FULLAGER & BARBERRY

[2020] FamCA 115

FAMILY COURT OF AUSTRALIA

FULLAGER & BARBERRY [2020] FamCA 115

FAMILY LAW – CHILDREN – Best Interests – Final Parenting – Where previous final orders made that the child live with the mother and spend time with the father – Where the father now seeks orders that the child relocate and live with him – Where the father maintains that there is a risk of psychological harm to the child related to the mother’s inability to manage her anxiety about his time with the child and the mother’s judgement of risks posed by him to which the child may be exposed – Where the mother’s position concerning her allegations that the father had abused the child or there was a risk he may do so in the future varied significantly throughout the course of the proceedings – Where the mother did not press that there is an unacceptable risk the father may physically abuse the child – Where the Independent Children’s Lawyer supports the position of the father – Where it was observed that the repealed “friendly parent” provision (formerly s 60CC(3)(c) of the Family Law Act 1975 (Cth)) should not be treated as a matter which must be considered in determining the best interests of the child – Where no finding of unacceptable risk in the mother’s care – Where orders made that the child live with the mother – Where orders made that the parties have equal shared parental responsibility for the child.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D

Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
McCall & Clarke (2009) FLC 93-405; 41 Fam LR

APPLICANT: Ms Fullager

RESPONDENT: Mr Barberry

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW 

FILE NUMBER: CAC 462 of 2012

DATE DELIVERED: 28 February 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 3,4 & 5 April, 28 August, 4 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Harris

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Coleman Greig Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O'Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All previous parenting Orders and Orders relating to travel are discharged.

2. The parents have equal shared parental responsibility for X born … 2011 (“the child”).

3. The child is to live with her mother.

4. The child will spend time with her father as follows:

   (a)       During school terms, on the second, fifth and eighth weekend of each school term from the end of school on Friday (or 3pm if the child is not at school that day) until 2 pm on Sunday;

   (b)       During the term 1, 2 and 3 school holidays from after school on the last day of school term (or 3pm if the child is not at school that day) until 2pm on the middle Saturday of the school holidays;

   (c)       During the term 4 school holidays each year, from 11am on 6 January until 2pm on 23 January;

   (d)       On 19 August each year (the child’s birthday) from 3pm (or after school if her birthday is on a school day) until 7pm. This time together will occur in the Sydney region, unless the child is spending weekend or holiday time with the father on her birthday;

   (e)       On the Fathers’ Day weekend each year from after school on Friday (or 3pm if the child is not at school that day) until 2pm on Fathers’ Day;

   (f)        The Father’s time with the child is suspended on the Mothers’ Day weekend each year; and

   (g)       At any other times that the parents agree in writing.

5. The Mother is restrained from moving with the child to a place outside the Sydney metropolitan area, without the written consent of the Father or Order of the Court.

6. The father or someone on his behalf is to collect the child from her school (if a school day) at the beginning of the child’s time with him. On days she is not at school, the father will collect the child from Suburb B McDonalds at the start of her time with the Father and the Mother will collect the child from the Father, or someone on his behalf, from McDonalds C Town at the end of the child’s time with him.

7. Each parent must immediately provide the other parent with their residential address, contact telephone number and e-mail address and must notify the other parent of any change to these details within 48 hours.

8. Each parent is permitted to obtain information about the child’s health and wellbeing from any doctor, counsellor or psychologist treating the child.

9. Each parent shall notify the other parent if the child attends hospital or has a medical emergency as soon as they can and must at that time give the other parent the contact details for anyone treating the child.

10. Each parent is permitted to go to the child’s school and ask about the child's progress and wellbeing and obtain copies of any documents relating to the child that parents normally receive.

11. Each parent and grandparent shall be entitled to attend the child’s school for any event to which parents and grandparents are normally invited.

12. Each parent is restrained from:

    (a)       Physically chastising the child or allowing any other person to do so;

    (b)       Denigrating the other parent or anyone in the extended family or who lives at the other parent’s house in the hearing or presence of the child and shall not allow any other person to do so; and

    (c)       Discussing the Court proceedings in the hearing or presence of the child.

13. Each parent is permitted to take the child out of Australia for a holiday on the following conditions:

    (a)       The parent who wants to travel must tell the other parent at least two months in advance of the proposed travel;

    (b)       The parent who wants to travel must give the other parent a copy of the travel itinerary and the return air tickets at least 21 days before leaving;

    (c)       The parent who wants to travel must give the other parent the contact details so that the child can communicate with the other parent twice a week; and

    (d)       Unless the parents agree in writing, the travel must not take place during the time the child is with the other parent.

14. The parents must make sure that the child has a valid Australian Passport. To make sure this happens:

    (a)       The Mother must give the completed application to the Father;

    (b)       The Father must sign and return the application to the Mother within 14 days of receiving it from the Mother;

    (c)       The Mother must immediately lodge the completed passport application;

    (d)       The Mother is to have the child’s passport when she is not travelling overseas with the father; and

    (e)       The mother must give the passport to the father at least 6 weeks prior to any proposed travel with the child and the father must return the passport to the mother upon his return. 

15. Each parent is to communicate with the child by Whatsapp at 6.00pm each Monday and Thursday when the child is with the other parent. The parent with whom the child is not living is to make a call to the other parent’s mobile telephone. If a parent is unable to personally facilitate the child’s Whatsapp call, he or she is to give the other parent an alternate phone number for contact.

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 Fullager & Barberry 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 PARRAMATTA

FILE NUMBER: CAC 462 of 2012

Ms Fullager

Applicant

And

Mr Barberry

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of X (“the child”) who is nine have been in dispute concerning her parenting arrangements for virtually all of her life.  They separated when the child was a few months old and she has at all times since then lived with her mother. 

2. Some years ago orders were made with the consent of the parties which provided for the mother to move interstate with the result that the parties have lived since that time a significant distance from one another of about three hours driving time.  There have been some periods in which the child has not spent time with the father and some other difficulties in relation to their time together since the original orders were made. 

3. The father contends that unless the child moves to live with him there is a real risk that she will not share a meaningful relationship with him. It is the mother’s position that the current arrangement in which the child lives with her and spends time with the father each third weekend and in school holidays works best for the child. 

4. The Independent Children’s Lawyer (“ICL”) agrees with the father’s contention and his proposal for the child to move. 

5. The question for me to determine is which parenting arrangement in relation to the child is proper having regard to the child’s best interests being the paramount consideration.

Background

1. The mother and father who are both aged 38 formed a relationship in 2010 and began living together in a regional city in mid-2011.  In 2011 their only child was born.

2. In January 2012 the parties separated. The child who was four months old continued living with the mother and the father moved to his own premises.

3. The father commenced parenting proceedings in relation to the child a short time later and in July of the same year orders concerning the child’s future parenting arrangements were made by a judge of the Federal Circuit Court with the consent of the parties (“the 2012 orders”).  These orders provided for the mother to move to Sydney, for the child to remain living with her and to spend defined time each alternate weekend with the father and for the parents to equally share parental responsibility for the child.

4. Shortly after the 2012 orders were made the mother moved to a location in Sydney near to her extended family to whom she is close.  It appears that from an early stage in the operation of these orders both parents considered the arrangements for the child were for various reasons unsatisfactory.

5. From August 2012, very soon after the 2012 orders were made the mother began expressing concern in text messages exchanged with the father about his conduct towards the child and his parenting capacity.  Allegations of a similar nature and of the father’s alleged aggressive conduct and conduct of the paternal grandmother continued to be made by the mother from time to time throughout the balance of 2012 and 2013. 

6. There were 10 occasions between July 2012 and June 2014 when the mother did not make the child available to the father.   The child was unwell on many of these occasions and unable to travel as indicated in medical certificates obtained by the mother at the time.  On one occasion (on two consecutive days) the father refused to sign documents enabling the mother to travel with the child overseas and the mother refused to make the child available to him.

7. In about April 2014 the mother informed the father that she would be changing the arrangements for the child’s time with him including by limiting it to day time only rather than allowing it to extend to overnight time when the child turned three in accordance with the orders. 

8. In May 2014 the parties participated in a conference in an attempt to come to an agreement about a parenting plan which would change the arrangements for the child’s care.  Although the parties entered into an agreement about these changes, disputes between them about the father’s time continued.

9. The father formed the view from about mid 2014 that the mother was engaged in denigrating he and the paternal grandmother to the child due to comments made by the child when spending time with him.

10. On 11 August 2014 the mother commenced these proceedings by filing an Initiating Application in the Federal Circuit Court seeking to vary the 2012 orders.  The father opposed this application and by way of Response sought that the 2012 orders remain in force.

11. In about September 2014 the father and his current partner (“the father’s partner”) began a relationship. 

12. In September 2015 there was a hearing before a judge of the Federal Circuit Court in relation to whether there had been a sufficient change in the child’s circumstances such that it was in the child’s best interests for the parenting arrangements to be revisited. Judgment was delivered in relation to this application in April 2016 with the Federal Circuit Court Judge finding that it was in the child’s best interests for the parenting arrangements to be reconsidered.

13. From the time the proceedings were commenced there were further occasions on which the mother did not make the child available to the father to spend time with him and ongoing disputes between the parties about the father’s “make up time”.

14. On 11 April 2016 the father contacted the Department then known as Family and Community Services (“the Department”) raising concerns about the child being exposed to psychological abuse by the mother. 

15. A few days later, on 16 April 2016 the mother alleged that the child (who was four) reported that the father had kicked her in the face. The mother contacted police and the following day took the child to a doctor and a children’s hospital.

16. The child was subsequently interviewed by police who also interviewed the father.  No further action was taken.  The father denies any incident along these lines and this matter is dealt with later in these Reasons.

17. From 17 April 2016 until 7 December 2016 the mother unilaterally withheld the child from the father but did not commence proceedings to suspend the parenting orders which were then in place. 

18. The father filed an application to reinstate the child’s time with him and the mother subsequently sought orders that the father’s time with the child be supervised.  The mother also sought an order permitting her to travel overseas with the child as the father had refused her request to do so.  The father also changed his primary position for final orders seeking for the first time that the child live with him.

19. Later in September 2016 an Independent Children’s Lawyer (“ICL”) was appointed and the paternal grandmother filed an application to be joined to the proceedings seeking time with the child. 

20. On 22 November 2016 interim parenting orders were made with the consent of the parties providing for the father to spend time with the child supervised by a private supervision agency.  The following month orders were also made permitting the mother to travel overseas with the child in 2017.

21. In December 2016 a family consultant met with the family for the purposes of preparing a Family Report.  The father had spent time with the child the previous day for the first time in eight months.  By this stage the child was referring to the father by his first name rather than as “dad” or “daddy” and the mother conceded she took no steps to correct her.

22. In March 2017 the Family Report was released.  A short time later on 24 March 2017 further interim parenting orders were made with the consent of the parties providing for the father to spend unsupervised time during the day with the child in accordance with the family consultant’s view that supervision did not appear necessary.

23. The child’s unsupervised time with the father appears to have progressed well.

24. The family consultant had also recommended that any anxiety that the mother experiences in relation to the child maintaining a relationship with the father be managed by the mother seeking suitable specialised therapy.  

25. In September 2017, the proceedings were transferred to this Court and the paternal grandmother’s application to join the proceedings was dismissed with the consent of the parties. 

26. A few months after release of the Family Report the mother began receiving therapeutic intervention with a suitably qualified psychologist.  This consisted of seven 50 minute sessions between late September and November 2017, in March and July 2018 and in March 2019 shortly before the commencement of the hearing.

27. On 14 December 2017 interim orders were made with the consent of the parties providing for the child to begin spending overnight time with the father.  Pursuant to those orders the father was also to complete a nominated post separation parenting program but this did not eventuate.

28. The child’s overnight time with the father every third weekend commenced in January 2018.  Almost immediately the mother began raising concerns in the communication book that passed between the parties about the father’s alleged inappropriate conduct.  In particular, she alleged that it was inappropriate for the father to bath with the child and made reference to the father having had child pornography on his computer. The mother later alleged through the communication book that the father playing tickling games with the child was also inappropriate. 

29. There was subsequently no dispute between the parties that the father had not shared a bath with the child nor was there any substance to the allegation concerning child pornography. These are matters to which I will return.

30. In October 2018 further orders were made with the consent of the parties providing for the child to celebrate the upcoming Christmas with each of her parents and their extended families.

31. In November 2018 the father refused consent for the child to participate in a program to assist children following separation.

32. The father and his partner have had two children since their relationship began.

33. The father has continued to reside in a regional city since separation and the mother has continued to reside in Sydney.  The arrangements for the child’s time with the father since January 2018 are that he collects the child from her school in Sydney and the mother drives to collect the child from the father at a contact centre at the end of her time with him on a Sunday afternoon. During holiday time changeover has been occurring at the same contact centre. The child was not having any regular telephone contact with the father prior to the final hearing.

34. The child has expressed reluctance to the mother prior to the start of her weekends with the father on a number of occasions since overnight time commenced.  The mother also deposes to the child making complaints about the father’s conduct when she spent time with him on a weekend in December 2018 and on a weekend in January 2019.  In relation to the January weekend the mother also had concerns about the child crying and making comments to the father which were overheard by the mother during a phone conversation.  After the phone call the mother contacted police who in turn contacted the father and asked that he bring the child to a local police station for a welfare check.  The father did so but no matters of concern were noted by police.

35. On another occasion in January 2019 the child did not go with the father on a family holiday as the staff at the contact centre that facilitates changeover considered that the child was too distressed to leave the mother.  As a result the child missed out on a beach holiday with the father and his family albeit that he had not advised the mother or child that he intended taking her away during that time together.

36. The mother also deposes to the child making complaints about the father’s conduct during a weekend in February 2019 which led to the mother seeking a referral for the child to see a psychologist.  The father denies anything untoward in relation to his conduct towards the child as alleged in December 2018 to February 2019. 

37. The final hearing proceeded initially over three days between 3 and 5 April 2019.

38. On 5 April 2019, the parties appeared to have reached agreement as to the child’s time with the father during further school holidays in 2019, the introduction of regular telephone and other electronic communication between the child and each parent and discontinuing the use of a contact centre for changeover. The parties also agreed to engage in therapy to assist them in their parenting and agreed to participate in family dispute resolution to be facilitated by the ICL in an attempt to settle the dispute on a final basis. It appeared that the dispute may have been capable of resolution as a result of oral evidence given in the final hearing.  Consent orders in relation to these matters were to be forwarded to me in chambers.

1. The balance of the hearing was listed for a further day on 28 August 2019 if required. I was unable to accommodate an earlier hearing date due to my prearranged extended leave. 

2. On 26 June 2019 interim orders were made with the consent of parties in chambers by another trial judge (as I was absent on long leave) providing for the child to spend time with the father every third weekend during school terms, for seven days in the 2019 April and July school holidays and on the child’s birthday.  The parties also consented to orders that they undergo therapy with a professional to address their communication with each other and to assist them generally in parenting the child given the ongoing family law dispute.

3. On 12 August 2019, both parties attended family therapy. A report prepared by the clinical social worker who provided that therapy was subsequently admitted into evidence.  

4. Unfortunately, the proceedings were not able to be resolved on a final basis.  When the proceedings resumed on 28 August 2019 the evidence was reopened on application of the father for reasons given at the time.

5. On 4 October 2019 there was a final court event following each party filing written submissions. The written submissions were supplemented by short oral submissions.  Judgment was then reserved.

The Areas of Dispute

The mother’s allegations of abuse against the father

1. The mother’s position concerning her allegations that the father had abused the child or that there was a risk he may do so in the future varied significantly throughout the course of the proceedings.

Physical abuse

1. It was initially the mother’s case that the child informed her in April 2016 (when she was aged four) that the father had kicked her in the face. On this basis the mother unilaterally withheld the child from the father for eight months until December 2016 but did not commence proceedings seeking to suspend the parenting orders then in place.  The father has at all times denied that he kicked the child either intentionally or by accident. 

2. In September 2016, the mother sought by application to the Court an order that the father’s time with the child be supervised.  The father subsequently consented to an order for supervision of his time. 

3. When interviewed on 8 December 2016 the day after the child’s supervised time with the father recommenced the mother told the family consultant that it was difficult to indicate how long the child’s time with the father should be supervised as she did not know whether or not the father had in fact kicked the child in the face.

4. The father began spending unsupervised time with the child in March 2017 pursuant to further interim parenting orders made with the consent of the parties.  This followed the release of the Family Report in which the family consultant had opined that there did not seem to be any need for supervision of the father’s time. 

5. In December 2017 further interim orders were made with the consent of the parties providing for the child to begin spending overnight time with the father.  Almost immediately after overnight time commenced the mother again began raising concerns about a potential risk of harm posed by the father to the child, this time on the basis that he may be engaged in untoward sexual behaviour.  Some of these concerns were based on matters that the child was said to have reported about the father’s care.

6. According to the mother’s affidavit on a number of occasions in December 2018, January and February 2019 she continued to have concerns about the father’s physical interaction with the child and potential risks that he may pose based on the child’s complaints and her opinion about the child’s conduct at the time. 

7. In a report dated 20 March 2019 shortly before the final hearing commenced, the mother’s psychologist reported that the mother who sought therapy between September 2017 and March 2019 initially “was focused specifically on the relationship between [the father] and [the child], and [the child]’s emotional and physical safety”.  The psychologist reported that the mother subsequently “was able to step back from her position that [the father] had definitely caused [the child] physical harm to a position of not knowing”.

8. In the mother’s Outline of Case filed shortly before the commencement of the final hearing allegations in relation to the father’s conduct are noted under the heading of section 60CC(2)(b), being the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. 

9. There was considerable attention given to the allegation that the father had kicked the child in April 2016 in the mother’s affidavit (approximately four pages of a 27 page affidavit).  The mother was extensively cross-examined about the allegations of physical abuse and risks of sexual abuse in an effort to ascertain her current beliefs about these matters. 

10. Under cross-examination the mother maintained that she was justified in not making the child available for eight months in 2016 on the basis of her concerns about the child’s physical safety in the care of the father. 

11. In summary the mother gave confusing and inconsistent evidence about her current belief concerning the allegation that the father had kicked the child in April 2016.  She vacillated between believing that “an accident happened”, thinking that there was “some sort of contact”, denying holding a belief that the father assaulted the child and repeating many times that she did not know what had happened.  At once stage, she even indicated that the father may have kicked the child by way of punishment or discipline. 

12. The mother was also cross-examined about her allegations that the father had inappropriately physically dealt with the child by grabbing her by the arms by way of discipline in January 2019 and on some subsequent occasions.  Her evidence in relation to these more recent allegations was extremely vague and uncertain but appeared to have been one of the matters explored in the one joint session of family therapy during the period of the adjournment between April and August 2019 when it had appeared that the dispute may be capable of resolution.  In August 2019 when the proceedings were reopened the mother’s position was that she could not say whether she believed that the father had harmed the child by grabbing her by the arms on a number of occasions in 2019 as she was not present at the time and did not know what had happened. 

13. It was not until the proceedings were resumed in August 2019 and the family consultant was under cross-examination that the mother’s counsel stated on the record for the first time that the mother no longer asserts that the father poses a risk of physical harm to the child. 

14. In final written submissions dated 4 October 2019 the mother’s evidence in relation to her allegation that the father had kicked the child in the face was summarised.  It appeared to be maintained on behalf of the mother that the father’s failure to provide any detail or explanation about his conduct when the child spent time with him in a April 2016 justified her withholding the child for a lengthy period of time from the father and insisting for some time that his time with the child be supervised.

15. Although the mother overall does not press the case that there is an unacceptable risk that the father may physically abuse the child, in some parts of the final written submissions made on her behalf she returns to the questions of whether the father kicked the child to the face, whether the child ever complained that this had occurred and whether the mother had fabricated this complaint.  It is submitted on behalf of the mother that the Court need not make a finding about whether the father harmed the child but ought to make a positive finding that the mother did not fabricate the child’s complaints, that the mother over reacted in circumstances “where the father was not forthcoming of information” and that her actions were not malicious.

16. At the completion of the hearing, there was no contention advanced by the mother or ICL that the father either physically harmed the child in April 2016 or currently poses an unacceptable risk of harm to the child on the basis he may physically abuse her.  Further, neither suite of orders is consistent with the presence of such a risk. For these reasons it is not necessary to make a positive finding about whether the father physically harmed the child in April 2016 or at any other time.  There is insufficient evidence which might suggest that the father may physically harm the child in the future. 

17. In final submissions the father did not seek a finding that the mother fabricated the child’s complaints about his conduct in April 2016 but maintained concern that she perpetuated this allegation and continued to hold significant anxieties about his care of the child arising from this time right up until the last day of the final hearing.

18. I have no difficulty in being satisfied that the mother overreacted to the child’s complaints in April 2016 particularly in withholding the child from the father for eight months.  I am not satisfied however that the mother’s overreaction resulted from the failure of the father to provide information in relation to the incident or that her actions were not malicious at the time. 

19. Although there is insufficient evidence for me to be satisfied that the mother’s actions were not malicious at any time I also do not make a positive finding that her actions were malicious.  A finding in those terms is not sought by the father though it was submitted on his behalf that the mother may have been motivated by her negative views of him and a desire to excise him from the child’s and mother’s lives.  His case was conducted on the basis that the mother’s anxiety about the issue and exposing the child to that anxiety (as opposed to malice) give rise to his concerns about the mother’s judgement of risks posed by him and the mother’s inability to meet the child’s emotional need to have a relationship with him.

Sexual abuse

1. As touched upon earlier in these Reasons, soon after the child began spending overnight time with the father the mother wrote the following message in the parties’ communication book:

   A grown man who has never spent a minute alone with [the child] does not get in the bath with [the child].  That is inappropriate, not to mention the child pornography on your computer that you have spoken about with the police.  [The child] showers alone and sleeps in her own bed.

2. About two months later the mother wrote the following in the communication book:

   No more tickling games with [the child].  It is inappropriate in the same way that getting in [the child]’s bath is inappropriate.

3. According to the mother’ affidavit the first extract was written because following the first overnight visit the child reported to her that the father got into the bath with her.  The mother deposes to feeling very concerned and not sure what to do and that while she did not think that the father had “done anything sexual” to the child she did not consider his actions appropriate. 

4. The mother deposes that her reference to the father having child pornography on his computer was based upon the father having told her that a previous girlfriend alleged that he had been looking at “a porn site for paedophiles”.  In her affidavit, the mother describes her reference to the child pornography on his computer as ill advised on her part and that it was done “with a view to stopping the bath behaviour”.  The mother deposes that she does not think that the father is a paedophile but does think that he “sometimes has problems with personal boundaries”.

5. The father denies bathing with the child but deposes to he and the child being in a spa bath together and that he was wearing shorts at the time. He deposes that he gave this information to the mother the day following the entry in the communication book. 

6. The mother’s evidence in relation to the father’s explanation and her subsequent views about his conduct is unclear. While she deposes to “taking on board the father’s explanation” and that “to the best of my knowledge the issue is resolved”, she again took up the issue in connection with further alleged impropriety two months later.

7. The mother deposes to asking the father to stop tickling the child as a result of the child’s complaints that “dad plays tickling games…but he doesn’t stop when I stay stop”.  She does not explain her reasons for making the connection between the inappropriate nature of the tickling games and bathing with the child which she also considered inappropriate. 

8. Under further cross-examination as to those concerns the mother confirmed that her comment in relation to the bath and child pornography was ill thought out and that she did not believe that he is untoward “in that way”. The mother expressed regret for having written that entry in the communication book and said at the time that she panicked.

9. When later cross-examined by the ICL the mother appeared to have extreme difficulty accepting the father’s explanation that he had been in a spa bath with the child while wearing shorts and continued to maintain that the father had said that he got into the child’s “evening bath” in his underwear.  After significant prevarication, the mother did accept that the father’s explanation of being in a spa bath with the child while wearing shorts was correct.  The mother then gave evidence that she considered the father’s actions were appropriate and accepted his explanation. 

10. When cross-examined about the subsequent communication book entry to the effect that the father tickling the child was inappropriate in the same manner as getting in her bath the mother conceded that she had not accepted the father’s explanation and “let it go”.  Under further cross-examination she conceded that her concerns at these times were responses triggered by her anxiety and that each of the entries in the communication book were examples of her continued anxiety at the time they were written in relation to the child’s time with the father.

11. The issue of the mother’s anxiety about the child spending time with the father is a matter to which I return. 

12. The question of any allegation that the father had behaved in an inappropriate manner as to sexual matters with the child was not further pursued in the proceedings and the mother did not seek any finding in relation to this domain of harm.  There is in my view in any event insufficient evidence upon which it could be found that the father poses any unacceptable risk in relation to sexual abuse. 

Allegations of family violence

1. In their respective trial affidavits, each of the parents makes allegations that the other has been a perpetrator of family violence. The Outlines of Case filed by each of the parties also refer to these respective assertions. These issues were also explored under cross-examination.  However, it is clear from the final submissions made on behalf of each party that neither seeks a finding that the other was a perpetrator of family violence or that there is an unacceptable risk that the child will be harmed by exposure to or being subjected to family violence in either parent’s care.

The family consultant’s evidence

1. Each of the parties and the ICL rely to a significant extent upon the opinion of the family consultant contained in her Family Report and oral evidence to support the orders sought by them. As each party submits that the family consultant’s evidence supports his or her own cases it is important that I carefully scrutinise her evidence while bearing in mind that although I may consider her opinion weighty, it is not determinative in these proceedings.

2. The family consultant holds two Bachelor degrees including an Honours degree in psychology and has worked in various roles including as a family and relationship counsellor for 15 years.  She held a position as family consultant for around ten years and has undertaken training, professional development and held membership of professional bodies throughout her working life.  At the time she gave evidence she was no longer working as a family consultant.

3. The family consultant interviewed each of the parties, the paternal grandmother, the father’s partner and the child and observed the child with each of her parents and also with members of the paternal family.  She had access to a large number of affidavits that had been filed by or on behalf of the parties and was also cross-examined at length by each of the legal representatives and the ICL.  In these circumstances and as each of the parties rely significantly upon her opinion in support of the orders sought by them I attach significant weight to her evidence in these proceedings.

4. The interviews and observations for the purposes of the Family Report took place over three years ago, in December 2016 when the child’s circumstances were quite different to those prevailing at the time of the final hearing.  In particular the child who was then aged five and half had only recommenced spending time with her father the day before the interviews took place after a period of no time together for eight months.  The child’s time with the father at that time was limited and in a supervised setting and the father and his partner although having commenced a relationship did not have any children. 

5. As discussed previously, at the time the mother was interviewed by the family consultant she was not able to provide an indication of how long she sought for the child’s time with the father to be supervised as she considered it was difficult to gauge as she did not know whether the father had kicked the child in the face.  This allegation was not maintained by the end of the proceedings and at their completion the child was already spending regular overnight time in the father’s care including for up to one week blocks during the school holidays.

6. When interviewed the family consultant formed the impression that the mother “appeared to be insinuating that [the child] spending time with [the father] negatively impacts on her behaviour and functioning”.  She goes on to say that when the mother was explicitly asked if this was what she was suggesting, the mother didn’t know but felt it was the case.  In that interview is appears that there was a significant focus on the allegation, now abandoned, that the child had been kicked to the face by the father in April 2016. 

7. When interviewed the father expressed concerns that he already held at that stage about parental alienation and about the mother’s unwillingness to facilitate his relationship with the child.  He acknowledged that the change of residence he proposed would be a big adjustment for the child but said that he only sought such an order because of the mother’s attitude to facilitating his relationship with the child.  He reported a successful session of time with the child the previous day.

8. Although the father was able to describe well what value the mother offered the child as a parent, he expressed a belief that the mother wanted him out of the child’s life so that she could relocate overseas with the child and so that there would be no impediments to her from having the flexibility to do whatever she liked.

9. At the time of the interview the father denied having any current difficulties with his mental health but reported that before the parental separation he had been diagnosed with an adjustment disorder for which he sought counselling and reported at the time living with his “abuser”, that is the mother.  He reported that the mother had a history of relational difficulties including violent behaviour toward others in multiple areas of her life.  The father made allegations that the mother had been violent towards him and it appeared that at the time of the interview with the family consultant that this was a matter that he considered relevant.

10. Under the heading of “evaluation” the family consultant expressed the view that there were no issues identified in the course of her assessment that raised concerns about the basic care provided to the child by either parent.  It was also evaluated that there was no dispute that the mother had always been the child’s primary caregiver and that the child’s relationship with the mother was an attachment relationship.  The family consultant opined that the child was likely to primarily look to the mother to meet her basic and more complex needs and that it also appeared that the maternal grandparents were important caregivers in the child’s life and that she had a close relationship with them. 

1. It was observed by the family consultant that there had been a history of disruptions in the child’s time with the father due to the mother not facilitating these arrangements but despite the lack of recent time together on the day of the interviews, the child’s interaction with the father on observation was “playful and confident”.  The family consultant opined that the relationship between the father and the child presented as far less strained than could be expected given their then recent estrangement and lack of consistency in the time they had spent together. The child’s interview and behaviour on observation appeared to the family consultant to be “consistent with a child who experiences her time with a parent as positive, but is exposed to negativity about that parent”.

2. According to the family consultant her assessment suggested that the essential issue in dispute is the mother’s willingness to facilitate the child’s relationship with the father. The family consultant identified a number of matters which indicated to her that although at the time of her assessment the child appeared to have a positive relationship with the father it appeared likely that in time the child’s relationship with the father would become strained and then estranged because of the mother’s then apparent behaviour. 

3. Although the mother indicated on interview to the family consultant that she did not believe the Court would seriously consider the father’s application for a change in residence, the family consultant opined that based on the information obtained in the course of her assessment a change of residence to the child living primarily with the father could be considered. 

4. In this regard it was opined that if the child were to remain living with the mother she is likely to continue to have her basic needs met but that the mother appeared to be then failing to meet the child’s more complex emotional and relational needs.  It was unclear to the family consultant whether the mother was genuinely unaware that failing to give the child’s psychological permission to have a close and meaningful relationship with the father and failing to permit the child to spend consistent and predictable times with him is detrimental to the child’s wellbeing.  It was her view that if the mother was aware of this she may be prioritising her own needs to remain engaged in the conflict and parent the child without permitting input from the father above the child’s needs. 

5. The family consultant expressed a view about the harms to the child if she were to lose her relationship with the father including a likely experience of grief and loss and losing the opportunity that the father offers her as a parent.  Further, the family consultant opined that if the child were to lose her relationship with the father this is likely to provide a poor role model to her in regards to managing conflict and negotiating interpersonal relationships.  The family consultant also expressed the view that the child may come to feel rejected by the father and may attribute blame to the mother for disrupting her relationship with him which could actually cause a significant rupture in the child’s relationship with the mother as she grows older. 

6. The family consultant opined however that if the child’s residence were to change she would likely experience significant grief at the loss of living with her mother with whom she has always lived and will likely also grieve the loss of her close relationship with the maternal grandparents. 

7. It was the family consultant’s opinion that living with the father would be a significant adjustment for the child as she would have no recollection of her past life with him as an infant and does not have the same network for family and friends that she has living with the mother.  It would also involve a change of school for the child which would be a significant adjustment. 

8. The family consultant opined that if the child were to change residence she would likely at least initially to be distressed due to the separation from the mother and her familiar environment and that although the child appears to have a positive relationship with the father it has never been an attachment relationship.  For this reason the family consultant felt that the child’s adjustment to a change of residence is difficult to predict and that the father’s parenting skills would significantly influence the child’s ability to adjust. 

9. The family consultant was of the view that the father demonstrated some insight into adjustment difficulties associated with the change of residence and appeared to have some knowledge of strategies that might assist her.

10. Overall, however, the family consultant opined that a change of residence should only be considered if the Court formed the view that the father would willingly and consistently facilitate the child having a meaningful relationship with the mother and observed that his ability to do so remained untested.  It was observed by the family consultant that the father appeared to have an awareness during interviews that it might be unfavourable that he spoke too negatively about the mother and that he did not appear to be as negative about the mother as she is about the father.  The family consultant assessed that the information from her interviews suggested that the father was more respectful about the importance of the child having a meaningful relationship with both parents than was the case with the mother. 

11. Overall it was the opinion of the family consultant that if the Court formed the view that the father would not facilitate a meaningful relationship between the child and her mother it would only be recommended that a change of residence be considered if it were determined that the mother poses an unacceptable risk of harm to the child in another domain.

12. The family consultant also noted that both parents provided very different accounts of parental communication and conflict.  She felt that the mother appeared to be trying to impress that the parental conflict was so extreme and unresolvable that it was untenable for the parents to have shared parental responsibility and for the child to maintain a relationship with the father. 

13. The family consultant expressed the view that “if it was the case that [the mother] was deliberately amplifying or overstating the parental conflict for strategic advantage it raises concerns about [the mother]’s parenting capacity and may support [the father]’s application for a change of residence”.  She opined that if the Court formed the view that the parents genuinely lacked the capacity to effectively communicate in relation to the child’s needs then consideration should be given to the resident parent having sole parental responsibility for the child.  Otherwise the family consultant recommended that shared parental responsibility remain so that the child can have the value of two parents contributing to major decisions about her life. 

14. The family consultant also commented upon concerns that had been raised by the mother about the child’s presentation on return from time with the father and comments in relation to the child’s functioning both when she is and is not spending time with the father.  The family consultant opined that it would be extremely concerning if the mother was providing a deliberately elaborated narrative about these matters in an attempt to gain strategic advantage.  She observed that the account provided by the mother both at the Child Dispute Conference and the Family Report interviews in relation to the child’s behaviours following time with the father appeared disproportionate to what might normally be expected, inconsistent with the child’s behaviour on the day of the Family Report interviews and could be accounted for by a number of factors. 

15. It was the view of the family consultant that reducing or stopping the child’s time with the father did not appear to be the most suitable solution to the mother’s concerns and suggested that the parents may be assisted by attending upon therapeutic services to assist them to support the child in spending time with her parents according to court orders. 

16. In summary the family consultant concluded that based on the information available at the assessment it would appear that the best outcome for the child would be for her to remain living with the mother but for the mother to consistently adhere to court orders so that the child is able to have a meaningful relationship with both of her parents.  She was also of the view that the proposal for the child to spend time with the parent with whom she did not live every third weekend during the school term and for half the school holiday periods appeared to be suitable given the distance between the parents’ two homes and the child’s age and stage of development.  The family consultant also felt that it was important for the child to spend time with the non-residential parent in the area in which she primarily is to live so that parent can have the opportunity to be familiar with the child’s school, friends and extra-curricular activities but that the child also spend time at the other parent’s home environment. 

17. As previously noted it was also the opinion of the family consultant that it did not appear necessary for the child’s time with the father to be supervised as was occurring at the time of the assessment.  Although the family consultant opined that it may be the case that the mother feels less anxious about the child spending time with the father when that time was supervised she recommended that any anxiety that the mother experiences in relation to the child maintaining a relationship with the father be managed by the mother seeking suitable specialised therapeutic intervention rather than by making orders that limit the frequency, nature and intimacy of the child’s time with the father.

18. Based on all of the information available to the family consultant at the time of writing the report she recommended the following:

    ·The parents have shared parental responsibility

    ·If the Court finds the mother is not willing to facilitate the child’s relationship with the father and that the father is likely to facilitate the relationship with the mother and could adequately manage the ramifications of the change of residence for the child that the Court could consider a change of residence for the child

    ·If the Court does not make the above findings that the child live with the mother and spend time with the father on an increasing schedule culminating in her spending time with him every third weekend and for half of each school holiday period

    ·If the Court finds that the father did kick the child in the face and poses an ongoing unacceptable risk of harm to the child then supervised time only might need to be considered.

19. Under cross-examination the family consultant was asked whether there was anything in the material that had been provided to her for the purposes of the hearing (being the trial affidavits and then current proposals of the parties) that would cause her to change any of her recommendations.  After taking a moment to reflect the family consultant said that there was not. 

20. The family consultant confirmed that the greatest concern she had related to the mother’s apparent inability to meet the child’s more complex emotional and relational needs and in particular her failure to give the child psychological permission to have a close and meaningful relationship with the father and failing to permit the child to spend consistent and predictable periods of time with him.  She also confirmed under cross-examination that there were a number of elements to be considered in assessing whether the child’s best interests would be better met in her father’s primary care. 

21. The first of these elements relates to the father’s capacity to manage adequately the ramifications of a change of residence for the child.  In this regard the witness was asked what she would expect was reasonable for the father to have done to prepare for the child to undergo such a change of residence.  The witness responded that it was difficult for her to say but first the father would need to be doing research about the sort of responses the child may have to a change of residence to ensure that he has a thorough understanding of what to look out for.  Then he should engage in “quite a bit of thinking and possible professional advice on what sort of things he could do to support [the child] in a change of residence in terms of meeting her psychological needs and dealing with grief and loss and things like that”.  She also referred to logistical arrangements and enquiries that he would need to make about schools, extra-curricular activities or interests as well as practical things in the home such as giving consideration to the child having her own personal space.  The family consultant also referred to preparation by means of trying to solidify his current relationship with the child in order to assist her in making such an adjustment.

22. Under cross-examination the family consultant was asked further questions about the contrast between the child’s more negative orientation when speaking about her father than her physical presentation on observation with him which had been noted at the time of her interviews and observations.  The witness’s attention was brought to more evidence in a similar vein including in recent times when the child would say negative things about the father and paternal family but appear to have a good experience with the father when spending time with him. 

23. The family consultant opined in summary that there could be a number of causes for this occurring.  First she explained that this can occur when there is a general high level of parental conflict engaged in by both of the parents which is psychologically difficult for the child to cope with and as a way of managing that difficulty the child

    “choose[s] a side and maintain[s] a loyalty to one parent as a safe position in the context of the conflict, but that then the child’s experience in the moment with that (sic- I assume she meant “other”) parent is quite different and so that can cause that discrepancy in the behaviour”.

24. The family consultant opined that another possibility for this behaviour would be that the mother is not providing the child with psychological permission to have relationship with the father and is in some way either overtly or covertly providing the child with a negative image or fears of the father.  If this were to be the case then on the surface the child would learn a negative narrative and would feel in the presence of the mother or other people in her life that she needs to be consistent with the image that the mother is portraying. 

25. Alternatively, the family consultant opined the child may fear the possibility of a change of residence but added this does not necessarily mean that she does not like being with her father.  The family consultant went further and considered that it is highly likely that the child at her age and given the care giving history would find the possibility of moving to her father as confronting which may be a driver to the child behaving in a manner to give the father the message not to pursue the application in court. 

26. The mother’s counsel cross-examined the family consultant about the extent to which the relationship between the father and child had continued to develop in the three years following her assessment.  The family consultant did not necessarily agree that the increase in the child’s time with the father meant that the relationship had developed and said that a crucial matter to consider is whether “there is a pattern of deterioration in [the child]’s relationship with her father independent of the amount of time based on the other influences that she has been exposed to”.  She opined that it could be assumed that the child might be developing a relationship with the father as a result of the time but sometimes where there is undue pressure on a child to not have a relationship with a parent the increase in time doesn’t necessarily correlate with a deepening of that relationship.  In this regard the family consultant opined that the task of the Court is to look at whether there is “a pattern of deterioration” that would be indicated by the child’s ongoing comments and narrative, the way she refers to the father, the way she reacts at changeover, how comfortable she seems when spending time with the father and matters of this type. 

27. Under cross-examination by the father’s counsel the family consultant was asked whether the fact that the child now had two paternal half siblings impacted on her observations and recommendations.  The family consultant said that this change in circumstances didn’t really change the recommendations while commenting that obviously the child having siblings is significant.  It was the family consultant’s opinion that this was not relevant to changing the child’s residence but was relevant to the importance to the child maintaining her relationship with her father and paternal family.

28. There was also considerable cross-examination of the family consultant in relation to the mother’s concerns about risks posed by the father, although it was clearly stated by the mother’s counsel that the mother no longer contended (if she had done so in the past) that the father posed an unacceptable risk of harm to the child. 

29. As touched upon earlier, the mother had received some therapeutic assistance by a skilled and experienced psychologist after the release of the Family Report and it had been indicated through the psychologist’s affidavit that the mother had made some progress.  However, under cross-examination the mother’s psychologist had changed her stance somewhat.  She agreed that some of the things written by the mother in the communication book, her ongoing reliance upon statements made by the child that suggested that the father was behaving in an inappropriate manner and her report to police in January 2019 about the child’s welfare in the father’s care indicated that there were still some concerns of the mother having ongoing beliefs about the risks posed by the father. 

30. When asked about the risks to the child arising from the mother’s style of thinking the family consultant responded as follows:

    I guess, the risk is that there can be ongoing incidents that can become received as incidents of abuse which, if we look at the past history, an indicator – which can be an indicator of future behaviours, has led to ruptures in [the child]’s time with the father.  It also increases the likelihood of [the child] receiving messages that her – from her mother that her father is unsafe, which is obviously risky for [the child] in terms of (1) her relationship with her father but (2) her feelings of safety and (3) her psychological wellbeing if she is being provided messages that her father is unsafe but she is experiencing him otherwise and safe.  That can cause a very – a real psychological dissonance for her which can be, you know, very not – you know, risky, I guess, for her psychological wellbeing and also can have impacts on things like the development of her – what’s the right – like, the development of her ability to kind of judge safety and judge situations and to trust her judgement around safety issues.

31. The witness later explained the impacts upon a child of living with dissonance.  The first relates to a child’s psychological wellbeing as such dissonance can result in children experiencing depression and anxiety.  The family consultant also explained that it can affect a child’s development of reality testing skills and conflict resolution and even her sense of self because “it is hard for them to sort of trust their judgement when their receiving alternate information and so that can actually influence how they feel about themselves as well”.

1. The witness later reiterated that she still believed “that there is a significant risk that [the mother] will continue to interpret the comments that [the child] makes as potential threats of harm”.

2. When asked by the father’s counsel whether she would “maintain” or “have” the recommendation that the child should live with the father, the witness responded that she did not think at any point that she had specifically made that recommendation but only that in certain circumstances the Court could consider a change in residence. 

3. The child would in the view of the family consultant have less dissonance between the mother’s narrative about risk in the father’s care and her lived experience if she were to move to live with the father.  The witness could not however ultimately agree that her concerns were so great that she could “give a recommendation” in respect of a change in the child’s living arrangements.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, 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.

3. The principles underlying these objects 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; and

   (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); and

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

   (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).

4. The Court is to make such parenting orders that are considered proper (section 65D). 

5. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

6. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) 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. 

2. Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court has approved an interpretation that the phrase means a relationship that is “significant”, “important” or “of consequence”[1].  A meaningful relationship has not been interpreted as synonymous with an optimal relationship[2].

   [1]McCall & Clarke (2009) FLC 93-405; 41 Fam LR

   [2]Godfrey & Sanders [2007] FamCA 102

3. Each of the proposals of the parties and the ICL on their face would result in the child having a meaningful relationship with both of her parents as each of them provides for a regime of orders that would see the child live primarily with one parent and spend substantial time with the other parent. 

4. It is a central plank in the father’s argument that there is a real risk to the child having a meaningful relationship with him for so long as she lives primarily with the mother. 

5. The family consultant identified the risk relied upon by the father when she assessed the family for the purposes of a Family Report in December 2016.  At that time she expressed concern that the mother was failing to meet the child’s more complex emotional and relational needs and appeared to be failing to give the child psychological permission to have a close and meaningful relationship with the father.  Notwithstanding this concern however, the family consultant concluded when she wrote the report that it would appear the best outcome for the child would be for her to remain living with the mother and for the mother to consistently adhere to court orders so that the child is able to have a meaningful relationship with both her parents.  This opinion was expressed in the context that there had been inconsistent adherence until that time to the orders of the Court in relation to the father’s time with the child. 

6. Following the release of the Family Report, although the mother’s anxiety about the father spending time with the child has continued to be a matter of concern, there have been no occasions on which the mother has failed to facilitate the child spending time with her father.  Although there have also been some occasions over the three years since the Family Report was released on which the child has been reluctant to pass into the father’s care this has resulted in the child missing time with her father on only one occasion. So far as I understand it, the parties also appeared to accept that this reluctance seemed greater and only resulted in the child not passing into the care of the father when changeover took place at a children’s contact centre. Following the first three days of the final hearing in April 2019 the parties agreed to dispensing with the contact centre for the purposes of changeover and there were thereafter no reported instances of the child not passing into the father’s care.

7. It is to be remembered however that in oral evidence the Family Consultant did not necessarily agree that the increase in the child’s time with the father during the previous three years meant that this relationship had developed.  It was her view that a crucial matter to consider is whether “there is a pattern of deterioration in [the child]’s relationship with her father, independent of the amount of time based on the other influences that she has been exposed to”. The Family Consultant opined that a “pattern of deterioration” would be indicated by the child’s ongoing comments and narrative, the way she refers to the father, the way she reacts at changeover, how comfortable she seems when spending time with the father and matters of this type.

8. It is clear that the child does make negative comments about the father and his household from time to time, and as indicated, there have been some difficulties at changeover and some lack of comfort when spending time with the father as reported by the child to the mother. Overall, however there has been in my view a gradual improvement related to these issues over time rather than a “pattern of deterioration”.

9. In an affidavit relied upon when the father’s evidence was reopened in August 2019, the father deposes to the child expressing negative remarks to him about his family,  Those recent remarks do not however appear to be significantly different in type or intensity to other remarks made by the child over the years.  Rather, as the father himself acknowledges in his August 2019 affidavit the negative comments about his family have been over time made less frequently by the child.

10. Although the father says in August 2019 that he could not recall the child ever previously telling him that she “hated” him as she had done during the adjourned period, his earlier trial affidavit does refer to the child having previously made statements to this effect.

11. Further, the father deposes to the child happily spending time with him and the extended paternal family during the occasions between April and August 2019.

12. Having regard to the meaning of the phrase “meaningful relationship”, as discussed previously, I cannot make a positive finding that the child does not currently have a relationship with the father that is important and significant. Indeed I am of the view that the relationship with him can be described as such.  As the child’s relationship with the father has developed throughout the entirety of her life when she has lived with her mother, I do not accept the contention that it is likely that the child’s meaningful relationship with him will not continue in the future if she continues to live with the mother.

13. An examination of the family consultant’s evidence as previously discussed does not support the contention advanced by the father that the family consultant recommended that the child live with the father as the best outcome for the child and that this view solidified in cross examination. As discussed previously, the family consultant disavowed having made such a recommendation and confirmed that she had only recommended that a change in residence be “considered” in certain circumstances and that such a decision is a matter for the Court.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. As discussed earlier although it had been contended by the mother from at least April 2016 that the father posed a risk of harm to the child on the basis that he may physically abuse her (or possibly that his conduct may amount to neglect) she ultimately did not seek a finding that the father had physically harmed the child.

2. The contentions that the mother appeared to make previously that the father posed a risk of future harm to the child on this basis were based entirely on her concerns that he had physically harmed the child in the past. Once the allegations that past harm had occurred were not pressed, the contentions about future risk on this basis also fell away.

3. As discussed the mother had also previously suggested from a time shortly after the child began staying overnight with the father that he posed a risk on the basis that he may behave in an inappropriate manner with respect to sexual matters. She ultimately conceded under cross-examination that her allegations in this regard had no foundation in fact and in part were ill thought out.  All allegations of this nature were not maintained. The mother conceded that her concerns at the time were triggered by her anxiety which is a matter to which I will return.

4. The parents had also similarly made mutual allegations of family violence against one another. These matters were not pressed and neither suggested that there was a risk of harm to the child through exposure to family violence in the other parent’s care.

5. The father maintains that there is a risk of psychological harm to the child related to the mother’s inability to manage her anxiety about his time with the child, her judgement of risks posed by him and her negative views about him to which the child may be exposed.

6. As discussed, the family consultant opined that if the child received messages from her mother that her father is unsafe, this presents a number of risks to the child in terms of her relationship with her father, the child’s own feelings of safety and her psychological wellbeing arising from the dissonance she may experience when she experiences the father as safe.

7. Some of these matters have already been examined when considering the father’s contentions about the risk posed to the child’s relationship with him and others in my view are more appropriately examined when considering the mother’s parenting capacity.

8. It is submitted on behalf of the father that the impact of the mother’s conduct which amounts to “taking steps to alienate [the child] from him” amounts to serious psychological harm of the type contemplated under this consideration[3] and submits that this was “the end result of the cross examination of [the family consultant]”.

   [3] Section 4 defines “abuse” relevantly as “causing the child to suffer serious psychological harm” or “serious neglect”.

9. A close examination of the family consultant’s evidence does not reveal that she expresses the view that the mother has taken steps to “alienate” the child from the father.

10. The family consultant had opined in her report that it appeared likely in time that the child’s relationship with the father would become strained and then estranged because of the mother’s apparent behaviour. I attach weight however to the fact that since the report was released three years ago there have been no instances of the mother withholding the child from the father which had previously occurred on many occasions and for the reasons given I am satisfied that the child has developed a meaningful relationship with the father over that time. 

11. While there are still some concerns about the mother’s behaviour especially related to her anxiety I am not satisfied that there is an unacceptable risk that the child will be exposed to serious psychological harm which falls within the definition of abuse as contemplated by this subsection.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the child and factors underlying those views

1. The family consultant interviewed the child over three years ago when she was aged five and a half. When interviewed the child had only just resumed spending time with the father after the mother had withheld her from him for eight months. In these circumstances I do not propose attaching any weight to the views expressed by the child to the family consultant.

2. There is no dispute between the parties that the child has consistently expressed the wish to remain living with her mother. There also appears to be no dispute that the child has expressed negative views about living with the father. The family consultant opines that the child has been exposed to negativity about the father and provides a variety of other hypotheses for the reason the child continues this negative narrative.  In these circumstances and having regard to her age and awareness of the parties’ conflict I also attach no weight to the child’s views about her parenting arrangements as expressed to the parties from time to time.

Nature of the child’s relationship with each parent and other significant persons

1. According to the family consultant, whose opinion I accept for the reasons given, the child has an attachment relationship with the mother which is strong, close and loving. It can also be assumed from the evidence of the maternal grandmother that the child has a significant relationship with her maternal grandparents who have played a substantial role in her care for virtually all her life.

2. When the family were assessed over three years ago, the family consultant considered that the child’s relationship with the father

   
   

   “has never been an attachment relationship”. The family consultant did however observe a playful and confident interaction between the child and the father and held the view that the relationship presented “as far less strained than what could be expected given their recent estrangement and lack of consistency in the time they have spent together”.

3. By the time the family consultant gave oral evidence at the final hearing, it seemed beyond dispute that the child’s relationship with the father had developed, though, as noted, the family consultant was concerned that the increase in time did not necessarily correlate with a deepening of that relationship.

4. The child also appears to share meaningful relationships with the father’s partner, her two half-brothers and members of the paternal family, including the paternal grandmother.

5. Each of the proposed suite of orders will foster a continuation of the child’s important relationships with both sides of her family.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child

1. The parties were both satisfied that it was in the child’s best interests that she continue to live with her mother as an infant following separation and for the parents to make joint decisions about major long-term issues in relation to her through the exercise of equal shared parental responsibility.  The previous parenting orders of July 2012 made when the child was very young provided for the father to spend increasing time with the child leading to alternate weekend and holiday time.

2. The parties in my view appear to overstate the difficulties that have been experienced in jointly making long-term decisions in relation to the child in the past and likely difficulties in the future. 

3. It appears from the mother’s written submissions that she seeks sole parental responsibility for the child on the basis that the father has been somewhat disinterested in the past in major matters for the child. She cites as examples his failure to ask about details of the child’s preschool enrolment or extra-curricular activities and his failure to obtain a Medicare card for the child. It also appears that the mother contends that the father has been difficult and unco-operative in matters which require joint decision making such as his refusal to permit the child to participate in a therapeutic process to assist with the difficulties associated with being exposed to conflict between her parents.

4. The family consultant was not challenged about her opinion that the mother appeared when she was assessed three years ago to be trying to impress that the parental conflict was “so extreme and unresolvable that it was untenable for the parents to have shared parental responsibility” and raised the possibility that the mother was “deliberately amplifying or overstating the parental conflict for strategic advantage”.  The family consultant noted at the time that neither parent raised current issues in relation to parental disagreement impeding the timely making of major decisions in relation to the child’s life.

5. Apart from the example relating to the parties being unable to agree about the child receiving psychological support there were also no current issues raised in the proceedings in relation to parental disagreement which interfered with timely decision making concerning major matters. 

6. In summary I am satisfied that the parents have been willing and able and have taken the opportunity to make joint decisions about major long term issues in relation to the child at a satisfactory level and will have the capacity to do so in the future. 

7. The father has with a few exceptions diligently spent time with the child since separation and sought to increase that time.  Some years ago the mother was in my view unreasonable in unilaterally impeding the child’s time with her father but there have been no instances of this occurring for many years.

8. Up until the adjournment in the course of the final hearing there had been some difficulties with the father communicating with the child at times other that when she was in his care.  Each party blamed the other for this occurring.  This appears to have been a matter that was satisfactorily addressed by orders to which the parties agreed in the course of the hearing.

1. Both parties have responsibly maintained the child during the relationship and since separation. 

Likely effect of change in the child’s circumstances arising from the proposed orders

1. This matter is particularly weighty in circumstances where the child has spent her entire life living primarily with her mother in an arrangement which has also involved significant care giving by the maternal grandparents. 

2. It is submitted on the father’s behalf that if the child is to live with him she “will experience some difficulty in adjusting” while it is the mother’s case that the child will experience “significant grief and loss which the father appears to be ill equipped to deal with”. 

3. The family consultant also attached significant weight to this issue and three years ago opined that the child would at least initially be distressed by a change of residence.  She also noted that although the child appeared to have a positive relationship with the father it had never been an attachment relationship.  Further, the family consultant felt that the child’s adjustment to a change of residence was difficult to predict and that the father’s parenting skills was a significant matter in that regard.

4. It was the family consultant’s opinion at the time that the father “demonstrated some insight into adjustment difficulties associated with a change of residence and appear[ed] to have some knowledge of strategies that might assist the child”. The father also indicated to the family consultant that he would be prepared to seek professional support to best support the child which she felt was important.  During the observation session it was noted that the father “demonstrated some capacity to read [the child]’s cues and adapt his behaviour accordingly”.  The family consultant was also of the view that a change of residence should only be considered if the Court formed the view that the father would willingly and consistently facilitate the child having a meaningful relationship with her mother. 

5. Each of the written submissions and those of the father and ICL in particular weigh up the difficulty the child may experience if she moves to live with the father against the impact upon the child and in particular her relationship with the father if she is to remain living with her mother when considering this matter.  However, the focus of subsection 60CC(3)(d) is on the effect of changes in the child’s circumstances including separation from her parents and other people with whom she had been living.  The impact of remaining in her current circumstances and in particular concerns relating to the child’s relationship with her father have been and will be considered at length. So far as this matter is concerned it is noted that the mother’s proposal in respect of the child’s principal home and the amount of time she spends with her father will be unchanged if orders are made as she seeks.

6. There seems to be no dispute that the child is well settled in her current environment both in terms of her relationships and the social capital associated with her school life, friendships and extra-curricular activities.  I accept the opinion of the family consultant that these matters would make change for the child more difficult.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. There has always been significant practical difficulty involved in the child spending time with the parent with whom she does not live throughout her life.  The parents separated when the child was very young but agreed that it was in her best interest for the mother to move to Sydney where she had extended family support.  Since that time each of the parents has remained living in the same home.  Although the mother at one stage proposed an arrangement whereby she sought to live in Tasmania, such an arrangement was not ultimately pursued at the final hearing. 

2. In circumstances where the parties live three hours driving time from one another there will always some real practical difficulties with the child spending time with the parent with whom she does not live. It has not been suggested however that this difficulty will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

3. The family consultant had recommended at the time she wrote her report that the father’s time with the child should increase and did not consider that there was any need for that time to be supervised.  Following the release of the report supervision was dispensed with and the child’s time with the father increased and culminated in the pattern recommended by the family consultant, that is every third weekend and half of each school holiday period.

4. So far as the future is concerned the family consultant recommended that the child should spend time with the parent with whom she is not living each third weekend. She also recommended that one weekend per term be spent with that parent in the area in which the child is to live to provide her with the experience of familiarising that parent with her day to day life and reduce the burden of travel on the child.  The family consultant was not challenged on her opinion that such an arrangement would meet the child’s best interests and each parent appeared to concede under cross-examination that it would be best for the child to spend less time travelling and that some weekend time should be spent near the child’s home rather than at the home of the parent with whom the child does not live.  Neither parent addresses this recommendation by proposing orders which would result in some of the child’s time being spent with a non-residential parent in the area in which she lives. 

5. As previously noted it appeared to be common ground that there were difficulties in the child communicating with the father up until the final hearing was adjourned and each parent blamed the other for this situation.  In these circumstances it would seem appropriate in my view for there to be specific orders about communication especially having regard to forms of electronic communication which may be utilised to facilitate the child’s ongoing relationship with the parent with whom she does not live. Neither party proposed such an order which I assume was an oversight in circumstances where such an order was agreed on an interim basis. 

Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs

Maturity, sex, lifestyle and background of the child and either parent

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. The unchallenged evidence of the family consultant, which I accept, is that there are no concerns about the basic care provided to the child by both parents.

2. Further, it is likely in my view that the parents provide a high quality of care to the child as is evidenced by their respective accounts of the circumstances in each household.

3. On her maternal side the child has Country D heritage which she has experienced in an enriched and developed sense through following Country D culture and traditions and having been raised in a bi-lingual household. The child also has family on the maternal side including cousins who she spends time with regularly. The maternal grandmother deposes that “the whole family tries to meet up together at some point each weekend. We often have a meal at our home or go for a walk or other activity”.

4. The child has been provided with the opportunity of overseas travel with the maternal family and remains connected with relatives in her extended maternal family (and curiously some extended members of her paternal family who live overseas) through her mother. 

5. The child has Country E heritage on her paternal side and is fortunate to have also received the benefit of participating in the traditions associated with the father’s culture, in particular at Christmas.  She has also developed relationships with many of the members of the extended paternal family including a number of cousins. 

6. The sole source of concern in relation to the mother’s parenting capacity and attitude to the responsibilities of parenthood is a matter of some significance.  Indeed the father’s case is to a large extent based upon his concerns about the mother’s capacity to keep her significant anxieties about his care of the child and her negative attitude towards him in check. 

7. In her report the family consultant had opined that “the essential issue in this dispute is [the mother]’s willingness to facilitate [the child]’s relationship with [the father]”. This issue was central to the way in which each of the parties and the ICL conducted their cases and both the ICL and mother referred to this matter as if it were still required to be considered by the Court under s60CC(3) of the Act[4].

   [4] The Family Law Amendment (Family Violence and other Measures Act) 2011 (Cth) amended the Family Law Act 1975 (Cth) and abolished this consideration (formerly s60CC(3)(c)).

8. When considering the mother’s capacity to meet the needs of the child the family consultant referred to the mother’s failure to give the child “psychological permission to have a close and meaningful relationship with [the father]” which she described as a failure in the mother to meet the child’s “more complex emotional and relational needs”. At the time her report was written it was unclear to the family consultant whether the mother was genuinely unaware that this failure and failing to permit the child to spend consistent and predictable periods of time with the father was detrimental to the child’s wellbeing. The family consultant did hypothesise that the mother may have been aware of her failures but prioritised her own need to remain engaged in the conflict and parent the child without the father’s input above the child’s needs. In my view this is the appropriate way in which to consider the issue of the mother’s willingness and ability to facilitate the child’s relationship with the father as part of her capacity to meet the child’s needs and her attitude towards the responsibilities of parenthood, rather consider the matter in terms of the subsection that has been removed from the Act as a mandatory “best interests” consideration.

9. As touched upon earlier the parents also provided very different accounts of parental communication and conflict to the family consultant who formed the impression that the mother appeared to be trying to indicate that the parental conflict was so extreme and unresolvable that it was untenable for the parents to have shared parental responsibility and for the child to maintain a relationship with the father.  The family consultant opined that if the mother was deliberately overstating the parental conflict for strategic advantage “it raises concerns about [the mother]’s parenting capacity and may support [the father]’s application for a change of residence”.  The family consultant had similar concerns about the mother raising issues about the child’s presentation when she returned from spending time with the father and in relation to the child’s functioning.  In a similar vein the family consultant considered that it would be “extremely concerning” if the mother was “providing a deliberately elaborated narrative in this regard in an attempt to gain strategic advantage”. 

10. Despite each of these potential shortcomings in the mother’s parenting capacity the family consultant summarised her opinion as follows:

    Based on the information available to this assessment it would appear that the best outcome for [the child] would be for her to remain living with her [the mother] but for [the mother] to consistently adhere to the court orders so that [the child] is able to have a meaningful relationship with both of her parents.

11. In my view there were a number of important changes in the child’s circumstances following the release of the expert’s report that appear to have gone some way in addressing the expert’s concerns about the mother’s capacity to meet the child’s more complex emotional and relational needs and the possibility that she had concerningly raised certain matters for strategic advantage as discussed.  In particular, the mother engaged in therapy with an appropriately qualified therapist to address her concerns in relation to the child spending time with the father.  The mother also accepted the opinion of the family consultant that there was no further need for the father’s time with the child to be supervised and that such time be increased to the level recommended by consenting to interim orders in these terms.  Further, there were no other occasions of the mother failing to comply with court orders in relation to the father’s time.  In my view each of these steps indicate a willingness and capacity in the mother to take on board the concerns raised by the family consultant about her own perceived incapacities and thereby also promoting the child having a relationship with the father. 

12. The therapist’s positive report about the mother’s progress in therapy (that she had engaged well in treatment and made considerable gains) was somewhat more subdued following cross-examination.  The therapist did not however resile completely from her view that the mother had made considerable gains. The therapist considered that the mother’s ill-advised comments in the communication book shortly after the father’s overnight time with the child commenced and her actions in calling police following a telephone call when the child was in the father’s care in January 2019 were examples of the mother’s ongoing anxiety which continues to be a challenge for her.  This is consistent with the therapist’s opinion that the mother is likely to continue to experience anxiety at points of stress. Overall she maintained that the mother’s anxiety had improved and notwithstanding concessions made under cross-examination the therapist was of the view that the mother was “better equipped to support” the child’s relationship with the father than when the Family Report was written.  

13. For the foregoing reasons although I do consider that shortcomings in the mother’s capacity to meet some of the child’s more complex emotional and relational needs is significant in my view it is not determinative and should not be given the significant weight as contended for by the ICL and father. A close examination of the family consultant’s evidence reveals that it was not her recommendation that the child move to live with the father on this basis. 

14. The father’s capacity to meet the child’s needs as a primary caregiver is untested as he has had limited opportunity to perform that role.  The family consultant was of the view that the father’s parenting skills would significantly influence the child’s ability to adjust.  She observed a number of positive features associated with the father’s parenting such as some insight into adjustment difficulties associated with a change of residence, some knowledge of strategies that may assist the child and his expressed preparedness to seek professional support to best support the child. 

15. The family consultant also opined that a change of residence should only be considered if the Court formed the view that the father would willingly and consistently facilitate the child’s ongoing meaningful relationship with the mother.  I have no basis upon which I could conclude that the father would not willingly and consistently facilitate this relationship and there was no suggestion by any party that such a finding should be made that he would not do so.

16. I also consider it likely that the father will be greatly assisted by his partner in caring for the child regardless of the orders made by the Court.  She was in my view an impressive witness, well-attuned to the needs of the child.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. As the parents have been involved in a dispute concerning the child for most of her life and she has been undoubtedly adversely affected by the conflict, it would be preferable to make orders that are less likely to lead to the institution of further proceedings in relation to the child.  It is virtually impossible however to assess which of the suite of orders is least likely to lead to this outcome.  It would be trite to observe that it would be best achieved by the parents complying with the orders.

Conclusion

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [5] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for her (subsection 61DA(4)).

5. Both the ICL and the father seek an order for equal shared parental responsibility.  Although neither of the respective written submissions filed on their behalf address this order in terms of the presumption each must take the position that the presumption that it is in the child’s best interests for her parents to have equal parental responsibility has not been rebutted.

6. The mother seeks an order for sole parental responsibility for the child as part of a suite of orders that would see the child remain living with her and spending time with the father.

7. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child if it were made as she seeks.

8. Although the mother seeks an order for sole parental responsibility for the child it is conceded in written submissions filed on her behalf that it would be open to the court to find that the presumption that it is in the child’s best interests for her parents to hold equal parental responsibility for her applies.  Although there are other submissions in support of the mother’s contention that if she were to hold sole parental responsibility for the child it would be in the child’s best interests the rebuttal of the presumption is not addressed. 

9. In my view, a rebuttal of the presumption which amounts to denying a parent of all duties, powers, responsibilities and authority in relation to a child and denies a child the input of both parents in major decision-making must be a high bar.

1. In considering whether the presumption is rebutted I have some concerns as raised by the family consultant that the mother has exaggerated the level of conflict between the parties. I also consider that although the parental relationship is far from harmonious the nature of the parents’ communication when it occurs is civil. Some of the matters upon which the parties were able to reach agreement in the course of the final hearing (such as the father’s ongoing time communication with the child and changeover arrangements) demonstrate that they have some capacity for joint decision-making.  I also accept the submission of the ICL that it is unlikely in this case that there are many long term decisions that will need to be made for the child.  Neither party has indicated an intention to send the child to a non-government school so it is likely that this matter will be determined by where the child is to live.  Neither party has raised religion as an issue and both parties propose that the issue of overseas travel be resolved by orders of this Court.  In other words, the only long-term decision that is likely to fall within the ambit of parental responsibility in the future relates to medical issues.  In the past, the parties have demonstrated an ability to communicate and make decisions as to this issue and are likely, in my view, to continue to have that capacity in the future.

2. For the foregoing reasons I am not satisfied that the presumption with respect to parental responsibility is rebutted such that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for her.

3. As an order will be made for the parents to have equal shared parental responsibility for the child, under s 65DAA(1) of the Act, I must consider whether the child spending equal time or substantial and significant time with each of the parents would be in her best interests, and whether such an order is reasonably practicable.

4. Neither of the parents or the ICL propose any order for equal time or substantial and significant time as it is clear that such orders are not reasonably practicable in the circumstances of this family, where the parents live so far apart from one another.

5. In relation to orders concerning where the child is to live and the time she is to spend with the other parent as can be seen in the foregoing discussion, I attach particular weight to the primary considerations, the nature of the child’s relationships and the likely effect of any change in her circumstances.

6. The father bases his case upon the contention that the only risk to the child is that of psychological harm posed by the mother and that if the child remains in the mother’s care the child will lose her relationship with him, her only siblings and other members of the paternal family.  In my view there were some real concerns about the mother’s capacity at the time the family consultant prepared her report which did raise the spectre of psychological harm. I am not satisfied however for the reasons given that the mother currently poses an unacceptable risk of harm in this domain or that a risk of this magnitude arises in relation to her future conduct.  I am not of the view that the relationship between the child and her father will inevitably break down or that there is an unacceptable risk that this will occur if the child is to continue living with the mother. 

7. Given the nature of the child’s relationship with her mother and the maternal family, especially the maternal grandparents, the pattern of the child’s care to date together with the significant increase in the child’s time with the father over the past three years and the mother’s change in behaviour, I am satisfied that it is in the child’s best interests for the orders to be made largely as the mother seeks.

8. So far as the father’s time with the child is concerned, orders will be made in accordance with the family consultant’s recommendations that this occur every third weekend during the school term and that at least one of these periods of time is to be spent in Sydney to reduce the travel for the child.  In my view the father’s alternate Minute of Order (in the event the child remains living in Sydney with the mother) best accords with this recommendation. For the reasons given, an order that the middle period of time with the father in each school term (on the fifth weekend of the school term) occur in Sydney.  I also consider that the father’s alternate proposal that the child’s time with him begin after school on the last day of the school term has the advantage for the child of handover occurring at school and for the father’s greater involvement in the child’s school life.  The balance of the father’s alternate orders and those proposed by the mother for school holiday time following fourth term and for changeover are almost identical.

9. The father and ICL also seek an order that the parties be required to provide the other parent with contact details and notification to the other parent in the event of such change.  As the parents will be exercising equal shared parental responsibility this is in my view an order which is proper and in the child’s best interests. 

10. The parents propose similar restraints and orders in relation to international travel.

11. The mother also seeks an order requiring the parties to continue with family therapy and associated orders.  It appears that the mother seeks such an order in relation to the parties themselves for the purposes of assisting them in improving their communication and parental relationship for the purposes of the joint exercise of parental responsibility.  While the child would benefit from the parties improving their communication with one another, it is currently in my view of such a quality that they are capable of exercising shared parental responsibility. Any therapy to improve the nature of the parties’ communication should come about more properly in my view from the parties agreeing to engage in such therapy themselves.

12. Other additional orders proposed by the ICL in the event that the child remains living with her mother are also included in the father’s alternative proposal.  These orders relate to the provision of contact details, authorities in relation to information from schools, hospitals and health professionals and attendance at school events. I also consider these orders to be proper and in the child’s best interests.

13. For all of the foregoing reasons I make the orders set out at the forefront of this judgment.

I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 February 2020.

Associate: 

Date:  28 February 2020