Dworak & Watts (No 2)
[2024] FedCFamC1F 13
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dworak & Watts (No 2) [2024] FedCFamC1F 13
File number: SYC 6424 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of the child – Entrenched parental conflict – Consideration as to when a change of residence may be necessary and proportionate to the risk to the child remaining in the care of the mother – Where the child’s poor school attendance in the mother’s care has been a significant concern – Orders made in accordance with the recommendations of the Single Expert and Independent Children’s Lawyer – Careful consideration required where the orders made are contrary to the child’s wishes – Father granted sole parental responsibility – Change of residence from the mother to the father’s primary care – Parties to file written submissions in respect to costs of the Independent Children’s Lawyer. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65Y, 69ZN
United Nations Convention on the Rights of the Child articles 12, 16
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Dworak & Watts [2023] FedCFamC1F 124
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Lainhart & Ellinson [2023] FedCFamC1A 200
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1998] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam)
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150
Re L (A Child) [2019] EWHC 867 (Fam)
Re S (Parental Alienation: Cult) [2020] EWCA Civ 568
Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84;
Simmons & Simmons (2023) FLC 94-137; [2023] FedCFamC1A 44
Warwickshire County Council v The Mother [2023] EWHC 399 (Fam)
Butler-Sloss, Elizabeth, Report of the Inquiry into Child Abuse in Cleveland 1987 (His Majesty’s Stationery
Office, Cm 412, 1988)
Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249
Division: Division 1 First Instance Number of paragraphs: 268 Date of last submissions: 22 December 2023 Date of hearing: 24–28 July 2023; 14–15 August 2023; 21 August 2023; 21 September 2023; 24 November 2023 Place: Sydney Counsel for the Applicant: Mr White Solicitor for the Applicant: Northam Lawyers Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: Emanuel Refenes Solicitor Counsel for the Independent Children’s Lawyer: Ms Hayward Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
SYC 6424 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DWORAK
Applicant
AND: MR WATTS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.The father have sole parental responsibility for the long term care, welfare and development of the child X (“the child”) born 2011.
Live With
3.The child live with the father.
4.For the purpose of facilitating Order 3:
4.1Following the delivery of judgment, the father shall attend Court Children’s Service, Level 2, Sydney Registry to facilitate the child meeting with the Independent Children’s Lawyer, and if necessary, a Court Child Expert for the purpose of explaining the Final Orders to the child;
4.2The father shall facilitate the child leaving the Sydney Registry following the reasonable completion of Order 4.1;
4.3THE COURT NOTES THAT the mother was to bring the child to Court Children’s Services by no later than 9.45 am prior to judgment delivery for the purposes of the orders being explained to the child by the Independent Children’s Lawyer.
Spend Time With
5.The child spend time with the mother as follows:
Stage 1 – Supervised
5.1On five (5) separate occasions, each alternate Saturday for three (3) hours under the supervision of the service E Family Services (“the service”), or in the event that E Family Services is not available then through an alternate contact supervision service as agreed between the parents in writing, commencing on the second Saturday following the making of these orders and subject to the availability of the service, and:
5.1.1both parents shall be equally responsible for all costs associated with supervised visits including the cost of intake and the reports;
5.1.2the mother’s time shall occur at a time and location as advised to the parents by the service, and in the event that the service is unable to facilitate the time on a Saturday, the parents are to accept any reasonable alternate time offered by the service in lieu;
5.1.3the parents shall contact the service and complete the intake requirements within 7 days within the date of these orders; and
5.1.4the parents will follow all directions as required by the service.
Stage 2 – Unsupervised
5.2Following the child spending supervised time with the mother in accordance with Order 5.1, the child shall spend unsupervised time with the mother as follows:
5.2.1for a period of 3 months, each alternate weekend from after school on Friday (or 3.00 pm on a non-school day) until 5.00 pm Sunday, commencing on the second Friday following the mother’s fifth supervised visit pursuant to Order 5.1.
Stage 3 – Unsupervised
5.3Following the child spending unsupervised time with the mother in accordance with Order 5.2, the child’s unsupervised time with the mother shall progress as follows:
5.3.1subject to Order 6, each alternate weekend during school terms from after school Friday (or 3.00 pm on a non-school day) until before school Monday (or 9.00 am on a non-school day), commencing on the first Friday of each school term;
5.3.2during each school holiday period, as follows:
5.3.2.1in odd numbered years, for the entire school holiday period at the conclusion of Terms 1 and 3;
5.3.2.2in the even numbered years, for the entire school holiday period at the conclusion of Term 2; and
5.3.2.3for one half of the school holiday period at the conclusion of Term 4 as follows:
a) for the first half in even numbered years; and
b) for the second half in odd numbered years, with changeover to take place at 5.00 pm on the middle day.
5.3.3For the purposes of Order 5.3.2, the school holiday period is deemed to commence from the conclusion of school on the last day that the child’s attendance is required at school in the preceding school term and conclude on the first day the child’s attendance is required at school on the following term;
5.3.4For the purposes of Order 5.3.2, the parents will determine the middle day of the school holiday period by dividing the number of nights during the school holiday period in two. Where there is an odd number of nights in the school holiday period, the child will spend the extra night with the father in even numbered years and the child will spend the extra night with the mother in odd numbered years; and
5.4any other times as agreed between the parents in writing.
6.In the event that the mother fails to deliver the child to school on any Monday that the child is spending time with the mother in accordance with Order 5.3.1 before the commencement of the school day (irrespective of the reason or whether a medical certificate is produced), then the child’s time with the mother on the next three (3) alternate weekends that the child is due to spend time with the mother in accordance with Order 5.3.1 (including any alternate weekend that falls in the next school term) shall be suspended from 5.00 pm on the Sunday evening and that the child will instead spend time with the mother from after school Friday (or 3.00 pm on a non-school day) until 5.00 pm Sunday.
7.In the event the mother is voluntarily or involuntarily admitted into hospital, the child’s time with the mother pursuant to Order 5 will be suspended until 3.00 pm on the day following the mother being discharged from hospital, and the child will live with the father during this time.
Changeover
8.For the purpose of changeover, when the mother’s time with the child is due to commence at the conclusion of a school day or conclude at the commencement of a school day, changeover is to occur at the child’s school, and at all other times changeover is to occur at the father’s residence.
8.1The mother may, if she wishes, make arrangements for the child to be collected from the father’s home by the maternal grandfather.
9.Each parent is restrained from using any video recording device or audio recording device at changeover, and each parent will do all things reasonably necessary to ensure that no other person does so.
Video/Audio Communication
10.Each parent shall be at liberty to communicate with the child every Wednesday between 6.00 pm and 6.30 pm (Australian Eastern Standard Time) via an internet connection and agreed video communication platform (such as FaceTime).
11.In the event that there is no agreement in regards to which video communication platform is used for the purposes of communicating with the child pursuant to Order 10, then within 7 days of either parent requesting the other parent to communicate with the child via video communication, the father will nominate three (3) different Applications (or Apps) that enable communication between the child and the parent and the mother will select one (1) which shall then be used.
12.For the purposes of either parent communicating with the child pursuant to Order 10, the parent who does not have the child in their care will initiate a video call to the other parent’s nominated device/account via the agreed platform at the commencement of their time with the child and the other parent will do all acts and things necessary to ensure that they answer the call and makes the child available to participate in this call.
13.Each parent will facilitate the child telephoning or having video communication with the other parent at any reasonable time whenever requested to do so by the child whilst the child is in their respective care.
14.Each parent will keep each other informed of their current telephone/mobile contact numbers and email address and will notify the other parent of any change to those details within 48 hours of such change occurring.
Communication Between Parents
15.Each parent will treat each other with civility and respect at all times and throughout all forms of communication and during changeover.
16.Each parent be restrained from making any negative, critical, belittling, rebuking or derogatory comments about the other parent or members of the other parents’ family or household in the presence or within the hearing range of the child, or via written correspondence or on social media which may be viewed or accessed by the child, and each parent will do all things reasonably necessary to ensure that no other person does so.
17.For the purpose of facilitating these orders and unless otherwise agreed in writing between the parents, the parents are to communicate with each other by email except in case of an emergency, in which case the parents are to communicate by SMS and/or telephone.
Schooling
18.Each parent be restrained from attending the child’s school on days the child is to be collected from school by the other parent, except for the following events and/or reasons:
18.1for the purposes of delivering the child at school that same day, with the parent delivering the child to immediately leave the school premises after dropping the child off at school;
18.2to attend any school functions and school events that the parents are specifically invited to;
18.3to attend any sporting fixtures or extra-curricular activities that the parents are specifically invited; or
18.4with the written consent of the parent scheduled to collect the child from school that day.
19.Each parent must ensure that the child attends school on time (meaning that the child must be delivered by the parent or the parent’s agent to the school by no later than the commencement time of any given school day) on each school day that the child is in their care and thereafter must ensure that the child remains at school for the entirety of the school day except:
19.1in the case of an emergency;
19.2the circumstances where the child has a scheduled medical or therapeutic appointment as previously arranged by the father;
19.3in circumstances where they obtain and provide to the other parent and the child’s school by no later than the end of the school day a medical certificate which details the child’s presenting illness and/or health concern(s), which in the opinion of the health practitioner it rendered the child incapable of attending school that day.
20.Notwithstanding Order 2, each parent may liaise directly with the child’s school principal or teachers to obtain any information about the child’s progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from the school and these orders will be sufficient authority to authorise the release of such information, to each of the parents.
Child Therapy
21.Within 28 days of the date of these orders, the father is to make contact with a therapist or psychologist referred to by Dr F or in the alternative (if no therapist or psychologist is recommended, identified or suitable) make contact with G Counselling Service (located at H Street, Sydney NSW, Phone: …) to seek to engage the child with a counsellor from their child inclusive practice with a view of assisting the child to adjust with a change of residence and exposure to parental conflict, and do all things necessary facilitate the child engaging with a therapist or psychologist or G Counselling Service including, but not limited, the following:
21.1facilitate the child’s attendance upon G Counselling Service, the therapist or psychologist at dates and times as recommended and continue to facilitate the child’s attendance until such time as otherwise recommended by G Counselling Service, the therapist or psychologist;
21.2following all reasonable directions of G Counselling Service, the therapist or psychologist;
21.3payment of the costs of G Counselling Service, the therapist or psychologist, if any.
22.The father shall have leave to provide and must provide copies of the following documents to G Counselling Service or the therapist or psychologist engaged with pursuant to Order 21:
22.1Single Expert Report of Dr B dated 1 April 2022;
22.2Single Expert Report of Dr B dated 7 July 2023;
22.3a copy of these Final Orders; and
22.4a copy of the Judgment in these proceedings (once that is delivered at the conclusion of these proceedings);
23.Each parent shall be restrained from providing any information to G Counselling Service or the therapist or psychologist which is not specifically requested by the therapist or psychologist, or any counsellor of G Counselling Service, with the exception of any information required to be provided by the father for purposes of arranging and facilitating the child’s participation in therapy pursuant to Order 21.
24.Each parent shall be restrained from initiating a discussion or speaking with the child in any way about the details of the child’s engagement with G Counselling Service, or the therapist or psychologist, except at the specific direction or facilitation by G Counselling Service, or the therapist or psychologist.
Medical
25.The father will inform the mother as soon as is reasonably practicable of:
25.1The full particulars of any doctor, medical practitioner, or therapeutic or health service provider attended upon by the child;
25.2Any specialist medical appointment that the child is due to attend and the full particulars of that specialist medical practitioner;
25.3Any occasion that the child is scheduled to be hospitalised; and
25.4Any medication that has been prescribed for the child that needs to be administered during any periods that the child spends time with the father.
26.The mother will notify the father as soon as is reasonably practicable of any significant medical problems, illness or injury suffered by the child while in her care.
27.The mother will immediately notify the father in the event of an emergency involving the child including, but not limited to, the child suffering a serious illness or injury or being hospitalised while in her care.
28.Each parent is permitted to liaise directly with any doctor, hospital or other medical practitioners treating the child to obtain information about the physical and/or mental health of the child and the progress of any treatment the child may be receiving and these orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.
Drugs and Alcohol Consumption
29.Each parent be restrained from consuming any illegal substance and/or consuming alcohol to excess and/or consuming prescription medication for which they do not have a valid prescription when the child is in their care or 12 hours prior to the child coming into their care.
Overseas Travel
30.Neither parent is permitted to travel with the child outside of the Commonwealth of Australia for a period of six (6) months from the date of these orders.
31.Following the conclusion of Order 30, that each parent is permitted to travel with the child outside of the Commonwealth of Australia provided they comply with the following:
31.1provide the other parent with 8 weeks’ notice of such intended travel;
31.2provide the other parent with a copy of the child’s proposed itinerary full itinerary of the travel at least 4 weeks before the intended travel, including contact details for the child at each location intending to be travelled to;
31.3provide the other parent with a copy of travel tickets (including return travel tickets) purchased for the child at least 4 weeks before the child is due to travel;
31.4provide the other parent with a contact telephone number and contact details for Skype or any other similar application that the child can be reached on if applicable; and
31.5obtain the other parent’s written consent (by way of e-mail correspondence) if such proposed overseas travel is scheduled to occur on dates and times that the child is not already in their care and that the parent proposing overseas travel shall facilitate make-up time between the child and the other parent immediately before and/or after such travel, with such make-up time to equate to the time missed.
32.The child’s Australian passport is to be kept by the father for safe-keeping at all times except when the child’s passport is required by the mother for the purpose of travelling overseas with the child in accordance with these orders in which case the father is to provide the child’s passport to the mother not less than twenty-eight (28) days prior to the intended departure date and the mother will return the child’s passport to the father not less than fourteen (14) days following the child’s return to the Commonwealth of Australia.
33.Within 28 days of either parent providing to the other parent a child passport application form with respect to the child, that the other parent shall properly complete, sign and return the passport application form, enabling the passport for the child to be issued or renewed.
34.The parents agree to share the cost(s) of applying and/or renewing the child’s passport equally and the parent who has applied for the issue or renewal of the child’s passport is to supply the other parent with a copy of an invoice or receipt for the issue or renewal costs, together with their current bank account details, and the other parent will reimburse the applicant parent for half the costs of the issue or renewal of the child’s passports within seven (7) days of receipt of this information.
35.The father shall facilitate the child meeting with the Independent Children’s Lawyer at such dates, times and locations as can be reasonably requested by the Independent Children’s Lawyer for the purposes of explaining the Final Orders to the child.
36.Within fourteen (14) days of the date of these orders, the parties are to file written submissions, of no more than three (3) pages, in respect to the question of whether they should share the costs of the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dworak & Watts has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
These are parenting proceedings between the applicant mother, Ms Dworak (“the mother”) and the respondent father, Mr Watts (“the father”) in respect to their child, X who is currently 12 years old (“the child”).
The parents have been litigating in respect to parenting arrangements for the child since 2015. This has not been in the child’s best interests.
Both parents have intrinsic features which compromise there parenting capacity. I have found that the father is more functional for meeting the educational and developmental needs of the child at this point in the child’s life and that he can provide a more stable home environment. On that basis, despite the child’s clearly expressed wishes to the contrary, in accordance with the recommendations of the Single Expert and the Independent Children’s Lawyer, I have made the difficult decision to make orders for there to be a change in the child’s residence from that of the mother to the father. The following reasons explain my reasoning for doing so.
BACKGROUND
The mother was born in 1980 and is currently 43 years of age. The mother has one child from a previous relationship, J, who is now 17 years old. J lives with his father but still has a close relationship with the child.
The father was born in 1967 and is currently 56 years of age.
The mother is currently unemployed and is enrolled in university after previously being employed from 2017 until 2023. The father owns his own business.
The parties met in 2010 and subsequently moved in together in 2010.
In 2011, the child was born.
A significant issue in these proceedings is whether the mother’s parenting capacity has been adversely impacted by mental health considerations and substance misuse. This is in the context where it is acknowledged that the mother was adversely impacted by her own mother’s mental health challenges when she was a child and, most significantly, in circumstances where, unfortunately, the mother was sexually abused when she was a teenager. That event has resulted in the mother experiencing the consequences of post-traumatic stress and she has faced challenges as a result of ongoing depression.
During acute phases of poor mental health, the mother has been hospitalised. On each occasion, to her credit, the admissions have been voluntary. The mother’s first admission at C Hospital, Suburb K, occurred for one month in 2014 and subsequent admissions have occurred since then.[1] An admission in early 2023, resulted in the original hearing dates of the week of 13 March 2023 being adjourned: see Dworak & Watts [2023] FedCFamC1F 124. It is not challenged that acute mental health episodes experienced by the mother have, on occasions, been exacerbated by instances of polysubstance abuse.
[1] Mother’s affidavit filed 23 July 2023, paragraph 136.
The parties separated on a final basis in May 2015. The father initially commenced proceedings in the Federal Circuit Court of Australia (as it was then known) in June 2015.
In February 2017, the child commenced school.
On 19 April 2017, final consent orders were made by Judge Harper (as his Honour was then known). At that time, the Court and the parties had the benefit of a Single Expert Report prepared by Dr M dated 17 April 2016 and a further Addendum was released on 6 March 2017.
The orders provided for the parties to have equal shared parental responsibility, with the child living with the parties on an equal time arrangement. Each party was restrained from consuming any form of illicit substance or prescription medication for a period of 12 months from the date of the orders. Both parties were to participate in supervised chain of custody urinalysis for methamphetamine, MDMA, ecstasy, marijuana and cocaine, as well as carbohydrate-deficient transferrin (“CDT”) testing.
In February 2017, the child was enrolled at L School, commencing in Year 1.
The mother was again voluntarily admitted to C Hospital in mid-2017 as she had become overcome with symptoms of anxiety and post-traumatic stress disorder (“PTSD”), financial hardship and a sense of being overwhelmed.[2] The mother was under the care of Dr D who has continued to be the mother’s primary treating mental health professional. During the course of the admission, the child was cared for by the maternal grandparents, Ms N and Mr O, at the designated times where the child lived with the mother pursuant to the consent orders. The mother was voluntarily discharged.
[2] Mother’s affidavit filed 23 July 2023, paragraph 432.
In mid-2017, the father commenced a new relationship with his current partner, Ms P. The father and Ms P moved in together during early 2020. Both the mother and the father had been on friendly terms with Ms P and her former partner when the parties were in an intact relationship. The relationship between the mother and Ms P is now strained, however it has not been necessary to go into the causes of that or the ongoing consequences.
The mother deposes that, during early 2020, the mother observed that the child was exhibiting a shift in his behaviour.[3] This included frequent crying, becoming generally withdrawn and disengaging from his relationship with his step-brother, J (with whom the child lived during the times in the mother’s care). The mother further stated that the child indicated that part of his distress was that, during the time that the child was in his care, the father was “always angry, [the father] yells all the time and calls [the child] dumb and stupid”.[4] The mother deposed that the child was scared of the father and that he was “going to take [the child] away from [the mother]”.[5] The mother contends this escalated to the point where the child was becoming anxious during the course of changeover between the respective households.
[3] Mother’s affidavit filed 23 July 2023, paragraph 286.
[4] Mother’s affidavit filed 23 July 2023, paragraph 294.
[5] Mother’s affidavit filed 23 July 2023, paragraph 296.
It is not disputed that the child developed resistance to spending time with his father. The father contends this occurred as a result of the mother engaging in “alienating” behaviour.[6] The mother contends that the child’s resistance was and is due to the child’s real-life experience in the care of the father. For reasons which I explain, I am satisfied that there are multifaceted reasons for the child’s resistance to spending time with his father, including the conduct of the mother. This has not, however been determinative of the decision that I have made for there to be a change in the child’s place of residence from that of the mother to the father.
[6] Transcript 21 August 2023, p.562 lines 27–29.
By June 2020, communication between the parties had broken down and the mother was finding it increasingly difficult for the child to be ready for school. In mid-2020, the parties had a meeting with the child’s school, where a discussion occurred regarding the child’s attendance.[7] The child’s absenteeism is a central issue in these proceedings. The absenteeism of the child escalated, and in late 2020, the mother took the child to a medical centre to be issued a medical certificate providing reasons for the child’s absence at school (Exhibit MD‑36 in the mother’s affidavit filed 23 July 2023).
[7] Father’s affidavit filed 22 July 2023, paragraph 27.
On 4 December 2020, the mother approached the father requesting his agreement to amend the then operating consent orders. The mother wrote the following email to the father (Exhibit “B” in the proceedings):
…
I have arranged us to seek amendments of the current orders. I don’t know why you need [Ms P] involved. It is causing so much anxiety with [the child] - when it is you and I, we are great, however when you involve a 3rd party, it’s not so ok. I’m only here to be with you and [the child].
However if we don’t agree, then I am now within my rights to take this further on benefit of [the child]. Now it will include [Ms P] and You. Drug testing and the likes. I am happy to provide hair samples. I hope you both are too.
In addition I will disclose evidence by way of the private investigator. This will be embarrassing for you both-
I tried [the father], I really did.
(As per the original)
In late 2020, the mother took the child to a medical centre to obtain another medical certificate to explain his absences from school (Exhibit MD-37 to the mother’s affidavit filed 23 July 2023). The child also received a referral to see a psychologist, Dr Q. During the course of cross‑examination, the mother acknowledged that she had unilaterally taken the child to see a psychologist despite the parties then holding equal shared parental responsibility. The mother attested to taking the child to see Dr Q on about three or four occasions – or “a bit more perhaps”.[8] The mother acknowledged that the child has attended upon Dr Q only twice in the period subsequent to the child coming into her sole care in September 2021,[9] with the last attendance being in early 2022.[10]
[8] Transcript 26 July 2023, p.38 lines 1–2.
[9] Transcript 26 July 2023, p.113 lines 37–41.
[10] Transcript 27 July 2023 p.151 lines 6–7.
The child’s general practitioner provided a mental health plan for the purpose of the child attending upon Dr Q but no other mental health plan has been prepared in respect to the child.[11] Given her involvement in assessing the child’s mental health and the fact that the mother relied on the report of Dr Q in seeking orders to suspend the child’s time with the father in September 2021, it is regrettable that Dr Q was not called by the mother to give evidence in these proceedings.[12] In so observing, I note that counsel for the mother advised the court that “there was a hope from all the parties that [Dr Q] would be available” to give evidence and that “all efforts were made” for that to occur.[13] I would observe that those efforts did not include seeking a subpoena requiring Dr Q to attend to give evidence. Irrespective of whether adequate efforts were made to obtain evidence from Dr Q, the end result is that the Court must make evidentiary determinations and draw inferences from that evidence on the basis of the evidence that has been presented.
[11] Transcript 27 July 2023, p.211 lines 15–19.
[12] Transcript 15 August 2023, p.530 line 16.
[13] Transcript 24 November 2023, p.883 lines 7–8.
In that respect, while reference has been made to clinical notes and medical certificates provided by the child’s general practitioner and reference has also been made to clinical notes made by Dr Q, there has been no recent alternative narrative presented by a mental health professional to contradict the views expressed by the Single Expert, Dr B. Significantly Dr B opined that, while the child would be distressed in circumstances where orders are made for a change of residence, in the longer term, it would, nonetheless, be in his best interests for that to occur.
As a result of the mother’s poor mental health – exacerbated by the use of illicit substances– in early 2021, the mother was admitted to C Hospital for a period of two weeks.
The father deposed that in April 2021, when the child, his partner, Ms P, and the father were having dinner, the father and the child had the following conversation:
[Father]:Your mum told me your saw a dentist. How was it? We went to the dentist not so long ago. Is everything ok?
[The Child]:Um yeah. I think it's a dentist. I don’t know. It is hard to explain.
[Father]:Buddy- what is it? Do you want to tell me something? Tell me what is going on.
[The Child]:Ok, ok. I can't hold this in any longer. It wasn’t a dentist. Mum has sent me to a psychologist named [Dr Q]. I’ve been telling [Dr Q] bad things about you and [Ms P].
[Father]:What bad things?
[The Child]:That you drink a lot, and you get angry at me all the time. Your aggressive and that you are only nice to me when you drink. I told [Dr Q] that I feel uncomfortable around you, and I am sacred of you. [Dr Q] asked me if I feel safe and I said no.
[Father]:Why did you say those things?
[The Child]:Because mum told me to. She told me to say bad things about you and [Ms P]. I told the psychologist that [Ms P] dobs on me and that she locks me in my room. I told [Dr Q] that [Ms P] drinks and smokes a lot. I just went on and on. Mum said if I did not say bad things about you and [Ms P] then I would never see her again.[14]
(As per the original)
[14] Father’s affidavit filed 22 July 2023, paragraph 192.
In circumstances where I have concerns regarding the veracity of the largely self-serving evidence given by both the parties, it has been unnecessary for me to determine whether that conversation occurred.
In April and May 2021, the parties began to engage their respective lawyers with the anticipation that new proceedings would be commenced. On 10 April 2021, the father’s solicitor wrote an email to the mother as follows:
…
The purpose of this letter is to raise with you my client’s concerns as regards to your parenting of [the child].
The purpose of this letter is to provide you with an opportunity to immediately address the matters raised herein.
Failing to do so, my client reserves his rights as to commencing proceedings by way of a contravention application and/or to seek a variation of the Consent Orders dated April 2017.
[The child’s] schooling
My client is concerned as to [the child’s] schooling including his school attendance whilst in your care.
[In mid-] 2020, a meeting was held as between yourself, my client and three members of staff at [the child’s] school.
During the meeting, you were presented with documents by members of staff as to [the child’s] poor attendance record. This included non-attendance without explanation and frequent late attendance.
…
However, as of late (as from approximately [late] 2020 and into the 2021 school year), [the child’s] school attendance whilst in your care has reverted to poor, marked by continued non-attendance often without explanation.
For example, [the child] did not attend school on [two occasions in late] 2020. You stated the non-attendance was due [the child] being sick. However, having queried you on the matter, you informed my client that you had not attended on a doctor with [the child] for his apparent illness. You subsequently informed my client that you had taken [the child] to be tested for Covid-19. When my client requested copies of the test results, you refused to furnish my client with those results.
…
Further, there are also concerns as to the general state of [the child’s] living arrangements, including the fact that [the child] has disclosed to my client you allow [the child] to remain up late ( “Stay up late and play games” in the words of [the child]); there are concerns as to the adequacy of his food intake including his school lunches (a matter which [the child’s] school has commented on) whilst in your care, with [the child] disclosing to my client that he often consumes take-away foods whilst in your care.[15]
[15] Exhibit FW-1 in the father’s affidavit filed 22 July 2023, page 50.
In May 2021, the mother’s former solicitor wrote to the father’s solicitor indicating her concerns about the child when in the father’s care and addressing the issue of the child’s schooling:
…
In reference to your letter of 10 April 2021, please provide source documents upon which your client relies in asserting that [the child’s] school attendance had reverted to ‘poor’ from [late] 2020 and into the 2021 school year.
We are instructed that [the child] did not attend school on [four dates across that period]. Our client has provided a medical certificate to our office and to [the child’s] school covering these days. Please find enclosed corresponding medical certificates provided by our client.
In the event that [the child] fails to attend school, our client asserts that his absence is as a result of [the child’s] capacity to cope with your client. We are instructed that absences from school are primarily around days where [the child] becomes distraught at the thought of entering into your client’s care; generally, around changeover times.
Our client denies that [in mid-] 2020, she became emotional or defensive nor did she state any words as outlined in your letter. She further denies the remainder of your client’s assertions regarding [the child’s] schooling.
Noting the high conflict between the parties and what may be the appropriate arrangements for [the child], at this stage our client believes it is premature to enrol [the child] in a specific high school. Our client does not consent to your client enrolling [the child] in any school outside of the school he already attends.
[The child’s] Health and Well-Being
As noted above, we are instructed that [the child] fears his father and suffers psychologically as a result. We are instructed that in the day preceding your client’s time with him, [the child] becomes restless, anxious and quite distressed.
We are instructed that [the child] has said the following words to our client “I can’t mum, I don’t want to go with him” and “Dad is angry, he swears at me, locks me in my room.; so, does [Ms P]. Dad is always drinking, I cannot be me when I am with my Dad”. Despite our client encouraging a positive relationship between [the child] and his father, she has serious concerns that [the child] is beginning to resent his father and that he is struggling to cope when being sent into your client’s care.
As a result of [the child’s] currently psychological state, our client has sought the assistance of psychologist for [the child] so that he can feel safe in expressly his emotion. Our client had reached out to his school counsellor for assistance, only to be told that “we don’t want [the child] to associate school with being unsafe”. In our client’s view, [the child’s] attendance upon his psychologist is imperative given [the child’s] anxiety and signs of distress.[16]
[16] Exhibit MD-40 in the mother’s affidavit filed 23 July 2023.
In mid-2021, an incident occurred, referred to during the proceedings as the “pyjama day incident”. The incident is significant because it was a contributing catalyst for the child not spending time with the father for a considerable period of time. The mother deposes in her affidavit filed 23 July 2023 that the event occurred as follows:
329.During the week commencing […] 2021, [the child] left his iPad with me which I believe he needs for school. On […] 2021, at about 8:45am, I attended [the child’s] school and brought his iPad with me to give to him. When I entered the school, I saw [the child] playing handball in the playground with his friends. I could also see [the father] sitting on a bench close by. It was my understanding that usually [the father] would have left by this time.
330.[The child] was not his normal self, usually he would run to greet me with a big hug. That day, he saw me and waited for me to approach. When I made it to [the child], I handed him his iPad, said hello and asked “How is your morning darling?”. I could see [the father] had begun walking toward [the child] and I. Eventually, [the father] was close enough that he was physically touching me. This was very unnerving. As [the father] was standing over us, [the child] looked at me with a sad face and said words to the effect of “Mum, I need to tell you something. I don’t want you to come see me at school anymore, not even this Monday morning. Dad does not want me to see you on his time”. [The child’s] eyes started to well-up with tears. [The child] looked scared and began to cry. I was shocked by what was taking place. [The father] then chimed in before I could say anything further and said words to the effect of “[The mother]! Let our son speak, stop telling him what to say, you're a bully, you’re a mental case. You tell him to lie to the psychologist and if I lose my son, I will fucking kill you”.
331.This incident occurred at the school in front of [the child], teachers and other students. I responded and said words to the effect of “[The father], you should not say this at school in front of [the child]”. [The father] then said words to the effect of “You’re a grub, he doesn't need a mother you are better off dead”. [The child] then ran away, as he was running, I heard him say words to the effect of “I don't want to live anymore. I can’t cope with this”. [The child] was hysterical. [The father] continued to swear at me saying “You are a fucking grub, look at what you’ve done to our son”. I pleaded “[the father] stop, please stop, you have to stop this” to which [the father] responded in words to the effect of “the only time that this will stop is when you are dead”.
332.I quickly took [the child’s] hand and began to walk to the Principal’s office to ensure [the child’s] safety. [The father] followed us there, hurling verbal abuse at me. When we arrived, we were clearly flustered and both told to “calm down” by the school receptionist. [The child] was then taken away and both [the father] and I directed to leave the school grounds.
333.After the chaotic events at [the child’s] school, I went home and cried. I was so shaken by what had happened. I can’t recall exactly the time but once I was able to calm down, I visited [Suburb K] Police Station to report [the father’s] behaviour …
A file note from an administrator at the child’s school concerning the incident described the parties’ attendance at the school’s administrative office as follows:
[The mother] & [the father] both presented to the office with their son [the child], who was crying, both aggressively shouting.
[The mother] said “I need to see [the school principal] urgently” to which I replied she was already in a meeting but I would check her availability.
I interrupted [the school principal’s] meeting and advised [the mother] that [the school principal] would be attending shortly.
Both parties then started speaking very loudly to each other at which time I reminded them both that they were at a school and they should lower their voices to which [the mother] replied “my son is very upset” to which I replied “I understand that however it is a school and we do not want other children upset”.
[The father] was then saying “that’s right [the mother], go away [the mother], you shouldn’t be here, you are nothing but a bully, leave [the child] alone” to which she replied “there are no court orders preventing me from seeing my son, you are just an alcoholic”
[The assistant principal] then arrived and took [the child] into her office to comfort him.[17]
[17] Father’s tender bundle (Exhibit “K”), page 77.
A further file note from the assistant principal following the incident noted that at 8.40 am:
I took [the child] into my office and we spoke about what happened. [The child] said the following:
“I get upset when they fight like this.”
“I’m seeing a psychologist and she helps me deal with this. I find it helpful.”[18]
[18] Father’s tender bundle (Exhibit “K”), page 78.
Subsequent to a complaint made by the mother, the parties and the child attended Suburb K Police Station and each were individually interviewed by Police officers. The individual videos produced by NSW Police were marked as Exhibits “C”, “D” and “R” in the proceedings. A COPS Record of the NSW Police recorded the incident as follows:
[The mother] and [the father] are ex-partner and have separated for 5 years. During their relationship they have one child together. [The mother] and [the father] both have 50-50 shared custody of the child.
[…] 2021 the Child is scheduled to be in the custody of the [the father] to which the [The mother] and [the father] both stated to police. [The mother] and [the father] are currently going through mediation to make amend custody rights of their Child. As the Child has been missing school when in custody of the [the mother].
About the above time, date at the [the mother] visited her son’s school at the above location. [The mother] went on to school ground to see her child. [The mother] started talking to her child. During that time [the father] approached [the mother] and the Child an argument between [the mother] and [the father] ensued.
The Argument have caused the child to become distraught. He then walked away in embarrassment from both [the mother] and [the father]. [The mother] ran after the Child and tried to consul him. A short time after staff member from the school approached the family and told the child that it is all right and that it is fine for him to attend the school. [The mother] then insisted that the child met the school principal. [The mother], the child and [the father] then attended the school office. While the all the parties were at the school office [the mother] continued to argue with [the father]. The principal of the school stated that she overheard [the mother] shouting to [the father] and saying words to the effect of “you are an alcoholic”. As the principal was in a meeting with another parent. The deputy principal went out and talked to the family. When the Police questioned the principal and the deputy principal in relation to the matter. They both confirmed to police that the they did not hear anything that is vulgar or life threatening from the argument between [the mother] and [the father].
Furthermore, both the principal and the deputy principal also confirmed that the Child did not make and threat of self-harm at the school or in their presence.
The deputy principal then took the child and asked the child if he was ok. To which the child replied that he was ok. The deputy principal then took the child to class. A short time after that the Principal came out to talked to [the mother] and [the father] and informed them that their child is safe and is doing fine.
At about 1045am [the mother] attended [Suburb K] police station to make a report above the incident demanding that and AVO be applied for in relation to the incident. Police informed [the mother] that Police will need to talk to both parties before a decision can be made before an AVO can be applied for. Police took [the mother’s] statement.
In the statement [the mother] made allegations that [the father] have threaten her life and said words to the effect of “If I lose my son, I will fucking kill you.” and “the only time that this will stop is when you are dead”. Furthermore, [the mother] also stated to Police that during the incident at the school the child had made threat of self-harm to her and said words to the effect of “I don't want to live anymore; I can't cope with this.” Police have created a concern for welfare Job for the police to attend to check on the welfare of the Child at the school. When police questioned her [the mother] on why she left the school when she believed and reported to police that her son have made threat of self-harm. [The mother] could not provide police with an answer.
At about […] on […] 2021 [the father] attended [Suburb K] police station and gave police the interview in relation to the incident. [The father] denied the allegation that [the mother] have put towards him. [The father] further stated to police that [the mother] would often make fictitious claims about him.
About […] on Friday the […] 2021, the child and his father attended [Suburb K] police station. The child stated to police that he would like to talk to police on his own the father of the child agreed to this left the interview room.
During the interview the child stated to police word to the effect of: “when my parent was having an argument this morning, I did not hear my dad swear and I did not hear him threaten my mother's life.” The Child also stated that “I don't think mom should come to the school when it is not her turn to look after me”. “I think she should respect my time with the Dad as My Dad respect my time with mom.” The child also stated to police that he did not make any threat of self-harm this morning.
[The father] and the Child have given police version of event that is consistent with each other and with version of event as described by the principal and deputy principal version. [The mother] version of the incident as recorded in her statement is inconsistent with the version other involved in the incident.
Police have conducted check on [the father] and have discovered that [the mother] have made false claims against [the father] in the past. Police believe that [the mother] have made the report to police as she was afraid that her custody time with her son maybe reduced in the upcoming court hearing regarding her son custody.
Police hold nil fears for [the mother] and her Child.[19]
(As per the original)
[19] Marked as Exhibit FW-1 in the father’s affidavit filed 22 July 2023, page 402.
A video recording of his interview with the police on that day,[20] confirms that rather than dropping the child at the school, as he usually did, and then progressing to his work, the father remained for an additional time of about 20 minutes, on the expectation that the mother would also attend. I am satisfied that the father did so with a view to being present while the child advised the mother that he did not wish her to attend school on days that he was not in her care. His conduct in doing so could reasonably be anticipated to have caused considerable stress for the child who, by virtue of the father’s presence, was placed under indirect pressure to confront his mother. That stress can only have been exacerbated by the fact that the confrontation occurred in front of the child’s school friends and teachers. The father presented as an intelligent man. It can reasonably be inferred that the father would have appreciated that his presence, for the purpose of encouraging the child to confront the mother, would have been likely to result in a disputation between the father and the mother. That confrontation was inevitable and could reasonably have been anticipated.
[20] Exhibit “R” in the proceedings.
It was irresponsible of the father to place the child in that position. In written submissions provided by counsel for the father filed on 22 December 2023, it was conceded at paragraph 48 that the altercation between the parents “does constitute domestic violence”. It was, in my view, foreseeable that the child would be exposed to that family violence: s 4AB(3) of the Family Law Act 1975 (Cth) (“the Act”).
There was further deterioration in the parties’ relationship in July and August 2021. The mother contends that it became increasingly difficult to persuade the child to spend time with his father and she further attests that, on one occasion, the child “soiled himself” during the car trip on his way to see the father.[21] In circumstances where I also have concerns regarding the veracity of the mother’s evidence, which was also substantially self-serving, I am unable to determine whether that event actually occurred.
[21] Mother’s affidavit filed 23 July 2023, paragraph 339.
In August 2021, Dr Q provided a Report in relation to the child’s psychological state. That report has not been tendered into evidence in circumstances where Dr Q has not been available for cross examination on that Report.
The last occasion that the child spent time with father, prior to these proceedings being set down for trial, occurred on 27 August 2021.[22]
[22] Father’s affidavit filed 22 July 2023, paragraphs 24, 29, 44 and 77.
In September 2021, the mother alleged that the child became inconsolable at the time of changeover, cried profusely and refused to enter the mother’s car.[23] The mother states that she attempted to contact the father but was unsuccessful. The mother sent an email to the father stating “[the child] is feeling anxious for changeover today however I have reassured him that you will have a good time over the next 5 days”.[24] At around 5.15 pm, the father attended the changeover point of Suburb K Police Station and waited until 6.00 pm.[25] By this time, the child and the mother did not arrive for changeover. The father went into the Police Station where a police officer stated that they could attend the mother’s residence to complete a welfare check. Police officers attended upon the mother’s residence and had a brief conversation. No further action was taken.
[23] Mother’s affidavit filed 23 July 2023, paragraph 341.
[24] Father’s affidavit filed 28 February 2023, paragraph 33.
[25] Father’s affidavit filed 28 February 2023, paragraph 177.
On 2 September 2021, the mother filed her Initiating Application in the Federal Circuit and Family Court of Australia (Division 2). In that application, the mother sought interim orders on an urgent basis seeking the discharge of the majority of the orders made by consent in April 2017. In broad terms, the 2017 orders provided for the child to spend an equivalent amount of time with each parent. The revised orders, sought by the mother, were for the mother to have sole parental responsibility and for the child to live with the mother. The orders proposed that the child would spend time with the father, subject to the father providing an 18 panel hair follicle drug test. In the event of those tests being negative, time would occur each alternate Saturday from 12.00 pm until 12.00 pm on the following Sunday. Time would not occur if the father failed to provide the hair follicle drug test.
In late 2021, the mother took the child to see a doctor at a medical centre where the doctor provided the child with a medical certificate.[26] The mother deposes that on the next day, the mother discovered that, upon recommendation of the child’s psychologist (Dr Q), the child had been keeping a diary that contained records regarding his life. The mother states that she read the diary and found a record as follows:
God why was I born like this I feel like there are so many things wrong with me and was a born. My life feels like burning hell I am so tired of this shit. Why won’t it end thats all I ask for and I know a fact if I go back to my Dad I will get hit by him and that what I fear.
(As per the original. Mother’s affidavit filed 23 July 2023, paragraph 351)
[26] Exhibit MD-45 of the mother’s affidavit filed 23 July 2023).
The mother states that she made an emergency appointment with Dr Q and had already booked an appointment with the child’s treating general practitioner, Dr R, in late 2021.[27]
[27] Mother’s affidavit filed 23 July 2023, paragraph 352.
There was considerable controversy in the proceedings as to whether the child’s diary entry had been written at the instigation of, or with the encouragement of the mother.[28] The evidence is not such that I can determine, as a matter of probability that occurred. Accordingly, for the purpose of these proceedings, I accept that the diary entry was made by the child without the involvement of his mother.
[28] Transcript 28 July 2023, p.254 line 31 to p.255 line 39.
On 6 September 2021, the mother’s interim application was listed for an interim defended hearing before a senior judicial registrar on 21 September 2021.
On 21 September 2021, the parties entered into consent orders discharging the April 2017 consent orders concerning the child’s time with each parent during the school term and school holidays, as well as changeover. The child was to live with the mother and spend time with the father each Saturday from 10.00 am until 4.00 pm and each Wednesday between 3.30 pm and 7.00 pm. The time spent with the child would not commence until the father provided a supervised chain of custody urinalysis test. Changeover was to occur at school. Both parties were to participate in an 18 panel hair follicle drug test. An Independent Children’s Lawyer (“the ICL”) was appointed to represent the best interests of the child. The matter was otherwise adjourned until 14 October 2021 for an interim defended hearing.
On 22 September 2021, each party wrote to the other seeking to undertake the requisite drug testing in accordance with the orders of 21 September 2021.[29]
[29] Mother’s affidavit filed 11 October 2021, paragraph 26.
It had been planned that the child would spend four hours with the father on the child’s birthday, (Order 3(A) of the orders from 21 September 2021). The mother states that the child broke down, proceeded to vomit, and refused to see the father.[30] On the same day, the mother attended upon Dr R with the child to receive a medical certificate as to the reason for his inability to spend time with his father.[31]
[30] Mother’s affidavit filed 23 July 2023, paragraph 367.
[31] Mother’s affidavit filed 23 July 2023, paragraph 369.
On 14 October 2021, a senior judicial registrar heard the matter for a further interim defended hearing. Orders were made for the child to live with the mother and for the parties to engage in post separation parenting courses and supervised chain of custody urinalysis drug screening, hair follicle testing and CDT testing. The father attended for each required test which were negative.[32] Paradoxically, in circumstances where the mother alleged the child was at risk in the father’s care due to potential substance abuse, it is the mother who has been less than diligent in attending for the required drug tests.[33]
[32] Exhibit FW-1 of the father’s affidavit filed 22 July 2023, pages 113–129.
[33] Transcript 26 July 2023, p.104 lines 15–30.
At the request of the ICL, Dr B was appointed to prepare a Single Expert Report in the proceedings. A notation was made that the “the issue relating to “live with” and/or “spend time with” arrangements in relation to the father be revisited following the release of a Single Expert Report.
In late 2021, the father commenced seeing his psychologist, Dr F.[34] Dr F has provided a Report and gave evidence in the proceedings.
[34] Father’s affidavit filed 22 July 2023, paragraph 78.
On 4 April 2022, the Single Expert Report of Dr B was released to the parties and the ICL. The parties engaged in further family dispute resolution in July 2022, but no agreement was reached for the child to spend time with the father.
In mid-2022, the mother’s registration as an advisor had been suspended for a period of three years as she was found to be “not fit and proper to provide [the service]”.[35] I have drawn no adverse inference in respect to the mother’s parenting capacity as a result of that finding.
[35] Mother’s affidavit filed 23 July 2023, paragraph 26. See also father’s affidavit filed 22 July 2023, page 162 which includes the […] “Decision Summary”.
Also in mid-2022, the mother unilaterally unenrolled the child from the school he was attending (L School) and enrolled the child in S School.[36] The mother states that the child begged her to move him due to difficulties with the father’s place of work being located nearby the child’s school.[37]
[36] Father’s affidavit filed 22 July 2023, paragraph 129.
[37] Mother’s affidavit filed 23 July 2023, paragraph 417.
On 1 August 2022, following a directions hearing before a judicial registrar on 21 July 2022, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) and listed for a compliance and readiness hearing on 16 August 2022.
On 26 August 2022, the matter was set down for final hearing for five days to commence on 13 March 2023. Orders were made for the parties to file their respective trial materials.
In early 2023, the mother was admitted to C Hospital and underwent treatment sessions for acute anxiety and depression.[38]
[38] Mother’s affidavit filed 23 July 2023, paragraph 32.
By email dated early 2023, the ICL informed the Court that the mother had been admitted to hospital and on 3 March 2023, the matter was listed for an urgent case management hearing to assess the viability of the matter proceeding to final hearing on 13 March 2023. For reasons explained in an ex tempore judgment, I adjourned the final hearing; Dworak & Watts [2023] FedCFamC1F 124.
The mother was discharged from C Hospital in early 2023.[39] A week after the mother’s discharge from C Hospital, the mother was admitted to T Hospital for treatment of transitional anxiety and following the mother overdosing on a number of substances, including several that had not been prescribed.[40] The mother was discharged the following day. The extent to which the mother may have an ongoing issue with overuse of medication, has been a significant issue in the proceedings.
[39] Mother’s affidavit filed 23 July 2023, paragraph 32.
[40] Mother’s affidavit filed 23 July 2023, paragraph 32.
On 3 May 2023, the father filed an urgent Application in a Proceeding seeking to have sole parental responsibility for the child and for the child to spend time with the mother from 10.00 am until 4.00 pm each weekend, alternating between Saturdays and Sundays. This was subject to the mother undergoing an 18 panel hair follicle drug test for amphetamines, methamphetamines, MDMA, marijuana, cocaine, oxycodone and alcohol where time would be suspended if the mother returned a positive result.
The father’s Application in a Proceeding filed 3 May 2023 was listed for an interim defended hearing before me on 23 May 2023. At the interim hearing, the parties settled the application by consent and the Court made orders for the child to spend time with the father supervised by a professional supervision service known as E Family Services for three hours on three occasions, and subsequently, unsupervised each Friday after school and each Saturday from 10.00 am until 3.00 pm. The father was also at liberty to FaceTime the child each Thursday from 6.00 pm until 6.30 pm.
On 14 July 2023, the updating Single Expert Report of Dr B was released to the parties.
On Monday, 24 July 2023, the final hearing was due to commence but due to the late filing of the mother’s affidavit material on 23 July 2023, the matter was stood over to commence on Tuesday, 25 July 2023. As a result of an adjournment request made by the father, on 25 July 2023, the matter was stood over until Wednesday, 26 July 2023. The final hearing continued until 28 July 2023. Following the completion of the mother’s cross-examination, interim consent orders were entered into by the parties for the immediate re-introduction of time between the child and the father, with the first occurrence to be after school that same day. The orders were as follows:
2. That [the child] spend time with the father as follows:
2.1 on Friday 28 July 2023 from 5.30 pm until 9.00 pm;
2.2 on Saturday 29 July 2023 from 10.30 am until 4.30 pm;
2.3 commencing 2 August 2023 until 14 August 2023:
2.3.1from after school (or 3.00 pm on a non-school day) until 7.00 pm each Wednesday;
2.3.2 from after school Friday (or 3.00 pm on a non-school day) until 5.00 pm Saturday each week, with the father to take the child to his co-curricular activities on the Saturday.
2.4 commencing 14 August 2023 and pending further Order:
2.4.1from after school (or 3.00 pm on a non-school day) until 7.00 pm each Wednesday;
2.4.2from after school Friday (or 3.00 pm on a non-school day) until 5.00 pm Sunday with the father to take the child to his co-curricular activities on the Saturday.
The matter was stood over part-heard until 14 August 2023, where the maternal grandparents (Mr O and Ms N) were cross-examined and cross examination of the father commenced. On 15 August 2023, the father continued to be cross-examined and the matter was part-heard once more to 21 August 2023. On 21 August 2023, the father, Dr F, Dr D and Ms P were called and cross-examined. The matter was stood over again until 21 September 2023, where it was anticipated that Dr B would be cross-examined.
In the intervening period between 21 August and 21 September 2023, both parties filed fresh affidavits to update the Court regarding the child’s reintroduction of time in the father’s care pursuant to the consent orders made on 28 July 2023.
The father deposed that when the child was in his care, he showed signs of tiredness and irritability when the father did not permit the child to take medication to assist him in his sleep.[41]
[41] Father’s affidavit filed 11 September 2023, paragraphs 4–12.
Between 16–20 August 2023, the child did not come into the father’s care.[42] The mother stated that the child was suffering extreme emotional distress in anticipation of spending time with the father.[43] A short time later, the mother took the child to see Dr R to receive a medical certificate stating, “[the child] has suffered from acute psychological distress and anxiety and was unable to attend his scheduled visitation from 18/08/2023 to 21/08/2023 inclusive”.[44]
[42] Father’s affidavit filed 11 September 2023, paragraph 7.
[43] Mother’s affidavit filed 21 September 2023, paragraph 3.
[44] Mother’s affidavit filed 21 September 2023, Exhibit MD-3, page 18.
On 25 August 2023, the child came into the father’s care.[45] The child asked the father for his medication to assist his sleep but the father refused. The father attests that the child went to sleep without the requirement of taking the tablet. The father further deposed that, throughout the time that the child spent with the father, the mother appeared to be in constant communication with the child via text message.[46] The father took photos of the text messages and annexed them to his affidavit filed 11 September 2023 as Exhibit FW-2.
[45] Father’s affidavit filed 11 September 2023, paragraph 8.
[46] Father’s affidavit filed 11 September 2023, paragraph 20.
While the father’s evidence in respect to the matter was less than clear, during the weekend that the child stayed with the father, on 30 August 2023, the father accessed a computer utilised by the child and discovered that the child was participating in communications on a website where the child communicates with his brother, J.[47] It is not in dispute that the child participated in communication inappropriate for a child aged 12, including the sharing of images of a pornographic nature with his brother.
[47] Father’s affidavit filed 11 September 2023, paragraph 25.
A significant issue in these proceedings has been in respect to the father’s insight in accessing messages contained on the mobile phone used by the child and also from a computer used by the child. The parties’ contentions in that respect will be further discussed.
In late 2023, the child missed a day of school. The mother stated that the child was completely exhausted after the father refused to allow the child to take medication which disturbed his sleep cycle.[48] The mother took the child to see Dr R and was provided with a further medical certificate to explain his inability to attend school (Exhibit MD-4 of the mother’s affidavit filed 21 September 2023).
[48] Mother’s affidavit filed 21 September 2023, paragraph 4.
On 8 September 2023, the child was expected to go into the father’s care once more. The mother stated that the child was extremely upset and anxious at the thought of spending the entire weekend with the father and Ms P.[49] The mother took the child to see Dr W who issued a medical certificate stating “[the child] is suffering from severe anxiety, stress causing abdominal pains and diarrhea and is unfit physically and psychologically to spend the weekend with his father from 8/09/2023 till 10/09/2023 inclusive” (Exhibit MD-5 of the mother’s affidavit filed 21 September 2023).
[49] Mother’s affidavit filed 21 September 2023, paragraph 5.
On 20 September 2023, the child was to spend time with the father, but he ultimately did not want to do so, claiming to be fearful of the father.[50]
[50] Mother’s affidavit filed 21 September 2023, paragraphs 6 and 10.
On 21 September 2023, the final hearing resumed. After argument, both parties were given leave to reopen their respective cases in order to provide evidence to the Court regarding the events that had occurred since the last day of proceedings on 21 August 2023.
The school records produced by both L School and S School establish that the child’s attendance deteriorated significantly in the period subsequent to the child moving into the mother’s sole care in September 2021. I accept, however, that there has been some improvement this year, although the attendance has not met the minimum standard that was recommended by Dr B.
The mother has demonstrated inability to ensure the child’s attendance at school despite that being identified as a clear issue of concern in Dr B's Report dated 1 April 2022.
The mother’s inability to ensure the child’s attendance at school contrasts to the ability of her parents to ensure his school attendance when the child was in their care at the time of the mother’s hospitalisation in 2023. In that respect, the Court notes an email communication between the mother and the principle of S School dated early 2023, where the child’s attendance was described as “amazing compared to last year”[51]
[51] Tender Bundle of ICL received 24 November 2023 (Exhibit “FF”), page 53.
It is to be noted that that improvement occurred during the time that the child was being cared for by the maternal grandparents.
At the conclusion of the parties’ evidence, the matter was adjourned to 24 November 2023 for Dr B to give evidence. After that evidence was completed, orders were made for the timetable of filing of the respective written submissions of the parties and the ICL. Judgment was reserved on 22 December 2023.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
·Outline of Case (Final Hearing) filed 21 July 2023;
·Amended Application for Final Orders filed 12 August 2022;
·Affidavit of the mother filed 23 July 2023;
·Affidavit of Dr D filed 16 September 2021;
·Affidavit of Mr O filed 22 July 2023;
·Affidavit of Ms N filed 22 July 2023;
·Single Expert Reports of Dr B dated 1 April 2022 and 7 July 2023;
·Proposed Minute of Order dated 26 July 2023;
·Affidavit of the mother filed 21 September 2023;
·Tender bundle received 15 August 2023; and
·Written submissions filed 22 December 2023.
The father relied upon the following documents:
·Outline of Case (Final Hearing) filed 21 July 2023;
·Amended Response to Initiating Application filed 4 August 2023;
·Affidavit of the father filed 22 July 2023;
·Affidavit of Dr F filed 29 March 2023;
·Affidavit of Dr U filed 21 February 2023;
·Affidavit of Ms P filed 2 August 2023;
·Affidavit of the father filed 11 September 2023;
·Single Expert Reports of Dr B dated 1 April 2022 and 7 July 2023;
·Tender bundle received 26 July 2023;
·Minute of Order dated 4 August 2023; and
·Written submissions filed 22 December 2023.
The ICL relied upon the following documents:
·Outline of Case (Final Hearing) filed 20 July 2023;
·Single Expert Reports of Dr B dated 1 April 2022 and 7 July 2023;
·Tender bundle received 24 July 2023;
·Minute of Order filed 1 December 2023; and
·Written submissions filed 7 December 2023.
APPLICATIONS
By her proposed Minute of Order dated 26 July 2023, the mother sought the following orders:
Previous Orders
1.That all previous parenting orders are discharged.
Parental Responsibility
2.That the Mother have sole parental responsibility for the child [X], born […] 2011 (‘the child’).
3.Notwithstanding Order 2, each parent shall be responsible for the daily care, welfare and development of the child when spending time with him.
Live and Spend Time Orders
4.That the child lives with the Mother.
5.From the date of these orders, the child spends time with the Father as agreed between the parties in writing and in the absence of agreement as follows:
(a)For a period of two (2) weeks, with the Father at the conclusion of school each Wednesday 3.00pm till 7.30pm and each weekend from 11am Saturday until 4pm Saturday;
(b)From two (2) weeks, and for a further period of four (4) weeks, with the Father each Wednesday after School (or 3pm in the event the child does not go to school) till Thursday at the commencement of school (or 9am in the event the child does not go to school), and Saturday 11am till 4.00pm.
(c)From six (6) weeks and for a further period of four (4) weeks, with the Father each Wednesday after School (or 3pm in the event the child does not go to school) till Friday before school (or 9am in the event the child does not go to school).
(d)From ten (10) weeks, in the first week and continuing thereafter each alternate week, with the Father from Thursday after School (or 3pm in the event the child does not go to school) till Monday at commencement of school (or 9am in the event the child does not go to school) (being four (4) nights with the Father each fortnite during the school term).
6. For one half of each school holiday period as follows:
i.First the first half in even numbered years at the conclusion of terms 1, 2 and 3 commencing at 3pm or after school on the last day of the Child’s attendance at school for the term and concluding at 5pm on the middle Saturday and the second half in odd numbered years commencing at 5pm on the middle Saturday and concluding before school or 9am on the first day of the Child’s attendance at school of the new school term;
ii.During the term 4 school holiday period commencing after school or 3pm on the last day of the Child’s attendance at school and concluding at 5pm on 7 January in even numbered years and from 5pm on 7 January and concluding before school or 9am on the Child’s first day of the children’s attendance at school of the new school term in odd numbered years;
7. Notwithstanding any other order:
(a) In odd numbered years the child will spend time:
i.With the Father from 3pm on Easter Thursday until 3pm on Easter
ii.With the Mother from 3pm Easter Saturday until 3pm Easter Monday
iii.With the Father from 12pm Christmas Eve until 12pm Christmas Day; and
iv.With the Mother from 12pm Christmas Day until 12pm Boxing Day;
(b) In even numbered years the child will spend time:
i. With the Mother from 3pm on Easter Thursday until 3pm on Easter Saturday;
ii.With the Father from 3pm Easter Saturday until 3pm Easter Monday;
iii.With the Mother from 12pm Christmas Eve until 12pm Christmas Day; and
iv.With the Father from 12pm Christmas Day until 12pm Boxing Day.
(c)The child will spend time with the Mother for [J’s] birthday […] each year from 11am on […] until 11am on […].
(d)If the child wakes with the Mother on the child’s birthday, the child will spend time with the Mother until 3pm (regardless of whether the child attends school on that day) and then spend time with the Father from 3pm until 7pm.
(e)If the child wakes up with the Father on the child’s birthday, the child will spend time with the Father until 3pm (regardless of whether the child attends school on that day) and then spend time with the Mother from 3pm until 7pm.
(f)The child will spend time with the Mother on the weekend on which Mother’s Day falls from 5pm Saturday until 7.30pm on Mother’s Day.
(g)The child will spend time with the Father on the weekend on which Father’s Day falls from 5pm Saturday until 7.30pm on Father’s Day.
(h)The child will spend time with the Mother on the Mother’s birthday from 9am until the commencement of school (or 9am in the event the child does not attend school that day) the immediately following day.
(i)The child will spend time with the Father on the Father’s birthday from 9am until the commencement of school (or 9am in the event the child does not attend school that day) the immediately following day.
(j)At other times and variations as agreed in writing between the Mother and Father.
Changeover
37.Unless otherwise agreed in advance between the Mother and Father in writing, for the purpose of implementing the parenting arrangement contained herein, changeover will occur at school. In the event that the child is not at school at the time of changeover, changeover will occur at the residence of the Mother.
Restraints
8.That the Mother and Father are restrained from consuming alcohol beyond a blood alcohol concentration of 0.05% whilst the child is in their respective care or within the 24 hours immediately prior to the child entering their care.
9.That the Mother and Father are restrained from consuming illegal drugs and/or prescription drugs for which they do not have a valid prescription whilst the child is in their respective care or within the 72 hours immediately prior to the child entering their care.
10.That the Mother and Father are restrained from denigrating the other parenting, their friends, domestic partners or families whilst within earshot of the child and will remove the child from any environment in which such denigration is occurring.
11.That the Father is restrained from approaching the Mother or coming within one hundred (100) metres of the Mother’s residence unless in circumstances of emergency or for changeover of the child.
12.That the Parties restrained from using physical discipline against the child or shouting at the child.
Communication
13.The Mother and Father will communicate with each other as follows:
(a)For non-urgent matters or matters relating to change-over via SMS; and
(b)For urgent matters via telephone call.
14.The Mother and Father are at liberty to telephone or communicate electronically with the child at all reasonable times and the resident parent at that time will afford the child reasonable privacy for the duration of any such telephone call or other electronic communication.
15.The Mother and the Father will each facilitate the child telephoning the other parent at all reasonable times at the request of the child.
General
16.The Mother and Father will notify the other within two (2) hours of an event of any significant illness or injury suffered by the child requiring medical treatment or hospitalisation whilst in their respective care and provide details of such injury, medical treatment, or hospitalisation to the other parent.
17.These Orders shall be taken as an authority for the child’s school to authorise the provision of information to the Mother and Father, at the requesting parent’s expense about the child including, but not limited to:
(a) Reports;
(b) Invitations;
(c) Circulars;
(d) School photograph order forms; and
(e) Notices
18.These Orders shall be taken as an authority for all the child’s treating medical practitioner(s) or allied health worker(s) to authorise such professional to provide information to the Mother and Father, at the requesting parent’s expense about the chid, including, but not limited to;
(a) Referrals;
(b) Treatments;
(c) Medication; and
(d) Any other information regarding medical history.
19. That [X] be enrolled in and attend [S School].
Travel
20.The Mother is permitted to travel with the child from the Commonwealth of Australia during the times the child is in her care pursuant to these Orders or as otherwise agreed between the parents in writing.
21.The Father is permitted to travel with the child from the Commonwealth of Australia as agreed between the parents in writing.
22.For the purpose of Order 25 and Order 26, the travelling parent must serve the other parent with an itinerary of travel two (2) weeks before departure which is to include:
(a) departure and return dates;
(b) location or locations the parent and the child will be travelling to;
(c) the dates on which the child will arrive and depart;
(d)a telephone number and address at which the parent and the child can be contacted in each location;
(e)Copies of certificates of travel insurance for the child.
23.So far as is practical, the occasions on which Mother or the Father takes the child out of the Commonwealth of Australia are to coincide with normal school holidays.
24.The Mother will retain the child’s passports and be responsible for its safe‑keeping.
25.If the Father travels with the child then he is to return the child’s passport to the Mother no later than seven (7) days after her return to the Commonwealth of Australia.
26.Should the parent who is not in possession of the passport decide to travel with the child, upon notification being provided in accordance with these Orders the passport is to be provided to the travelling parent at the next changeover of the child.
27.Should the child’s passport be lost, stolen or otherwise misplaced the parent who had possession of that passport immediately prior to it being lost, stolen or otherwise misplaced is responsible for its replacement/renewal and all associated costs within twenty-one (21) days.
Passport
28.The parents will within seven (7) days of written request by one of the parents, do all acts and things and sign all necessary documents to cause a passport for the child to issue.
29.If upon the expiration of seven (7) days of the written request in Order 34, one parent refuses to do any act, thing or sign any document necessary to cause a passport to issue for the child, these Orders shall be taken as authority for the requesting parent to cause a passport to issue for the child in the absence of consent by the other parent.
(As per the original)
I accept that is a possibility that, subconsciously, the child may be relieved at moving into the more structured environment of his father’s home but, for the purpose of this decision I have inferred, from the totality of the evidence, that the child will, in fact, be extremely distressed by an order changing his primary place of residence from that of the mother to the father. Specifically, I find that is the more likely possibility. I have therefore given weight to that likely distress in my assessment of the risk that, in the short term, the orders will adversely impact upon the child’s emotional wellbeing. I have also given weight to evidence that the child may attempt to leave the father’s household.
As against that risk, in considering the potential impact of the change upon the child I note that, to his credit, the father has retained the child’s room in the same state as it was prior to the child ceasing to spend time with the father in September 2021. The report of E Family Services dated mid-2023 includes the following observation:
We then walked to the lift and [the child] looked around and commented on how good the unit looked and he said everything looked the same, and how he missed it all. We arrived at the unit and walked inside. [The father] asked [the child] if he wanted to see his room and [the child] excitedly said yes. [The child] walked into his room and he commented that his reward chart was still there. [The child] said, “wow you kept my reward chart.” [The child] looked around his room and he appeared very surprised that everything was still the same, and he said, “wow” many times.[130]
[130] Tender bundle of ICL received 24 July 2023 (Exhibit “A”), page 99.
I also note, from the reports of E Family Services, that the child also has a dog named CC that he can play with in his father’s care. The Report of mid-2023 from E Family Services records: “[The father] then suggested that they play with [CC] and [the child] agreed. They went out onto the balcony and [the child] cuddled his dog [CC] and played with him for a few minutes before returning to the living room”.[131]
[131] Tender bundle of ICL received 24 July 2023 (Exhibit “A”), page 100.
The closeness of the father and the child’s relationship was also reflected in a visitation that occurred two days later. The notes of E Family Services refer to the time of the child’s departure from his father: “[w]e walked to the car and [the father] and [the child] hugged and warmly said goodbye to each other. [The child] said, “I love you” and [the father] returned the sentiment”.[132] The supervisor’s report further recorded that en route returning to the mother’s residence: “[the child] appeared to be in a positive mood”.[133] This was further reflected in a recent visitation supervised by E Family Services in late 2023 where “[the father] and [the child] affectionately hugged and [the father] told [the child] he loved him, and [the child] responded “I love you too dad”.[134]
[132] Tender bundle of ICL received 24 July 2023 (Exhibit “A”), page 103.
[133] Tender bundle of ICL received 24 July 2023 (Exhibit “A”), page 103.
[134] Tender bundle of ICL received 24 November 2023 (Exhibit “FF”), page 12.
I appreciate that the process of adversarial litigation has created additional tensions in the relationship between the child and his father, including as a result of the father intrusively examining the child’s messages. Nonetheless, there appears to be a fundamental framework of affection between the child and his father. That framework, in my view, provides real potential for the child to develop a warm loving and supportive relationship with his father in the period subsequent to this litigation. This is particularly so in circumstances where the father will be obtaining assistance from Dr F.
Having regard to that the father’s evidence and the evidence of Dr F I find that, with assistance from Dr F, the father has the capacity to provide the emotional scaffolding that is likely to be necessary to assist the child to adjust to living with the father.
Practical difficulty of implementation
The parents live in relatively close proximity and no party suggested that there were any particular practical difficulties of implementation of orders for there to be a change of residence, save to the extent that the implementation of those orders would itself be challenging with the prospect that the child may well not willingly accept that he is now required to live with his father. I will further address that issue in considering the issue of risk.
One practical difficulty concerns payment for the cost of supervision that will occur for the first school term of 2024. The father contended that the mother should meet that cost. My concern is, however, that in circumstances where the mother is unemployed, there is a risk that she may not be able to meet that cost. This would not be in the interests of the child who would be deprived of time with his mother. I will therefore make the orders proposed by the ICL that the cost be shared.
Avoiding further proceedings
Regrettably, given the history of this litigation and the querulous personality traits to which I have earlier referred, there is every prospect that there will be ongoing litigation in this matter.
I am of the view that litigation is less likely if orders are made for there to be a change of residence in circumstances where, despite consenting to orders made during the course of these proceedings for the child to spend regular overnight time with the father, the mother has taken it upon herself to effectively unilaterally vary those orders in circumstances where she contends the child has been distressed at the prospect of spending time with the father.
Based on that conduct, I am of the view that in the event of orders being made for the child to continue living with the mother and spending less regular time with the father, the mother would, similarly, take it upon herself to unilaterally determine the circumstances in which the child would spend with the father. This concern has not, however, been determinative of the orders that I have made.
Evaluation of s 60CC considerations focussing, in particular, on the issue of risk
The balance of harm that is involved in considering whether there should be orders for a change in residence is one of the most significant components of determining what orders are in the best interests of the child. As is the situation in many cases, this evaluation also incorporates other elements of the best interests criteria set out in s 60CC of the Act including, most relevantly, the effect of a change on the child and the respective capabilities of the child’s parents.
Relevant principles to apply when considering whether to make an order for change in a child’s residence
While not necessarily an order of “last resort”,[135] it goes without saying that an order requiring there be a change in the place of primary residence of the child should not lightly be made. Such an order inevitably changes the child’s relationship with the parent who is likely to be the child’s primary attachment figure and has the potential to cause significant emotional distress with potential lifelong implications: Simmons & Simmons (2023) FLC 94-137 at [52].
[135] Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 at [10], citing Re L (A Child) [2019] EWHC 867 (Fam) at [53]–[59].
Such an order should only be made where the conclusions in respect to the totality of the best interest considerations “make the resulting order necessary and proportionate” to the risks associated with the status quo: Re S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam) at [59].
As earlier observed, in exercising jurisdiction under the Act, I am required to have regard to “the need to protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act). This necessarily involves “focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being” (Bielen & Kozma (2022) FLC 94-123 at [30]).
The making of such orders in the case of slightly older children is particularly complex. As has been pointed out in comparable jurisdictions, it is important for the court to remember that children are autonomous human beings who have their own rights feelings and their own perceptions. Making orders against their wishes can be viewed as an affront to the child’s emerging sense of autonomy which, ordinarily, should be encouraged in young adolescents. The court must therefore recognise the reality that older children are less open to being told what to do by adults including by a judicial officer: Warwickshire County Council v The Mother [2023] EWHC 399 (Fam) at [23]. There is always a risk that in the case of older children, such as the child, that he will “vote with his feet”,[136] and not comply with the orders for there to be a change in residence.
[136] Transcript 24 November 2023, p.843 line 24.
In summary, I must have regard to the risk to the child of likely experiencing considerable emotional distress and trauma resulting from orders requiring there to be a change in his place of residence away from the security of his current home and his relationships with those members of the maternal family who are clearly close to him. It will also involve him leaving familiar surroundings, neighbours, and even his pets who he has a close attachment to.
The mother submitted that the potential impact of that emotional trauma on the child outweighs any benefit that would be achieved by requiring there to be a change in the child’s residence. In that respect, the mother refers to the child having suicidal ideation that was reported to both her and by the child to his general practitioners. In particular, reference was made to the following:
(a)Several medical certificates earlier referred to including, for example, a medical certificate provided by Dr R setting out a diagnosis made in August 2023 that the child “has suffered from acute psychological distress and anxiety and was unable to attend his schedule visitation from 18/08/2023 to 21/08/2023 inclusive”[137] and;
[137] Exhibit “W”.
(b)Progress notes for the child made by Dr W in September 2023, which recorded the following:
severe depression
mother is telling me that [the child] said he is going to [self-harm]
He is meant to see his father today and he is now this minute is sitting on the toilet
Unable to come out
He is refusing to see his father this weakend
Talking to [the child], he stated that he would rather to be dead than going again to his father
He also said he feels dead already
He is severely anxious and stressed that when he was there last time, He could not sleep until was severely exhaused and when he fell asleep, his father stole his phone and all the messages from [the child] u to his friends and mum to use it against his mum
He said he did not consent that, that made him very upset
Reason for contact:
Anxiety/Depression[138]
(As per the original)
[138] Exhibit “BB”.
In adjudicating in respect to the issues agitated by the parties in these proceedings, I am required to make factual findings and to draw inferences from those findings on the basis of the weight of evidence presented by each party. The medical certificate dated August 2023 is of little weight insofar as it specifies a diagnosis but does not set out the history obtained from the patient as underpinning that diagnosis.
I give greater weight to the progress notes made by Dr W in September 2023, insofar as they include both a diagnosis and at least a bullet point history obtained from the child that forms the basis of that diagnosis. It is notable, however, that despite diagnosing “severe depression”, no further referral was made for the child to attend upon a mental health professional.
In commenting on that fact, Dr B agreed with the proposition, advanced by counsel for the father that, if the general practitioner had concerns that the child faced a grave risk of personal harm, it was odd that in recent years there has not been “a single referral for mental health plan or to a psychologist”.[139] In agreeing with that proposition, Dr B stated yes “if it was that bad, you would send them to a treating clinician”.[140]
[139] Transcript 24 November 2023, p.881 lines 27–29.
[140] Transcript 24 November 2023, p.881 lines 38–39.
As earlier noted, pursuant to a mental health plan provided by the child’s general practitioner in late 2020,[141] the child was referred to Dr Q who, it was acknowledged, is a mental health professional. The mother attested to taking the child to Dr Q on approximately four occasions – possibly a little more,[142] but there is no evidence that the child has been taken to Dr Q or any other mental health professional since mid-2022. As noted, Dr Q was not called to give evidence in these proceedings and in those circumstances, an affidavit that she provided in 2021 regarding her assessment of the child’s mental health, was not admitted into evidence.
[141] Mother’s affidavit filed 23 July 2023, paragraph 313.
[142] Transcript 26 July 2023, p.38 lines 1–2.
As against the absence of evidence from a mental health professional supporting the propositions advanced by the mother, is the evidence of Dr B who was far more measured in her assessment of the child’s mental health. Dr B assessed the child as being “resilient” despite the stresses that he has experienced during the course of the parental conflict.[143]
[143] Transcript 24 November 2023, p.830 lines 3–4.
Dr B noted that in her interviews with the child, he did not report any suicidal ideation to her.[144] When specifically asked about that risk, she responded that she was “not too concerned about suicidality”.[145] To mitigate against that risk, Dr B recommended that, as soon as possible, steps should be taken to engage the child “with a child psychologist as a safeguard against any further exacerbation of the suicidal ideation” and other mental health concerns that have been raised in the proceedings.[146] The ICL has proposed orders to that effect and I intend to make such orders.
[144] Transcript 24 November 2023, p.830 line 28.
[145] Transcript 24 November 2023, p.831 line 2.
[146] Transcript 24 November 2023, p.887 lines 5–7.
The other potential risk is that the child might take matters into his own hands and abscond from the father’s household to either return to his mother’s or perhaps even reside at an alternative address.
The father indicated he would be alive to that possibility and that he would carefully monitor the child, particularly in the immediate period after the child comes into his care. To mitigate against the prospect of the child being encouraged to take matters into his own hands by leaving the father’s residence, the ICL has proposed that the child’s time with the mother be supervised for the period of the first school term of 2024. That is consistent with the advice of Dr B, and I propose to make such orders.
As against those immediate or short-term risks it is necessary to consider the risks for the child in the event that such orders are not made, and he continues to reside with his mother.
Having carefully evaluated the totality of the evidence and the best interest considerations that I am required to take into account, pursuant to s 60CC of the Act, I accept and agree with the opinion of Dr B that “it’s unfair to [the child] to allow him to keep going on with this unstructured, unsupervised sleep hygiene and school attendance routine”.[147]
[147] Transcript 24 November 2023, p.818 lines 30–32.
As noted by Dr B, to permit that situation to continue would be likely to see a situation where the child’s predicament will go “from bad to worse”.[148] With the potential consequences being:
(1)The prospect of the child making “undesirable links on the web or with … some other antisocial children” with the potential to be drawn into an “antisocial subculture”;[149] or
(2)He will “just muddle along, not doing well at school, impacts on his self-esteem, unable to form aspirations and achieve occupationally”.[150]
[148] Transcript 24 November 2023, p.841 line 24.
[149] Transcript 24 November 2023, p.841 lines 26–29.
[150] Transcript 24 November 2023, p.841 lines 30–31.
Dr B summarised that:
[T]he question is really not between a good parent and a bad parent but between two parents who have intrinsic features which compromise optimal parenting but one of whom is more functional for meeting the child’s developmental needs at this period than the other and who also can provide a calmer home environment.[151]
[151] Transcript 24 November 2023, p.830 lines 5–9.
In terms of balancing the consideration of risks to which I have earlier referred, Dr B opined:
I anticipate his response to a change in residence would be to kick up a fuss and to be upset, but I expect that would be transient, whereas I think that the effects of living in that chaotic, dysregulated situation with his mother would be permanent and long-lasting. In other words, I think it’s recoverable.[152]
[152] Transcript 24 November 2023, p.830 lines 24–27.
As I have earlier noted, I found Dr B to be an impressive witness who was considered in her answers. Those answers were also supported by appropriate factual references and her evidence was given in a direct and forthright manner. Her evidence was not contradicted by evidence from an appropriately qualified mental health expert. I accept and adopt the recommendations of Dr B, which I note substantially underpin the orders proposed by the ICL.
In doing so, I have considered alternatives to orders for there to be a change of residence including, as proposed by counsel for the mother in the mother’s written submissions filed 22 December 2023, that orders be made “which sets some target on school attendance” (paragraph 96). While not specifically stated, presumably this included the prospect of making orders for there to be a change of residence if that target was not met.
While I have considered that possibility, insofar as the history of what has occurred is a predictor of the future, I am not satisfied that the mother has the capacity to secure that outcome. She has had every opportunity to do so, including since the child’s school attendance was raised as a potentially determinative issue in these proceedings by Dr B in her Report dated 1 April 2022. In circumstances where the issue has been a particular focus in these proceedings, the fact that she has been unable to ensure that the child has a satisfactory level of school attendance gives me no confidence that the mother will have the capacity to do that in the future. Accordingly, having regard to the advice of Dr B, I will make orders as sought by the ICL for there to be a change in the child’s residence.
ORDERS
For reasons which I have set out above, I will make orders substantially as sought by the ICL. I will focus upon those orders, rather than the orders proposed by the parties. This is because the orders sought by the mother are based upon an outcome where the child would continue to live with her and the orders proposed by the father are based on a flawed proposal that there be a moratorium on the child spending time with the mother, potentially, for an indefinite period.
In terms of Order 1, all parties agreed that all previous parenting orders should be discharged. In that context, all parties acknowledged that the principles of Rice and Asplund (1979) FLC 90-725, have been satisfied. That is, there is justification in revisiting the previous parenting orders.
In terms of proposed Order 2, I have explained why an order for equal shared parental responsibility is inappropriate and not in the best interests of the child. In circumstances where the child will live with the father, I will make an order for the father to have sole parental responsibility – as proposed by the ICL.
I have earlier explained why I will make orders in terms of Order 3 for the child to live with the father.
In terms of proposed Order 4, there was a quite lengthy discussion, during the course of the proceedings, with Dr B, as to how the child would transition from the mother’s care to the father’s care. Given the child’s age, I must have regard to the risk of the child experiencing considerable emotional distress resulting from orders requiring there to be a change in his place of residence. I note that the Court has the benefit of Court Child Experts who can assist the ICL in their role of explaining the orders to the child after judgment delivery. While I note the ICL’s proposal in Order 4 that changeover occur in the Sydney registry at 4.00 pm on the day of judgment delivery, to ensure the most child focused approach and acknowledging the practicality and resources of the Court, I have ordered that the child be brought to the Court Children’s Services in the Sydney registry prior to judgment delivery. This has been reflected in the orders made on 24 January 2024 listing the judgment for delivery. In that context, as I will discuss further below in respect to Order 35, I request that the ICL take such steps as are reasonably practicable, to explain to the child in language that the child will understand, the primary reason why the orders have been made. Following this, the child will transition to the household of the father.
In terms of the spend time orders proposed by the ICL in the subparagraphs of Order 5, for reasons which I have explained, I agree that it is appropriate for the child’s time with the mother to be initially supervised to prevent a potential situation where the child might be exposed to negative commentary of his father and or directly or indirectly encouraged to leave the care of the father. I note that the proposed orders are consistent with the recommendation of Dr B in respect to the length of the period of supervision and also in respect to the transition to the child spending additional time with the mother. For reasons which I have earlier set out, the parties should share in the cost of the supervision.
I further note that proposed Order 5.4 will enable the parties to agree upon a variation to the spend time orders in circumstances where they may become impracticable or inconvenient. This may also include the utilisation of a trusted third person to supervise the child’s time with the mother during the relevant period that is to occur.
Proposed Order 6 is appropriate in that it will encourage the mother to ensure that the child attends school but, at the same time, in the event of default, will not result in the child failing to spend time with his mother on the following three weekends. Rather, the orders proposed by the ICL will bring forward changeover, such that it occurs at 5.00 pm on Sunday rather than after school on Monday. That order is also appropriate,
Proposed Order 7 will provide that, in the event of the mother being admitted into hospital, the time the child was to spend with the mother would, instead, be spent with the father. While I appreciate the mother agreed to such an order in the context where the mother was pursuing orders for the child to continue living with her, I am nevertheless satisfied that the purpose and intention of the orders reflects that which was agreed between the parties during the course of the hearing. The order is consistent with the child’s best interests insofar as it will ensure stability in the child’s accommodation while the mother undergoes any necessary treatment.
In terms of proposed Order 8, I agree that providing for changeover to occur at the child’s school will minimise the prospect of confrontation between the parties. In circumstances where changeover is not to occur on a school day, I agree that it is appropriate that the changeover occur at the father’s residence. This will avoid a situation where the mother has, in the past, had difficulty with the father attending changeover in the company of his current partner, Ms P. The only supplementation to the orders proposed in respect to changeover is that, in circumstances where the maternal grandfather impressed as a decent and forthright man who is committed to the best interests of the child, I will add an additional Order 8.1 that will provide:
8.1The mother may, if she wishes, make arrangements for the child to be collected from the father’s home by the maternal grandfather.
Proposed Order 9 is appropriate insofar as it is the Court’s experience that the visual or audio recording of the conduct of parties at changeover can often exacerbate tensions and hence increase the possibility of the child being exposed to parental conflict.
Proposed Orders 10 to 14 are related to the topic of video/audio communication. Those orders are, in my view, appropriate and in the best interests of the child insofar as Order 13 will enable the child to contact his mother by telephone or video at times of his choosing. This is important because it may reduce the extent of distress that the child feels about having been separated from his mother and members of his maternal family. At the same time, it will not permit either parent to intrude upon the child’s time with the parent with whom he is staying other than at set times. The setting of time for such communication is appropriate to avoid the potential for ongoing disputation.
Proposed Orders 15 to 17 are appropriate insofar as they, in combination, provide that neither party will denigrate the other directly and will not make negative, critical, belittling, rebuking or derogatory comments of the other parent in front of the child. Significantly, proposed Order 16 requires each parent to take such steps as reasonably necessary to ensure that no other person does so. This order is again appropriate in circumstances where the child expressed concern to Dr B, that not only his father but also his father’s current partner made derogatory comments about his mother. Irrespective of whether that has or has not occurred, the proposed order will give some assurance to each party that reasonable steps will be taken to prevent any such denigration.
Proposed Orders 18 to 20 relate to the child’s attendance at school. To avoid doubt, the making of order to give sole parental responsibility to the father, enables him to determine what high school the child attends, to commence in 2024. To ensure that the child feels a sense of agency, it would, of course, be appropriate for the father to discuss various options with the child but that will not be mandated in the orders.
The restraint on each parent attending the child’s school at times other than when the child is in their care will hopefully avoid any repeat of the “pyjama day incident” to which I have referred throughout this judgment.
Equally, it is important that each parent is involved in and supportive of the child’s education. Proposed Order 20 appropriately enables each parent to obtain relevant information to enable that to occur.
Proposed Orders 21 to 24 deal with arrangements that are required for the father to engage the services of a mental health professional to assist the child’s transition into his care. The orders are consistent with the recommendations of Dr B and are important in circumstances where it can reasonably be anticipated that the child will experience significant distress arising from the orders that I make for there to be a change of residence. As recommended by Dr B, the engagement of such a health professional to both monitor the child’s mental health and to assist him in the transition is important to avoid any diminution in the child’s mental health.
Proposed Orders 25 to 28 deal with medical attention that the child may require. Essentially those orders provide that the father must extend the courtesy, to the mother, of informing her of any medical or therapeutic treatment received by the child. At the same time, the orders will enable the mother to make appropriate inquiries to reassure herself of the appropriateness of that treatment. While not specifically stated in the orders, a necessary inference from proposed Order 27 is that the mother is empowered to seek medical treatment, on behalf of the child, in the event of an emergency or the child suffering a serious illness or injury or being hospitalised while in her care.
Order 29 restrains each parent from consuming alcohol in excess or non-prescription medication while the child is in their care. Having regard to the evidentiary burden set out in s 140(2) of the Evidence Act 1995 (Cth), I have not made specific findings as to whether either or both of the parties continues to have a substance abuse disorder. Nevertheless, in circumstances where both parties acknowledge that, in the past, they have had issues with substance abuse and in the context of issues that have been agitated in these proceedings, I agree that the proposed order is appropriate.
Proposed Orders 30 to 34 would empower both parties, on the provision of appropriate notice, to travel overseas with the child. I agree that such orders are appropriate in the context of the restriction that would otherwise apply having regard to the provision of s 65Y of the Act and, if left unaddressed, has the potential to cause ongoing disputation. Counsel for the father, in written submissions filed 22 December 2023, took issue with the fact that the orders proposed a moratorium on either party travelling overseas with the child for a period of six months after the date of these orders (paragraph 133). There was no evidence before the Court that either party intends to travel overseas with the child within the next six months. Imposing a moratorium on overseas travel for a period of six months is, in my view, appropriate in circumstances where it will permit the child to settle into his new living arrangement with the father and it will avoid disruption of the therapeutic program that the father is required to obtain for the child pursuant to these orders.
Proposed Order 35 is entirely appropriate in that it facilitates the ICL having the opportunity of explaining the final orders to the child. Such an order recognises the child as an autonomous human being with rights that are to be respected. This is particularly important where the orders made by the Court are contrary to his wishes. In conjunction with Order 4, this will facilitate the ICL explaining the orders to the child after they are made and prior to the initial changeover from the mother’s care to the father’s care occurring.
Proposed Orders 36 and 37 would require each party to share the costs of the ICL. In circumstances where the parties have not yet had the opportunity of addressing the Court on that issue, I propose that instead of making those orders, I will facilitate the parties providing written submissions of no more than three pages in respect to the question as to whether they should share the costs of the ICL, as proposed.
Finally, the Court makes it clear that neither party should assume that they have won or lost this case. There are elements of the conduct of both parties that warrant criticism because of the adverse impact it has had on their son. The orders have been made on the basis of what the Court considers to be in the best interests of the child in the context of concerns that have been expressed as to the impact of the ongoing parental dispute on the emotional health and well‑being of the child.
I certify that the preceding two hundred and sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 25 January 2024
Office, Cm 412, 1988) p. 245.