Gladwell and Gladwell

FAMILY COURT OF AUSTRALIA

GLADWELL & GLADWELL

[2019] FamCA 731

FAMILY LAW – PARENTING – determining what parenting orders are in the best interests of the child – where the proceedings were reopened before judgment was delivered – where there are allegations of family violence – where the Mother alleges coercion and control on the part of the Father – where the Mother has involved the child in her reporting of the alleged family violence to the police – where the family violence allegations are not established on the facts – where there is a risk that the Mother’s entrenched suspicion of the Father and her actions (such as reporting the Father to the police) may impact upon the child’s relationship with the Father – where the child presents with stomach pains, predominantly while in the Mother’s care – whether the child was at risk of excessive medical treatment at the hands of the Mother – where it was not established that the child is at risk by the Mother’s pursuit of medical treatment – where the Mother has a history of non-compliance with Court Orders, in particular Orders relating to medical treatment and time with the Father – where it is in the best interests of the child for the Father to have sole parental responsibility – where it is in the best interests of the child to live with the Father and have significant time with the Mother – where moratorium sought on time with Mother – where negative effects of moratorium outweigh potential benefits.

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

Morgan v Miles (2007) FLC 93-343
U & U (2002) 211 CLR 238

APPLICANT:

Mr Gladwell

RESPONDENT:

Ms Gladwell

INDEPENDENT CHILDREN’S LAWYER:

Kelly Oxford

FILE NUMBER:

SYC

2527

2015

DATE DELIVERED:

14 October 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney & Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

22-26 October 2018; 5-6, 13 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Winfield (2018 hearing & 2019 hearing)

SOLICITOR FOR THE APPLICANT:

Jacqui Griffin Mobile Solicitor (2018 hearing & 2019 hearing)

COUNSEL FOR THE RESPONDENT:

Mr Cook (2018 hearing & 2019 hearing, 5-6 September only)

SOLICITOR FOR THE RESPONDENT:

Bowral Legal (2018 hearing & 2019 hearing, 5-6 September only)

Self-representing (13 September 2019)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Neville (2018 hearing)

Ms Karagiannis (2019 hearing)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid, New South Wales

Orders

All previous parenting orders in relation to the child X born … 2012 (‘X’ or ‘the Child’) are hereby discharged.
The Father, MR GLADWELL (‘the Father’), will have sole parental responsibility for X.
Within forty-eight (48) hours of making a decision regarding X’s long term care, welfare and development the Father will advise the Mother, MS GLADWELL (‘the Mother’), in writing about the decision he has made.
X will live with the Father.
X will spend time with the Mother on the following basis during school term time:
(a)On the first Thursday of each NSW School Term and each alternate Thursday thereafter, from after school on Thursday until before school on Friday.
(b)On the following Thursday and each alternate Thursday thereafter, from after school on Thursday until before school the following Monday.
X will spend time with the Mother on the following basis during school holiday time:
(a)During the Term 1, 2 and 3 school holiday periods, X will spend time with the Mother for one half of each school holiday period as agreed between the parents but in the absence of agreement, the first half of each school holiday period commencing at the conclusion of school on the last day X attends school each term and concluding at 5.00pm on the Saturday that is closest to the midpoint of the school holiday period.
(b)During the Term 4 school holiday period, X will spend time with the Mother for one half of the school holiday period as agreed between the parents but in the absence of agreement, as follows:
(i)In years ending in an odd number, the first half of each school holiday period commencing at the conclusion of school on the last day X attends school each term and concluding at 5pm on the Saturday that is closest to the midpoint of the school holiday period; and
(ii)In years ending in an even number, the second half of each school holiday period commencing on the Saturday that is closest to the midpoint of the school holiday and concluding at 5.00pm on the day that is immediately prior to the day X will commence attending school in the new school term.
For the purpose of orders 5 and 6 hereof:
(a)If any day specified in order 5 falls on a non-school day, then the Mother’s time is to commence at 3.00pm and/or conclude at 9.00am.
(b)The school holiday period is defined as commencing on the last day X attends school each school term and concluding on the day immediately prior to the day X commences attending school in the new school term.
(c)X will spend such other time with the Mother as agreed between the parties in writing (including but not limited to SMS, Our Family Wizard Application (OFW) or email communication).
X will spend time with the parents on the following basis on special occasions:
(a)Despite any other order hereof, if X is not already with the Father, X will spend time with him as follows:
(i)In the event that the Easter long weekend falls within term time:
1.From after school Thursday (or 4.00pm if a non-school day) to 4.00pm Easter Saturday in years ending with an odd number;
2.From 4.00pm Easter Saturday to 4.00pm on the night immediately preceding the commencement of the next school day in years ending with an even number.
(ii)On the weekend of Father’s Day, from the conclusion of school on Friday (or 3.00pm if a non-school day) until the commencement of school on the Monday after Father’s Day (or 9.00am if a non-school day).
(iii)In years ending in an odd number, on the weekend immediately prior to Christmas, from 3.00pm on Friday until 9.00am on Monday.
(b)Despite any other order hereof, if X is not already with the Mother, X will spend time with her as follows:
(i)In the event the Easter long weekend falls within the school term:
1.From after school Thursday (or 4.00pm if a non-school day) to 4.00pm Easter Saturday in years ending with an even number.
2.From 4.00pm Easter Sunday to 4.00pm on the night immediately preceding the commencement of the next school day in years ending with an odd number.
(ii)On the weekend of Mother’s Day, from the conclusion of school Friday (or 3.00pm if a non-school day) until the commencement of school on the Monday after Mother’s Day (or 9.00am if a non-school day).
(iii)In years ending in an even number, on the weekend immediately prior to Christmas, from 3.00pm on Friday until 9.00am Monday.
(c)Despite any other order, the parent with whom X is not in the care of on his birthday will spend time with X for up to three (3) hours on that day, such hours to be agreed between the parties in writing and failing agreement from 4.00pm until 7.00pm if a school day and from 9.00am until 12.00pm if a non-school day.
Changeover will occur at X’s school, unless the Mother’s time with X occurs on a non-school day in which case the Father will deliver X to the Mother at McDonald’s Suburb B, at the commencement of the Mother’s time and collect X from the Mother at McDonald’s Suburb B at the conclusion of the Father’s time, unless otherwise agreed in writing between the parties.
The parent with care of X for any consecutive period of five (5) days will use their best endeavours to have X contact the other parent on no less than two (2) separate days during such period either via online video or telephonic communication.
X may communicate with each parent at such times as he so wishes and the other parent will facilitate and encourage such communication by telephone, in writing or by other electronic means including, but not limited to, email.
Within forty-eight (48) hours of X having attended upon a medical or allied health practitioner (including but not limited to counsellors, psychologists, physiotherapists, speech therapists, occupational therapists and any other allied health professional practice) for examination, review, assessment, therapy and/or treatment, the Father will provide the Mother with the following basic information:
(a)The name of the medical or allied health practitioner who attended upon X.
(b)The purpose of X’s attendance upon the medical or allied health practitioner.
(c)The diagnosis made by the medical or allied health practitioner (if any).
(d)The prognosis offered by the medical or allied health practitioner (if any).
(e)Any recommendations (for treatment or otherwise) made by the medical or allied health practitioner.
(f)Any treatment or course of treatment to be undertaken by X or any changes to an existing course of treatment already being undertaken by X.
(g)The name, dosage and frequency of any medication to be administered to X or any changes to the name, dosage and frequency of any medication already being administered to X.
(h)A copy of any reports or written correspondence provided to the Father by the medical or allied health practitioner.
That each party notify the other as soon as possible, and in any event, within two (2) hours of any serious injury or illness suffered by X whilst in the care of that parent and that the parent notifying the other shall provide full and proper details to the other parent of such emergency, including X’s whereabouts, physical state and well-being, names and phone numbers of any professional persons who are treating X or who are otherwise relatively involved in such emergency.
The Father shall authorise X’s school, and keep the school authorised to provide to the Mother the following information in respect of X as follows:
(a)Copies of any reports, notices, advices or other communication in relation to X’s education and well-being;
(b)Copies of all school reports, reports on progress and behavioural issues and other school circulars in relation to X;
(c)Copies of all notices received from X’s school and details of functions, parent/teacher nights or meetings involving X, and any other activities to which parents are invited;
(d)Information as to X’s co-curricular and extracurricular activities including names of the clubs, associations or activities in which he is enrolled.
The Mother and Father are entitled to attend school or extracurricular functions, sporting events, parent/teacher nights or meetings involving X, and any other activities to which parents are invited.
The Father will be nominated as the primary emergency contact and the Mother nominated as the secondary emergency contact at any school attended by X.
Each parent is at liberty to provide a copy of these orders to any or all of the following persons or organisations providing treatment or services to X:
(a)Any doctor or medical practice;
(b)Any specialist or specialist medical practice;
(c)Any hospital;
(d)Any allied health professional including but not limited to counsellors, psychologists, physiotherapists, speech therapists, occupational therapists and any allied health professional practice;
(e)Any school or educational facility that X may from time to time attend;
(f)Any sporting club or other organisation X may attend upon for extracurricular activities from time to time.
Each parent is also at liberty to provide a copy of these orders to any or all of the following persons or organisations providing treatment or services to either or both of them:
(a)Any contact centre or supervision service engaged by the Mother and/or Father; and
(b)Any counsellor, psychologist or psychiatrist they may attend with from time to time.
The child X born … 2012 be removed by the Australia Federal Police from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
In the event the parties intend to travel internationally during a period in which X is to be in their respective care, the party intending to travel is to advise the other of his or her departure dates within twenty-four (24) hours of his or her international ticket purchase.
X’s passport will be kept in the Father’s safe custody and in event that the Mother travels with X overseas pursuant to these orders:
(a)The Father will provide X’s passport to the Mother at least 7 days in advance of her departure date; and
(b)The Mother will return X’s passport to the Father within 7 days of her returning to Australia with X.
During anytime X would otherwise be living with or spending time with his parents, each parent be permitted to travel outside of the Commonwealth of Australia with X for holidays, to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction only.
In the event either parent takes X outside of the Commonwealth of Australia in accordance with these Orders herein, the travelling parent must provide written notice to the other party at the earliest opportunity but no less than 28 days in advance of the departure date and arrival date back into Australia and notify the other parent of who X will be travelling with, the address and telephone number/s of the place/s where X will be staying during the holidays and provide to the other parent copies of hotel documents/receipts of where X will be staying, X’s flight details and itinerary and X’s travel insurance documents.
The Mother will forthwith notify the Father in the event that she is incapable of caring for X for a period greater than twenty-four (24) hours and will place or cause X to be placed in the care of the Father for the period of her incapacity.
Each party will notify the other no more than twenty-four (24) hours after any change to their landline and/or mobile telephone number and/or email address.
The Mother and Father be and hereby are injuncted and restrained in the following manner:
(a)From discussing these proceedings with, or in the presence or hearing of X, or permitting any other person to do so;
(b)Other than as expressly provided for elsewhere in these orders, from providing any material used in these proceedings including any documents held by either parent, directly or indirectly, to any third party without the express written consent of the parent to which the information relates;
(c)From criticising or denigrating the other parent in the presence or hearing of X, and they will use their best endeavours to prevent a third party from doing so, including by removing X from the area if required.
The parents will encourage and not undermine X’s relationship with the other parent and any other members of the other parent’s household.
The Mother is restrained from:
(a)Representing to any medical practice or medical facility, school, educational institution, religious institution, sporting or social club X may attend from time to time that X has been subjected to past acts of family violence by either parent;
(b)Engaging or subjecting X to any assessment, counselling or treatment as a victim of family violence by the Father unless by the joint consent of the parents;
(c)Representing to any medical practice or medical facility, any school attended by X, educational institution, religious institution, sporting or social club that the Father has a psychological or psychiatric disorder.
The Father is restrained from representing to any medical practice or medical facility, any school attended by X, educational institution, religious institution, sporting or social club that the Mother has a psychological or psychiatric disorder.
Except in the case of an emergency, the Mother is hereby restrained from presenting X to police or to welfare authorities for interview without the Father’s written consent.
The Mother is hereby restrained from making a complaint to police about the Father in the presence or hearing of X or causing X to attend or be present at a police station or otherwise be cared for by a police officer at any time at which she makes such a complaint.
Except in the case of an emergency, the Mother is hereby restrained from facilitating X’s attendance upon a medical or allied health practitioner without the Father’s prior written consent.
Within twenty-one (21) days from the date of these Orders or in a timeframe deemed appropriate by Legal Aid NSW the Father shall pay to Legal Aid NSW the sum of $12,953.15 being payment of the fees for the Independent Children’s Lawyer unless his liability to contribute towards these costs is waived pursuant to the provisions of Order 34 herein.
In the event that the Father wishes to apply for a waiver of the costs of the Independent Children's Lawyer, a waiver application shall be lodged within 14 days of these orders.
These orders shall be explained to X by the Independent Children's Lawyer.
All outstanding Applications and Responses are otherwise withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist to adjust and comply with in order are set out in the attached Family Law Courts fact sheet entitled “Parenting Orders – obligations, consequences and who can help” and those particulars are incorporated in these Orders.

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 Gladwell & Gladwell 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 CANBERRA

FILE NUMBER: SYC 2527 of 2015

Mr Gladwell

Applicant

And

Ms Gladwell

Respondent

REASONS FOR JUDGMENT

The applicant Father is Mr Gladwell; the respondent Mother is Ms Gladwell. The parties were married in 2011 and separated on 1 April 2014. There is one child of the relationship, X, born in 2012.
The matter was initially heard for five days in October 2018 (“the first phase”). The matter was then reopened (at the application of both the parties) for further hearing pending the delivery of judgment. The further hearing occurred across three days in September 2019 (“the second phase”)
The orders sought by the parties changed markedly between the two phases of the hearing.
During the first phase of the hearing there was no dispute about X living primarily with the Mother and the dispute centred on the amount of time that X should spend with the Father. However, this had changed by the end of the hearing. By then the Mother had softened her position to increase the time that she said X should spend with the Father. The Father, however, sought that X live with him. The Independent Children’s Lawyer (‘ICL’) also sought orders that X live with the Father and that there be a moratorium on X spending time with the Mother for a set period, followed by supervised time transitioning into unsupervised time. The precise orders sought by the parties in the second phase are annexed to this judgment.

At the first phase of the hearing the Mother said that parental responsibility should be equally shared, but with restrictions as to decision making regarding medical issues. The Father said that parental responsibility should be shared but for medical and educational decisions, which he said should be reserved to him.
Prior to the reopening, a serious dispute emerged between the parties as to medical treatment for X. This, in part, fuelled the reopening of the proceedings. By the time of the reopening, the Father sought sole parental responsibility, coupled with a requirement that he notify the Mother of long term decisions. The Mother also sought sole parental responsibility, coupled with orders as to a decision making process that involved the opinions of the Father being taken into account.
A large part of each phase of the hearing was focussed upon the following:
a)X’s medical treatment, in particular, whether X is at risk of excessive treatment at the hands of the Mother, or whether the Father frustrates X receiving proper treatment;
b)Whether the Father exercises coercion and control upon the Mother, primarily by undermining her to X and to third parties; and
c)Whether the Mother undermines the Father, primarily by pursuit of false allegations that he has perpetrated family violence.
Much of the factual dispute between the parties concerned the Mother’s assertions that she was the subject of family violence by the Father in the form of coercion and control. The focus brought by the Mother was upon incidents occurring post separation. While there could be little doubt that the Mother was genuine in her allegations of coercion and control, that genuineness did not answer the question of whether the Father was coercive or controlling, whether by financial means, by criticism and undermining of the Mother to third parties or by undermining her relationship with X. The contentions as to family violence fall to be determined in their context.

Principles

The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of X. What is in the best interests of X is to be determined by a consideration of the matters set out at s 60CC of the Act, and in accordance with the objects set out in s 60B and the reasoning process set out at s 65DAA.
In light of the objects and principles, when determining what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. The significance of each of the considerations will vary from case to case. For example, in some cases a particular consideration may: play no role; play a role of insufficient significance to have a bearing on the outcome; or be subsumed into other considerations.
In examining a case and identifying the considerations that bear weight in the particular circumstances, careful account must be taken of the positions of the parties, the evidence led and arguments pursued. These do not constitute the boundaries for the making of a decision, as those boundaries are set out by the legislative considerations, objects, and the requirement that the child’s best interests are the paramount consideration. However, as explained by Gummow and Callinan JJ in U & U, “the Family Court is obliged to give careful consideration to the proposed arrangements of the parties.”[1]
[1]U & U (2002) 211 CLR 238.

Factual disputes requiring resolution

The factual issues concentrated on by the parties by the end of the case can be summarised as follows:
a)Whether the Father has, and continues to, engage in family violence against the Mother, by means of coercion and control, centred on an undermining of the Mother, financial control through the reduction of support for X, stalking the Mother and copycatting her activities with X;
b)Whether the Mother’s conduct in involving X in her complaints to the police (and others) about the Father, risks X’s relationship with the Father and places X under stress, and whether it undermines the Father’s capacity to parent X;
c)Whether the Mother exposes X to excessive medical treatment, and the degree to which such exposure poses a risk to X;
d)Whether the Father’s conduct prevents X receiving appropriate medical treatment;
e)The Mother’s non-compliance with orders, particularly as they relate to medical treatment and provision of X to the Father, but also extending beyond these;
f)The Mother’s mental health, and whether this is related to her pursuit of medical issues for X and her pursuit of claims of family violence against the Father; and
g)Whether the Mother is causal of the stomach pain complaints made by X, by virtue of the pain being the product of stress, or the descriptions of pain being a diversion by X or otherwise.

Considerations

The identification of the above factual matters emphasises a number of the s 60CC considerations.[2] These considerations were also identified by the parties in their closing submissions. The relevant s 60CC considerations include the need, or lack of need, to protect X from harm from exposure to family violence,[3] the effect of changes in the arrangements for X,[4] along with the effect of separation from a parent, and the capacity of each of the parents to provide for X’s needs, both emotionally and in regard to medical treatment,[5] coupled with a consideration of X’s particular medical needs. The likelihood of compliance with orders was also identified,[6] along with the need to fashion orders that would avoid future litigation.
[2]Family Law Act 1975 (Cth) s 60CC.
[3]Family Law Act 1975 (Cth) s 60CC(2)(b).
[4]Family Law Act 1975 (Cth) s 60CC(3)(d).
[5]Family Law Act 1975 (Cth) s 60CC(3)(f).
[6]Family Law Act 1975 (Cth) ss 60CC(3)(l), (m).
These emphasised matters are those amongst the s 60CC considerations that have the capacity to bear determinative weight in these proceedings. To the extent that other considerations have significance in the proceedings they are, in large part, subsumed within those given emphasis.
While a number of the other s 60CC considerations were touched upon during the two phases of the hearing, they were not the subject of particular emphasis. For example, there was little focus upon the nature of the relationships between X and each of the parents. The Single Expert observed that X related in a similar manner to each of his parents and appeared equally attached to each of his parents. Ultimately, there was no dispute that X has a meaningful relationship with each of his parents.
Similarly, and understandably given his age, X’s views were not prominent.
While there was some concentration on the issue of the maintenance of X, this was subsumed into considerations relating to allegations of financial abuse.
Two issues identified by the parties required particularly close examination; those being, the allegations of family violence and the manner of obtaining medical treatment for X following the first phase of the hearing. Consideration of these two issues necessarily impacted any assessment of the Mother’s mental health and her capacity to emotionally care for X, the Father’s capacity to emotionally care for X and the risk he will expose X to family violence.

Allegations of Family violence

The Mother’s allegations of family violence warrant close consideration because they are key to the cases presented by each of the parties. If the allegations of family violence are established, they go to explaining the difficulties the Mother has had in caring for X, because that care has been undermined by the Father’s coercion and control. If the Father uses coercion and control toward the Mother it points to significant limitations in his capacity to emotionally care for X.
Despite the Mother’s allegations of family violence, it was the Mother’s position that it was in X’s best interests to have substantial and significant time with the Father.
If the allegations of family violence are not made out, they mean that the Mother’s care for X is not being undermined in the manner she suggests and that the Father’s capacity to emotionally care for X is not compromised by his resort to coercion and control.
The allegations of family violence are also significant to the assessment of the Mother’s conduct in exposing X to complaints about the Father to the police. If family violence is not established on the evidence, the conduct of the Mother is not explained by her being the subject of coercive or controlling behaviour, and the stress and anxiety that she potentially passes onto X is not caused by the Father. Further, the Mother’s conduct in exposing X to her complaints to the police, and its potential to undermine X’s relationship with the Father, is not justified as protective of X and the Mother. Together these aspects would then point to significant limitations in the Mother’s capacity to emotionally care for X.
Before dealing with the factual contest between the parties, it is useful to examine what is meant by family violence. Family violence plays a prominent role within the Act in determining the processes for deciding parental responsibility; the appropriate orders for the time that a child will spend with each parent; and what constitutes the best interests of a child.
For example, whether there has been family violence or not goes to determining the applicability of the presumption in favour of equally shared parental responsibility which then has flow on effects for orders as to time with each parent.
On the issue of the determination of best interests, family violence is a direct consideration at s 60CC(3)(j), and the need to protect a child from exposure to family violence is the primary consideration that is given the greatest weight, pursuant to s 60CC(2A).
Family violence is thereby prominent in both the pathway or process of decision making as well as the substance of the decision making.
Section 4AB of the Act defines family violence as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The Mother has alleged that that the Father has engaged in a number of forms of conduct that should, either individually or cumulatively, be characterised as family violence on the basis that, in accordance with the definition as s 4AB of the Act, they constitute behaviour by the Father that coerces or controls the Mother. The Mother characterises the conduct as falling into categories of economic control, stalking, intimidation of the Mother and undermining of the Mother (in particular undermining directed to her relationship with X and her interaction with medical professionals in relation to X). She also alleges abuse flowing from the Father’s litigation of the matter, and alleged collusion with the Mother’s family. The most clearly identified incidents are dealt with below.

Specific allegations of family violence

The Mother initially said that X had not been directly exposed to family violence. She then said that X had been directly exposed to family violence when he was a baby. For example, the Mother alleged that the Father banged his own head on the ground when the Mother asked him when the family were going to live together. The Mother said that this action, on the part of the Father, made her feel guilty. She alleged that tense arguments had occurred in front of X. It should, however, be recognised that tense arguments do not of necessity equate to family violence. Disagreements, including tense disagreements, do not fall into the category of family violence unless they are controlling, coercive, or cause a party to be fearful. Without further exploration of this issue with the Father, the conclusion that the conduct, if it occurred, was coercive or controlling as opposed to merely unpleasant should not be reached.
The Mother alleged that the Father exercised coercion and control by sending various items to her.
The Father was questioned about sending unsolicited gifts to the Mother. The Father accepted that by Easter 2018 he had become aware that the Mother was uncomfortable with gifts being sent by the Father. His evidence was that the gifts that had been sent prior to this had been, as far as he was concerned, gifts from X to the Mother. As a result of becoming aware of the degree of the Mother’s discomfort (from a police report made by the Mother in February 2018) he ceased sending such presents and, accordingly, did not send anything for Easter.
The Father was questioned about items that travelled with X to the Mother’s home, being toy police-related items such as a gun and a baton. The suggestion appeared to be that these formed a threat against the Mother. The Father denied that these were intended for the Mother. Rather, he said, they had come from Easter show bags to do with police and emergency services, and he had been unaware that they had travelled with X to the Mother’s home. The Single Expert noted X’s like of the police and emergency services.
The Mother also alleged that the Father engaged in intimidation of her by doing the same things with X that she had, or purchasing items for X, that matched what she had recently purchased. The Father was cross-examined about this.
The first example was that the Father took X to the same sushi restaurant as the Mother had. This was alleged to have occurred shortly after the Mother had attended the restaurant with X. The Father accepted that he had gone to the same restaurant, but without knowledge of the Mother’s recent attendance. His evidence was that X likes sushi, and that X had nominated that he wanted to attend the sushi restaurant in Suburb C, which led to the Father attending the same restaurant as the Mother had.
The second example was by attending a play centre with X shortly after the Mother had attended. Again, the Father said that this attendance was driven by X’s desire to attend the centre, and not from an attempt to intimidate the Mother.
The third example was by buying X the same raincoat that the Mother had. Again, the Father explained that he thought that X needed a raincoat. He allowed X to select a ‘Paw Patrol’ raincoat. This was the same raincoat the Mother had bought. The Father said that he did not know this.
While I was asked, by the Mother, to infer sinister intent on the part of the Father in relation to the coincidence of these matters, such an inference ought not to be drawn. The instances of similar conduct speak at least equally strongly to simply being the product of X’s preference, including his enjoyment of activities with his Mother that he seeks to repeat with his Father. The items sent by the Father, or travelling with X are explained by his evidence and do not constitute an attempt to coerce or control.
Neither the coincidence, nor any aspect of the Father’s evidence, caused me to reject the explanation offered by the Father.
It is not established that any of these instances, or these instances as a whole, formed coercive or controlling behaviour of the Mother by the Father.

Inferences from X’s behaviour

A further emphasis of the Mother’s evidence as to X’s exposure to family violence was expressed by her in the first phase of the hearing as being an indirect exposure to family violence, evidenced by X’s demeanour in returning from his Father distressed and at times aggressive to the Mother. This assertion of indirect exposure was not based on any direct observation made by the Mother of an incident of family violence occurring, but rather as an inference to be drawn from X’s behaviour, examples of which are set out below.
Those issues of the demeanour of X (at least insofar as they occurred in the six months prior to the trial) were explored with the Mother. They include X alleging to the Mother that she hurts him (after a day at school following an overnight with the Father), being clingy, appearing “vacant” after spending some hours with the Father, being unable to do school work on one occasion after returning from his Father’s home to school, at the end of which day he was aggressive to the Mother and broke her television. The Mother expanded this to include a week of crying when the Mother dropped him at school.
The Mother noted an incident where X accused the Mother of hurting him on 16 November 2015, proximate to the Single Expert’s report being due.
The Mother identified two occasions when X resisted going to the Father, following a barbeque, and an incident at McDonalds on 12 October 2017.
The Mother said that in 2018 there had been a single incident of X screaming that he did not want to go with the Father.
The Single Expert, in his second report, considered X’s various behaviours that were asserted by the Mother to be connected to the behaviour of the Father. In relation to the Mother’s claim that the Father was causal of difficulties that she experienced when X was in her care, the Single Expert observed the following:[7]
“…while it appears that some of these incidents did occur immediately after X had spent time with his Father, others do not appear to have that tight correlation, nor does there appear to be evidence of him being distressed or misbehaving immediately prior to or after most times he has been with his father, even on Ms Gladwell’s account to me. Thus I find it difficult to draw the same specific conclusions that the Mother does. I feel more comfortable with the notion that firstly, some break outs in behaviour are normal in every child’s life, secondly that some of his misbehaviour may be due to being unsettled because of a degree of insecurity associated with his awareness of the conflict between his parents and thirdly that his Mother cannot completely disguise her well documented high level of anxiety and agitation, which unsettles him.”
[7] Single Expert’s 2^nd report p 48.

The Mother, in response to cross-examination from the ICL was unable to contemplate that X’s responses could be sourced in anything other than the Father. For example, she did not think they were the product of interaction with other children in the playground.
Taking into account the normality of X’s breakouts (as described by the Single Expert), and that there are potential other influences in X’s life other than his Father (such as day care or school), I am unable to conclude that the collection of observations of X pointed to some problem with the Father. They were not demonstrative of or indicative that the Father was undermining the Mother to X.

Undermining in relation to the D Hospital

The Mother alleged that the Father made false reports about her to the D Hospital in 2015, on an occasion that X was receiving treatment from that hospital, undermining her and thereby acting in a controlling or coercive manner.
This incident, or series of incidents, forms a critical aspect of the Mother’s case. By the Father’s conduct to medical providers, the Mother alleges that the Father has undermined her credibility to the people who might provide medical care for X.
The Mother’s allegation is that the Father introduced to the hospital the idea that the Mother suffered from Munchausen’s Syndrome by proxy or a factitious disorder. The Father says that the issue was raised by the hospital, rather than by him.
The Father referred to the notion that the Mother had a factitious illness in a Notice of Risk that he filed after the attendance at the D Hospital. He said that he did so because of what was raised by the hospital.
The Father did not pursue a case based on either disorder. At trial, the Single Expert excluded either diagnosis. He also said that, given the Single Expert had ruled out such a diagnosis, he accepts that the Mother does not have such a disorder.
However, the Mother said that the Father’s interaction with the D Hospital was the genesis of ongoing problems that she alleges that she faces in securing treatment for X.
In examining the Mother’s criticism of the Father, it should be borne in mind that the Mother alleged to the D Hospital that the Father had a narcissistic personality disorder, and accepted that she had possibly also described him as a psychopath to the D Hospital. The Mother also said that in March 2015 she had asked the D Hospital not to disclose information about X to the Father. At about that same time the Mother reported to the D Hospital that she had been the victim of family violence. This does not answer the question of whether the Father engaged in undermining behaviour toward the Mother but, on the assumption that the Mother was not seeking to control or coerce the Father, offers a potent reminder that criticising the other parent, even in strong terms, does not necessarily fall into the category of family violence.
In the context of her own critique of the Father, the Mother alleges that the Father was responsible for creating an adverse perception of the Mother, being that, connected to a mental health issue, she possibly suffered from a factitious disorder, meaning that she was harmfully presenting X for treatment on the basis of non-existent symptoms.
The Mother urged that findings be made that the Father instigated the issue of the Mother’s mental health and did so as an aspect of the exercise of control or coercion upon the Mother. The Father, in response, denied that this was the case. His evidence was that the question of the Mother’s mental health was not raised by him, but was responsive to what he was asked. Further, he notes, that what was recorded of him accurately reflected that the Mother had been under the care of a psychiatrist, Dr E, for approximately fourteen years.
The notes provided by the D Hospital did not establish that the Father had instigated the issue.[8] The notes did not purport to be either word for word or a complete record of the conversation, but rather formed a summary written by the social worker. Under those circumstances, it would be unsafe to draw the inference sought by the Mother. While it was suggested to him that the notes were indicative of the Father having raised the issue, in the face of the Father’s evidence to the contrary it would be dangerous to draw such an inference.
[8] Exhibits F8 and F9.
The Mother also sought to take support from material recording the Father as having told the D Hospital a number of matters that she says were untrue. The Father was not cross-examined to suggest that he had made such assertions to the D Hospital.
I do not find that the Father instigated the issue of the Mother’s mental health to the D Hospital. The information that he gave to the social worker was accurate, and was given in response to what he was asked. There should be no finding that it was an attempt to undermine the Mother in a manner designed to coerce or control her.
Even if I am wrong about whether the Father instigated the issue of the Mother’s mental health, this does not necessarily equate to an act of coercion or control.

Further complaints of undermining

The Mother also complained that the Father has made constant allegations of “doctor shopping” against her. When asked to identify the occasions of such, the Mother alleged that such was said to a teacher in September 2018. The Father denied making such a description to the teacher, and it has not been established that he did say such a thing to the teacher.
The Father, however, accepted that he had described the Mother as doctor shopping to the police, when defending himself to police from the Mother’s allegation that he was blocking treatment for X, where the Mother was seeking further medical assessment of X, and in a context where the Mother claimed that the Father was neglecting X.
Even if both of the above comments were accepted to have been said by the Father, they render the Mother’s description of constant allegations of doctor shopping as a gross exaggeration. In particular, the doctor shopping comment is reasonably innocuous in the context of the Mother’s attempted use of the police against the Father for allegedly failing to tell doctors of X’s symptoms.
Under cross-examination the Mother redefined her complaint of the Father accusing her of doctor shopping. She asserted that the Father saying the opposite to her (that is, that X does not display stomach symptoms while in his care) has the same effect as describing her as “doctor shopping”.
To be made good in any sense, this complaint would require a conclusion that the Father was being untruthful in what he says about X’s presentation in his care. If his description of X not presenting with stomach pain is accurate, it may be expected that it is important information for treating doctors to have. In such a circumstance, a conclusion that the description by the Father was coercive or controlling by undermining the Mother would be perverse. The evidence is not persuasive that the Father’s account is inaccurate, particularly given its partial corroboration by his de facto partner, Ms F. Ms F said that she does not observe X to be suffering from stomach pain when with them.
The Mother also alleged that the Father undermined her to X’s school. This allegation relied in large part upon her extreme interpretation of the actions of the Deputy Principal as harassment. The Mother described that the Deputy Principal demanded a meeting with the Mother. The Mother said that she could tell that the Deputy Principal did not believe the Mother, as the Deputy Principal emphasised the need for X to be on time for school, and sent daily emails for a week seeking a meeting with the Mother that the Mother did not respond to. The Mother said that she did not make an appointment as she was concerned that it would be used against her. The Mother attributed the Deputy Principal’s contact with her to the Father trivialising X’s issues to the Deputy Principal. The Mother, however, did not establish a reasonable basis to infer that the Father had undermined her to the Deputy Principal. Rather, the Mother’s interpretation demonstrated a perspective that unreasonably assigned responsibility to the Father.

Economic control

In relation to economic control, the Mother pointed to the Father obtaining a Child Support Assessment, of which she was advised on 20 October 2014, resulting in a reduction in support. Until the Father obtained an assessment he had been making payments to the Mother pursuant to an agreement between them. The Mother alleged that the reduction in support was an example of coercion and control of the Mother, by virtue of the removal of adequate support.
The Mother then gave varying evidence of the Father’s actual payments following the Child Support Assessment. She said the Father was paying $1,000 per month, which did not cover the rent for the Mother and X. The rent, she said, was required as a result of a lease the Father had caused to be entered. She then accepted that the Father continued to pay over and above the assessed amount, but that it was not continuous. The Mother then said that he ceased making payments on 20 October 2014 until she received legal advice and sent him a letter on 7 November 2014. She said that shortly after this the rent continued to be paid, after a stop of “possibly a month, a couple of months.”
When it was suggested to the Mother that the Father paid $3,600 on 21 October 2014, and then $3,600 on 19 November 2014, she said “I don’t know, I don’t know.” In addition to that amount the Father, by his affidavit evidence, asserted that had also paid in between those two dates two amounts of $1,000 as child support, and a small amount for internet. In the month prior to that he paid in excess of $7,000. In the month after, a little E of $3,000.[9]
[9] Father’s affidavit filed 19 October 17 [158].
The Mother’s evidence about the obtaining of a Child Support Assessment by the Father being accompanied by a removal of proper financial support was incorrect.
The Mother may have been perturbed and alarmed by receiving a notice assessing the Father’s liability as much less than he had been paying. The Father, however, kept paying well over and above the assessment, without a break connected to the new assessment. The initial description by the Mother of the use of financial circumstances to coerce or control was strongly misleading, as the Father had not, in fact, removed adequate support.
The Mother then amended her position to say that the issue for her was that she had no clarity as to what he would pay, and interpreted that as meaning that she would not be able to pay rent.
It was put to the Mother that over the period of 8 April 2014 to 14 March 2016 the Father paid an amount of $165,000 (see the schedule of payments in his affidavit). If correct, this would render a case for economic control by removal of support difficult. The Mother said that she was unable to answer this question without recourse to further documents. She proved unable to answer in even the most general terms the nature of the financial support she received. When the Mother did cite figures as to her support, it was the assessed Child Support figure, not the amount that the Father continued to pay, which was over and above the assessed amount. That is, the Mother would only cite figures in support of her contention of control, and appeared resistant to describing the reality of the support given by the Father.
I am unable to accept that the Mother was, in truth, not able to answer questions about the degree of financial support that she received. Rather, it appeared that the Mother was evasive when the factual situation was adverse to her argument of economic control. One matter that led to this critical assessment of her evidence was the strong contrast between the clarity, detail, recall and intimate knowledge that the Mother demonstrated over issues raised in support of her case, as opposed to the seemingly complete lack of knowledge in relation to how the Father had provided financial support to her for X.
It was in the context of an amended Chid Support Assessment, and the Father continuing to pay over and above the assessment, that the Mother in 2015 sent a series of text messages to Mr G, one of the founders and directors of the company in which the Father was involved. In that correspondence she noted that she had written to members of Parliament, including Pru Goward and the Prime Minister naming the Father’s (and Mr G’s) company and stating “what has happened”, apparently related to the Child Support Assessment. This she justified on the basis that “I think it was a plea for help. I think I was absolutely desperate.” This was done in the face of the Father making significant, ongoing and regular payments well in excess of his Child Support Assessment.
If anything, the Mother was behaving aggressively and destructively in undermining the Father’s financial position, while maintaining to the Court that she was the victim of financial control.
The onus to both establish the facts relied upon, and that their proper construction is that they demonstrate a means of coercion or control, is on the Mother as the person alleging such. She has not done so.
The Mother re-emphasised her claim of financial abuse at the reopening of the trial, based in particular upon the Father obtaining a further downward variation of his liability to pay Child Support.
The Mother failed to establish that any further assessment was procured so as to coerce or control.
The evidence was far from establishing that the Father has used the parties’ economic positions as a tool of coercion and control, despite the Mother’s strident claims that he has.

Stalking

The Mother also alleged that the Father has stalked her.
One example was on an occasion when the Father and Mother were both at the H Hospital (X being at the hospital) and the parties encountered each other in the carpark. The Father accepted that he had encountered the Mother and had some items for X which the Mother would not receive. He was not cross-examined to challenge his version of the events, nor to establish an intent to coerce or control.
A further occasion was where, despite the parties having an arrangement for the Father to spend time with X, the Mother cancelled that time due to X having a medical appointment. The Father attended at the Mother’s home at the pickup time and waited for X. The Father was not cross-examined about this incident. It was not established that he was even aware of the communication from the Mother cancelling the visit, which would be a necessary precursor to a determination that the Father was attending otherwise than in accordance with the pre-existing agreement.
The Mother accepted that this occurred on a day on which the Father was due to see X, and that X was to attend hospital for a blood test. The Mother said that she had suggested to the Father that the day be changed to the Saturday. The Mother was unable to explain why the Father could not take X for the blood test. The Mother changed her evidence to say that she did not think that the Father was due to see X that day. The Mother then accepted that the Father was to see X that day, but alleged that they had agreed that he would see X at the hospital. She then appeared to accept that she had sent the Father a proposal for change, as opposed to there being an agreement, but then suggested that there must have been a verbal agreement. The Mother then gave evidence that she had advised the Father that there should be a change, and that she did not hear back from him.
The Mother then settled upon the sequence as being that there had been an arrangement for the Father to spend time with X. The Mother had said that she wanted it to change. The Father did not respond. The Father turned up in accordance with the first arrangement. The Mother called the police and accused the Father of stalking her.
The Mother then alleged that the Father had said that he had received her email seeking the change in arrangements.
It should be observed that the Mother’s evidence was highly inconsistent, depriving it of persuasive force. I could not be satisfied that there was any indication by the Father that he agreed to the change, or even be satisfied that he was aware of the proposal for change. Even on the Mother’s ultimate sequence, the Father’s attendance is not suggestive of an act of stalking.
It should be observed that the complaint against the Father is essentially that he was acting in accordance with the arrangements for X. The Mother was not. Her response was to report the Father to the police.

Non-compliance with orders

The Father and the ICL raised issues related to the Mother’s non-compliance with Orders, both as to the time X was to spend with the Father, and also those governing X’s medical treatment.
Orders in 2016 made provision for X being in the care of the Father in the event the Mother was unable to care for X, for example, by reason of hospitalisation.
The Mother was the subject of a series of hospitalisations in 2017, for varying periods of time. A number of these were at E notice, and in the difficult circumstance of the Mother being diagnosed with cancer. These circumstances did not prevent the Mother from making arrangements for the care of X that conflicted with the then current orders that provided for the Father to have the care of X under such circumstances. Placing X into the care of the Father only occurred on one of the occasions. Although the Mother did not identify how it was so, she alleged that the communications with the Father on that occasion were so traumatic as to be a reason for her later non-compliance with the orders on further admissions. The behaviour attributed to the Father was his insistence that the orders be complied with.
In subsequent admissions, the Mother said that third parties cared for X while the Mother was in hospital, facilitating changeovers with the Father in accordance with usual pattern. On one occasion, at least, the Mother used the mother of her friend, who travelled from Queensland to care for X, rather than informing the Father that she would be hospitalised and unable to care for X. The Mother accepted that she took this step in the knowledge that it “could possibly be a contravention.”
This undermines confidence that the Mother will comply with orders in relation to X.
Additionally, the ICL cross-examined the Mother as to the potential impact upon X of the Mother being hospitalised in such a manner. Initially the Mother’s response was “I mean, I don’t know. I can’t speak for X. I-I don’t know.” The Mother subsequently denied that the hospitalisations had an adverse impact on X, on the basis that he appeared happy. At the same time she blamed X acting out toward the Mother as being due to spending time with the Father. She centred this analysis on assertions of X being happy, and his acting out occurring proximate to spending time with the Father. She did not acknowledge any potential for upset on X’s part at the series of sudden hospitalisations of the Mother.
However, the Single Expert observed that the circumstances faced by X, of the Mother being hospitalised, and having a different person caring for him “would be expected to impact on a child’s emotions leading to a combination of emotional and behavioural problems.”[10]
[10] Single Expert’s 2^nd report p 48.
While at the time of the first part of the hearing the orders governing access to medical treatment appeared to be working well, their breakdown was a significant part of the justification for the reopening of the hearing. By the second part of the hearing they had ceased to work effectively. These issues are dealt with in more detail below.

The dispute at the reopened trial

By the Mother’s Application in a Case of 12 June 2019 and the Father’s Application in a Case of 26 June 2019 each sought the reopening of the final hearing, the judgment in which had then been reserved from November 2018. The matters justifying the reopening primarily related to a series of incidents involving medical treatment for X. On 26 July 2019 orders were made allowing the reopening of the proceedings.

Special Occasions

Until such time as X is spending time with the Mother in accordance with Stage 4 of these orders, the Mother will spend no less than two (2) hours with X on 25 December 2019 (Christmas Day), such time to be supervised by the Father or another person agreed upon between the parties.
Once the Mother commences spending unsupervised time with X pursuant to the provisions of these orders (Stage 4), then the following arrangements will apply on special occasions:

The Father’s time with X on Special Occasions

a.Notwithstanding any other order hereof, if X is not already living with the Father, X will spend time with him as follows:

Easter
i.In the event the Easter long weekend falls within the school term, from after school Thursday (or 4.00pm if a non-school day) to 4.00pm Easter Saturday in years ending with an odd number;
ii.From 4.00pm Easter Saturday to 4.00pm on the night immediately preceding the commencement of the next school day in years ending with an even number.

Father’s Day

iii.On the weekend of Father’s Day, from the conclusion of school on Friday (or 3.00pm if a non-school day) until the commencement of school on the Monday after Father’s Day (or 9.00am if a non-school day).

Christmas

iv.From the year 2021, in years ending in an odd number, on the weekend immediately prior to Christmas, from 3.00pm on Friday until 9.00am on Monday.

The Mother’s time with X on Special Occasions

b.Notwithstanding any other order hereof, once X has commenced spending unsupervised time with the mother in accordance with these orders (Stage 4), X will spend time with the mother as follows:

Easter
i.In the event the Easter long weekend falls within the school term, from after school Thursday (or 4.00pm if a non-school day) to 4.00pm Easter Saturday in years ending with an even number.
ii.From 4.00pm Easter Sunday to 4.00pm on the night immediately preceding the commencement of the next school day in years ending with an odd number.

Mother’s Day
iii.On the weekend of Mother’s Day, from the conclusion of school Friday (or 3.00pm if a non-school day) until the commencement of school on the Monday after Mother’s Day (or 9.00am if a non-school day).

Christmas
iv.From the year 2021, in years ending in an even number, on the weekend immediately prior to Christmas, from 3.00pm on Friday until 9.00am Monday.

c.Notwithstanding any other order, the parent with whom X is not in the care of on his birthday will spend time with X for up to three (3) hours on that day, such hours to be agreed between the parties in writing and failing agreement from 4.00pm until 7.00pm if a school day and from 9.00am until 12.00pm if a non-school day.

Changeover

Changeover will occur at X’s school, unless the Mother’s time with X occurs on a non-school day in which case the Father will deliver X to the Mother at McDonald’s Suburb B, at the commencement of the Mother’s time and collect X from the Mother at McDonald’s Suburb B at the conclusion of the Father’s time, unless otherwise agreed between the parties.

Communication

Once Stage 4 commences and thereafter, the parent with care of X will use their best endeavours to have X contact the other parent on no less than two (2) separate days over any consecutive period of five (5) days either via online video or telephonic communication.
Once Stage 4 commences and thereafter, X may communicate with each parent at such times as he so wishes and the other parent will facilitate and encourage such communication by telephone, in writing or by other electronic means including, but not limited to, email.
With respect to everyday issues regarding X, the parents will use the Our Family Wizard (‘OFW’) application to communicate regarding all matters related to X, unless in the case of emergency or serious issues when the parties will communicate by way of SMS text message and when communicating by SMS text message the party attempting to contact the other will stipulate the importance of the issue and request a response at the most immediate opportunity.
In the case of an everyday issue that is not an emergency or a serious issue, the parties shall reply to each other as soon as practicable and within seven (7) days of receipt of a message from the other.

Medical

Within forty-eight (48) hours of X having attended upon a medical or allied health practitioner (including but not limited to counsellors, psychologists, physiotherapists, speech therapists, occupational therapists and any other allied health professional practice) for examination, review, assessment, therapy and/or treatment, the Father will provide the Mother with the following basic information:
a.The name of the medical or allied health practitioner who attended upon X.
b.The purpose of X’s attendance upon the medical or allied health practitioner.
c.The diagnosis made by the medical or allied health practitioner (if any).
d.The prognosis offered by the medical or allied health practitioner (if any).
e.Any recommendations (for treatment or otherwise) made by the medical or allied health practitioner.
f.Any treatment or course of treatment to be undertaken by X or any changes to an existing course of treatment already being undertaken by X.
g.The name, dosage and frequency of any medication to be administered to X or any changes to the name, dosage and frequency of any medication already being administered to X.
h.A copy of any reports or written correspondence provided to the Father by the medical or allied health practitioner.
The Mother is entitled to have a copy of any reporting letters produced by X’s treating medical or allied health practitioners and these orders operate as authority for the provision of such.
Subject to the relevant treating medical or allied health practitioner’s consent, the Mother is at liberty to attend upon X’s treating medical or allied health practitioner to discuss:
a.Her own observations of X’s health and wellbeing in her care; and
b.Any recommendations made by the treating medical or allied health practitioner.
Any attendance by the Mother on a medical or allied health practitioner pursuant to order 31 hereof, is to be at the Mother’s own expense.
That each party notify the other as soon as possible, and in any event, within two (2) hours of any serious injury or illness suffered by X whilst in the care of that parent and the parent notifying the other shall provide full and proper details to the other parent of such emergency, including X’s whereabouts, physical state and well-being, names and phone numbers of any professional persons who are treating X or who are otherwise relatively involved in such emergency.

Education and Extra-Curricular Activity

Each party is entitled to receive the following information in respect of X as follows:
a.Copies of any reports, notices, advices or other communication in relation to X’s education and well-being;
b.Copies of all school reports, reports on progress and behavioural issues and other school circulars in relation to X;
c.Copies of all notices received from X’s school and details of functions, parent/teacher nights or meetings involving X, and any other activities to which parents are invited;
d.Information as to X’s co-curricular and extra-curricular activities including names of the clubs, associations or activities in which he is enrolled.
Once Stage 4 commences and thereafter, both the Mother and Father are entitled to attend school or extra-curricular functions, sporting events, parent/teacher nights or meetings involving X, and any other activities to which parents are invited.
Each party will ensure X attends all scheduled or compulsory school activities and events directly relevant to his then current schooling year, during any periods he is in their care.
In the event a sporting or other extra-curricular activity conflicts with the other parents care arrangement, the parent enrolling X in the activity will not do so without the written consent of the other parent. If the sporting or other activity is agreed upon then each parent will take all reasonable steps to facilitate X’s participation in any extra-curricular activity engaged in by X, including but not limited to events, training and games.
The Father will be nominated as the primary emergency contact and the Mother nominated as the secondary emergency contact at any school attended by X.

Documents from these proceedings

A copy of the Expert Report of Dr R dated 16 October 2018 be released to the Mother for the purpose of the Mother being at liberty to show a copy of the Expert Report to Dr T, or such other treating psychiatrist engaged by her, and thereafter she will return the copy to her legal representative.
Each parent is at liberty to provide a copy of these orders to any or all of the following persons or organisations providing treatment or services to X:
a.Any doctor or medical practice;
b.Any specialist or specialist medical practice;
c.Any hospital;
d.Any allied health professional including but not limited to counsellors, psychologists, physiotherapists, speech therapists, occupational therapists and any allied health professional practice;
e.Any school or educational facility that X may from time to time attend;
f.Any sporting club or other organisation X may attend upon for extracurricular activities from time to time.
Each parent is also at liberty to provide a copy of these orders to any or all of the following persons or organisations providing treatment or services to either or both of them:
a.Any contact centre or supervision service engaged by the Mother and/or Father; and
b.Any counsellor, psychologist or psychiatrist they may attend with from time to time.

International Travel

That the child X born … 2012 be removed by the Australia Federal Police from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
In the event the parties intend to travel interstate or internationally during a period in which X is to be in their respective care, the party intending to travel is to advise the other of his or her departure dates within twenty-four (24) hours of his or her aeroplane ticket purchase or intention to travel interstate or internationally.
X’s passport will be kept in the Father’s safe custody and in event that the Mother travels with X overseas pursuant to these orders:
a.The Father will provide X’s passport to the Mother at least 7 days’ in advance of her departure date; and
b.The Mother will return X’s passport to the Father within 7 days’ of her returning to Australia with X.
During anytime X would otherwise be living with or spending time with his parents, each parent be permitted to travel outside of the Commonwealth of Australia with X for holidays, to countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction only.
In the event either parent takes X outside of the Commonwealth of Australia in accordance with these Orders herein, the travelling parent must provide written notice to the other party at the earliest opportunity but no less than 28 days in advance of the departure date and arrival date back into Australia and notify the other parent of who X will be travelling with, the address and telephone number/s of the place/s where X will be staying during the holidays and provide to the other parent copies of hotel documents/receipts of where X will be staying, X’s flight details and itinerary and X’s travel insurance documents.
That in the event the parent with whom X is travelling, does not return X to Australia within 3 days of the notified return date in accordance with these Orders, or as otherwise agreed between the parties in writing, then pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born … 2012 and to return the said child to the parent with whom he was not travelling and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

Other matters

The Mother will forthwith notify the Father in the event that she is incapable of caring for X for a period greater than twenty-four (24) hours, whether she is hospitalised or not, as a result of a medical condition and will place or cause X to be placed in the care of the Father for the period of her hospitalisation and/or incapacity and/or overseas travel.
Each party will notify the other, no more than twenty-four (24) hours after any change to their landline and/or mobile telephone number and/or email address.

Restraints/injunctions

That both parents be and are hereby restrained from:
a.Discussing these proceedings with, or in the presence or hearing of X, or permitting any other person to do so;
b.Other than as expressly provided for elsewhere in these orders, providing any material used in these proceedings including any documents held by either parent, directly or indirectly, to any third party without the express written consent of the parent to which the information relates;
c.Criticising or denigrating the other parent in the presence or hearing of X, and they will use their best endeavours to prevent a third party from doing so, including by removing X from the area if required;
d.Speaking about the other parent in a critical, derogatory, denigrating or undermining manner which would cause X to be alarmed, confused or placed directly or indirectly in any situation of possible conflict as a result of either parent’s behaviours.
The parents will encourage and not undermine X’s relationship with the other parent and any other members of the other parent’s household.
Each of and both the Mother and Father be and are hereby restrained from:
a.Representing to any medical practice or medical facility, and school, educational institution, religious institution, sporting or social club X may attend from time to time that X has been subjected to past acts of family violence by either parent;
b.Engaging or subjecting X to any assessment, counselling or treatment as a victim of family violence by the Father unless by the joint consent of the parents;
c.Representing to any medical practice or medical facility, any school attended by X, educational institution, religious institution, sporting or social club that the other parent has a psychological or psychiatric disorder.
Except in the case of an emergency, the Mother is hereby restrained from presenting X to police or to welfare authorities for interview without the Father’s written consent.
The Mother is hereby restrained from making a complaint to police about the Father in the presence or hearing of X or causing X to attend or be present at a police station or otherwise be cared for by a police officer during any period she make such a complaint.
Except in the case of an emergency, the Mother is hereby restrained and an injunction will issue restraining the Mother from facilitating X’s attendance upon a medical or allied health practitioner without the Father’s prior written consent.

Independent Children’s Lawyer’s Costs

Within twenty-one (21) days from the date of these Orders or in a timeframe deemed appropriate by Legal Aid NSW the Father shall pay to Legal Aid NSW the sum of $12,953.15 being payment of the fees for the Independent Children’s Lawyer unless his liability to contribute towards these costs is waived pursuant to the provisions of para 58 herein.
Within twenty one (21) days from the date of these Orders or in a timeframe deemed appropriate by Legal Aid NSW the Mother shall pay to Legal Aid NSW the sum of $12,953.15 being payment of the fees for the Independent Children’s Lawyer unless her liability to contribute towards these costs is waived pursuant to the provisions of para 58 herein.
In the event that either party wishes to apply for a waiver of the costs of the Independent Children's Lawyer, a waiver application shall be lodged within 14 days of these orders.
These orders shall be explained to X by the Independent Children's Lawyer.
All outstanding Applications and Responses are otherwise withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist to adjust and comply with in order are set out in the attached Family Law Courts fact sheet entitled “Parenting Orders – obligations, consequences and who can help” and those particulars are incorporated in these Orders.

[2019] FamCA 731

14 October 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

Injunction

Procedural Fairness