’s proposed relief?
The mother proposes professional supervision, paid for by the father. There is no evidence as to the costs associated, the availability of the specified supervision service and/or the father’s capacity to pay.
The mother deposed to difficulties in utilising the existing parenting co-ordinator Ms N, including the costs of having Ms N attend changeovers, however her relief proposes changeovers that include Ms N being available at the end of time on weekdays.
The mother’s alternate position was for the paternal grandparents to continue supervision. As a result of the agreed change to the June 2023 orders, the paternal grandparents have been undertaking this role in a more extensive way than previously ordered. There was no evidence that they could not continue to offer their services.
The father’s evidence is that whilst ever his parents supervise his time, he is living at some distance from X’s early learning childhood centre (‘ELC’) and other service providers. The father gives no evidence about his ability (or otherwise) to continue paying for supervision. The father says nothing about difficulties with Ms N, yet his relief seeks the appointment of an alternate parenting co-ordinator without any apparent basis.
There was no evidence from the current supervisors of X’s time with the father.
To say that there are inconsistencies and/or deficiencies in each party’s evidence in support of any real or imaginary practical issues that might arise from either party’s proposal would be an understatement. In those circumstances, making findings is challenging.
What about family violence?
I have already discussed at length the effect and circumstances related to the 2023 ADVO. There are untested facts and allegations that remain in dispute. I have made a finding.
Although I accept the relatively uneventful passage of time[7] (through a criminal law lens) between the events of 2007 and 2020 and since 2020 to now, nonetheless in the circumstances of this family, the prospect of the parties ever being able to properly, respectfully and co‑operatively co-parent appears dim.
Is there a prospect of either party defaulting on orders made by the Court so as to (for example) cause the Court to make orders that will least likely lead to future litigation?
[7] From a reading of the father’s criminal history
The mother has a clear pattern of not complying with orders, but she has taken steps to mitigate against her behaviour by making application to stay orders and/or review them. I understand that there is an extant contravention application.
On the back of observations made by Ms E about triggering adverse behaviours, until there can be a full testing of the evidence at trial, it may be appropriate to consider ways to limit the parties’ contact with each other so as to minimise the risk of either party continuing to engage in litigation to try and alter decisions of the Court.
There is a current order permitting the mother to travel overseas to the United Kingdom and Europe for an extended period (up to 28 days). On its face, I would have thought there would have been some evidence from one or other of the parties about the impacts on X from such massive changes to his circumstances because not only will his current surroundings and routines change from day-to-day; but he will not be able to spend time with the father.
The lack of such evidence reflects that X’s needs may have been lost in the internecine parental conflict. The best I have about the problems with overseas travel is the father saying that he is concerned that the mother’s recent pattern of non-compliance and her initial interlocutory relief for X to spend no time with the father would suggest that the mother is a flight-risk which would also result in a significant disruption of the father’s relationship with X.
The mother says she wants to “up the ante” (my words) by not only seeking to confirm the existing overseas travel order which permits her to travel but to otherwise stop either of them (I infer “the father”) from removing X from Australia. There is zero evidence for this relief.
Both parties are employed and have lived in Australia for many years. Although the mother has engaged in a pattern of non-compliance with the June 2023 orders, her relief has changed; and it would seem she does support X having a relationship with the father (at least as observed by the single expert in both her interview and X’s unimpaired engagement with the father during their observation session suggesting that the mother does not speak badly of the father in X’s presence).
That is the extent of the findings I can make given the paucity of evidence.
How do I promote an ongoing meaningful relationship between X and the father?
Returning then to the other primary consideration. The single expert had no doubt that X will benefit from meaningful relationships with both parents and there was no evidence that the mother’s relationship with her son is at risk.
However, the same cannot be said for X’s relationship with his dad. I have already outlined some of the evidence from the single expert. The entire report including this evidence resonated with me in circumstances where either by way of formal order (up until the June 2023 orders were made) or informally (since the parties agreed to continue-on with time supervised by the paternal grandparents until my judgment), X has only ever spent time with the father in the presence of others (be they professionally engaged or family members).
I am not satisfied that to leave such an arrangement in place until a trial sometime next year is going to promote an ongoing meaningful relationship between father and son for reasons particularly articulated by the single expert: see Deiter at [49]-[50]. In that regard, I have also had regard to the Full Court decision in Napier & Hepburn [2006] FamCA 1316 which emphasised that it is not for the Court to find a solution which eradicates the chance of serious harm but, the Court must balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy parent-child relationship not being permitted to flourish.
Should the mother be allocated sole parental responsibility?

I am being asked to make parenting orders, which necessarily triggers consideration of the presumption of equal shared parental responsibility: s 61DA(1).
Relevantly to the circumstances of this case, there are circumstances which can rebut that presumption including findings on reasonable grounds of abuse and family violence, or in interlocutory proceedings that it would not be appropriate: s 61DA (2) & (3).
The father does not seek the allocation of parental responsibility, the mother says it should be afforded to her solely.
I am satisfied that the presumption is rebutted because I have found that the father has perpetrated family violence and otherwise because it would not be appropriate to order it. That leaves open my discretion about whether to make orders about parental responsibility, which hinges on what is in X’s best interests.
I intend to exercise my discretion because something needs to be done about X’s impending enrolment in school in 2024 and the management of X’s array of ongoing professional appointments. To do nothing requires further communication between the parties which is not in X’s best interests because they are so highly conflicted that any decisions that may be made are at risk of being caused by one or other of them feeling pressured or coerced into ‘giving up’ or worse, more delay because yet another interlocutory application requires determination.
The mother is X’s NDIS co-ordinator of supports. The single expert supported the mother continuing in the role of managing his appointments. There is no dispute that X will live with the mother on an interlocutory basis and so her practical management of his routine to coincide with his appointments makes sense, as does the selection of his school. This last point is particularly relevant given that it is safe for me to infer that if unsupervised time is ordered, the father will (at some point) move from his parents’ home to secure a residence geographically closer to X’s educational, medical and allied health service providers.
For the above reasons, the mother shall be afforded sole parental responsibility for decisions related to X’s education and medical and allied health treatment.
Despite the mother’s contentions, there is no evidence that persuades me to exercise my discretion more broadly because in the context of an interlocutory hearing where the evidence is untested, I am unable to find that it would be appropriate or in X’s best interests to do so.
Should a parenting co-ordinator be appointed?
At this juncture it is appropriate to reflect on the parties’ ‘apparent’ dispute about Ms N being appointed as a parenting co-ordinator under the December 2022 orders which was made by consent – quite remarkable given that less than a year on, neither party wants to keep her on!
I understand that the role of a parenting co-ordinator has many facets all focused on helping reduce ongoing parental conflict. The role takes on many facets, including to facilitate parties’ negotiations and otherwise improve parental capacity to navigate the meaning and effect of Orders of the Court.
It seems that in a lot of cases, such an appointment is made through the prism of equal shared parental responsibility and s 13C.
Here, both parties want to discharge the current order for Ms N but the evidence about who should replace her is near on non-existent. No one bothered to provide any evidence as to the qualifications or costs and/or the pros and cons of appointing variously Ms O, Ms P, Ms Q or Ms R.
The mother gave evidence of her difficulties with how Ms N engaged in her role, how it made the mother feel and the mother’s inability to afford the fees. As well as being unable to agree on who should replace her, the mother sought the father should pay all the costs (but with no evidence of what that looks like) and the father said those costs should be shared (again without any evidence of what that looks like). How on earth do I exercise my discretion to appoint a parenting co-ordinator on the basis of this evidence?
The short answer is that I can’t, and I won’t.
The tragedy for me and other families who are waiting for me to make decisions about their cases, is that I have wasted time on dealing with a dispute that it seems neither party took very seriously at all.
Nonetheless, I need to explain why I am going to discharge Ms N (as part of a general discharge of all existing interlocutory parenting orders) and not replace her. This is because there will be little left in my orders for the parties to negotiate or communicate about, premised on:
(a)the mother holding sole parental responsibility on two discrete areas;
(b)the making of detailed and clear (to use the words of the single expert) orders affording the parties zero room to negotiate and limited opportunity for communication;
(c)providing a clear pathway for third party service providers to navigate requests made by either party about X; and
(d)a deliberate decision not to include in any way a provision to the effect of “unless the parties agree”.
On this last point, the parties’ capacity to negotiate is at an all-time low and I have Ms E’s observation that triggers for the mother’s adverse behaviours included exposure to the father and these proceedings (which I interpret as including an Order which leaves open the chance for ongoing negotiations). I am conscious of the exceptions contained within the 2023 ADVO and recognise that on this basis, if lawyers are involved the parties may engage in negotiations. If that does occur this will be completely at arms’ length from the parties and will likely require either a consent order being framed and/or a strict undertaking filed. Such circumstances allow me to infer that the mother will not feel the same immediate pressure that she says she felt when there was an easier path by which the parties could negotiate changes (either because of the language of past orders and/or the input of Ms N). Although that evidence is untested, I am satisfied that I can act protectively upon the assertion whilst still ensuring an outcome that is in X’s best interests.
Should X’s time with the father as per the June 2023 Orders be altered as to either the quantum and/or the restraints imposed to support it?
I intend to permit unsupervised time between X and the father. Below is my reasoning for doing so.
The single expert interviewed the father and observed the father engaging with X. No particular concerns were raised save for the risk of the relationship deteriorating if the current regime of time did not change which might look unsupervised (and more natural) time between father and son over extended periods allowing for downtime and a reduction in transitions.
Having been informed not only by their engagement with the family, but also a thorough reading of the subpoenaed material, and whilst acknowledging the mother’s concerns, the single expert was satisfied that the father did not pose a risk to X. That independent evidence formed at least part of my reasoning for being unable to make a risk finding as sought by the mother. I acknowledge this evidence is untested, but it is independent expert evidence from someone who has met the parties and observed X.
As I said earlier, in the absence of a testing of the evidence the best I can do is assess what I have, predict the likelihood of the occurrence of the harmful event/s and the severity of the impact caused by those events: Deiter at [61].
The father remains compliant with his treators and to reinforce compliance, some of the undisputed orders either from December 2022 and/or June 2023 will form part of the consolidated parenting orders I intend to make. This is but one part of a pattern of orders that I consider will sufficiently manage or ameliorate the mother’s acknowledged adverse reaction to unsupervised time: see Blinko & Blinko [2015] FamCAFC 146 at [83] (‘Blinko’) referring to Russell & Close.
The father wants more time, including holiday time, the mother wants the past regime of limited time to stay with supervision (either professional or informal).
As I understand the evidence, despite the agreed change to the June 2023 Orders, X has been experiencing overnight time with the father in the paternal grandparents’ home. I am very concerned about unnecessarily changing X’s lived experience too much too soon given his reported difficulties with transitioning through change. In my view and relying to an extent on both the single expert’s report and Ms E’s observations about triggers for the mother, a short transition away from the multi-event format X has experienced is required to allow everyone to adjust to a new regime of unsupervised longer and less frequent time (meaning less changeovers and risk of the parties coming into contact and potential conflict). These concerns inform another part of the framework I intend to order to ameliorate the risk of adverse outcomes for X from too much change too fast: see Blinko.
Noting the previously cited single expert’s opinion, the new regime I intend to impose should also reduce the risk of emotional dysregulation from X which should ease any concerns the mother may have about the father’s capacity to cope. Finally, under the current regime, X does not experience a full weekend in both households, and this necessarily means that the mother’s ability to spend relaxed time with her son is also limited because she cannot necessarily take him to events held on weekends and/or simply spend quiet time at home without the usual busy routines of the working week, something which will only be exacerbated once X starts school next year.
In my view, the proposals from both parties give me concerns about X’s reaction to changes (as sought by each of them) to his current lived experience. I also note that the single expert recommended additional days up to five nights by approximately the end of 2023.
Having reflected on the untested evidence and in particular that of the single expert, I am going to allow X the chance to better realise the potential inherent in his current relationship with the father by permitting unsupervised time initially both during the day, and then transitioning to overnight and extending to multiple nights in two months’ time, but not to the extent sought by the father or recommended by the single expert. The regime will initially allow X unsupervised time in a similar pattern to what he currently experiences, but then morph into overnights during the fortnight so that the father is able to offer X a broader range of experiences (including taking him to and from school and engaging in his educational journey) whilst not putting too much pressure on X from significant changes or the absence of any downtime. Because the time runs through holidays, the end of the overnight time periods will be extended to 3.00pm when X is not at school.
To be clear, ‘school’ is a reference to both his current early learning childhood education regime and his prospective primary education regime.
Given some of the new evidence before the Court since the making of the June 2023 Orders it is appropriate to alter the regime imposed therein.
The orders I will make will see X’s relationship with the father develop more naturally without having to rely on others to be present but will also accommodate X’s need for consistency and downtime. It is informed and (in my view) largely supported by the recommendations of the single expert.
I have timed the implementation to fit in with what X is currently experiencing (albeit in a supervised setting) so that the first unsupervised visit is during the day allowing everyone a chance to reflect on my Orders through the prism of the time being of a limited duration.
To support this transition, I will also injunct the father from changing X’s residence until March 2024 because since separation, the only consistent home that he has seen his dad in has been the paternal grandparents’. I appreciate that there may be criticism as to lack of procedural fairness about this specific injunction, but in the context of the mother’s alternate relief for the paternal grandparents to supervise X’s time with the father, I am satisfied that the making of this injunction is within the broad ambit of my discretion.
In my view, in 2024, X will have enough on his plate contending with his transition into a new educational setting and the new routines that this will impose on him, without having to adapt to a new home environment with his father. Whilst that may mean some geographical ‘pain’ (so to speak) for X and his father (depending on the drive-time to and from school and the grandparents’ house) it will only be for a couple of months at best.
What arrangements should be made for changeovers?
There was no evidence that a professional supervision service could facilitate changeovers in the absence of the parties. Inferentially, I discerned from the mother’s relief that she supported changeovers occurring in accordance with Order 10.1 made in December 2022. This is inconsistent with the mother’s relief about parenting co-ordination because Order 10.1 proposes the use of Ms N. The father wants changeovers to either occur at a place of education or Suburb B Station or Suburb S Station, or other location as agreed between the parties from time to time.
In light of the mother’s opposition to Ms N and the likely conflict and triggers to the mother arising from the parties trying to negotiate a location, I cannot safely make any findings that would support either of the parties’ proposals.
So instead, I am left with the decision made by the delegate for which no particularly persuasive criticism was meted out. Informed by my earlier observations, I am going to remove the ability for the parties to agree to an alternate. It is simply too risky to leave any window of opportunity for the either party to feel pressured, coerced and/or controlled by the will of the other.
What I will do though is include in the Order provision for the parties to use a nominee, although there may be limited options available to them given X’s sometimes impulsive behaviours. I will also note that there may be benefits in the parties having a support person attend with them at changeovers although this should not result in any more than two people from each party attending meaning that for example in attendance could be the mother/her nominee or the mother and her support person (and vice versa).
What orders and notations should be made to support the arrangements for X?
X is engaged with a multitude of treators, and he is about to head off to ‘big school’. Although the mother will be making all the decisions about his treatment and education, the father has a role to play in supporting X’s journey because if the father does not know how X is progressing with either his treatment or education, how can the father support X (and the management of his symptoms) when X spends time with him? This could look like simple things such as knowing about the home reader the school wants X to engage with, to specific practical strategies that X’s treators want him to practise in order to assist him manage his anxiety and the flow-on effects of this feeling.
As such, there is no reason why the father should not be able to have access to that information and the way I have framed the Orders means that the mother does not need to be involved at all.
Similarly, when it comes to ‘big’ events in X’s life and where there will be a crowd of other interested and excited parents and carers (meaning little risk in the way of direct engagement between the parties); there is no reason why the father should not also be seen by X as participating. It will reinforce to X that both his parents care deeply for him and want to be a part of his journey out of early learning childhood education and into primary school. In addition, the mother and X will be protected by the 2023 ADVO at least up until early 2024 and the watchful eye of the Court will also be upon the father at least up until a trial - when all the evidence can be tested.
The special occasion orders previously made have been adopted either in full or in effect provided that where there were differing times for conclusion, I have homogenised them to ‘6.30pm’ which is the time most often specified in the previous orders. This will avoid confusion, negotiation and/or unnecessary communication between the parties. In my view this will support what Ms E opined about the mother’s triggers and also reduce X’s exposure to parental conflict.
Given the advice of the single expert to make parenting arrangements as prescribed as possible, very specific orders have been included about parental communication via the OurFamilyWizard application except in emergencies.
Past orders about the administration of medication have been tweaked by me to ensure the parties are crystal clear about their obligations which will ensure that X’s needs are met in both households.
Past orders about ancillary matters to do with things like adding X’s name to the father’s Medicare card, the parties’ ongoing attendance and compliance with their treatment plans, the father’s completion of a course and the provision of either the Orders and/or the single expert report to various persons have been updated and made. Some of them may now be irrelevant, but in combination, all of these Orders support the parties’ role in X’s life and should assist the treators in their treatment of the parties and X.
I have also confirmed past notations that seemed uncontroversial and made notations to enhance the parties’ understanding of the effect of the Orders so as to reduce unnecessary communication and parental conflict between them.
To support the mother’s sole parental responsibility and communication generally, orders have been made for the parties to keep each other informed of their contact telephone number and for the father to inform the mother of any change to his residential address.
What overseas travel orders should be made?
The mother’s family live overseas. In late 2022 the parties agreed that in 2023, the mother could take X to the United Kingdom and Europe for 28 days on the basis that he started primary school in 2024 and that ‘make-up time’ would be provided. On its face the only criticism I have with the existing regime is the vagueness of the obligation imposed upon the mother for making up lost time which could lead to more litigation based on enforcement.
I have reflected on the evidence and the risk of recalcitrancy by the mother as submitted by the father. I have also reflected on the potential adverse effects on X from such a significant change to his current lived experience both with his mother and with his father.
Both parties’ applications seem premised on persecution of the other, particularly the mother in the context of her leading no evidence to support her relief (other than the unsupervised nature of extended time abroad). The result was me having to search through her evidence to find evidence to specifically support a watchlist order and a blanket restraint on travel. Yet again, my resources were wasted on a useless exercise that could have been better spent on other families and their crises.
Based on the findings available to me, I am satisfied that the mother and X should be able to travel overseas before the start of 2024. I appreciate it will interrupt the regime of time with the father, but I have amended the ‘make-up time’ order that the parties previously agreed to so that the lost time will be made up by the end of the first quarter of 2024.
Otherwise, given the triggers identified by Ms E, it may be that a break away will do the mother some good, although I am a little sceptical about that in the sense that one of the triggers was the mother’s change of residence and the effects this had on X. However overall, I am satisfied that more good than harm will come to X from travelling overseas with his mum than not, particularly because there will be make-up time between him and his dad. I have adopted the order made within the December 2022 orders which I note does not expressly allow communication between father and son whilst X is away but appears to anticipate this occurring.

In the absence of giving the parties’ procedural fairness and not having heard submissions (for example) on X’s capacity to effectively engage in electronic communication, I have simply made a notation which I expect the parties to act upon in X’s best interests and not their own.
CONCLUSION
If I have not made an order sought by a party it is because I could not make findings to support the order being made, otherwise I am satisfied that the Orders I intend to make are in the best interests of X.
In anticipation that a costs application may flow from my judgment, orders have been made which provide a clear procedural pathway and an efficient use of my time in the determination of any dispute. I sincerely hope that this time around the parties will adhere to the rules of this Court in the preparation of their material.
Finally, as to future case management and the conduct of these proceedings I wish to make the following observations.
On 20 June 2023, the wife filed a 100-page affidavit that was double the page length permitted by the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (‘the Div 2 Rules’) and had double the annexures as stipulated by the Div 2 Rules. On 5 July 2023, the wife filed another affidavit. Sensible concessions were made about what reliance the mother would have on the voluminous material she presented to the Court.
The father’s material was no better, not least of all because of the non-compliant line spacing (r 2.14(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Family Law Rules’)) which meant it took longer to read what (superficially) looked like nine (9) pages but really was more likely 15 pages.
I say all of this because the effect of both sets of rules (‘the Rules of Court’) is to enable Division 2 proceedings to be conducted quickly and efficiently and in a manner that allows not only their case, but other cases to be determined in a just manner.
To be clear to the parties, because of the preparation of their evidence, this judgment has taken longer to compose than it should have; and I recognise that they have endured what Dr Seuss would describe as being “The Waiting Place”. It is unfortunate, largely for X, that this has been this family’s experience, but faced with the raft of material before me, and my ongoing workload as a Division 2 Judge, it could not be helped.
I have made the above comments to highlight the conflict between my obligation to make child-focused decisions in X’s best interests whilst following the principles in the conduct of child-related proceedings (s 69ZN) and being mindful of my obligations to the overarching purpose (s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), especially as that purpose looks to use court resources cost-effectively, efficiently and in a timely manner.
That said, I have also made orders and notations confirming and perhaps informing the case management pathway ahead whilst observing the parties’ non-compliance with the Rules of Court. I have done this to try and ensure the efficient and timely resolution of the dispute and avoid a repeat of the inefficient use of court’s resources necessarily imposed upon me because to hear and determine what evidence should or should not be accepted at the review hearing would have meant that the time allocated would have been severely curtailed within which to engage the parties in the actual dispute.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 28 September 2023

File number(s):	SYC 3607 of 2022
Judgment of:	JUDGE KEARNEY
Date of judgment:	28 September 2023
Catchwords:	FAMILY LAW - Interlocutory parenting orders – Review of Senior Judicial Registrar’s decision – five-year-old child with complex diagnoses – extreme parental conflict – history of mental health issues – a finding of family violence perpetrated – highly prescriptive interim parenting orders to ameliorate risk of exposure to conflict – need to maintain relationship with both parents until the final hearing – best interests of child FAMILY LAW – PROCEDURAL – observations and notations - non-compliance with Court rules as to evidence preparation for interlocutory hearing – complex issues – case management consideration highlighted
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited:	Blinko & Blinko [2015] FamCAFC 146 Deiter & Deiter [2011] FamCAFC 82 Dunst & Dunst [2016] FamCAFC 15 Eaby & Speelman (2015) FLC 93-654 Eastley & Eastley [2022] FedCFamC1F 212 Goode & Goode [2006] FamCA 1346 Isles & Nelissen [2022] FedCFamC1A 97 Keane & Keane [2020] FamCA 99 Keats & Keats [2016] FamCAFC 156 MRR v GRR [2010] HCA 4 Napier & Hepburn [2006] FamCA 1316 Re Andrew [1996] FamCA 43 Russell & Close [1993] FamCA 62 Sedgley and Sedgley [1995] FamCA 154 SS & AH [2010] FamCAFC 13 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 2 Family Law
Number of paragraphs:	134
Date of hearing:	17 August 2023
Place:	Newcastle
Counsel for the Applicant:	Ms Mallett KC
Solicitor for the Applicant:	Broun Abrahams Burreket
Counsel for the Respondent:	Ms Gillies SC
Solicitor for the Respondent:	Steiner Legal

SYC 3607 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DHAVALE Applicant
AND:	MS ADWANI Respondent

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	28 SEPTEMBER 2023