FONTENAY & MCCLURE

[2019] FCCA 1692

FEDERAL CIRCUIT COURT OF AUSTRALIA

FONTENAY & MCCLURE [2019] FCCA 1692

Catchwords:
FAMILY LAW – Final orders in 2016 for child’s residence – Mother develops new relationship – Mother focused on that relationship – Mother not child focused – Mother lacks insight – Father better option to maintain and develop parent/child relationship with both parents – Stepfather hostile to father and may undermine father and son relationship.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA, 65DAA

Cases cited:

McCall v Clark (2009) FLC 93-405

Applicant: MR FONTENAY

Respondent: MS MCCLURE

File Number: MLC 12071 of 2017

Judgment of: Judge Curtain

Hearing dates: 18, 19, 20 & 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Melbourne

Delivered on: 24 June 2019

REPRESENTATION

Counsel for the Applicant: Mr Keirnan of Counsel

Solicitors for the Applicant: Nevett Wilkinson Frawley Pty Ltd

Counsel for the Respondent: Mr Howe of Counsel

Solicitors for the Respondent: Heinz & Partners

Counsel for the Independent Children's Lawyer: Ms Stavrakakis of Counsel

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. That all previous parenting orders are hereby discharged as and from the end of school term 2 being 28 June, 2019.

BY CONSENT:

1. That the parents have equal shared parental responsibility for the child [X] born … 2013 (“[X]”).

IT IS ORDERED:

1. That [X] shall live with the father as and from the end of school term 2 being 28 June, 2019.

2. That the father shall ensure [X] accesses counselling to assist him with the transition to the father’s care and change of school, with the father to nominate the counsellor and meet the expense.

3. That [X] shall spend time and communicate with the mother as follows:

   (a)Each fortnight during school term from after school Friday until 4.00pm Sunday or 4.00pm Monday in the event Monday is a non-school day commencing 19 July, 2019;

   (b)For the first and third school term holidays each year from the conclusion of school on the last day of school until 4.00pm on the final Saturday of such holidays;

   (c)For half the second term school holidays each year at times to be agreed and failing agreement from 4.00pm on the middle Saturday of such holidays to 4.00pm the following Saturday;

   (d)For half of the long vacation school holidays as agreed and failing agreement the first half of such holidays in 2019 and the second half in 2020 and alternating thereafter;

   (e)By Skype/video each Wednesday and Friday between 5.00pm and 5.30pm with the mother and father to facilitate such communication;

   (f)On all special occasions such as Mother’s Day and Father’s Day on times as agreed between the parents; and

   (g)Such other and further times as agreed between the parents in writing (including sms text messaging).

4. Unless otherwise agreed, all changeovers that do not occur at school shall occur as follows:

   (a)Town A McDonalds on the commencement of time spent; and

   (b)Town B McDonalds at the conclusion of time spent

   or such other arrangement agreed in writing beforehand between the parents.

5. The mother her servants and/or agents are hereby restrained by injunction from permitting Mr C to be present at any changeovers, subject to any written agreement between the parents obtained beforehand.

6. The parents forthwith do all things necessary and sign all necessary documents to enrol [X] in School D, Town E.

7. Both parents are authorised by these orders to communicate with said school and receive all documentation usually provided to the parents at their own expense.

8. Both parents are authorised to attend all school activities to which parents are normally invited to attend.

9. Each parent is to notify the other within 48 hours of any change in their residential address, telephone number or mobile number.

10. Each parent as soon as practicable, will notify the other parent of any serious medical condition or emergency afflicting [X] and provide the other parent with the name, address and telephone number of any medical professional involved in the treatment of [X].

11. Each parent, their servants and agents be and are hereby restrained by injunction from:

    (a)Inflicting on [X] or exposing [X] to any family violence or parental conflict;

    (b)Criticising the other parent or their partner in the presence or hearing of [X] or allowing any third person to do so;

    (c)Consuming alcohol to excess as defined as being over the Victorian Drinking limit of .05 when [X] is in either parents’ respective care;

    (d)Changing [X]’s residential address more than 50km from the centre of Town A without the written consent of the other parent or a Court Order;

    (e)Changing [X]’s school enrolment without the written consent of the other parent or a Court Order;

    (f)Discussing these proceedings in the presence of hearing of [X] or allowing any third person to do so;

    (g)Allowing [X] to be a passenger in any truck; and

    (h)Allowing any person to be called “dad” other than Mr Fontenay by [X] and ensuring [X] only calls his father Mr Fontenay “dad” or any derivative of that term.

BY CONSENT:

1. The father is at liberty to have [X] baptised in the Roman Catholic Church in Town A and the parents shall sign any necessary documents to facilitate such baptism.

IT IS FURTHER ORDERED BY THE COURT:

1. The order for the appointment of the Independent Children’s Lawyer is hereby discharged as and from 31 July, 2019 and in the interim is requested to assist the parents in the operation of these orders.

2. The mother shall forthwith attend upon a psychologist for the purposes of counselling to address the issues raised in:

   (a)The psychiatric report prepared by Dr F dated 29 January 2019; and

   (b)The Family Report dated 8 July 2018.

3. The mother will comply with all recommendations and directions of the said psychologist.

4. The mother will provide the said psychologist with copies of all reports referred to in Order (16) herein.

5. All extant applications be otherwise dismissed.

6. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Fontenay & McClure is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12071 of 2017

MR FONTENAY

Applicant

And

MS MCCLURE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an unusual parenting dispute with a history of uncommon events. Prior to having a son, the parties appeared to live a quasi-nomadic lifestyle with the father and his partner moving from town to town to follow employment opportunities.

2. They commenced cohabitation in 2004, or 2005 or 2006 when living at Town A. In 2006 they moved to Town G and in 2007 Town H. In 2008 they moved to Melbourne, and in 2009 Adelaide, where their son [X] was born. Two weeks after his birth, they moved to Town J, NT and then subsequently went to live in Darwin in 2015.

3. They separated under strained circumstances when on 8 February, 2016 the father directed the mother to leave their accommodation and he retained care of their child. He said that he decided they should separate because the mother was emotionally troubled. The mother was shocked and distressed at this event. After staying two nights in local accommodation she then went to stay with her brother in Adelaide for around four weeks.

4. With the financial and other assistance of her adoptive parents the mother returned to Darwin and when allowed to see her son for about two hours did not return him and flew with him to Town A to live with her adoptive parents. She did this without notice to or consent from the father.

5. Consequently, he filed a Recovery Order Application in the Darwin Federal Circuit Court of Australia and apparently such an order was duly made. The mother returned to live in Darwin and the parents undertook mediation which was partially successful in them agreeing to final parenting orders made by consent on 1 November, 2016 with the clear agreed outcome that both parents and the child were to return to live at Town A. The father it appears, thought that was the end of the matter but sadly for the child that was not the case and it was merely the start of years of litigation.

Background

1. The applicant father, Mr Fontenay resides at Town E with his partner and her children. The father was born on … 1983 and is therefore aged 35 years. He works as a labourer.

2. The respondent mother Ms McClure resides at Street K, Town L and is occupied in fulltime home duties. She lives with her partner and two children, [M] aged around 17 months and [N] aged around 7 months. She was born on … 1985 and is therefore 34 years.

3. They commenced cohabitation either in 2004, 2005 or 2006, neither party could agree but both said it was not a significant issue for this Trial. They were married on … 2012 and separated on 8 February, 2016. A period of cohabitation of some 10 to 12 years. They have one child, [X] born … 2013 and who is currently aged 5 years.

4. Whilst in Darwin in September, 2016 the mother commenced dating Mr C, her current partner.

5. The parents entered into the consent orders referred to earlier on 1 November, 2016 as follows:

   “1.    That the parents have equal shared parental responsibility for the child [X] born … 2013

   2.    That the said child live with the mother.

   3.    That the mother be permitted to relocate the child’s residence to Town A by no earlier than 15 November 2016.

   4.    That unless otherwise agreed pending the child’s relocation to Town A, he spend time with the father on the following basis:

   (i)Each weekend from 3pm Friday until 8am the following Monday; and

   (ii)From 4pm to 7pm on … 2016.

   5.    That unless otherwise agreed, after the child relocates to Town A, the child spend time with the father on the following basis:

   (i)For 2 out of every 3 weekends from 4pm Friday until 8am the following Monday; and

   (ii)In each other week from 4pm Thursday until 8am Saturday morning.

   6.    That notwithstanding anything to the contrary herein, the child shall spend time with each of his parents on significant occasions as may be agreed between his parents, and in default of agreement, on the following basis:

   (i)For at least 2 hours with the parent he is not living with on his birthday if such day falls on a school or work day, and for at least 5 hours if such day falls on a weekend or public holiday;

   (ii)With the father on the Father’s Day weekend from 5pm Saturday until 8am the following Monday;

   (iii)With his mother on the Mother’s Day weekend from 5pm Saturday until 8am the following Monday;

   (iv)With the father from 12pm Christmas Eve until 5pm Boxing Day in even years and with his mother from 5pm Boxing Day until 5pm 28 December in even years;

   (v)With the mother from 12pm Christmas Eve until 5pm Boxing Day in odd years and with his mother from 5pm Boxing Day until 5pm 28 December in odd years;

   (vi)With his father from 5pm Easter Thursday until 5pm Easter Monday in odd year and with his mother from 5pm Easter Thursday until 5pm Easter Monday in Even years;

   (vii)For at least 2 hours with each of his parents on their respective birthdays if such day falls on a school day or work day and for at least 6 hours if such day falls on a weekend or public holiday;

   (vii)With each parent for one week block periods of time, twice a year, at times to be agreed between the parties; and

   (ix)At times to be agreed on other special family occasions.

   7.    That unless otherwise agreed pending relocation to Town A, handover shall occur at Hungry Jack’ Suburb O.

   8.    That following the child’s relocation to Town A and prior to his commencing school, handover shall occur at places as agreed between the parties, and in default of agreement at Town A McDonald’s (or the child’s day care centre if he is attending same) at the commencement of each period of time being spent and shall occur at Town A McDonald’s (or the child’s day care centre if he is attending same) at the conclusion of each period of time being spent.

   9.    That handover shall occur at the child’s school after the child commences school and on days when the child is attending school. Otherwise handover shall occur in accordance with order 8 above.

   10.  Upon relocation to Town A, that the child shall communicate by skype videochat at all times as agreed between the parties, but in default of agreement with the parent he is not living with each Wednesday at 5.30pm local time to the child.

   11.  That the parents shall communicate with each other in relation to matters regarding the child via text message, or by phone in an emergency.

   12.  That each of the parents keep the other informed at all times as to their current address, contact phone numbers and skype address and advise of any change within 24 hours.

   13.  That each parent notify the other promptly in the event that the child is seriously injured or suffers a serious illness and advise the names of the treating doctors or like professionals.

   14.  That each parent is at liberty to attend at the child’s school/day care centre for activities, events and functions routinely attended by parents.

   15.  That each parent is at liberty to visit the child daily during any period in which the child is hospitalised.

   16.  That each parent shall firstly ask the other to care for the child in the event that the first named parent is unable to care for the child of more than 2 hours/

   17.  That each parent shall notify the other in the event that they intend taking the child on holidays away from his usual residence, during the periods in which the child is in their care, and for that purpose, shall provide the other parent with details of the holiday destination, and departure and return dates no less than 14 days prior to departure.

   18.  That each parent is restrained from denigrating the other parent or a member of their family to or in the presence of hearing of the child, and each parent shall promptly remove the child from the hearing of any other person who may be denigrating the other parent or their family.

   19.  That the final hearing dates commencing 23 November 2016 be vacated.

   20.  That otherwise all extant applications be dismissed.

   NOTATION:

   The parties agree to attend upon a registered family dispute resolution practitioner for the purpose of reviewing the Orders prior to the child turning 5 years old.”

6. It should be noted that until recently the mother said she believed this order was ambiguous. This is clearly wrong as the requirement about [X] residing in Town A is clear in order 3 with the words… “relocate the child’s residence to Town A…” in order 5 the words... “after the child relocates to Town A” and in order 8… “following the child’s relocation to Town A”. I note paragraph 21 of her affidavit filed 28 February, 2019 where she says that these orders were made… “on the basis that I would relocate to Town A with [X]”.

7. Subsequently the father discovered that the mother was living with Mr C at Town L in 2017. There was much debate when this commenced and I will deal with that topic subsequently but nonetheless it is common ground that she sent a message to the father on 28 November, 2017 saying that she proposed to live with Town L with Mr C and [X].

8. These proceedings were commenced with the father’s Application filed 20 November, 2017 returnable at Town A on 19 February, 2018 wherein he sought the following parenting orders:

   “1.That the parties have equal shared parental responsibility for the child, [X] born … 2013.

   2.    That the said child live with the wife in Town A.

   3That should the wife relocate to Town L, then the said child shall live with the husband.

   4.That until the wife relocates to Town L, the child spend time and communicate with the father pursuant to current Orders.

   5.That if and when the wife relocates to Town L, then the child shall spend time with her in a 4 week cycle being alternate weeks spent in Town A and the other alternate week in Town L and other times as agreed by the parties from time to time.

   6.That the wife be and is hereby injuncted from relocating the child to Town L or any such place more than 50 kilometres from the Town Hall in Town A.

   7.That should the wife relocate to Town L, the Order 2 and 5 of the Orders made 1/11/16 shall be discharged.

   8.Such further and/or other orders as this Honourable Court deems appropriate.”

9. On 15 February, 2018 the mother filed a Response seeking the following final orders:

   “1.THAT the Mother and the Father have equal shared parental responsibility for the child [X] born the … 2013 ("the child").

   2.    THAT the Mother be permitted to relocate to Town L.

   3.THAT the child live with the Mother.

   4.THAT the Father shall spend time and communicate with the child as follows;-

   a.  From 5pm on Friday to 5pm on Sunday each alternate weekend;

   b.  For one half of each of the school term holidays at such times as agreed and in default of agreement the first half commencing  at 12pm on the Saturday immediately following the conclusion of the school term;

   c.  For one half of the long summer holidays at such times as agreed between the parties and in default of agreement on a week about basis commencing 12pm the Saturday immediately following the conclusion of the school year;

   d.  For the weekend of Father's Day commencing 5pm on the Friday prior to Father 's Day until 5pm on Father's Day;

   e.  From 12pm on Christmas Eve until 5pm on Boxing Day in even numbered years;

   f.   From 5pm on Boxing Day until 5pm on 28th December in odd numbered years;

   g.  From 5pm on Maundy Thursday until 5pm on Easter Monday in odd numbered years;

   h.  At such other times as agreed between the parties in writing.

   5.THAT for the purposes of face to face time spent pursuant to paragraph 4, changeover shall take place at the McDonalds Restaurant outside Suburb P Shopping Centre unless otherwise agreed in writing between the parties.

   6.THAT the Father's time spent pursuant to paragraph 4 be suspended as follows;

   a.  For the weekend of Mother's Day commencing 5pm on the Friday prior to Father's Day until 5pm on Mother's Day;

   b.  From 12pm on Christmas Eve until 5pm on Boxing Day in odd numbered years;

   c.  From 5pm on Boxing Day until 5pm on 28^th December in even numbered years;

   d.  From 5pm on Maundy Thursday until 5pm on Easter Monday in even numbered years.

   7.Such other or further Orders as this Honourable Court deems appropriate.”

10. On the first return date in the Duty List the Court made the following orders by consent:

    “1.Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the child [X] born … 2013 (“the child”) attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by no later than 14 days before the final hearing; AND THAT:

    (a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child, including:

    (i)The wife’s proposed relocation to Town L; and

    (ii)The impact of changes of time on the child’s relationship with the father.

    (b)The parties comply with all reasonable directions of the Family Consultant.

    (c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

    (d)Within 7 days of being notified of the Family Consultant, the solicitor for each of the parties (or, if unrepresented, then the parties themselves) deliver to the Family Consultant copies of the following documents:

    (i)All relevant applications, responses and affidavits and court orders filed by or on behalf of the party in the proceedings; and

    (ii)Any intervention or restraining orders currently in force.

    2.   The matter be adjourned to the sittings of the Federal Circuit Court of Australia at TOWN A in the week commencing 30 July 2018 for final hearing.

    3. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

    4.   The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 28 days before the circuit in which the final hearing is listed.

    5.   The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

    6.   The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the circuit in which the final hearing is listed; and

    (a)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the circuit in which the final hearing is listed the trial;

    AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

    (b)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

    (c)the party has first obtained leave of the court.

    7.   Not later than 4.00pm two business days prior to the trial the solicitors for each party (or the party themselves, if unrepresented) electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:

    (a)a list of the material relied upon;

    (b)a brief chronology listing significant events;

    (c)a list of the significant factual issues requiring determination;

    (d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60cc factors);

    (e)a list of contentions relevant to the operation of s.65DAA;

    (f)a list of any other contentions relevant to the decision; and

    (g)the actual orders sought.

    8.   No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.

    AND THE COURT NOTES THAT:

    A.   In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

    (a)the filing of documents; or

    (b)any other procedural issues,

    the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the party in default or their solicitor may be ordered to pay the costs of the other parties wasted as a result of the default.

    B.   If practicable, a compliance check will be carried out by an officer of the court, prior to the final hearing date.

    C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.”

1. On 25 May, 2018 the father filed a Contravention Application returnable on 25 June, 2018 before a Registrar at Melbourne. In that document he alleged that the mother prevented the child spending time with him in April and May of that year. On the return date the following consent and other orders were made:

   “BY CONSENT IT IS ORDERED:

   1.   That paragraph 5 of the orders of 1 November 2016 be varied to provide that the child [X] born … 2013 (“[X]”) spend time with his father, the applicant, MR FONTENAY (“the father”) as follows:

   (a)From 4.30pm Thursday, 28 June 2018 until 4.30pm Thursday, 5 July 2018;

   (b)From 3.30pm Sunday 8 July 2018 until 3.30pm Sunday 15 July 2018;

   (c)Commencing Thursday 19 July 2018, each week, from 4.30pm Thursday until 3.30pm the following Sunday.

   2.   That the mother spend time with [X] by Skype on Saturday 30 June 2018 and Wednesday 11 July 2018 at 5.30pm each occasion on the father’s telephone. 

   BY THE COURT:

   3.   That the father be permitted to withdraw his application for contravention.

   BY CONSENT & UNTIL FURTHER ORDER:

   4.   That the father’s costs of his contravention application filed 25 May 2018 be reserved to the Trial Judge upon the hearing of the application for final orders listed 30 July 2018. 

   5.   That the Court file of the parties proceedings known as No. DNC111-2016 be consolidated with the current file No. MLC 12071/2017 at Melbourne (Town A sittings). 

   6.   Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   AND THE COURT NOTES:

   A.   The parties agree that save for the Family Report interview at Town A on 1 June 2018 the father has not seen [X] (in person) since 7 April 2018.

   B.   On the first return of the father’s contravention application it appeared there was not a Judge available to hear the matter.

   C.  The mother agrees that the 5.30pm Skype on Wednesday will resume in accordance with the 1 November 2016 orders on the mother’s telephone. 

   D.  The mother acknowledges that changeovers will be in accordance with the 1 November 2016 orders, Town A McDonald’s in default and of agreement. 

   E.   The mother asserts she intends to vary these orders at the Town A sittings listed 30 July 2018. 

   F.   These orders made notwithstanding the intervention orders and undertakings.”

2. The notable effect of those orders was to provide for the child to spend time with the father from 4.30pm Thursday to 3.30pm Sunday in each week being three nights per week and the remainder of the four nights per week to reside with the mother commencing mid-July. On 6 July, 2018 the father filed an Amended Application seeking the following final orders:

   “1.    That all previous orders be discharged.

   2.   That the parties have equal shared parental responsibility for the child, [X] born … 2013.

   3.    That the said child live with the husband.

   6.    That the child shall spend time with the wife:

   (a)each alternate weekend from 5.00pm Friday until 5.00pm;

   (b)for one half of school/kindergarten holiday periods as agreed but if no agreement the first half subject to Order 7 herein;

   (c)by Skype/video chat each Wednesday at 5.30pm;

   (d)Other times as may be agreed between the parties.

   7.    That notwithstanding the above Orders, the child shall spend time with each of his parents on significant occasions as agreed between his parents, and in default of agreement, on the following basis:

   (a)For at least 2 hours with the parent he is not living with on his birthday if such day falls on a school or work day, and for at least 5 hours if such day falls on a weekend or public holiday;

   (b)With his father on the Father’s Day weekend from 5pm Saturday until 8am, the following Monday;

   (c)With his mother on the Mother’s Day weekend from 5pm Saturday until 8am, the following Monday;

   (d)With his father from 12pm Christmas Eve until 5pm Boxing Day in even years and with his mother from 5pm Boxing Day until 5pm 28 December in even years;

   (e)With his other from 12pm Christmas Eve until 5pm Boxing Day in odd years and with his father from 5pm Boxing Day until 5pm 28 December in odd years;

   (f)With his father from 5pm Easter Thursday until 5pm Easter Monday in odd years and with his mother from 5pm Easter Thursday until 5pm Easter Monday in even years;

   (g)For at least 2 hours with each of his parents on their respective birthdays if such a day falls on a school or work day, and for at least 6 hours if such day falls on a weekend or public holiday;

   10.  That all changeovers take place at the McDonald’s Family Restaurant in Town A.

   11.  That within 7 days of the making of Orders, the parties do all such acts and things and sign all necessary documents to obtain an Australian Passport for the child such passport to be held by the husband.

   12.  That the husband be permitted to have the child baptised in the Roman Catholic Church in Town A and the mother sign any necessary paperwork for the baptism to be able to proceed.

   13.  That the child be enrolled to attend at School D, Town E commencing in 2019.

   14.  Such further and/or other orders as this Honourable Court deems appropriate.”

3. On 1 August, 2018 the matter came before me on circuit at Town A and I made the following orders:

   “BY ORDER OF THE COURT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:

   1.    The child [X] born … 2013 (“the child”) spend time and communicate with the Father each week from 4.30pm Thursday until 3.30pm Sunday.

   2.    Within 21 days the Mother file and serve:

   (a)An Affidavit from her partner Mr C;

   (b)An Affidavit by her setting out with particularity:

   (i)The date on which she relocated from Town A to Town L;

   (ii)The circumstances surrounding the relocation and an explanation as to why it occurred and why the Father was not informed given the term of the Final Orders dated 1 November 2016;

   3.    The Mother do all acts and things to attend upon a psychiatrist nominated by the Independent Children’s Lawyer for psychiatric assessment and report AND IT IS REQUESTED that Victoria Legal Aid fund the assessment report.

   4.    Pending the Final Hearing each of the parents be entitled to enrol the child in a school of their choosing and a copy of these orders may be provided to each party to the school they elect for the purpose of enrolment.

   5.    The matter be adjourned as follows:

   (a)For a mention before Judge Curtain on 7 November 2018; and

   (b)A Final Hearing for an estimated 3 days (with priority) on a date to be fixed in February/March 2019.

   AND THE COURT NOTES THAT:

   A.   The child is due to commence primary school in February 2019.

   B.   The Mother acknowledges that changeovers will be in accordance with the 1 November 2016 orders, at Town A McDonald’s.”

4. It returned before me on 7 November, 2018 also at Town A when the following orders were made:

   “THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:

   1.    Order 1 of the orders made 1 October 2018 be suspended from 3.30pm on 23 December 2018 until 3.30pm on 10 January 2019.

   2.    The child [X] born … 2013 (“the child”) spend time and communicate with the Father from 3.30pm on 23 December 2019 until 5.00pm on 2 January 2019.

   3.    Changeover for contact pursuant to order 2 above occur at McDonalds Suburb P or Train Station at the election of the Father.

   4.    The Father provide to the Mother an itinerary and all relevant details of any interstate travel proposed for the child.

   5. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.”

   BY ORDER OF THE COURT, THE COURT ORDERS UNTIL FURTHER ORDER THAT:

   6.    Neither parent drink alcohol to excess during any period of care of the child.”

5. It is important to note that on day 1 of the trial the mother’s counsel advised the Court that his instructions were now that the mother was going to stay in Town L to reside with her current partner and two children and the Court was asked to make an order that either [X] live with her in Town L or the father in Town A.

The evidence

1. The parties relied on the following documents:

A. Applicant Father’s material:

a)Updated Case Summary Document filed 1 March 2019;

b)Amended Initiating Application filed 6 July 1018;

c)Contravention Application (background information) filed 25 May 2018;

d)Affidavit of Mr Fontenay filed 20 November 2017;

e)Affidavit of Mr Fontenay filed 25 May 2018;

f)Trial Affidavit of Mr Fontenay filed 23 July 2018;

g)Affidavit of Mr Fontenay filed 22 September 2018;

h)Affidavit of Mr Fontenay filed 14 February 2019; and

i)Affidavit of Ms Q filed 5 July 2018;

j)Family Report of Mr R (not tendered) filed 12 September 2016;

k)Family Report prepared by Dr S filed 10 July 2018.

B. Respondent Mother’s material:

a)Outline of Case Document filed 11 March 2019;

b)Response filed 15 February 2018;

c)Affidavits of the mother filed:

(i)15 February 2018;

(ii)17 July 2018;

(iii)5 October 2018; and

(iv)28 February 2019.

d)Affidavits of Mr C filed:

(i)27 July 2018; and

(ii)17 October 2018.

C. Independent Children’s Lawyer’s material:

a)Outline of Case filed 12 March 2019;

b)Psychiatric Report or Dr F filed 20 March 2019;

c)Family Report of Dr S dated 8 July 2018; and

d)Aid Memoir of proposed Final Parenting Orders.

The applicant’s evidence

1. The father was in the witness box for many hours. He presented as a relatively unsophisticated, plain-speaking person. He appeared to me to be child focused and prepared to work with the mother in parenting [X]. He still held a negative view of her partner, Mr C, but this was contained and there was no evidence that [X] was affected by this.

2. He proposed that [X] lives with him and his current partner but it was said to be a relationship that was not… “tested by time”. However, it could also apply to the relationship between the mother and her partner Mr C. Both of these relationships where they propose to parent [X] are relatively fresh.

Ms Q

1. She is the partner of the father and swore an Affidavit on 5 July, 2018 which detailed an allegation against Mr C, the wife’s partner. She has been living with the applicant father in a defacto relationship intermittently from … 2017 and permanently from … 2018. She is employed as a health care worker working 60.3 hours per fortnight. Her employment provides some flexibility. She has 3 children, [T] aged 11 years, [U] aged 9 years and [V] aged 7 years who live with her and the applicant each alternate week. I was impressed with her calmness, disposition and obvious concern for [X]. She presented as a caring and capable step-parent for the child and an excellent support person for the father. I can expect her to provide [X] with a stable and loving environment.

2. She alleged in her affidavit that [X] told her that… “Mr C yells at me and hurts me”… and in re-examination referred to another similar allegation. Her then 10 year old daughter, [T] also asked [X] questions regarding the first allegation but they appeared to be leading. I could not be satisfied in all the circumstances that there was substance in these allegations. She also said her children currently attend School D, Town E which she described as a “great school community”.

The respondent’s evidence

1. The mother presented her evidence on two occasions very emotionally. She was also in the witness box for some hours and appeared to be somewhat anxious.

2. I felt that often she provided me with a subjective assessment of events and her evidence was from time to time evasive, inaccurate and untruthful. For example, she was adamant she did not tell the family report writer that she moved to Town L in early 2017 and yet when challenged, the author of the report produced the notes he made that recorded she said… “moved to Town L since … 2017”. I am uncertain whether she intended to mislead the Court or whether she convinced herself of her version of the facts. Further, she mislead the Magistrates’ Court about alleged abusive texts from the father which turned out to be a fabrication. Another example of her unreliable evidence is when she said she counselled her partner about being called ‘dad’ and using his surname by [X] in 2017 but in 2018 produced a poster for his Kinder displaying her partner as the child’s father. Either way, this and other parts of her evidence that I found questionable, made her evidence unreliable on some topics. When her evidence was at odds with the applicant father’s evidence, I preferred the evidence of the father.

Mr C

1. He presented as waivering between being defensive, overly assertive, aggressive and taking some responsibility for his offensive and inappropriate text-messages that he had sent the father from February to September 2017, copies of which were annexed to the father’s Affidavit filed 20 November, 2017 at ‘F3’.

2. Some examples of them are as follows:

   a)“Listen dick head im not bound buy (sic) your fxxx rules got it im not the hopless drop kick that can barley(sic) pay his child support or be a good role model for his son right im the bloke that is the positive role model in ya sons life amd (sic) shows him what a responsable (sic) person does something you have yet to do or even try !! You reallu (sic) are a poor excuse for a human Mr Fontenay!”;

   b)“Hey Mr Fontenay cort (sic) order has no affect on me dopey got that wake up and grow a brain”;

   c)“Orders dont have any power on me cxxx so fxxx off and grow up”;

   d)“Stop harassing my girlfriend and giving her a hard time cos your (sic) a bully theres no need for it grow the fxxx up and move on with your life and leave her and me alone to live our life with our children!!!” [I note at this time being 19 July 2017, only [M] was born and [N] was born in … 2018];

   e)“No Mr Fontenay what you want is to control fi (sic) and be an asshole stop doing it and stop putting on the act ur a selfish prick with an agenda only to suite ya self !!” ;

   f)“And im not doubting that Mr Fontenay but you also need to remember the harder you make it for her the harder shes gunna make it for you simple so work it out”;

   g)“Oi ya gutless fxxx stop fillinh (sic) ya kids head with bullshit im so over your shit Mr Fontenay seriously grow the fxxx up and stop telling [X] bullshit”.

(Note: above has been censored with only the first letter of each offensive word).

1. In answer to questions by me about him not being in charge of his emotions, Mr C said… “I have a lot of information about Mr Fontenay and his past with Ms McClure. I don’t like a lot of what I’ve heard about what he has done to Ms McClure… and thus making me not like Mr Fontenay very much.”

   Subsequently, he angrily said… “I don’t like or didn’t agree with how Mr Fontenay treated Ms McClure. And a very particular one that does not sit very well with me is unconsensual sex with your partner after she has already said “no”. And he has waited till Ms McClure has gone to sleep and proceeded to”… when he was interrupted by the father’s Counsel.

2. He has an obvious antipathy to the father and I have serious doubts about Mr C’s ability to promote a healthy relationship between [X] and his father. He said he would promote such a relationship but I did not believe him given his evidence and aggressive behaviour in Court.

The Family Report

1. This was written by Dr S, psychologist and dated 8 July, 2019.

2. It ran for 19 pages and its contents are rather like “the curate’s egg” because of his unnecessary and gratuitous comments from time to time, for example, the mother playing “happy families” at page 12 and “she behaved deceptively” at page 5.

3. Whilst this was properly criticised by the mother’s counsel, much of the report was helpful, particularly the observation sessions and assessment of the parent’s parenting skills.

Relevant Legal Principles

Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children is met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.

Section 60CC factors

The two primary considerations are set out in s.60CC(2) of the Act. They are:

(a) the benefit to the child of having a meaningful relationship with both of   the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. This was recently amended and the following provision was added:

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. These will be considered after the additional considerations are assessed.

Additional considerations are:

1. As to sub-section 60CC(3) of the Act:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. The parents submit that the child is too young to express a view. I note he is aged 5 years and I agree that in the circumstances this sub-paragraph has no application.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

1. Page 12 of the report details the author’s observations:

   “In summary the child appeared to have strong bonding with each party. When brought into the clinic room to see the father the child appeared very excited and he rushed to the father and eagerly sat on his knee where he remained for the rest of the observation period. The child appeared very happy to be with the father and he either held onto his arms or was very happy to hold one of his father’s hands. For his part the father seemed ecstatic to see the child and they immediately chatted very freely and spontaneously and also showed their obvious delight in each other’s company by making some funny and silly noises followed by shrieks of mutual laughter.

   When with the mother the child also appeared quite relaxed and comfortable and he also engaged easily with her but not as ecstatically as he had with the father. Nevertheless they chatted easily and spontaneously and the mother appeared much attuned to the child’s everyday personality quirks and mannerisms. Finally the child transitioned brilliantly between the parties with the parties very supportive in encouraging him towards one another during such transition period.”

1. In cross-examination Dr S said the mother was very attuned to what [X] did… “she looked like she was a good mum”.

2. I note that both parents agree in their Case Outlines that [X] has a positive relationship with both parents.

   (ii)  other persons (including any grandparent or other relative of the child);

3. The child in the mother’s household has two half-siblings, [M] aged around 17 months and [N] aged around 7 months. The mother says [X] has a good relationship with these two young children which I accept and anticipate it would develop further in the future wherever [X] lives. I believe my orders will support and develop that relationship.

4. In the father’s household there are three step-siblings and this relationship is said to be normal and the children get along ‘very well’. I note that the proposal is [X] is to attend school with these three children and I expect that would make his transition to that school easier for him. My orders will support that relationship.

5. I note that the adoptive maternal grandparents and the paternal grandparents and other relatives reside in the Town A area and whilst I could not assess that relationship, it gives [X] an opportunity to see them on a frequent basis. The mother also refers in her affidavits to an Aunt and Uncle in Town W, Mr C’s parents who reside near Town X, Mr C’s sister who resides in Town Y and another sister who resides in Town Z. Again [X]’s relationship with these parties cannot be commented on as it has not been assessed in the evidence as none of these people gave evidence at the Trial or were on affidavit.

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

  (iii)  to communicate with the child;

1. Both parents have been active in these issues save when the mother stopped the child’s time with the father for around 12 weeks from April, 2018, which prevented the father undertaking any of these roles with the child, save for communication, during this period.

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. Both parents have fulfilled their obligation to the extent of their capacity and it was not a fact in issue in this hearing.

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

1. [X] would be distressed if he was away from either parent for any significant time. He has a close and loving relationship with both and they should both have an ongoing role in his welfare and future. I refer to this topic further in the Conclusion.

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. There was insufficient evidence for me to be able to comment in an informed way on this sub-paragraph.

(e)  the practical difficulty and expense of a child spending time with   and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. The mother alleges that Town L and Town A are around 275 kilometres apart. I am told further it is approximately a 3 hour drive one way by motor vehicle and given they will be sharing the travelling, the burden of travel should not be a practical problem or expense for these parties to be able to maintain a personal relationship with the child.

(f)  the capacity of:

(i)  each of the child's parents; and

1. There was no significant evidence to suggest that the father had any difficulty in promoting the needs of the child including his emotional and intellectual needs whereas in relation to the mother there are some very serious question marks. She appeared to be putting her interests in living with her partner in Town L and that developing relationship in the same category as [X]’s best interests. They were distinctly different and the mother was so focused on her developing relationship with Mr C that it seemed to cloud her assessment of the child’s best interests of maintaining a meaningful relationship with the father. For example, in April, 2018 for no justifiable reason she did not promote [X] spending regular time with the father for around 12 weeks. She put her need to try and apparently sort out his kindergarten attendance as a priority over the close and loving relationship [X] had with his father. Moreover, she ignored time with Court Orders and simply did what she wanted. I will comment on this topic further, in my Conclusion.

(ii)      any other person (including any grandparent or other relative of the child);

1. There was too little evidence led on his topic for the Court to make an assessment about a grandparent or other relative.

   to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's    parents, and any other characteristics of the child that the court thinks are relevant;

1. Not relevant save that in 2018 [X] was assessed as having some speech and fine motor skill issues that the parents are dealing with.

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. It appeared to me when assessing all the evidence that the mother after returning to Town A focused more on her relationship with Mr C than she did on maintaining and promoting a relationship between [X] and his father. It may have been that she confused her need to parent [X] with the need to develop a relationship with Mr C and live in Town L. She appears to have further confused [X]’s needs with her own. She was criticised in the Family Report, in my view fairly, that she lacked insight. She appears to lack the capacity to consistently support a relationship between [X] and his father.

2. In relation to the father there was no significant evidence to suggest that his attitude and responsibilities of parenthood had any significant weakness or fault. The father in his evidence detailed a commitment to promoting [X]’s interests and welfare by regularly seeing his mother should he reside with the father. The evidence of the father in this area suggests he saw his relationship with the child as being similar to the mother’s relationship with the child and both were very important. I will comment on this topic further, in my Conclusion.

(j)  any family violence involving the child or a member of the child's family;

1. The mother alleged that during cohabitation the father was controlling and verbally abusive when drunk. There was little evidence on this topic and the Court could not make findings.

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. In or about October, 2017 the mother caused an Application for an Intervention Order to be applied for by a Senior Constable Mr AA of the Victoria Police laying a complaint which said in part the following:

   “Ever since the 6^th of February 2017 the respondent has sent over 100 text messages of an abusive nature to the AFM, abusing her about her parenting skills, where she lives, care of the child and her current partner. This has caused enormous stress on the AFM, reducing her to tears, interfering with her sleeping habits, causing insomnia and migraines. He has also verbally attacked the AFM’s current partner in front of their child and is using the child to get back at the AFM.”

2. The father annexed to his Affidavit filed 20 November, 2017 a copy of text-messages that he forwarded to the mother from 28 January, 2017 to 25 September, 2017 at annexure ‘F-3’. These documents disclosed that the mother’s allegations about abusive text messages were wrong and had no substance. This lady, it appears caused the Victorian Police to apply for an Intervention Order, which contained in part serious allegations that had no substance. In cross-examination by the father’s Counsel, the mother admitted she did not think they were abusive... “I may have over-reacted”… and… “I do think that there is stuff missing but I also think that the stuff missing probably isn’t substantial enough to have gotten an Intervention Order”.

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. I will draft orders that in my view are more likely to prevent further proceedings in this matter but given the history of these two parents I cannot guarantee there will not be further litigation.

(m) any other fact or circumstance that the court thinks is relevant.

1. The issue that I believe is relevant under this sub-paragraph is the mother’s mental health.

2. In relation to the mother’s mental health, the report by Dr CC, Consultant Psychiatrist dated 29 January, 2019 was helpful although she only took a history from the mother. It highlighted the following:

   a)The mother was subject to neglect and physical abuse as a child by her biological parents. She was also sexually abused according to the mother who has no memory of this, but was so informed by her siblings or sibling;

   b)At page 5 the expert says that the mother suffered from depression/anxiety in her early twenties and was on medication for 2 to 3 years and would find she would get well and discharged from her psychologists but then get depressed again. She said she had trouble getting help because of her anxiety feeling overwhelmed her. She also said that her anxiety/depression regularly returned or used to in April of each year. She went on to say that the mother was diagnosed with Bipolar Axis II 5 months after [X] was born in 2013;

   c)At page 4 the expert said that the mother had said when she got anxious previously she would be too anxious to leave the home and currently she is on medication of Seroquel XRM modified release tabs 300 milligrams although I noted that in cross-examination the mother said she is taking 500 milligrams and she was also taking Sertraline 200 milligrams;

   d)At page 7 Dr F said that she is currently stable and her prognosis is good. She also said… “that there is some risk of relapse of anxiety or depression especially if she is stressed.”;

   e)Under the heading of answers to specific questions, she said that at the time of examination the mother does not have any significant psychiatric or personality issues and appears to be functioning well. She went on to say that she recommends the mother continues her current treatment with the General Practitioner, psychiatrist and support workers. Her prognosis is good;

   f)At the same page of the report she again said that the mother does not have any significant psychiatric issues and does not appear to pose any risk to her children. I note the qualifications in terms of ‘significant’ and ‘does not appear to’ in this expression; and

   g)Dr F said that in relation to a question about her capacity to facilitate [X]’s relationship with his father… “she is mindful not to jeopardise [X]’s relationship with his father”... I found this strange given I expect the mother to be saying five weeks out from trial that she is aware of the importance of that relationship and will do everything in her power to promote it rather than she is mindful of not jeopardising the relationship. However, this was not closely detailed in her evidence in chief nor I note was it detailed in her affidavits.

3. I will order the mother to continue to attend her General Practitioner and psychiatrist to ensure that her condition is monitored by them particularly given her anxiety and depression issues that would apparently arise around each April. I am concerned that she may relapse but I accept currently she is stable and compliant with taking her medication.

S.60CC(2)

1. In relation to sub-paragraph (a), the evidence from the parents and Dr S in particular, it is clear that [X] already has a meaningful relationship with his parents and in my orders I will ensure this is maintained and promoted (see prospective approach at paragraph 119 in McCall v Clark (2009) FLC 93-405).

2. In relation to sub-paragraph (b) the need to protect the child from physical or psychological harm, abuse, neglect and family violence, it is my view that this does not appear to be currently an ongoing issue between the parents, notwithstanding the mother’s historical allegations that I will discuss below. I should also note that I am uncertain about Mr C’s ability to control his negative behaviour given in the past I note in his text messages to the father that he has been from time to time aggressive and confrontational. When he gave evidence under cross-examination he also exhibited, on occasions, flashes of anger and aggression, which trouble me greatly about his lack of self-control and a serious ongoing negative view of the father. Uncontrolled in the future, it could have negative psychological effects for [X].

3. In relation to sub-paragraph 2A, the mother has made allegations in her affidavits, for example, the affidavits filed 15 February, 2018 and 17 July, 2018 both at paragraph 21 and in the Intervention Order application that the father was verbally abusive when drunk and controlling during cohabitation, without further particulars. But in her Outline of Case document filed with the Court in reference to this sub-section she said the following:

   “The mother acknowledges that the father’s conduct towards her and the child has improved and maintains that it is in the child’s best interests for both parents to be actively involved in his upbringing.”

4. From my assessment of the evidence it would appear that any alleged past family violence between the parents is not a current issue between them.

S.61DA

1. I note that both parents and the Independent Children’s Lawyer also support a final order for equal shared parental responsibility and no one is relying on s.61DA(2). After hearing from the parties and reading their affidavits I am prepared to make an order for equal shared parental responsibility particularly given that both of them said in recent times their communication has improved.

s.65DAA

1. It would not be appropriate to make an order pursuant to sub-section (1) for equal time in this case given the geographical barrier between the parents. The mother is adamant that she will not relocate to Town A and will remain living in Town L. In the mother’s Outline of Case at page 4 she says on this sub-section… “given the distance between the parties an equal shared care arrangement is not practically possible”. The father’s Updated Case Summary document at page 9 also talks about the distance making this impossible.

2. I note sub-section (6) and that the parties agree to a consent order.

3. It appears to me that time with on alternate weekends as proposed by the parents and holidays can be easily accommodated. Given the weekend time which will cease at 4.00pm Sunday, I have provided a few extra days in the first and third school holidays to underpin the mother’s and half-siblings relationship, similar to the Independent Children’s Lawyer’s proposal. I also adopted her changeover proposal, in effect.

Conclusion

1. The parents in this case have many parenting strengths. There is no doubt they dearly love [X] and he enjoys a close and loving relationship with them both.

2. What is noticeable when I review the evidence is that the father’s proposal is more likely to promote the child’s best interests. I am concerned that the mother appears not to have recognised the importance of the role of the father in [X]’s life. She has not historically supported or promoted that relationship and on some occasions she has ignored it and intentionally or otherwise undermined it.

3. Examples of this behaviour by her are as follows:

   a)After they separated in 2016 in Darwin she went to Adelaide. On her return she agreed with the father to spend time with [X] for only two hours on a Saturday but then spirited him away from Darwin to live with her in Town A without the father’s knowledge or consent. She was assisted in this role by her parents and her behaviour not only caused litigation to commence but prevented [X] maintaining a relationship with his father for some weeks;

   b)Unilaterally enrolling [X] at kinder in 2017 for 2018 in Town L, (whilst living in Town A), telling the child who apparently was excited about it, before advising the father of this, totally ignoring his role and views;

   c)Overholding the child for a second time from April 2018 for around 12 weeks without any justification that was soundly based, only allowing communication between the child and the father. There was no time with the father during this period and what is surprising is that the mother did this in a background where these proceedings were already on foot. Her lack of insight about the effect on [X] not seeing his father is very troubling;

   d)Alleging telephone texts from the father were abusive to her when in fact they were not and she sought and obtained an Intervention Order for herself and [X] from a local Magistrates’ Court in part based on this fabrication. She applied for this Order just prior to advising the father in writing that she was now residing in Town L;

   e)Allowing the child to refer to his step-father as ‘dad’ and adopt the Mr C surname. On 19 July, 2017 the father sent the mother the following text message:

   “Hi Ms McClure. Tonight whilst skyping [X], he said his name was [X] … [X] said no Daddy Mr C said my name is [X].”

   The mother replied… “well looks you need to take that up with Mr C”

   The father the replied:

   “So as [X]’s mother are you condoning Mr C’s behaviour?”

   The mother did not reply.

   I note when cross-examined by Counsel for the Independent Children’s Lawyer on day 2 of the Trial on this topic the mother said… “that’s why I did not discourage the dad thing when [X] was saying dad because, to me, you can have two dads and that’s okay. I didn’t realise that that was quite offensive.” This is a clear example of the mother’s lack of insight into the importance of the father-son relationship. On day 3 she, to my surprise, described Mr C as a good role model;

   f)She was requested by [X]’s preschool to produce a poster with photographs of the family in early 2018 and the mother rather than supplying a photograph of the father, supplied the school with a photograph of Mr C, the stepfather, effectively promoting in [X]’s school environment that Mr C was his father and not at all promoting with [X] the relationship between [X] and his own father. This was after she said she allegedly had a conversation with Mr C about him being called dad by [X] in 2017;

   g)Planning a new life and environment in Town L for [X] under a cloud of secrecy and only telling the father when it appeared to be a fait accompli. She should have discussed her proposal with the father beforehand, to see how it could affect [X]. I note the mother texted the father on 14 September, 2017 that… “your relationships are no longer just about you, they are about [X] and his wellbeing”. This was in response to the father moving in with someone else; and

   h)Taking [X] to a Mr BB, a counsellor in July, 2018 without first discussing this with the father for his opinion and consent.

1. In cross-examination of Dr S, counsel for the Independent Children’s Lawyer Ms Stavrakakis asked the expert the following:

   “All right.  And in terms of – in terms of – because certainly in your report you opine that you have concerns as to whether the mother would, in fact, be able to promote the relationship between [X] and the father, should [X] live with her.  Correct?‑‑‑Yes.

   And you questioned whether she was child-focused?‑‑‑Yes.

   Could you tell his Honour what is the short-term effect and the long-term effect if the mother is not able to facilitate the relationship between [X] and the father, should [X] live with her?‑‑‑The inevitable effect upon children where they’ve had a strong relationship with both parties, especially when young, can be that – as I said earlier, that they struggle to form an integrated sense of self, because in our current society, our formation of identity and self is very much based on a two-parent family still – and I leave out, you know, our gay people, etcetera, etcetera, and no insult to them, but – and as a result, what can happen is that it can affect – as – again, as I said before, large aspects of their ongoing development.  It can affect their academic performance, they can become withdrawn, they can become addictive – addicted as they get older.  The whole notion of social connection is fundamental to our balanced growth, and social connection and social growth is very much formed on the structures, the routines, the practices that good parents give children, because they then go and model and develop other relationships with people of similar ilk, but it also makes them much more able to handle the ups and downs, the slings and arrows of outrageous fortune that life will present them.  So there’s a lot of complexities, but for young kids especially – and our society is starting to realise it, it can be quite disastrous.

   Was there anything to suggest in your interview with the father, that the father does not – is not willing to promote the [X]/mother relationship, should [X] live with the father?‑‑‑No.

   Was there anything in the interview of the father to suggest to you that the father is incapable of promoting the [X]/mother relationship ‑ ‑ ‑?‑‑‑No.”

2. It appears to me in the unusual circumstances of this case that from 2016 through to 2018 there was a pattern of behaviour where the mother on a number of occasions did not, intentionally or unintentionally, promote the relationship between the child and the father. This has occurred so often over time that I lack confidence in the mother to be able to in the future long term, fully promote that relationship that is so important to [X]. If the child was to remain in her primary care in Town L, I would be very concerned that the father’s relationship would be minimised and damaged by the attitude and behaviour of the mother and her partner Mr C, which I will now address.

3. Another significant problem with the mother’s proposal was the attitude and behaviour of her partner, Mr C.

4. There are a number of examples of his acting out his negative attitude to the father. The father gave evidence that on a number of occasions at changeover Mr C has said inappropriate things to him within the presence or hearing of the child. One example was at McDonalds in December, 2017 when he followed the father out into the carpark when he collected [X] and Mr C was yelling at the father about 3 metres away saying that he was a “shit dad” amongst other things. Mr C admits using this expression but denies [X] heard it. It appears that Mr C on a number of occasions could not contain himself.

5. His negative attitude to the father is clearly set out in the series of telephone text-messages I referred to earlier in this judgment annexed at ‘F3’ of the father’s affidavit filed 20 November, 2017. Although he acknowledges he has what he describes as a “potty mouth” this is no excuse for his offensive, intimidating comments that he directed at [X]’s father. Whilst Mr C does not appear to be very bright, it is clear from his evidence that he still harbours a great dislike, if not hatred, of the father. Should [X] reside with the mother and Mr C, I do not believe Mr C can contain himself in the long term and what we have seen recently could well be repeated and will clearly have a negative impact on [X]’s relationship with the father and on [X]’s emotional and psychological wellbeing.

6. Counsel for the Independent Children’s Lawyer raised this topic with Dr S and the following exchange took place:

   “All right.  Well, I can tell you that the – both the mother and Mr C did, in fact, indicate in that witness box that the text messages between Mr C and the father was such that Mr C’s messages were abusive towards the father, and certainly the mother with respect to the text messages between Mr C and – sorry, between her and the father, the mother in the witness box was able to say they were not abusive.  So the father’s text messages towards her were not abusive, and that in that witness box, the mother said she was not bullied by the father, whereas in the intervention orders, the mother’s application was the texts were abusive – the texts between mother and father were abusive, and that she felt harassed, etcetera.  Despite the mother saying that Mr C’s texts to the father were abusive, the mother was still of the view that Mr C is a good role model to [X].  Does that concern you?‑‑‑Yes, it does.

   Why?‑‑‑Because despite the fact that, you know, we have shifting and expedient moral value systems in our world today, it concerns me that if we’re going to bring up people – young children to have values, the models that they receive are going to very much either influence them or certainly create conflict for them.  Now, I’m not – I don’t – I can’t read what goes on with Mr C, but a series of abusive messages would suggest that this person has some form of personality issues, and the fact that the mother would then essentially seemingly condone or deny such suggests that there are some issues about her personality and the choices she has made in terms of her partner.”

7. I note that Dr S in his Family Report at page 18, the third paragraph from the top said the following:

   “The issue of the hostility between the father and stepfather should simply be resolved by them having no contact of any kind by social media or texting.”

8. In my view, having heard the evidence, this is too simplistic. Mr C’s dislike or hatred for the father was clear and apparent for all to see in the witness box and I do not think that he will be able to contain himself in the future from making comments in the presence or hearing of [X]. I hope that he can, for [X]’s happiness, restrain himself on weekends and holidays, although I have my doubts. Should this have a negative impact on [X] perhaps the time with orders should be reviewed in the future.

9. I also note that Dr S made the following comment at page 16 of his Family Report as follows:

   “To summarise it appears that the mother has lacked insight and has acted quite deliberately, deceptively and intentionally for some if not most of the time since the November 2016 Court orders about specific but very critical aspects of the parenting orders and such action appears to have been primarily more about her best interests than the child’s best interests.”

10. It is important for the mother and her partner to understand that they are not being “punished” for their alleged deceptive conduct (to use Dr S’s expression), but in fact I am concerned about their negative parenting and behaviour that is relevant pursuant to Part VII of the Act and in particular, section 60B(1) and (2), section 60CA, and sub-sections 60CC(2) and (3).

11. It is not my role to comment about whether the mother was deceptive or not but to see the effect of her poor parenting on [X]. There is no doubt in my mind that often she put her interests before [X]’s and ignored or had no insight about the importance of the father-son relationship during the last few years.

12. Other factors of issue that are important in considering [X]’s best interests include the following:

    a)The Report writer was cross-examined on day 4 and said:

    “In terms of the parents’ insight, at page 12 of your report, you opined that the father has greater insight.  Is that correct?‑‑‑Yes.

    And that you opined that the father is more child-focused?‑‑‑Yes.

    May I ask, Doctor, insight.  How do you – how is it that you say the father has greater insight?‑‑‑Child-focused, child awareness, just in general terms the way a person – when they talk in the interview, they talk more about the child and what that person may think about what the child’s needs are.  Of course you’re not going to document that – everything, because if you did all that, your report would go 500 pages.

    Yes?‑‑‑And probably as much as anything, that he gave the impression that he was trying to work out something.  Admittedly, he wanted the mother to come back to Town A, but I didn’t think the mother was prepared to budge, and if you’re not prepared to budge, to me that doesn’t show much child focus or insight.”;

    b)And again:

    “You accept that.  Right.  In cross-examination, I then cross-examined the father about the issue about half-siblings and the relationships and the importance.  And the father was able to articulate that should [X] reside in his care, he will endeavour to involve the half-siblings.  He would – and facilitate that.  So, Doctor, in terms of the father’s insight into the importance of the sibling relationship, is that good insight or poor insight?‑‑‑It’s not poor insight.

    No?‑‑‑I think it’s reasonable insight.

    And so – and as you indicated, certainly with respect to relationships, it’s quality of the relationship, not the quantitative factor?‑‑‑Correct”;

    c)When cross-examined by the mother’s Counsel it initially appeared that the father did not put a great deal of weight on [X]’s relationship with his step-siblings. This was revisted by Counsel of the Independent Children’s Lawyer who asked

    “If [X] lived with you what efforts, if any, would you make to ensure that [X] would see his half-siblings?---Whatever – whatever occasion arose, birthdays, Christmases, if they planned a holiday together, and anything like that. If he asked to see them we would try and facilitate the time.

    Is it up to [X] to ask to see his siblings, his half-siblings, or is it up to you as a parent to make sure that’s facilitated and nurtured?---Great question. It’s definitely –it’s both. It’s – moving forward it should be the parents trying to initiate the bond to continue, not just waiting for [X] to miss them or to want to see them. It would be important to continue to facilitate his – his full upbringing with everybody that’s close to him, as best we can.”

    d)An issue in this case was the mother’s mental health which I have referred to earlier and which may be problematic in the future. A Dr CC provided a report dated 29 January 2019 and attended Court for cross-examination. At page 7 she said the following:

    “Currently she is stable and her prognosis is good. There is some risk of relapse of anxiety or depression especially if she is stressed.”

    The doctor when cross-examined said it was possible she could relapse if she stopped taking her medication and recommended in her report that the mother see her General Practitioner, psychiatrist and support workers with those experts to support her in the future to avoid any health problems.

    e)I note that at page 15 of his Family Report that Dr S said the following in the last paragraph:

    “It also might be argued that at such a young age children’s brains and especially emotional systems are very plastic and flexible so provided  a young child has strong nurturance and a safe supportive network other than where he and the mother currently now live such as presumably would be provided by his father and other close biological family networks in Town A it may be that his moving from the mother to the father as his primary carer would not necessarily pose any significant concern to the child’s long-term development.”

    f)A topic of concern is effect on [X] with a change of school should he primarily live with the father and I asked Dr S the following question:

    “Was there anything that you saw in the makeup of the father, emotionally, psychologically, or whatever, that would suggest that he couldn’t handle the transition for the child.”

    He answered no.

    Then Mr Howe Counsel for the mother cross-examined the expert as follows:

    “The difficulties – you outlined the difficulties that the child may face changing schools.  You outlined the crucial nature of the first – of the beginning of prep.   The child has been in prep now for a month – a month-and-a-half, and may have been in prep for – we don’t know how long before his Honour gives a judgment in this matter.  And when you say the father has shown nothing to use that would indicate that he couldn’t handle that transition.  Isn’t it more a matter of the child handling that transition rather than the parent?‑‑‑It’s both.  A child is part of – as I said, a social connection before, and that’s – that social connection is critical until children reach – is more critical until children reach the age of about 6 or – 6 onwards, and I suppose the best that one could be – could say is that ideally, we would like children to be starting in a school and staying in that school.  But apropos the intend of what you’re saying – if a child is – the younger a child, the less probability of lasting overall developmental, psychological, emotional damage if a child has to move, relocate a suburb to a new school, or something along those lines.

    Would it be better – would the child – would the risk to the child be less if that transition were made at a significant part of the school year?  For example, at the end of the school year so that he completes prep in one school ‑ ‑ ‑?‑‑‑It would ‑ and then starts year 1 in a different school?‑‑‑It could be.  It also could be term by term, because kids sort of register in terms of term by term.  “It’s a new term.  You’re going to a new school.  Gee, I’m really excited”. Something like that.  So certainly not term, but end of a term, or end of a school year, yes.”

    g)I note in re-examination of the mother she said she will comply with court orders in the future, support [X]’s relationship with the father and other similar topics but I found her evidence unconvincing and unbelievable. I put little weight on it; and

    h)It was interesting that the mother agreed in cross-examination that should the father move to the Town L area they could equally share in the care of [X] on a week-about basis. That indicates to me that she has little concern about his parenting skills and ability.

13. Another issue that was put to the Report Writer when cross-examined by the mother’s Counsel was about the possible effects if a primary attachment was severed and the consequences for [X], and Dr S said:

    “My time with [X] was very limited… I saw [X] quite ecstatic to be with his father – a little bit more so than his mother. But it was quite clear he has a strong association with both.”

    He went on to say that [X] has a strong attachment or bonding with both parents and… “that there’s less likelihood that he would have that attachment in any way strongly impacted upon. Attachment occurs in the first normally two, three years of a child’s life, particularly the first six to twelve months. And once formed, it takes one hell of a lot for it to be lost.”

14. Finally, I note that [X] will be turning 6 years in a few months. I note further the evidence of Dr S detailed in this Conclusion and in particular that [X] has a strong bond or attachment with both parents. I assess that on all the evidence in this case that this will not be… “strongly impacted”… with the transition to reside with his father and attend another school at Town A.

15. The parents and their partners are basically good people caught up in an unfortunate dispute although some have parenting flaws. Each has made their choices in life and can enjoy their future. This little boy can have a bright and happy future if all of these people make him a priority.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date:  24 June 2019