FAIRLEY & JAGGARD

FAMILY COURT OF AUSTRALIA

FAIRLEY & JAGGARD

[2020] FamCA 437

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Where the subject child is aged 14 years of age and has Autism Spectrum Disorder – Where the applicant father sought orders for the child to live with him and spend time with the mother – Where the respondent mother sought orders for the child to remain living with her and for him to only ever graduate to spending professionally supervised time with the father – Where the mother alleges the father poses an unacceptable risk of harm to the child – Where the Independent Children’s Lawyer proposed orders for the child to live with the father and to spend only limited time with the mother – Where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where the father admits the child has a meaningful relationship with the mother from which he derives benefit – Where the mother’s evidence overall seems to suggest the child’s relationship with the father is not valuable and the child does not derive much benefit from it – Where the mother alleges the child is at risk of sexual abuse in the father’s care – Where allegations of sexual abuse are unsubstantiated – Where the father alleges the mother neglects the child’s educational and social needs – Where the child lacks capacity to reliably express a view – Where the likely effect of proposed changes upon the child is a significant issue – Where the father does not pose any risk of harm to the child – Where the father is more likely than the mother to allow the child to maintain his relationships with both parents – Where the mother tends to neglect the child’s education – Where there is residual concern about the extent to which the mother’s parenting capacity is afflicted by alcohol consumption and unstable mental health – Where the single expert’s view that the father is “better equipped” than the mother to care for the child is accepted as being correct – Where orders are made closely reflecting those proposed by the father and the Independent Children’s Lawyer – Where the child shall live with the father – Where the mother will spend time with the child every third weekend – Any and all outstanding applications dismissed.

FAMILY LAW – CHILDREN – PARENTING – Parental responsibility – Where the parties, the Independent Children’s Lawyer and the single expert all agreed that parental responsibility cannot be shared by the parties – Where presumption of equal shared parental responsibility is rebutted – Where s 65DAA of the Family Law Act 1975 (Cth) is not engaged – Where the father as the residential parent shall have sole parental responsibility for the child.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 61B, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
RCB v Forrest (2012) 247 CLR 304; [2012] HCA 47

APPLICANT:

Mr Fairley

RESPONDENT:

Ms Jaggard

INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW

FILE NUMBER:

NCC

2515

2008

DATE DELIVERED:

15 June 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

25, 26 & 27 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rugendyke

SOLICITOR FOR THE APPLICANT:

Georgia Seaton Family Law and Mediation

COUNSEL FOR THE RESPONDENT:

Mr Graham

SOLICITOR FOR THE RESPONDENT:

Hepmac Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW

Orders

All former orders relating to the child X, born … 2005, are discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
The parties shall take all reasonable steps to ensure the child spends time with the mother:
(a)every third weekend from 9.00 am on Saturday until 4.00 pm on Sunday, commencing on Saturday 27 June 2020;
(b)from 9.00 am until 4.00 pm on Mother’s Day, if not already spending time with the mother that day pursuant to Order 4(a); and
(c)from 4.00 pm until 7.00 pm on the child’s birthday.
Orders 3 and 4(a) are suspended between 4.00 pm on Christmas Eve and 4.00 pm on Boxing Day each year, during which period the child will spend time with the father from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day and with the mother from 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.
For the purposes of implementing Orders 3, 4 and 5, the parties shall cause the child to be exchanged at the McDonalds Restaurant at Suburb C, NSW.
The mother is restrained from consuming alcohol during any period in which the child spends time with her and also during the period of 12 hours immediately preceding such time.
The mother is restrained from entering upon or approaching within 100 metres of:
(a)the father’s residence; and
(b)the child’s school, without the father’s written permission.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party.
The father shall authorise and request the principal of the child’s school to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairley & Jaggard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2515 of 2008

Mr Fairley

Applicant

And

Ms Jaggard

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings entail a dispute between the applicant father and the respondent mother pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) over parenting orders concerning their only child, who is now 14 years and nine months of age. This is their fourth such dispute.
All aspects of the child’s care were the subject of controversy: with whom he should live; who should have parental responsibility for him; and constrictions of how and when he spends time with the non-residential parent.
If anything, the parties’ conflict has intensified over time and, with their consent, an Independent Children’s Lawyer (“ICL”) was appointed in August 2019 to separately represent the child’s interests. By the time of trial, the ICL was generally supportive of the father’s case.
For the reasons which follow, orders more closely reflecting those proposed by the father and the ICL should be made in the child’s best interests. The child should live with the father, who should have sole parental responsibility for him, and he should spend restricted time with the mother.

Background

The parties separated in 2007 and their litigation over the child has a long history.
Orders were first made between the parties in respect of the child in July 2009. At that time, with their consent, orders were made for them to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend an increasing amount of time with the father as the child matured. At that time he was not quite four years of age.
More litigation then ensued when the mother withheld the child from the father in 2011, but the dispute was resolved in February 2012 when the parties agreed on new orders for them to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial time with the father. It is common ground the child is afflicted by autism and so the orders also directed that, after his completion of primary school, he must attend a secondary school equipped to cater for his “special needs”.
Some years later, in December 2015, a judge of the Federal Circuit Court of Australia made more orders to narrowly amend the orders made in February 2012. First, the orders adjusted the terms under which the parties would continue to hold equal shared parental responsibility for the child, directing their collaboration with the child’s treating medical specialists. Secondly, the orders made specific provision for when the child would spend time and communicate by telephone with the parties in the upcoming Summer school holidays in December 2015 and January 2016.
These current proceedings were commenced by the father in June 2019, because the mother had moved from Newcastle to the D Region and wanted the child to change school. The parties could no longer agree upon the child’s continuing attendance at the secondary school in Newcastle they jointly selected pursuant to the orders made in February 2012.
Following the commencement of the proceedings, both parties sought new suites of interim orders but, in July 2019, their respective applications were dismissed with their consent and it was then expressly noted as follows:
A.The Orders in respect of the parties’ child made on 3 February 2012, as varied on 10 December 2015, continue with full force and effect.
B.The respondent mother accepts that the child’s best interests are served by the maintenance of his enrolment and continued attendance at the special education unit at [the secondary school jointly selected by the parties] and she informs the Court she will ensure the child’s continued attendance at that school as and from Monday, 29 July 2019.
The proceedings were listed for trial in May 2020 but, in the week before, the mother applied to vacate the trial, which both the father and the ICL opposed. The mother’s oral adjournment application was dismissed and her counsel courteously volunteered the reasons for that procedural decision need not be published.
Because of the COVID-19 pandemic, the attendant biosecurity directions of the government, and the safety measures implemented by the Court, the trial was conducted by audio-visual connection via the internet. Neither party objected.

Proposals

The father pressed for the orders set out within his Amended Initiating Application filed on 7 August 2019. In essence, he proposed that the child now live with him, that he have sole parental responsibility for the child, and that the child spend time with the mother. He additionally sought orders compelling the retention of the child’s enrolment at the same secondary school upon which the parties agreed pursuant to the orders made in February 2012, being the school the mother confirmed in July 2019 promoted his interests. However, during final submissions, the father instead adopted the ICL’s proposal about the amount of time the child should spend with the mother, subject to some minor amendments.
The mother pressed for the orders set out within her Further Amended Response filed on 20 May 2020. In essence, she proposed that the child continue to live with her, that she have sole parental responsibility for him, and that the child only ever graduate to spending professionally supervised time with the father. Her case, which changed markedly after an event in early May 2020, is that the father poses an unacceptable risk of harm to the child.
The ICL began the trial openly foreshadowing his preliminary view that the child should live with the father and that the father should have sole parental responsibility for him.[1] When the evidence closed, the ICL tendered a minute of proposed orders.[2] His proposal was for the child to live with the father, for the father to have sole parental responsibility for the child, and for the child to spend quite limited time with the mother.
[1] Case Outline filed on 21 May 2020
[2] Exhibit ICL2

Evidence

The father relied upon:
a)his two affidavits filed on 17 April and 8 May 2020; and
b)the affidavit of his partner, Ms E, filed on 17 April 2020.
The mother relied upon:
a)her two affidavits filed on 4 May and 19 May 2020; and
b)the affidavit of her partner, Mr F, filed on 5 May 2020.
The parties were only formerly granted leave to rely upon one affidavit each, but their second affidavits were filed to address important circumstances which came to light on and following 1 May 2020. They therefore had no objection to one another’s reliance upon the updating affidavits. The mother gave evidence of having sworn a third, more recent affidavit, but it was neither filed nor tendered. It was not ultimately relied upon.
The ICL relied upon:
a)the affidavit of the child’s behavioural consultant and educator, Ms G, filed on 8 May 2020 (who was not required for cross-examination); and
b)the affidavit of the child’s clinical psychologist, Mr H, filed on 11 May 2020 (who was required for cross-examination by the mother).
Pursuant to procedural orders made by Cleary J, evidence was additionally adduced from a single expert psychologist, Ms J. Her affidavit was filed on 9 January 2020. The single expert recommended that her report be read in conjunction with two earlier reports she had prepared in relation to the family for use in prior litigation between the parties,[3] but those earlier reports were not adduced in evidence by either party or the ICL.
[3] Single Expert report, para 6
The mother failed to attend her scheduled appointment with the single expert and so later, in February 2020, Cleary J made an order requesting the single expert to prepare an addendum report incorporating her opinions arising from her re-scheduled consultation with the mother. Regrettably, the addendum report was not prepared because the mother was unable to afford the additional fees for its compilation. Any disadvantage which the mother perceives arises from her failure to consult with the single expert is attributable exclusively to her.
The ICL prepared a tender bundle of documents, which bundle was tendered in evidence.[4]
[4] Exhibit ICL1

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

The father admits the child has a meaningful relationship with the mother from which he does, and should continue to, derive benefit. He concedes the child tells him of his love for the mother.[5] The single expert confirmed in cross-examination she had no reason to doubt the veracity of the father’s commitment to the continuing promotion of the child’s relationship with the mother.[6] The orders should ensure the child’s filial link with the mother is well maintained, but that can be achieved by their reasonably regular personal interaction. It need not be by the mother’s retention of the child’s primary residence.
[5] Father’s affidavit 17/4/20, para 158
[6] Single Expert report, para 85
The mother’s counsel ultimately submitted that the child loves the father and derives benefit from his relationship with the father. While the submission is accepted as being correct, it is not easily reconciled with the mother’s evidence. Despite some internal inconsistency in her evidence, overall, the mother does not seem to think the child’s relationship with the father is valuable or that the child derives much, if any, benefit from it.
The mother conceded in cross-examination that the child would miss the father if he was excluded from the child’s life and it was important for the child to spend time with the father, but those few concessions were relatively platitudinous. The preponderance of her evidence was exactly to the contrary. For example:
a)she deposed in her affidavit that the child frequently expresses his wish not to go to the father’s house;[7] and
b)in cross-examination she said words to the effect of:
“I don’t know how to answer that” (when asked if she thinks it is important for the child to spend time with the father)
“That’s a difficult question to answer” (when asked to nominate the benefits for the child in spending time with the father)
“[The child] tells me eight times a day he doesn’t want to go to the father”
“[The child] asks eight times a day every day not to go back to the father”
“[The child] knows he has to go [to the father], but he doesn’t enjoy it”
“That’s what the child wants” (when asked if she had recently informed the Child Support Agency that the child is now in her care for 100 per cent of the time)
“[The child] counts down the time before he goes to the father’s because he doesn’t want to go”
[7] Mother’s affidavit 4/5/20, para 97

The mother admitted in cross-examination that, with her active encouragement, the child recently telephoned the father (on 18 May 2020) and said to the father:
“I don’t want to see my Dad. Promise.”
Despite the mother’s apparent belief that the child does not and will not benefit from a meaningful relationship with the father, he does and he will, just as her counsel responsibly submitted in accordance with the evidence. The orders must ensure the child retains his strong connection with the father. The child is afflicted by autism to such an extent that he may never be able to live independently, so the availability of both parents’ support for the remainder of his minority and into at least his early adulthood is imperative.
The only reason the child should not have both parents meaningfully involved in his life is if either of them subjects or exposes him to a material risk of harm.

Section 60CC(2)(b)

Each party asserted the other party posed a risk of harm to the child, albeit for different reasons.
The mother alleged the child is at risk of sexual abuse by the father. That was the reason why she amended her Response on 20 May 2020, just prior to the trial, to propose the child only ever spend supervised time with the father.[8] Prior to that she had conducted her case on the basis that the child could spend unsupervised time with the father and she had adhered to existing orders to that effect.
[8] Mother’s affidavit 4/5/20, para 102
The father alleged the child is at risk of subjection or exposure to family violence in the mother’s household and also to the risk of the mother’s neglect of his academic and social needs.
Risk of sexual abuse
Over many years, the mother has intermittently alleged the child’s sexual abuse, including by the father. Such allegations arose in 2011, 2018, and 2020.
Most recently, on 1 May 2020, the child said “something about his butt” to the mother, which caused her to seek clarification from him.[9] The mother gave inconsistent evidence about what the child said in response to her questions, but according to her it was either:
…“[M]y butt was bleeding and they put something in my butt with a piece of string and made me take it out and put it down the toilet and have a shower”.[10]
or
…“[M]y butt was bleeding and dad put something in my butt with a piece of string and dad pulled it out and put it down the toilet there was blood everywhere and dad made me have a shower”.[11]
(Emphasis added)
[9] Mother’s affidavit 19/5/20, para 5
[10] Mother’s affidavit 4/5/20, para 99
[11] Mother’s affidavit 19/5/20, para 5
The difference between those versions is significant to both the interpretation and reliability of the allegation now being maintained by the mother against the father. If she relies on the first plural version, she must be alleging the father and some other adult, presumably Ms E, were complicit in the child’s sexual abuse. If she relies on the second singular version, she must be alleging the child’s sexual abuse was perpetrated by the father alone. The two versions of the same event are incompatible, so it is impossible for both to be true. The mother was oblivious to the dichotomy and how it objectively called into question the reliability of her interpretation of the child’s disclosure.
The child’s discussion with the mother took place in the presence of the child’s speech pathologist and the maternal grandmother. Neither of them was called as a witness by the mother to verify precisely what the child said, but the speech pathologist’s contemporaneous notes were in evidence. Significantly, the speech pathologist’s notes suggest the conversation had a quite different complexion from either of the two versions interpreted by the mother. The notes record:[12]
…[The child] stated it was because of a hard poo and blood was coming out whilst on the toilet…[the child] also stated that “dad pulled a string out of my bum”…
…
…[The mother] reported a GP appointment had been made for that afternoon at 12.15 pm. [The mother] also suggested the thought that the “string” was a tampon that [the child’s] father had inserted into his bottom…
(Emphasis added)
[12] Exhibit ICL1, pages 53-54
The child associated the incident with his defecation and constipation. He only said the father removed string from his anus. He said nothing about insertion of an object into his anus. It was the mother who introduced the idea of the father penetrating the child’s anus by the insertion of an object and it was she who imagined the object was a tampon.
The mother’s suspicion the child had been sexually abused by the penetration of his anus prompted her to take the child to the doctor for physical examination. When she telephoned the doctor’s surgery to make the appointment for later that day, the mother told the doctor:[13]
…[the father has] been molesting [the child] since infancy and hes (sic) never going to see [the child] again.
[13] Exhibit ICL1, page 69
The mother alleged the child told the doctor the same story as he told her earlier in the day,[14] but it is clear from independent records that the child did not. The doctor’s contemporaneous records state:[15]
good repeated speaking of story anal bleed (in hindsight uncertain if he or mum said blood/faeces) and cleaning self
some mention string pulled out with pressing for more by mum repeadedly (sic) asking
block re prior who or what happened.
after prodding (non leading not aggressive but closing in and rapid repeats) = x1 Dad.
(Emphasis added)
[14] Mother’s affidavit 4/5/20, para 99; Mother’s affidavit 19/5/20, para 6
[15] Exhibit ICL1, page 69
Again, the doctor’s notes imply the child’s story involved a rather messy episode of defecation, during which some string was removed from his anus. Otherwise, the story was far from clear, despite both the mother “pressing” and the doctor “prodding” for more information. Significantly, the speech pathologist’s notes also refer to the mother having asked the child to “repeat” what he had said.[16]
[16] Exhibit ICL1, page 53
If the records of the speech pathologist and the doctor are taken at their highest and stripped of the mother’s suspicions and imputations, then the child disclosed no more than that he was constipated and the father helped him by pulling some string free from his bowel and then washing him clean.
As bizarre as that might sound, the father gave evidence of such an event occurring nearly a month before the child’s revelation to the mother. He said the child was badly constipated, about which the child was distressed. He had smeared faeces over the toilet and bathroom and, when the father investigated, he found a length of string protruding from the child’s anus, which he pulled free. The child was then able to defecate freely, following which the father cleaned faeces from both the child and the bathroom.[17]
[17] Father’s affidavit 8/5/20, para 5
The mother must have read the father’s affidavit containing such evidence when it was served on her lawyers a week or so after the event on 1 May 2020 but, given the way she ran her case at trial, she must disbelieve his evidence. She amended her Response on 20 May 2020 and, save for on one evening during the trial (26 May 2020), has still not let the child spend any time with the father since the incident on 1 May 2020.[18] In cross-examination, the mother refused to entertain the idea that the child had ingested string or that there was an innocent explanation for the child’s disclosure.
[18] Father’s affidavit 8/5/20, para 18
Returning to the events of 1 May 2020, the child was due to begin spending time with the father later that afternoon and, little more than an hour beforehand, the mother telephoned the father to say the child would not be delivered. The father alleges the mother untruthfully said to him at that time:[19]
…[the child] just told [the doctor] that you have been molesting him since he was a toddler…
[19] Father’s affidavit 8/5/20, para 9
The mother denied she said that to the father,[20] but it is unnecessary to make a finding one way or the other because the issue only goes to the question of the parties’ respective credit. There is no doubt the mother (but not the child) made an allegation to that effect to the doctor earlier in the day. According to the evidence adduced in this trial, her allegation of the father’s sexual molestation of the child over many years is false, even if she believes it.
[20] Mother’s affidavit 19/5/20, para 9
Later that afternoon, the father telephoned the doctor for confirmation about what occurred during the consultation with the child and the doctor told him:[21]
…[the child] said he had string in his bottom and had to have a shower. [The child] also mentioned “at Dad’s” during this conversation…I told [the mother] that I had no concerns for [the child’s] safety while in your care.
[21] Father’s affidavit 8/5/20, para 14
The mother did not deny the doctor had told her he held no concern for the child’s safety in the father’s care. She only said she could not recall being told.[22]
[22] Mother’s affidavit 19/5/20, para 8
The mother called Mr H’s rooms to make an appointment on 5 May 2020 and told his receptionist two things: first, the child had given a detailed account of his sexual abuse by the father to her, to the speech pathologist, and to the doctor; and secondly, the doctor found physical evidence supporting the allegation.[23] Both assertions were untrue. The child had not given a detailed account of his sexual assault to anyone and the doctor found no physical evidence at all to verify the child’s sexual abuse.
[23] Exhibit ICL1, page 34
The mother reported the sexual abuse allegation against the father to the police for formal investigation. She said in her affidavit that she wanted it “properly investigated”.[24] Apparently, the allegation has been properly investigated and it was found wanting; just like those made in the past. The police have not needed to contact the father at all[25] and the mother admitted the police have told her the father will not be charged with any offence.[26]
[24] Mother’s affidavit 19/5/20, para 11
[25] Father’s affidavit 8/5/20, para 17
[26] Mother’s affidavit 19/5/20, para 15
Notwithstanding the lack of independent corroboration, the mother continues to fervently believe the child was sexually abused by the father, consistently with the clear and unambiguous belief she has expressed to the speech pathologist, the doctor, and the police. She agreed in cross-examination the child has not seen the father since the father “raped” him. When pressed about the honesty of her belief in the allegation of the father’s sexual abuse of the child, the mother said words to the effect:
“In my heart, knowing my son and knowing [the father], I do think it probably happened”
Not so long ago, in late October 2018, the mother formed a belief the child had been sexually abused. The child said something to the mother which piqued her attention but, since she did not give much evidence at trial about what she was told by the child at the time,[27] the relevant history must be constructed from contemporaneous records of the police and the child welfare authority.
[27] Mother’s affidavit 4/5/20, para 34
The mother collected the child from school on 31 October 2018. After he had showered at home, he told the mother his anus was sore and requested some cream to apply to it. The mother later reported to police that when she asked the child why his anus was sore he said “K hurt it with his penis”. The mother immediately suspected the child’s sexual abuse and summoned the police. The child was “unable to make a clear disclosure” of sexual abuse to the police.[28] The most information the police could glean that evening was that the child had a “sore bum” and “K made it sore”.[29] The complaint was referred to the child sexual assault team for further investigation.
[28] Exhibit ICL1, page 3
[29] Exhibit ICL1, page 5
That evening the child was subjected to a sexual assault examination at the hospital. The mother alleged in these proceedings that “physical evidence” of the child’s “rape” was found by the investigators. She made that allegation to the child’s speech pathologist on 1 May 2020[30] and in cross-examination at trial, but it appears to be untrue. In fact, the investigators found no physical evidence to verify the child’s sexual abuse in late October 2018.[31] The father was told by the investigators that there was “no semen and no DNA” and a tiny bruise found on the child’s anus could well be attributable to other innocent causes,[32] particularly when it is common ground the child has a marked history of constipation and haemorrhoids.[33]
[30] Exhibit ICL1, page 53
[31] Single Expert report, para 12; Exhibit ICL1, page 3
[32] Father’s affidavit 17/4/20, para 52
[33] Father’s affidavit 17/4/20, para 53; Single Expert report, para 14
When the mother was interviewed, she told the investigators the child had divulged to her that “someone” had “put their penis into his butt”, that the “someone” was a person who babysits him at the father’s home, and that this was something which happened “all the time at Dad’s [house]”. That report by the child bore no correlation at all with the first allegation of his “butt” being hurt by a person named K at his school, but the mother was obviously willing to disregard the anomaly. She went on to tell the investigators the father is bisexual and that her “biggest fear” was the father allowing other men to be “intimate” with the child.[34] She later made similar allegations about the father to the child’s speech pathologist on 1 May 2020.[35] On the strength of those allegations made by the mother in 2018, the father was initially treated as a suspect, though suspicion of him was soon discarded.[36]
[34] Exhibit ICL1, pages 9, 10
[35] Exhibit ICL1, page 53
[36] Single Expert report, para 11
The child was formally interviewed on 2 November 2018 – two days after his initial discussion with the mother – and he told investigators that a boy named K used his finger to scratch his “butt” and that another boy named L put his penis inside his “butt”. The child said neither he nor L had any pants on during the incident, both boys having pulled their own pants down, and the incident happened in the school playground.[37] The investigators found the child “was not competent in truth and lies” and such information had to be elicited from him through written questions and multiple-choice answers.[38]
[37] Exhibit ICL1, pages 14, 30, 31
[38] Exhibit ICL1, page 31
The investigators later spoke to the student called L, who denied the allegation. The school staff also reported to investigators that the students in the special education unit are heavily monitored and, on the day in question, the child and L were never alone without staff supervision.[39] The father doubted the truth of the allegation for the same reasons.[40]
[39] Exhibit ICL1, page 29; Single Expert report, para 15
[40] Father’s affidavit 17/4/20, para 50
The 2018 investigation was closed without the allegation of sexual abuse being substantiated and the parties were informed of that decision.[41] The investigators’ collective view was that the sexual abuse probably did not occur and the child is not at risk of any harm at his current school.[42] The investigators considered the allegation was related to the mother’s “anxiety and paranoia”[43] and they were also concerned about why the mother would hold the father responsible for the child’s alleged sexual assault at school.[44] The child welfare authority staff even wondered whether the mother’s “fixation” on the father may have “inadvertently coached the child” to allege sexual abuse.[45]
[41] Single Expert report, para 19; Mother’s affidavit 4/5/20, para 40
[42] Single Expert report, para 83
[43] Exhibit ICL1, page 19
[44] Exhibit ICL1, page 31
[45] Single Expert report, paras 18, 64
Notwithstanding the absence of any probative evidence, the mother purports to still hold a genuine belief that the child was sexually abused at school in late 2018. In February 2019, she confronted one of the two boys allegedly involved in the incident, allegedly assaulted him, and called him a “fucking rapist pig”,[46] which led to the mother being barred from attendance at the child’s school.[47] During the trial, the mother repeatedly said in cross-examination the child was “raped” at school, which is the reason she has consistently offered for wanting to change his school.[48]
[46] Single Expert report, para 21
[47] Exhibit ICL1, page 24
[48] Single Expert report, para 30
Even further back in time, in 2011, the mother withheld the child from the father for several months on the basis of her asserted belief that he posed a risk of sexual abuse to the child.[49] That dispute led to the second round of litigation between the parties, but the allegation was not substantiated and then, in February 2012, the mother agreed the child should spend substantial time in the father’s care. The only rational inference to draw is that she agreed to orders in those terms because she accepted the available evidence demonstrated such orders were in the child’s best interests.
[49] Father’s affidavit 17/4/20, paras 14, 54; Exhibit ICL1, page 28
The evidence adduced at trial fails to demonstrate the father poses any risk of harm to the child by his subjection to sexual abuse. However, the evidence does prove the mother is inclined to impulsively think the worst of the father and attribute blame to him whenever she perceives a problem arises for the child.
The mother’s honest belief that the father poses a risk of harm to the child is problematic. The single expert said the child would “pick up” on the mother’s belief he is not safe in the father’s care. Indeed, it was uncontroversial, because the mother admitted in cross-examination she does think the child is unsafe in the father’s care and she agreed it was possible the child did “pick up” on her anxiety about him spending time with the father. Given the history of repeated sexual abuse allegations made by the mother, the single expert opined there was a “high likelihood” the mother would continue to make unfounded allegations against the father in the future if the child remains in her residential care. Inferentially, if the child remains living with the mother, his relationship with the father will be unable to withstand the continual pressure of such parental conflict and it will likely induce him to eventually reject the father.
Risk of subjection to abuse and exposure to family violence
The father raised as a “concern”, but without undue drama, the bruising suffered by the child in February 2020. The child reported the bruise was caused by Mr F punching him.[50] There is no doubt about the presence of the bruising because it was seen by the child’s doctor.[51] Mr F admitted he may have accidentally caused the bruise when wrestling with the child,[52] and there was no reasonable basis to conclude otherwise. Ultimately, the father made no submission that the child was at risk of being subjected to physical abuse by Mr F.
[50] Father’s affidavit 17/4/20, paras 122-123
[51] Exhibit ICL1, page 68
[52] Affidavit of Mr F, para 20
The father also raised his “concern” about the prospect of the child’s exposure to family violence in the mother’s household. In September 2019, the mother summoned the police to her home twice in one evening to complain about Mr F. In cross-examination the mother said it was an “interesting situation”, as indeed it was. The mother first called the police at 5.38 pm. The police were baffled as to why they had been called, but they noted the mother was “uneasy on her feet” and admitted having consumed alcohol during the day.[53] The mother called the police back at 11.27 pm and complained about Mr F “blackmailing her and manipulating her”. She also told the police Mr F was “violent and that he has guns”. She showed the police red marks on her arms, which she alleged were caused by Mr F grabbing her, but the police considered the marks were about a week old. For his part, Mr F laughed at the mother’s allegations of his violence and told the police “she is a drunk and falls over regularly”.[54] The mother and Mr F both tried, ultimately unconvincingly, to downplay the significance of the incident in their cross-examination. It was obviously an acrimonious argument which extended over many hours.
[53] Exhibit ICL1, pages 58-59
[54] Exhibit ICL1, pages 56-58

The evidence falls short of establishing that the child needs protection from exposure to abuse or family violence in the mother’s household but, on the available evidence, the father and Ms E offer the child a calmer and more stable residential experience. That was also the impression of both the single expert[55] and Mr H.[56]
[55] Single Expert report, para 77
[56] Affidavit of Mr H, Annexure C (page 4)
Risk of neglect
In February 2012, the parties agreed to an order being made directing that the child be enrolled at a secondary school equipped to cater for his “special needs”. Pursuant to that order, in the exercise of their equal shared parental responsibility, the parties later enrolled the child to attend the special education unit at M High School from the beginning of 2018.
In early 2019, the mother desired to move away from the Newcastle area and live with Mr F in the D Region, so she investigated the child’s enrolment at secondary schools in the D Region. Her wish to move the child away from M High School, without the father’s consent, caused conflict and was the catalyst for the commencement of these proceedings.
In July 2019, upon dismissal of the parties’ interim applications, the mother expressly acknowledged that the child’s best interests were served by the maintenance of his enrolment and continued attendance at the special education unit at M High School and she said she would ensure the child’s continued attendance at that school from the following Monday. When asked about those concessions during her cross-examination, the mother said her concessions were false and she “went with what was thrown at [her]”; not that the concessions were true, but she has changed her view in the meantime.
It may be correct that the mother falsely made the concessions recorded by the Court, but there are only two ways to rationally interpret her evidence: either she does really believe the child’s interests are best served by attending the M High School special education unit, just as she said in July 2019, and she gave false evidence about it in cross-examination at trial, or alternatively, she made false concessions in Court in July 2019. Either way, she concedes her willingness to be untruthful in Court when it suits her.
The mother first made enquiries about moving the child from M High School to P High School in March 2019, telling the principal of P High School she expected to move to the D Region in June 2019.[57] That was false, because the mother admits she had already moved to the D Region in January 2019.[58]
[57] Exhibit ICL1, page 1; Single Expert report, para 23
[58] Mother’s affidavit 4/5/20, para 50
The mother was then told by the principal of P High School that the chance of the child’s placement at P High School, with the necessary support, was “very small”.[59] Nonetheless, the mother persisted with her campaign.
[59] Exhibit ICL1, page 1; Single Expert report, para 25
The mother alleged she caused messages to be sent to the father in the child’s communication book in October or November 2018, in late March 2019, and in late May 2019, about her intended residential move and her investigation of alternate school enrolments,[60] but the father denied having received those messages. He said the first he knew of the proposal was when he received a text message from the mother in late April 2019,[61] which was corroborated by Ms E.[62] It is probably unnecessary to make a specific finding to determine that factual dispute because it only goes to the issue of whether the father was forewarned but, to the extent it may be necessary, the mother likely fabricated her evidence about the messages. Her evidence about it was most unsatisfactory. She said the communication book was not returned to her after the message was allegedly written in late March 2019, so she could not rationally explain how another message to the same effect came to be written in the communication book in late May 2019.
[60] Mother’s affidavit 4/5/20, paras 51, 52, 63, 64, 69, 70
[61] Father’s affidavit 17/4/20, paras 16, 57; Single Expert report, para 26
[62] Single Expert report, para 105
Having received the mother’s text message in late April 2019, the father contacted the P High School principal, who confirmed there were no available places for the child in the special education unit at P High School.[63] The mother called the P High School principal the same day to advise she was now living in the D Region and wanted to enrol the child.[64] Her representation about her recent change of residence was false, as she had been living in the D Region for over three months by then.
[63] Father’s affidavit 17/4/20, para 58; Single Expert report, paras 27, 28
[64] Exhibit ICL1, page 1; Single Expert report, para 26
As the issue over the child’s school enrolment was, by then, an open dispute between the parties, the father set about seeking advice about the child’s educational and social needs from his treating health professionals. The father’s position in these proceedings has always been premised on that advice.
The child’s behavioural consultant and educator, Ms G, recommended that the child remain at M High School.[65] The child’s former clinical psychologist, Mr H, recommended that the child remain at M High School.[66] Both Ms G and Mr H gave evidence-in-chief at the trial as witnesses of the ICL to confirm those opinions.
[65] Father’s affidavit 17/4/20, para 59
[66] Father’s affidavit 17/4/20, paras 63, 77; Single Expert report, para 31; Affidavit of Mr H, Annex C (p 3)
On 1 May 2019, the P High School principal was informed about the existing orders investing the parties with equal shared parental responsibility for the child, pursuant to the exercise of which the child had been enrolled at M High School. When informed of that impediment to the child’s enrolment at P High School, in an effort to unilaterally force the child’s change of enrolment to P High School, the mother falsely told the principal that she had a “new version of court orders” allowing her to do so.[67] She was asked to provide a copy of the orders, but she did not because she could not. They do not exist, as she was forced to concede in cross-examination. Her denial of having told the P High School principal of the new orders is rejected as false.
[67] Exhibit ICL1, page 1; Single Expert report, para 27
In June 2019, the father received further confirmation that there was no available place for the child in the special education unit at P High School.[68] The father was told the mother was given the same information.[69] The mother gave no evidence to the contrary about the situation in 2019. Consequently, when the parties’ interim applications were before the Court on Friday 26 July 2019, the mother conceded the child should resume attendance at M High School from Monday 29 July 2019. On 30 July 2019, the mother was emphatically told by the school authorities there was no place available for the child at P High School.[70]
[68] Father’s affidavit 17/4/20, para 73; Single Expert report, para 34
[69] Father’s affidavit 17/4/20, para 76
[70] Single Expert report, para 36
By then, the child had missed school for almost the entirety of the second term and for part of the third term of 2019.[71] The mother said she did not take the child to M High School because he was reluctant to attend,[72] which she apparently attributed to the child’s “rape” some months before in late 2018.[73]
[71] Father’s affidavit 17/4/20, paras 86-90
[72] Mother’s affidavit 4/5/20, paras 26, 65-66
[73] Single Expert report, para 30; Mother’s affidavit 4/5/20, paras 41-42
The single expert was suspicious of the mother’s motives because she facilitated the child’s attendance at M High School after the alleged “rape” for the remainder of the fourth term in 2018 and the first term in 2019.[74] The school records are consistent with the single expert’s suspicion because they show the child only effectively ceased attending M High School in early May 2019[75] – which coincides with when the mother’s attempt to change the child’s school was thwarted. Mr H also inferred the mother’s real motive for the change of school was Mr F’s prospects of employment in the D Region.[76]
[74] Single Expert report, para 63
[75] Exhibit ICL1, pages 22-23
[76] Affidavit of Mr H, Annexure C (pages 2, 4)
In September 2019, at or about the time the mother and Mr F were evicted from their D Region accommodation and the police were summoned to quell an argument between them, the mother and child moved back to Newcastle to live with the maternal grandmother. Mr F has lived elsewhere since then, but they both said in cross-examination they intend to resume cohabitation after these proceedings are finalised, preferably in the D Region.
The mother deposed she was told in April 2020 that a spot will now be made available for the child at P High School, or at other secondary schools at locations near Newcastle and the D Region,[77] but such evidence is given little weight. Even though admissible, it is hearsay and the mother has falsely represented facts and circumstances concerning the child’s school enrolment before. She falsely represented her place of residence and her exclusive authority under new court orders to the P High School principal and she openly said her former representation to the Court about the child’s best interests being served by him continuing to attend the M High School special education unit was untruthful.
[77] Mother’s affidavit 4/5/20, paras 78-79
The strongest inference is that, for whatever reason, the mother wants to live with Mr F in the D Region and, because she wants the child to remain living primarily with her, she wants to enrol the child at a local secondary school, regardless of whether that is best for him. Unequivocally, the parties formerly agreed the child’s best interests warranted him being enrolled at the M High School special education unit. The only reason for the mother’s change of heart is her desire to live in the D Region rather than Newcastle. There is no persuasive evidence that the child’s academic and social needs can be as well accommodated as they presently are at M High School at any of the alternate secondary schools contemplated by the mother.
The mother’s professed experience of the child’s reluctance to attend M High School is not the father’s experience with the child. He said the child is happy to attend school,[78] though that is not to say the child’s educational experience at M High School is entirely without incident. The child was suspended twice in February and March 2020 and on a third occasion in May 2020 during the trial.[79] Despite knowing of the child’s recent suspensions, Mr H still recommended that the child’s enrolment be maintained at the M High School special education unit.[80] At least by implication, the single expert agrees with him.[81]
[78] Father’s affidavit 17/4/20, paras 104, 106
[79] Affidavit of Mr H, Annexure C (page 3); Exhibit ICL1, pages 38-47; Single Expert report, paras 94, 103; Father’s affidavit 17/4/20, paras 45, 92-100; Mother’s affidavit 4/5/20, para 26
[80] Affidavit of Mr H, Annexure C (page 4)
[81] Single Expert report, paras 61, 79, 124
The mother implied the child’s 2020 school suspensions were somehow related to the time the child spent with the father,[82] but that is bare speculation. The suspensions have occurred while the child has lived primarily with her and, more to the point, his third school suspension occurred during the trial when he had not seen the father for a month and, puzzlingly, the mother’s response was to allow the child to go and stay with the father that evening. She did not deign to explain how her response was consistent with her belief the child has been repeatedly sexually abused by the father and is still at risk of it. Nor was her action consistent with her apparent belief that the child acts up at school because he is unsettled by spending time with the father.
[82] Mother’s affidavit 4/5/20, para 33
It is untenable for the mother and child to live in the D Region and for the child to continue attending M High School. The distance between home and school would then be too great. History proves that arrangement does not work, because the child did not attend school regularly in 2019 and his needs were neglected. While the mother’s desire to live in a different place is understandable, the child’s interests must be prioritised over hers. Either the child lives with her and she must remain living in reasonable proximity to M High School, or alternatively, she can relinquish primary care of the child to the father and she can live where she likes.

Child’s best interests – additional considerations

Section 60CC(3)(a)

There was no evidence of the child having expressed a view to any person independently of the parties and, having regard to his intellectual and cognitive impairments, he does not seemingly have the maturity to warrant any weight being reposed in any view he might have expressed to the parties. The single expert confirmed that conclusion.[83]
[83] Single Expert report, para 129
Despite the mother airily asserting the child should “ha[ve] his own voice” and is “old enough to make up his own mind”, because he is now 14 years of age,[84] he does not have the capacity to reliably express a view.
[84] Father’s affidavit 17/4/20, para 60; Single Expert report, page 4
The mother’s evidence of the child repeatedly expressing his desire not to spend time with the father is rejected as unreliable. Most probably he is only saying what he expects the mother would like to hear. Children are invariably vulnerable to the influence of those who care for them, which reality should be recognised under s 60CC(3)(a) of the Act (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]-[41]; RCB v Forrest (2012) 247 CLR 304 at [52]). That is an acute consideration in this case.

Section 60CC(3)(b)

The nature of the child’s relationships with the parties has been discussed under s 60CC(2)(a) of the Act and there is nothing to add.
The child’s relationships with his living grandparents, Ms E, and Mr F were not contended to be influential considerations. Suffice to say, he has warm relationships with them all.

Section 60CC(3)(c)

The mother has struggled to attain prime importance in the child’s life and the father has struggled to retain equal importance in the child’s life. Neither has been delinquent about their participation in the child’s affairs.

Section 60CC(3)(ca)

The father pays his assessed child support.[85]
[85] Father’s affidavit 17/4/20, para 27
The father has also paid the cost of the child’s continuing attendance upon Ms G for professional support, even though the cost of that therapy was not, until recently, included within the child’s NDIS plan.[86]
[86] Father’s affidavit 17/4/20, para 36; Single Expert report, para 93

Section 60CC(3)(d)

Given both parties propose some significant changes in the child’s life, the likely effect of those changes upon the child is a significant issue.
The child is diagnosed with Autism Spectrum Disorder (Level 3),[87] which the single expert said in cross-examination represents the highest level of need for support and intervention. She said the child’s functionality was “exceedingly low” and his condition is permanent. He has severe receptive language delay, severe expressive language delay, severe working memory delay, intellectual impairment, mild speech sound delay, and requires substantial support for all activities.[88]
[87] Single Expert report, para 119
[88] Single Expert report, paras 120-123
Mr H said, both in his affidavit and in cross-examination, that “change is one of the greatest stress[ors] to people with Autism”.[89] In reliance upon that generalisation, the mother sought to argue that the child’s residence should not be reversed because the stress that such a change would induce him to suffer would be contrary to his best interests. The submission is rejected, essentially for two reasons.
[89] Affidavit of Mr H, Annexure C (page 3)
First, the father is a competent parent, well able to settle the child. Until a month ago, the child was spending time with the father on five nights each fortnight during school terms, for longer periods in school holidays, and on other special occasions. The mother’s counsel conceded the child loved the father. Ms G, Mr H, and the single expert were all impressed by the father’s parenting capacity and entertained no doubt at all that he is well equipped to help the child adapt to any changes in his life, including a change as significant as the reversal of his primary residence.
The child might well be emotionally disturbed by such a significant change in his life, but it is entirely conjectural. The evidence does not fairly enable an inference to be drawn about whether such disturbance will be deeply felt or merely superficial, nor whether it will be ephemeral or long-lasting. In any event, on balance, the father is better equipped to help the child adjust to a change of his primary residence than the mother is to help him adjust to having the father eliminated from his life (as has occurred over the past month) or so marginalised in his life (as the mother now proposes).
Secondly, the mother’s submission creates a paradox. While she seeks to argue the child could not tolerate the change of his primary residence to instead live with the father, she overlooked the very significant changes she has recently forced the child to endure and the further significant changes she intends to make if she has her way. They may be summarised as follows:
a)in early 2019, she moved the child away from Newcastle to live in the D Region, thereby forcing him to commute considerable distance by car or bus to attend M High School each school day;
b)in May 2019, she ceased the child’s attendance at M High School for several months, thereby cutting him off from education and his social circle;
c)in September 2019, she moved the child back to Newcastle, establishing a new household with the maternal grandmother, but not with Mr F;
d)after the incident on 1 May 2020, she terminated the child’s interaction with the father;
e)if permitted, she intends to move away from Newcastle with the child, back to the D Region to re-establish a household with Mr F, but not with the maternal grandmother; and
f)if permitted, she intends to remove the child from M High School and enrol him at P High School or some other secondary school she selects.
The mother cannot have it both ways. There is no reason to presume the multiple changes she has and will expect the child to endure are any less momentous than swapping his primary care.

Section 60CC(3)(e)

Neither the parties nor the ICL submitted this was a material consideration.

Section 60CC(3)(f)

The mother’s capacity to provide for the child’s needs was a focal point of criticism by the father and the ICL. They contended, with reasonable grounds, the mother’s parenting capacity is compromised for a variety of reasons.
The mother’s insistence upon moving the child’s enrolment from M High School to some other secondary school more convenient to the D Region demonstrates her willingness to subordinate the child’s interests to her own. The change of school is against the advice of the child’s treating therapists. The mother wants to live in the D Region and wants the convenience of the child’s school close at hand, even if it will not serve his needs as competently as M High School. Such insistence to change the child’s school in 2019 also demonstrated her unwillingness to be bound by the existing order for equal shared parental responsibility.
The mother’s residential moves between Newcastle and the D Region, without divulging her addresses to the father, and particularly if without forewarning him of the moves, also demonstrated her willingness to breach an order made (with her consent) in February 2012 requiring her to provide the father with such information.[90] She was not even willing to tell the single expert where she lived.[91] The mother alleged she did not divulge such information so as not to compromise her safety[92] but, save for some occasional harsh words traded by the parties, there was no evidence at all of her being subject to any “family violence” committed by the father, even in the widest sense of that concept.
[90] Father’s affidavit 17/4/20, paras 24, 25, 120
[91] Single Expert report, page 4
[92] Mother’s affidavit 4/5/20, para 22

As mentioned above, the child’s needs entitle him to benefits under the NDIS. For reasons left unexplained by the mother, the child’s NDIS funding was either cut or at risk of being cut because she did not ensure all of his allocated funding was used, which meant the child’s receipt of resources was not maximised.[93] By comparison, the father privately paid Ms G to keep up his therapy. The father seems much more committed to the child’s receipt of therapy and supports.
[93] Single Expert report, page 5
The evidence also tends to suggest the father values the child’s physical health more highly than the mother. The father alleged that, during 2019 when the mother did not take the child to school, his weight ballooned and he spent too much time immobile rather than physically active.[94] That is probably true, since the mother said in cross-examination the child did not like attending the physical sports in which the father had enrolled him.
[94] Single Expert report, paras 70, 91; Father’s affidavit 17/4/20, para 103
There is also some residual concern about the extent to which the mother’s parenting capacity is afflicted by her consumption of alcohol and unstable mental health.
It will be recalled the police found the mother intoxicated when she summoned them to her home in the D Region in September 2019. At that time, Mr F told the police the mother was “a drunk” who “falls over regularly”. Curiously, Mr F deposed in these proceedings that he would describe the mother as a “light consumer of alcohol”.[95] That description is all the more surprising when the mother said in cross-examination she recently sought out counselling and the prescription of anti-abuse medication to curb her alcohol consumption. She said she did so on Mr F’s recommendation, because she acknowledged she had a problem. The mother completed a CDT test, presumably to verify she does not now abuse alcohol, but the result was at the high end of the “equivocal” range.[96] The mother seemed intoxicated to the single expert when they spoke over the telephone in December 2019.[97] Hopefully the mother does now have her alcohol consumption under control, but she did not affirmatively prove it.
[95] Affidavit of Mr F, para 47
[96] Mother’s affidavit 4/5/20, para 90
[97] Single Expert report, para 66
The single expert also reported that the police and the child welfare authority are concerned about the stability of the mother’s mental health.[98] The mother said in cross-examination she has been intermittently prescribed medication to control her anxiety over the last 20 years, but was keen to impress that was not an impediment to her parenting capacity. The evidence does not allow any positive finding. If the mother does enjoy stable mental health, as she says, then there is no explanation for her impulsivity and inability to regulate her emotions.[99]
[98] Single Expert report, para 65
[99] Single Expert report, paras 68, 81
When the mother was asked in cross-examination whether she had a proposal for the child to resume spending time with the father, supposing the rejection of her contention that the father poses an unacceptable risk of harm to the child, she said she had none. She made no alternate proposal to that set out in the Response she filed on 20 May 2020. She must presume the current stand-off is capable of being indefinite. The mother seems utterly entrenched in her views, unable to appreciate the problem from different perspectives, unable to forecast and plan for alternate outcomes, and seemingly unable to conceptualise how the child is liable to be emotionally harmed by her inflexibility.

Section 60CC(3)(g)

This factor was not identified as being significant.

Section 60CC(3)(h)

Neither the parents nor the child identify as indigenous.

Section 60CC(3)(i)

The mother’s attitude to the responsibilities of parenthood has already been adequately addressed in the discussion above and no more need be said.

Section 60CC(3)(j)

Save for some evidence of the parties having profaned one another from time to time, there was no evidence adduced of any family violence between them.

Section 60CC(3)(k)

Neither the parties nor child are or have been the subject of a family violence order, either as an alleged perpetrator or victim of family violence.

Section 60CC(3)(l)

History shows these parties have the tendency to institute fresh proceedings upon the occurrence of some perceived crisis. It may well happen again, though there is probably less chance if the child lives with the father and he is vested with sole parental responsibility.

Section 60CC(3)(m)

Neither party nor the ICL emphasised any other aspect of the evidence as being influential in the determination of the child’s best interests.

Conclusion and orders

One of the few issues upon which the parties, the ICL, and the single expert agreed is that the parties cannot share parental responsibility.[100] Their conflict is too pronounced. One party should have sole parental responsibility for the child, which should be the party with whom the child primarily lives. The evidence comfortably rebuts the presumption that the parties, as the child’s parents, should be vested with equal shared parental responsibility (s 61DA(4)).
[100] Single Expert report, paras 74, 107, 135
Given an order for equal shared parental responsibility cannot be made, s 65DAA of the Act is not engaged. In any event, neither party advocated for an “equal time” residential order.
The child should live primarily with the father. The reasons for that conclusion may be summarised as follows:
a)the father does not pose any risk of harm to the child;
b)the father values the child’s relationship with the mother much more highly than the mother values the child’s relationship with the father, so the child has much more chance of maintaining his important relationships with both parents if he lives with the father;
c)the mother tends to neglect the child’s education, which is an influential consideration when the child needs the life skills and social support he derives from regular school attendance; and
d)in the single expert’s view, which is accepted as being correct for a variety of valid reasons she gave, the father is “better equipped” than the mother to care for the child. She said the mother could not emotionally regulate the child as well as the father, because she cannot even satisfactorily regulate her own emotions.
Obviously, the reversal of the child’s residence after many years of primary residence with the mother may cause him some emotional disturbance, but the single expert said the child has always been comfortable in the father’s care and he may just as easily cope with the change quite well. As the single expert said, there are numerous countervailing factors to be considered in the “big picture”.
Shifting the child’s primary residence from the mother to the father was the outcome recommended by the single expert and was endorsed by the ICL. Although it was not within his remit to say so, Mr H also considered the child would benefit from spending more time with the father.[101] The child is already supposed to be spending five nights of each fortnight with the father, so having the child move to the primary care of the father will also correlate with Mr H’s advice.
[101] Affidavit of Mr H, Annexure C (page 4)
Attention must then turn to the child’s future interaction with the mother. The mother made no proposal about the time the child should spend with her if he instead lives with the father. Perhaps she could not countenance that outcome, since she confidently told the father in October 2019 that “no judge will ever give you custody of [the child]”.[102] The mother knew well before trial that her position as the child’s primary carer was under serious threat, so it was her choice not to consider or propose alternate suites of orders for the child.
[102] Father’s affidavit 17/4/20, para 120
The ICL proposed that the child only spend time with the mother for six consecutive hours on one day each month, which proposal was made on the strength of the single expert’s oral evidence. The father belatedly adopted the ICL’s proposal, subject to its supplementation with some other special days, but his proposal throughout the trial was for the child to spend substantial time with the mother – comprising alternate weekends, half of the school holidays, and other special occasions.
The single expert originally said the father’s proposal of substantial time was “more likely to optimise outcomes for [the child]”[103] and, although she envisaged the child spending “relatively little time” with the mother,[104] she defined that to mean three consecutive nights on alternate weekends from Friday after school until the commencement of school on Monday.[105]
[103] Single Expert report, paras 50, 80, 107
[104] Single Expert report, para 134
[105] Single Expert report, para 135.
However, in cross-examination, the single expert recommended much tighter restrictions. She said she was “inclined to go with a lot less time”, which she elaborated to mean only one day (not including an overnight stay) each month. The reason she gave for the change in her opinion was that, if the child spends any more time than one day per month with the mother, the father will be in “constant damage control” when the child returns from visits to the mother. That could be so, but it seems an insufficiently persuasive reason to so drastically reduce the amount of time the child will spend with the mother: from primary care to only one day per month. The evidence of the manner in which the mother’s parenting capacity is impinged was really not much worse at trial than it was when the single expert reviewed the available evidence six months ago in December 2019. The extent of the change in the single expert’s recommendation did not objectively seem commensurate with what she learned about the mother from the additional evidence with which she was furnished.
Commendably, the father was conscious of the importance of the mother in the child’s life. Her significance to the child would likely slip away if he only sees her for some hours once per month for the remainder of his minority. The need to ensure the child retains the benefit of his meaningful relationship with the mother is not entirely trumped by the single expert’s opinion that the mother’s impaired parenting capacity tends to compromise the child’s best interests. By the same token, the single expert’s revised opinions mean the father’s original proposal for the child to visit the mother for three consecutive nights on alternate weekends is too much. The late change of the father’s proposal was recognition of that fact. A regime falling somewhere between those polarised options more capably accommodates the advantages and disadvantages of the child’s personal interaction with the mother.
On balance, the child’s visits with the mother should occur every third weekend. Once a month for a single day is too little and three consecutive nights once a fortnight is too much. The visits will commence on Saturday mornings and conclude on Sunday afternoons. That will keep the child’s school week clear and enhance the stability of his routine. Sunday afternoon returns will enable the father to settle the child in ample time for the resumption of school on Monday.
The orders will make provision for the child to spend extra time with the mother on some special days, as was expressly invited by the father in final submissions, but no provision is made for additional holiday time.
Changeovers will occur at a public restaurant in a central suburb of Newcastle, easily reached by both parties. If the mother chooses to move back to the D Region, the drive to Newcastle on Saturday morning and Sunday afternoon of each third weekend is not too onerous for her or the child. The drive will be no more than an hour in each direction.
No provision is made for the child to communicate with the mother. No such orders were sought by the father or the ICL. Any communication between the child and the mother, over the telephone or via the internet, will be at the father’s discretion. The mother had no counter-proposal.
The mother is restrained from attending the father’s home and also the child’s school, unless the father authorises her in writing to attend some school function. The father is required to authorise the mother’s provision with the child’s school reports and school photographs.
The mother is restrained from consuming alcohol during and immediately prior to any occasion on which the child spends time with her.
Both parties are restrained from allowing the child to be exposed to any derogatory criticism of one another.
The parties are required to keep one another informed of their current residential address and mobile telephone number.
Given the father’s investiture with sole parental responsibility for the child, there is no need for any specific orders about the child’s passport and overseas travel, as were sought by the father and the ICL.[106] Nor is there any need to designate the school the child must attend or to dictate the terms of the mother’s interaction with the school.[107] The father will presumably ensure the child attends M High School, unless something quite unforeseen arises, and the mother will have no need to contact the school other than to obtain the child’s reports and photographs.
[106] Amended Initiating Application 7/8/19, Orders 9-11; Exhibit ICL2, Orders 9-10
[107] Amended Initiating Application 7/8/19, Orders 12-18

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 June 2020.

Associate:

Date: 15 June 2020

[2020] FamCA 437

15 June 2020

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