Guerra & Guerra
[2021] FedCFamC1F 73
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Guerra & Guerra [2021] FedCFamC1F 73
File number(s): MLC5504/2016 Judgment of: MCEVOY J Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – CHILDREN – allocation of parental responsibility – spend time arrangements for child – where final consent orders were made in 2018 in the Federal Circuit Court of Australia – where the father initiated proceedings in the Family Court of Australia in November 2019 – where the father seeks sole parental responsibility and for the child to live with him – where the mother seeks joint parental responsibility and that the child have time with the father – whether the mother poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing – where the mother has undermined the child’s relationship with the father by insinuating that the child may have been sexually abused by the father – where there is no unacceptable risk of sexual abuse to the child by the father – where there has been repeated questioning of the child by State child protection authorities – where the child is at ongoing risk of emotional and psychological harm from exposure to mother’s belief that the father had sexually abused the child – where the mother has failed to disabuse the child of the notion that he has been sexually abused in some way by his father – where it is found that it would be in the best interests of the child for the father to have sole parental responsibility for the child subject to consultation with the mother on certain matters – where it is found that the child should live in the care of the father and spend no time with the mother for 3 months, progressing to supervised time and then un-supervised time – where the mother is to engage in cognitive behavioural therapy Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 4AB, 60B, 60C, 60CA, 60CC, 61C, 61DA, 61DAC, 65D, 65DAB, 64B, 65DAACases cited: Banks & Banks (2015) FLC 93-637
Blakey & Blakey [2020] FamCA 647
In the Marriage of Blanch (1999) FLC 92-837
Blann & Kenny [2021] FamCA 322
Blann & Kenny [2021] FamCAFC 161
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Cimorelli & Wenlack [2020] FamCAFC 58
Milton & Milton [2021] FamCAFC 64
Donaldson & Ryder [2017] FamCA 920
Donaghey and Donaghey (2011) 45 Fam LR 183
Donnell & Dovey (2010) FLC 93-428
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Fox v Percy (2003) 214 CLR 118
Johnson and Page (2007) FLC 93-344
Hardie & Capris [2010] FamCA 1046
Keane & Keane [2020] FamCA 99
Malec v J.C. Hutton (1990) 169 CLR 638
M v M (1988) 166 CLR 69
Mulvany & Lane (2009) FLC 93-404
N and S and the Separate Representative (1996) FLC 92-655
Napier v Hepburn (2006) FLC 93-303
Oswald & Karrington (2016) FLC 93-726
Poisat & Poisat (2014) FLC 93-597
Rafferty & Spencer (2016) FLC 93-710
Re David (1997) 22 Fam LR 489
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125
U v U (2002) 211 CLR 238Division: Division 1 First Instance Number of paragraphs: 458 Date of last submission/s: 30 June 2021 Date of hearing: 11-14 May 2021, 18 May 2021, 31 May 2021, 4 June 2021, 10 June 2021 Place: Melbourne Counsel for the Applicant: Ms Elleray Solicitor for the Applicant: Cathleen Corridon And Associates Counsel for the Respondent: Mr Glezakos Solicitor for the Respondent: V M Family Lawyers Counsel for the Independent Children’s Lawyer Ms Mansfield Solicitor for the Independent Children’s Lawyer Ks Family Lawyers ORDERS
MLC5504/2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GUERRA
Applicant
AND: MS GUERRA
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility of the child of the relationship X born in 2011 (“the child”).
3.With respect to the father’s exercise of sole parental responsibility the following shall apply:
(a)prior to the making of any educational, medical, or religious decisions for the child, the father shall:
(i)advise the mother in writing of the decision intended to be made;
(ii)seek the mother’s written response in relation thereto;
(iii)consider by reference to the best interests of the child any such response prior to making any such decision; and
(iv)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
4.The child live with the father.
5.The child spend no time with the mother for a period three (3) months (hereafter referred to as the “suspended time period”) from today’s date (23 September 2021).
6.Within the suspended time period, the mother nominate and the parents do all acts and things necessary to engage with a professional supervision service (such as B Contact Service and/or the D Contact Service) for the purposes of the child spending supervised time with the mother at the expiration of the suspended time period.
7.At the conclusion of the suspended time period, the child spend professionally supervised time and communicate with the mother as follows (“the supervised time period”):
(a)for a period of not less than six (6) months;
(b)for up to three hours each fortnight at times, dates and at venues as can be accommodated by the supervision service;
(c)with the mother to bear the cost of said supervision; and
(d)any report requested by the parties to be shared equally between the parties.
8.Upon the expiration of the supervised time period, the child spend time with the mother as follows:
(a)each Saturday from 10.00am until 5.00pm for a period of (6) six weeks; and
(b)thereafter:
(i)in week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until 5.00pm Saturday and fortnightly thereafter; and
(ii)in week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day) until 7.30pm and fortnightly thereafter for a period of twelve (12) weeks;
(c)thereafter:
(i)in week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until 5.00pm Sunday and fortnightly thereafter; and
(ii)in week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day) until 7.30pm and fortnightly thereafter for a period of twelve (12) weeks;
(d)thereafter:
(i)in week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day) and fortnightly thereafter; and
(ii)in week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day) until 7.30pm and fortnightly thereafter;
(e)for half of all school term holidays commencing at the end of the second term of 2023 as agreed between the mother and father in writing and failing agreement:
(i)for the first half in even-numbered years, from the conclusion of school on Friday on the last day of term until 12.00pm on the middle Saturday of the school term holiday; and
(ii)for the second half in odd-numbered years, from 12.00pm on the middle Saturday of the school term holiday until the commencement of school/kindergarten on the first day of the next term;
(f)for the long summer holidays;
(i)commencing in 2023/2024 on a week about basis as agreed between the parties in writing and failing agreement the mother to have the first week from the conclusion of school in term 4 for a period of 7 consecutive nights until 12.00pm on the seventh day;
(ii)commencing 2024/2025 and each year thereafter for half of the long summer holidays as agreed between the parties in writing and failing agreement:
A.for the first half from the conclusion of the last day of school in term 4 for a period of consecutive nights until 12.00pm on the day representing half of the total days in the long summer holiday period;
B.for the second half from 12.00pm on the day representing half of the total days in the long summer holiday period until 12.00pm on the day prior to the commencement of school in the new year.
(g)from 12.00pm Christmas Eve until 12.00pm Christmas Day in even numbered years, commencing in 2022;
(h)from 12.00pm Christmas Day until 12.00pm Boxing Day in odd years, commencing in 2023;
(i)on the Mother’s Day weekend from 10.00am on Mother’s Day until the commencement of school, or 9.00am the following day, commencing in 2023;
(j)from 2023, on the child’s and the mother’s birthdays should they fall on a date the child is at school, from the conclusion of school until 6.00pm in odd numbered years and from 6.00pm until the conclusion of school or 9.00am the following day in even numbered years and on a non-school day, if the child is not otherwise in her care, from 10.00am to 2.30pm;
(k)at such other times as agreed between the mother and father in writing.
9.The time the child spends with the mother pursuant to paragraphs 8(a) to 8(d) be suspended during school term and long summer holiday periods and shall resume in the same cycle as if the holiday periods had not intervened.
10.For the purposes of changeover that does not occur at the child’s school, the parties or their servants and agents (people well known to the child and notice of the third party attending being given in advance of the changeover) meet at McDonald’s Family Restaurant in C Street, Suburb E, or a location agreed between the parties in writing.
11.The mother forthwith provide to the father a list of the child’s medical and allied health practitioners including their email, telephone and contact details and advise the father in writing of any future appointments the child may have with any of the said medical and/or allied health professionals by tele-health or in person that may be scheduled in the future.
12.The mother forthwith provide to the father a copy of the child’s NDIS plan and details of any review of the plan.
13.Upon receipt of the list of the child’s treating medical and allied health practitioners referred to above, the father will consult with each and every one of the child’s medical and/or allied health practitioners at his own cost if any, and this order acts as an authority for him to do so.
14.Within 7 days of receipt, the father provide to the persons or organisations listed below a copy of the final parenting orders and a copy of the reasons for judgment of the Honourable Justice McEvoy:
(a)the selected supervision service;
(b)the Principal of F School and other relevant teachers as determined by the Principal;
(c)the child’s treating paediatrician Dr G, or her nominee;
(d)the child’s occupational therapist, Ms H, or her nominee;
(e)the child’s speech therapist, Ms J, or her nominee;
(f)the NDIS Support Co-ordinator, Ms K, or her nominee;
(g)the child’s psychologist, Ms L, or her nominee;
(h)the Principal of the secondary school selected for the child to attend;
(i)M Service at N Hospital; and
(j)any other professional engaged with the child in the next 12 months.
15.The mother be at liberty to liaise with and to obtain information and updates as to the child’s treatment (noting that the father has sole parental responsibility) with the child’s treating medical and allied health practitioners, at her expense, and these orders serve as the authority for the same.
16.The mother forthwith authorise the father to enable him to do all acts and things necessary for the purposes of an assessment and treatment of the child’s sexualised behaviours (as opposed to treatment as a victim of sexual abuse) with M Service at N Hospital as raised at pages 8 and 9 in the Department of Families, Fairness and Housing’s section 69ZW report dated 26 April 2021 and authorise the father to take over that role, with the father to follow all lawful and reasonable directions for the child’s treatment and attendance at appointments.
17.Upon the receipt of these orders and the reasons for judgment, the mother shall provide a copy of the same to her clinical psychologist, and provide confirmation of the same to the father.
18.The mother and father continue to engage with the psychologists referred to in the interim orders made 10 June 2021, with such frequency as required by the said psychologists and/or their nominees and follow all lawful and reasonable recommendations as to treatment.
19.The parent with care of the child shall promptly notify the other parent of any significant illness or medical condition suffered by the child as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by the child with the name and address of the treating provider.
20.The father and mother shall:
(a)administer all medications to the child strictly in accordance with the recommendations of the prescribing doctor; and
(b)attend at all appointments and comply with all treatment regimes as recommended by the child’s treating medical and allied health practitioners.
21.The parents authorise the child’s school to provide all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports, school photographs directly to each parent at their cost.
22.The parents be at liberty to attend the child’s school events and/or functions normally attended by parents, and in the case of the mother she be at liberty to attend after the suspended time period.
23.The parents each hereby be restrained by injunction from:
(a)consuming alcohol to excess or using illicit substances whilst the child is in their respective care;
(b)denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship with in the presence or hearing of the child;
(c)discussing family law matters of any kind in the presence or hearing of the child.
24.The mother and the father, and their servants and agents, be and are hereby restrained by injunction from removing or attempting to remove the child X born in 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police place the child’s name on the Airport Watchlist at all ports of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watchlist for a further period of two years from the date of these orders.
25.The father be authorised and permitted to apply for and receive an Australian Passport for the child without first obtaining the written consent of the mother, pursuant to section 11 of the Australian Passports Act 2005 (Cth) and or pursuant to sections 65D and 67ZCof the Family Law Act 1975 (Cth) (“the Act”).
26.After the expiration of 2 years from the making of these orders, the mother and the father each be permitted to take the child out of the Commonwealth of Australia as follows:
(a)during summer school holidays (but not during the Christmas period, save with the written consent of the other) on no more than one occasion every year for a period of up to three weeks at a time; and
(b)otherwise during their periods of school term holiday time with the child.
27.Each party will notify the other of proposed travel plans in writing no later than 28 days prior to the proposed travel and thereafter provide the other with a copy of the return tickets, all the itinerary details, including contact telephone numbers of the destinations at which they intend to stay.
28.In the event of an emergency while travelling, the travelling parent must notify the other parent (non-travelling parent) by telephone of any emergency medical treatment required by the child within 24 hours.
29.The non-travelling parent be at liberty to contact and communicate with the child via telephone, Skype or Facetime during the period of travel each weekend for a period of not less than 30 minutes at times to be agreed.
30.The non-travelling parent shall be afforded make-up time upon the travelling parent and the child’s return.
31.Both parties keep each other informed of their residential address, email address and contact telephone number and any changes thereto, and advise the other parent of any change in these details in writing no later than 48 hours of such change taking place, with the parents restrained from attending at the other’s home except in the case of an emergency relating to the child or with the express written consent of the other.
32.The Independent Children’s Lawyer be discharged upon the provision of the final parenting orders and the accompanying judgment to the Department of Fairness, Families and Housing.
33.The parties have liberty to apply before the Honourable Justice McEvoy in the event that either parent issues an application in a proceeding or an enforcement or contravention application in respect of the child within the next 24 months.
34.All extant applications be dismissed.
AND IT IS NOTED THAT:
A.Pursuant to s.65DA(2) and s.62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Guerra & Guerra has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
BACKGROUND
[8]
HISTORY OF PROCEEDINGS
[16]
THE PARTIES’ POSITIONS
[62]
MATERIAL RELIED ON
[67]
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
[71]
Best Interests: Objects, Principles and Considerations
[71]
Parental Responsibility
[80]
Principles in Parenting Proceedings Involving Allegations of Abuse
[84]
THE FATHER’S CASE AGAINST THE MOTHER
[97]
The Father’s Evidence
[99]
The Mother’s Evidence
[112]
The Mother’s First Reports of Sexual Abuse
[116]
The Mother’s visit to the O Clinic with the child in May 2016
[117]
Referral to N Hospital
[124]
Referral to the Department
[137]
The child’s history of constipation
[139]
The Mother’s allegations about the father to her psychotherapist Ms Pm
[143]
The Mother’s first reports of sexual abuse were unfounded
[148]
The Parties’ Separation
[149]
The Mother Commences Proceedings
[158]
The Child Commences School in February 2017
[187]
The Mother’s Further Allegations in 2017
[194]
Final Consent Orders in February 2018
[212]
The Mother’s July 2018 Report to the Department
[218]
The Child’s August 2018 Disclosure
[229]
Exposure of the Child to Literature about Sexual Abuse
[246]
Supervised Time on 27 December 2018
[251]
Early 2019 – more allegations
[253]
Consultation with Mr Qo
[258]
The Mother’s Further Communications to the School
[268]
The Father Commences Proceedings
[272]
The Reports of Dr Ri
[277]
The Mother
[279]
The Father
[293]
28 October 2020 Disclosure
[302]
Further Allegations Reported by the Mother
[313]
3 December 2020 – the Child’s Allegation at School
[320]
31 December 2020 – Further Allegations Reported by the Mother
[323]
14 January 2021 Interview of the Child and Further Disclosures
[325]
15 January 2021 – SOCIT VARE Interview
[329]
18 February 2021 – Department Further Interviews of the Child
[337]
March 2021 - the Mother’s Further Allegations Against the Father
[345]
The Department’s “conclusions”
[350]
THE EVIDENCE OF THE FAMILY REPORT WRITER
[361]
EVENTS AFTER THE TRIAL
[378]
Further Interim Orders
[378]
10 June 2021 Disclosure
[382]
MATTERS FOR DETERMINATION
[402]
The Father’s Submissions
[404]
The Mother’s Submissions
[408]
The ICL’s Submissions
[417]
The Mother Poses an Unacceptable Risk of Harm to the Child
[422]
Residence and Parental Responsibility
[435]
Orders
[442]
McEVOY J:
INTRODUCTION
The parties to these proceedings are the Applicant father, Mr Guerra (“the father”) and the Respondent mother, Ms Guerra (“the mother”). The proceedings concern parenting arrangements for the one child of the relationship, X born in 2011 (“the child”), who has recently turned ten years of age. The child has been diagnosed with an Autism Spectrum Disorder (“ASD”) and an Attention Deficit Hyperactivity Disorder (“ADHD”). The child may also have an Oppositional Defiance Disorder (“ODD”). Since the parties’ separation when the child was almost five years of age, the child has lived with the mother. Up until relatively recently the child has had limited and sporadic time with his father.
In issue is parental responsibility and spend-time arrangements for the child and, of critical relevance to these issues, whether the mother poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing. It is the father’s case that the mother has engaged in a continuing course of conduct, commencing prior to the parties’ separation, to undermine the child’s relationship with him by insinuating in a variety of contexts that the child may have been the victim of sexual abuse perpetrated by the father. Over time, so the father contends, the mother’s suspicious attitude, her contrived and baseless reporting of her fears, her exposure of the child to literature about child sexual abuse, her willingness to accept statements made by the child uncritically and without interrogation, and the repeated questioning of the child by State authorities as a result of disclosures, have perpetuated a belief in the child that his father is a monster, and someone of whom he should be afraid.
The father maintains that the mother’s conduct, if it does not amount to outright coaching, has cultivated in the child an apprehension that to win her approval and to remain living with her he must make unfounded complaints of sexual abuse at the hands of his father, as he has done on various occasions. It is the father’s position that in these unfortunate circumstances there is no practicable alternative other than for him to have sole parental responsibility, and for the child to live with him. He proposes that for an initial period the child should spend no time with the mother, and that this should be followed by supervised time progressing to unsupervised time. The Independent Children’s Lawyer (“the ICL”) is in substantial agreement with the father in this regard.
The mother, having abandoned what was originally an unacceptable risk case of her own against the father, takes the position that consistency of care is very important for the child given his conditions, and that it would not be in his best interests to be removed from her primary care. She maintains that the various concerns she has expressed have not been unreasonable, particularly in circumstances where although the State child protection authorities have not substantiated her concerns, they have nonetheless required that the father’s time with the child be either suspended or supervised. The mother points also to what she says is the father’s refusal to engage with and even to accept the child’s diagnoses, and his asserted failure to have a carefully thought out plan for the child’s future relationship with his mother, his medical treatment, and his schooling. The mother proposes a regime whereby the parties have equal shared parental responsibility save for in relation to education and medical decisions, with her having responsibility for these matters, and that the child continues to live with her but have alternate weekends with the father and ultimately half of school holidays.
For the reasons that follow I am satisfied that the mother’s frequently expressed concerns that the father may be sexually abusing the child are without substance. I do not consider that the father has abused the child, sexually or otherwise, and in my assessment he poses no harm to the child whatsoever. I am also satisfied that the mother has waged a sustained campaign of denigration against the father which has inflicted serious emotional and psychological harm on the child. In my assessment there is no sensible prospect that the mother will desist from this conduct and promote a functioning relationship between the child and his father if the child continues to live with her. There is a significant and ongoing risk that unless the child is removed from the mother’s care the mother will continue to harm the child by failing to support his relationship with his father and failing to disabuse him of the notion that he has been sexually abused in some way by his father.
In these circumstances the Court is faced with a clear choice. Either to leave the child in the care of the mother in the knowledge that this course will likely ensure that the child’s relationship with his father continues to be undermined and that the mother’s narrative of sexual abuse will be perpetuated. In this scenario the child would likely grow up falsely believing that his father had sexually abused him, with the concomitant risk of ongoing harm to his mental health and psychosocial functioning for the rest of his life. The alternative is to remove the child from the care of the mother, recognising that this change will be dislocating at best and perhaps traumatic in the short term and even beyond, but giving the child an opportunity to develop a meaningful relationship with his father and come to understand that he has not been sexually abused by him. With appropriate interventions this course could enable the child, in time, to resume his relationship with his mother.
Balancing the risks of the initial dislocation and possibly trauma which would likely be occasioned by an order that the child be placed in the care of the father and the ongoing and longer term harm which I consider would result from the child remaining in the care of his mother, I am satisfied that the best interests of the child require a change of residence, together with ancillary orders. I am not satisfied that the father has failed to accept the child’s diagnoses, or that he would parent the child in a manner inconsistent with his best interests. Nor am I satisfied that the child would be unable to cope with the change of residence. In these circumstances the father should also assume sole parental responsibility, subject to an obligation to consult with the mother in relation to major long term decisions with respect to educational, medical and religious matters. There will be final orders to give effect to my conclusions in this regard, and for ancillary matters.
BACKGROUND
The father was born in 1968 in the United States of America and is aged 52 years. He is of Country WW background. The mother was born in 1973 in Country WW and is aged 48 years. She came to Australia with her family at a young age. The parties met in 2004 when they were on holiday in Europe. They kept in touch thereafter and in 2005 the mother lived with the father for a period in the United States. It would seem that they lived together on and off in the United Kingdom, the United States and Australia until the father moved to Australia in June 2009. The parties married in Australia in 2009 and, as has been mentioned, the child was born in 2011.
The parties separated suddenly on about 16 June 2016. The circumstances of the separation and the mother’s conduct leading up to the separation assumed some significance at trial. It would seem that on 16 June 2016 the mother left the former matrimonial home with the child. She did so apparently without any warning to the father, and having earlier made a report to the State child protection authorities that the father had interfered with the child’s anus. It will be necessary to return to the subject of this report, but it is sufficient to record for present purposes that the resulting investigation, which included a physical and genital examination of the child, found no evidence of sexual abuse. The report was closed at intake in or about May 2016.
The father says that he returned home from work on 16 June 2016 to find that the mother had taken the child as well as some household contents. He says there was no indication or argument prior to the mother’s departure with the child, and that the mother informed him by text message when he arrived home that she had left with the child and that he would be hearing from her lawyer. It will also be necessary to return to the subject of this text message, and other communications between the parties at about this time.
As at the time of separation it would seem that the child had never been apart from the father overnight. The father says that by the ninth day after separation he contacted the mother’s eldest sister to ask her to intervene. According to him, on the tenth day the mother allowed telephone contact between him and the child for a few seconds, but would not permit him to see the child. The father claims that the mother said “the judge will decide when you see him”,[1] although the mother denies that she said this and maintains that she permitted the father to speak to the child for almost an hour.[2]
[1] Father’s affidavit filed 10 February 2021, paragraphs 36-38
[2] Mother’s affidavit filed 5 March 2021, paragraphs 144-145
The mother agrees that there was no argument prior to her leaving, she says because she feared the father. She has alleged that the father threatened to kill her if she left with the child on an occasion in December 2015 when she had broached the topic of a separation. This, the mother says, is why she informed the father by text message that she had left with the child.
The mother has been employed as a Commonwealth public servant for the past 27 years. She is currently employed four days per week.[3] The mother’s present state of health is not altogether clear. At the trial she claimed to be in good physical health, however she apparently developed a perianal fistula about ten years ago, and she had lupus when she was pregnant with the child. The mother deposed in 2016 when she first commenced proceedings that she had been very unwell and had undergone multiple surgeries. She also asserted that certain other ailments from which she then suffered caused her great pain and were incurable.[4]
[3] Dr R’s affidavit filed 26 October 2020; annexure 2, paragraph 8
[4] Mother’s affidavit filed 17 June 2016, paragraph 9(d)
The father worked as a tradesman in the United States prior to coming to Australia, and he continues to work in Melbourne. Apparently he is also an occupational health and safety representative at his workplace. The father is apparently in good health and has denied ever experiencing or being diagnosed with any form of mental illness, although there was some evidence at the trial that he had been diagnosed with an adjustment disorder in 2019 by reason of stress associated with the dispute between the parties.
As has been mentioned, the child has been diagnosed with ASD and ADHD, and it may be that he also suffers from ODD. Unsurprisingly given the ordeal to which he has been subjected he would seem to be a troubled child, who exhibits a range of problematic behaviours, including at school. It is plain that he needs the support of both his parents, and equally plain that he has been denied this. He attends a Catholic primary school in Melbourne where he studies an alternative curriculum and has a teacher’s aide.[5] He is currently in Grade 4. Apparently the child has an occupational therapist, a psychologist, a paediatrician, and a speech therapist to assist with his developmental and behavioural challenges.[6]
[5] Mother’s affidavit filed 5 March 2021, paragraph 10
[6] Dr R’s affidavit filed 26 October 2020; annexure 2, paragraph 15
HISTORY OF PROCEEDINGS
The Mother initially commenced proceedings in the Federal Circuit Court of Australia on 17 June 2016 – the day after separation. In that application she sought final orders for joint parental responsibility, that the child live with her, and that he spend time with the father as may be agreed by the parties or determined by the Court after the preparation of a section 11F report. It would seem that it was the mother’s position at that time that the child should have limited time with his father. The mother also filed a Notice of Risk. Notwithstanding her earlier report to State child protection services that the father had interfered with the child’s anus, the Notice of Risk did not contain allegations that the child had been sexually abused by his father, only that he had suffered “serious emotional/psychological abuse” as detailed by the mother in her accompanying Affidavit. This Affidavit contained a litany of allegations about the father. It will be necessary to return to these allegations.
The matter came briefly before a Judge of the Circuit Court on 8 August 2016, and there was a child inclusive conference the following day. Orders were made on 9 August 2016 that the parties be restrained from taking the child out of Australia for a period of two years, that the child’s name be placed on the airport watch list, and the matter was adjourned until 25 November 2016. Notwithstanding the mother’s allegations of abuse, the parties also agreed to orders providing for the child to live with the mother and spend time with the father each alternate weekend. Ancillary orders were made in relation to communication, changeovers and that the parties engage in a parenting program.
Consent orders were made on 25 November 2016 for the filing of material and for the mother to attend the family home to retrieve personal items, and the matter was adjourned to a date to be fixed for a two day hearing. The parties also agreed to attend a conciliation conference on 21 March 2017, and for the preparation of a family report. On 21 March 2017 financial matters were settled between the parties at the conciliation conference. The parenting matters, which remained in dispute, were listed for directions on 24 November 2017.
Despite the mother’s apparent concerns as expressed in the material she filed in the Circuit Court in June 2016, consent orders were made on a final basis on 14 February 2018. They provided for the parties to have equal shared parental responsibility, for the child to live with the mother, and for the child to spend gradually increasing time, including overnight time, with the father until July 2021, from which time the child would be spending five nights per fortnight with the father and half of school holidays. Existing airport watch list orders were kept in place until June 2019, after which time the parties were to be permitted to travel overseas with the child to countries which are party to The Hague Convention on the Civil Aspects of International Child Abduction.
However on or about 17 July 2018, as the child was to move from a three night per fortnight arrangement to a four night per fortnight arrangement, the mother alleged that the child had made disclosures to her that he had been sexually abused by the father. The father’s time was suspended by the then State Department of Health and Human Services (“the Department”) (now renamed the Department of Families, Fairness and Housing) pending the completion of investigations into this allegation. On or about 6 August 2018 the Department informed the mother that the claims of sexual abuse could not be substantiated and the case was closed. It will be necessary to return to the observations of the Department and the Police Sexual Offences and Child Abuse Investigations Team (“SOCIT”) in relation to this notification, and to the surrounding circumstances.
Subsequently, on or about 22 August 2018, the child apparently made certain disclosures to his speech pathologist which were again reported to the Department. It would seem that these disclosures were made on or about the day before the child was to resume spending time with the father which had been suspended after the alleged disclosures made in July 2018.[7] The mother maintains that she was told by the Department not to give the child to the father on 24 August 2018 and again on 31 August 2018 pending a further investigation.[8] SOCIT also conducted an investigation, and it would seem that the child was subjected to another physical and genital examination. SOCIT apparently concluded its investigation on or about 10 September 2018, although the father was not informed of this until 7 February 2019. Notwithstanding the conclusion of this latest investigation in September 2018 it would seem that for whatever reason the father was not permitted to see the child again until a supervised visit was arranged on 27 December 2018 in a the Department office.
[7] Father’s affidavit filed 10 February 2021, paragraph 67
[8] Mother’s affidavit filed 5 March 2021, paragraph 66-67
Shortly after this supervised visit further disclosures were made by the child, and on 10 January 2019 the Department began another investigation.[9] This investigation concluded in late January 2019, and the father was informed that another supervised visit could occur. Apparently, however, the child did not wish to see the father and this visit did not occur.
[9] Father’s affidavit filed 10 February 2021, paragraph 92
The child did not see the father again until briefly in about April (or perhaps June) 2019 when the family attended upon Mr Q for the preparation of a family report.
On 29 July 2019 the Department recommended to the mother that the child have supervised time with the father, and that a review of the supervised time be undertaken by the Court. The mother did not make an application in the Circuit Court or the Family Court of Australia to prevent time occurring, nor would it seem that supervised time occurred.
On 26 November 2019 the father filed an Application in the Family Court seeking to revisit fundamentally the parenting arrangements which had been the subject of consent in February 2018. Of course by this stage he had not had regular time with the child since the July 2018 disclosures. The father sought that all previous parenting orders including the watch list order be discharged and that he have sole parental responsibility for the child. He sought orders that the child to live with him, and that there be a period of 6 months where the child spend no time with the mother. Thereafter the father sought that there be a short period of supervised time each alternate week for 3 months, increasing to a longer period for a further three months on the condition that there had been no negative impact on the child and it was deemed appropriate by case workers. If found to be appropriate time could then move to unsupervised each alternate weekend, and half of school holidays.
The father deposed that he did not seek the assistance of the Court until this time because he was “going through the process with the Department child abuse investigations and magistrate court hearings, where the claims of sexual abuse were made, with the expectation that once they would be resolved, contact would resume”.[10] Why the process of the Department and SOCIT investigations, which appear to have concluded with a decision that no further investigation was necessary, did not result in a resumption of time between the child and his father is not at all clear and is a rather unsatisfactory feature of this matter.
[10] Father’s affidavit filed 21 April 2020, paragraph 7
Orders were made in this Court by a registrar on 13 December 2019 appointing an ICL, requesting a Magellan report from the Department, and adjourning the matter for further directions on 5 February 2020. A Magellan report was duly released on 16 January 2020. Notwithstanding the fact that there had been six reports made to the Department in the period 17 May 2016 to 26 September 2019, and that no finding had ever been made that there was any reason to suspect that the father may have sexually abused the child and indeed that the Department had concerns that the child may have been coached to say things about the father, the Magellan report recommended only that supervised contact be resumed between the child and his father, that that the Circuit Court undertake “a review of this contact”, and that the mother continue to ensure that the child attends upon his treating health professionals.
On 16 January 2020 the mother filed a Response to the father’s Application. She sought to have the 2018 final orders discharged, that she have sole parental responsibility, that the child live with her, and that he spend time with the father as deemed appropriate by the Court. She also sought, amongst other interim orders, that the father undergo a psycho-sexual assessment. The mother filed an accompanying affidavit on 16 January 2020 deposing to the disclosures the child had made to the effect that he had been sexually abused by the father, alleging further incidents of family violence, and detailing other “concerns” that she had about the father’s “behaviours” prior to the making of the final orders in 2018. She also filed a Notice of Risk on 16 January 2020 which repeated the disclosures the child had made in July and August 2018 and claimed that “there have been numerous other instances of [the child] disclosing the same sort of allegations” which she had not “taken down” and that they are all “in the same vein” as previously described. The mother stated in the Notice of Risk that the child was at risk of exposure to ongoing abuse.
Interim orders were made by the Senior Registrar on 5 February 2020 adjourning all extant applications for directions on 25 March 2020. Consent orders were made on 25 March 2020 listing the matter for final hearing before Johns J on 20 July 2020 for 5 days, and for ancillary matters.
On 5 May 2020 the mother filed an Amended Response and an Affidavit. Her Amended Application sought that she be excused from further particularising the orders she sought pending the release of the family report. She also removed the order she had earlier sought that the child spend time with the father as deemed appropriate by the Court.
On 15 May 2020 the father filed an Amended Initiating Application making relatively minor amendments to his original application. He now proposed a regime which involved the child having no time with the mother for a period of three months, progressing to supervised time and then, if appropriate, to unsupervised time four nights per fortnight and half of school holidays. He had also filed a further Affidavit on 13 May 2020.
On 3 June 2020 Ms AA’s family report of that same date was released to the parties.
On 1 July 2020 Johns J ordered the parties to attend upon a psychologist for assessment, and on 16 July 2020 her Honour made orders vacating the final hearing date and adjourning all extant applications for final hearing on a date to be fixed not before 30 September 2020. Shortly thereafter, on 22 July 2020, Johns J ordered that all extant applications for final orders be adjourned before her for hearing on 8 February 2021 as a five day matter.
On 27 July 2020, in the face of this further adjournment of the trial date, the father (not unreasonably it must be said in all the circumstances) petitioned the Court for an earlier hearing date. As Johns J was unable to accommodate the matter in 2020 the proceeding was transferred to me and listed for a final hearing on 16 November 2020 for five days.
On 5 October 2020 the matter was the subject of a mention before me, principally on the question of whether the matter should proceed electronically by way of Microsoft Teams, or whether it should be deferred until it could proceed face to face. The mother pressed for deferral, the father for a hearing as soon as possible, even if electronically. The ICL did not object to an electronic hearing.
I declined to adjourn the final hearing for an indefinite period. The parties were still awaiting psychological assessments from Dr R which she had not been able to complete because she had been unable to access subpoenaed material by reason of COVID-19 restrictions. Orders were made releasing the relevant material to the ICL for provision to Dr R, and I reminded the parties that their unacceptable risk cases would need to be proved to the standard of s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”). There was also some discussion of whether the father should be ordered to undergo a psycho-sexual assessment, but that issue was deferred pending the provision of Dr R’s reports.
The parties were however able to agree to orders which provided for the child to spend supervised time with the father for two hours each Saturday for six weeks, progressing thereafter to two hours each alternate Saturday.
The child and father had supervised time together later in October 2020. The child had spent no time and had had no communication with his father since July 2018, save for the one supervised occasion at the Department’s office on 27 December 2018 and their brief meeting at Mr Q’s rooms in mid-2019.
On 19 October 2020 the parties informed the Court by email to my chambers that Dr R had completed her reports, that the father had agreed to undertake a psychosexual assessment, and that there was some consensus that the impending hearing should be adjourned so that the psycho-sexual assessment could be undertaken. Having had the opportunity to read Dr R’s reports, aspects of which were problematic for the mother, I listed the matter for mention to canvass the question of whether a psychosexual report was necessary and whether the preparation of such a report should be permitted further to delay the trial. My associate also wrote to the parties indicating that I wished to explore with counsel for the mother how her unacceptable risk case was to be put at trial, consistently with the principles in relation to the standard of proof and the assessment of whether there was unacceptable risk which I essayed in Keane & Keane [2020] FamCA 99 (“Keane & Keane”).
The mention occurred on 27 October 2020. Insofar as the issue of the psycho-sexual report of the father was concerned, I suggested that having regard to the reports of Dr R, particularly about the mother, it may be that there was no real justification for deferring the hearing until 2021 in order to have a psychosexual report of the father as well. The father’s position was that he would submit to the report if ordered, but that otherwise his preference was to proceed with the hearing commencing on 16 November 2020. The ICL’s position was that although a psychosexual report may be useful, it should not be permitted to delay the hearing. The mother’s position was simply that the report was a matter for the father, and that if one was not available that would ultimately be a matter for submissions.
There was then a discussion of the mother’s unacceptable risk case, which counsel for the mother indicated could be put no higher than on the basis of the disclosures outlined in the mother’s Affidavit. Counsel for the mother also indicated that the mother was aware of the burden of proof that she would need to satisfy in order to succeed with her unacceptable risk case.
I indicated to the parties that in circumstances were the father had not had any substantial time with the child for more than two years and there was at present a regime in place for no more than supervised time, it seemed highly undesirable and not in the best interests of the child to defer the hearing until sometime in 2021 in order to obtain a psychosexual report of the father.
Counsel for the mother accepted that if the hearing could be conducted electronically then it was ready to proceed, however the mother’s formal position was that it would be preferable to have the child spend time with the father on a supervised basis for a more extended period, and that this might both assist the Court and have the benefit of enabling the parties to resolve the matter. The father’s position was that the mother did not have the capacity to foster a relationship between him and the child, and that the matter should be heard as soon as possible.
Ultimately, although the prospect of an electronic trial in a case like this was far from ideal, I resolved that it was not in the best interests of the child for there to be any further adjournments, and I informed the parties that the trial would proceed on 16 November 2020, with a mention on 12 November 2020. I declined to make an order for the preparation of a psycho-sexual report of the father, however orders were made for the filing of a report by the contact service that was then supervising the child’s time with the father, and for other material.
On 30 October 2020 another report was received by the Department that further allegations had been made by the child, this time it would seem to the child’s psychologist, and on 9 November 2020 an assessment was made by the Department to progress the investigation with concerns raised in relation to the risk of emotional harm as a result of potential coaching by the mother.[11]
[11] Section 69ZW report dated 11 March 2021, p.3
The Court was informed of this further disclosure by the mother’s solicitors on 5 November 2020, and they requested a mention prior to 12 November 2020. The matter was listed for mention on 9 November 2020. Counsel for the ICL informed the Court that there had been a further SOCIT investigation and that the police notes indicated that there had been some level of coaching by the mother, and that an investigation was proceeding in relation to this. A letter from the Department dated 9 November 2020 had also been received, the substance of which was that the child had disclosed that his mother had coached him and that the case would progress to investigation.
The father confirmed in the face of this development that he wished to proceed to hearing. Counsel for the mother conceded that if the mother’s unacceptable risk case fell away, then the question of whether there should be a change of residence would come into sharp relief, and that it would be necessary for the Court to have regard to the Department report. He submitted that the mother had consistently denied coaching the child. In all the circumstances counsel for the mother accepted that the mother needed to decide whether she maintained her unacceptable risk case and, if she did not, whether the parties could put the former arrangements back in place. The matter was adjourned to 12 November 2020 so that counsel for the mother could confer with the mother and obtain instructions.
The matter returned to Court on 12 November 2020. It was apparent that some considerable progress had been made in negotiations, and counsel for the mother confirmed that the mother no longer pressed her unacceptable risk case. There was a consensus between the parties that interim orders could be made and that a further family report should be ordered because at the time of the last one the child had not been spending any time with the father. I indicated that if suitable orders could be agreed in the meantime, the Court would be in a position to allocate the parties further time in March 2021. Consent orders were ultimately agreed that the child spend unsupervised time with the father on 14 November 2020 from 9.30am until 3.30pm, with changeover to be facilitated by a family contact service. The matter remained listed for 16 November 2020, and it was adjourned to that date.
On 16 November 2020 the parties sought further time to negotiate. By the afternoon there seemed to be preliminary agreement in relation to an interim time regime, although the mother continued to press for the child’s name to remain on the airport watch list, and she refused to provide the father with her residential address. Ultimately interim orders were made by consent for the child to live with the mother but progress to alternate weekends with the father, and for ancillary matters. There were also orders for the preparation of a further family report, a mention on 12 March 2021, and for a final hearing on 22 March 2021 to resolve any matters which, by that time, remained in dispute.
However whatever consensus existed on 16 November 2020 was short-lived. On 4 January 2021, after the child had spent two weekends in December with the father and overnight time Christmas Eve, time with the father was again suspended after the child made further disclosures. This time, so the mother alleged, the disclosures were made to Dr S at the T Medical Centre. The Department however had no record of any such contact from Dr S as alleged by the mother.[12] It would also seem that the child made disclosures at school in December 2020. The father says that he was informed by the Department on 14 January 2021 that his time with the child could not go ahead on 15 January 2021 as new allegations had been made.[13] The mother says that the Department told her on 28 January 2021 that the father was not to spend time with the child that weekend,[14] although it would seem that there is no confirmation that this advice was given to the mother by the Department in the section 69ZW reports.
[12] Section 69ZW report dated 11 March 2021, p.5
[13] Father’s affidavit filed 10 February 2021, paragraph 144
[14] Mother’s affidavit filed 5 March 2021, paragraph 44
On 4 February 2021 the parties informed the Court that there had been a disclosure and that the Department was conducting another investigation. On 8 February 2021 a registrar made orders by consent that the ICL have leave to provide the Department various reports and affidavits which had been filed in the proceeding. Apparently the Department had requested a pause in the child’s time with the father by reason of the child’s further disclosure.
On 10 February 2021 the father filed a Further Amended Initiating Application. He pressed his earlier application for sole parental responsibility and that the child live with him, proposing a regime which contemplated the child having initially supervised time with the mother, progressing to unsupervised time on alternate weekends and half of school holiday time.
The mother alleges that on 11 February 2021 she contacted the Department to enquire about whether the father’s time would proceed on 12 February 2021, and that she was advised that time would be suspended until SOCIT had conducted yet another investigation.[15] The father’s next time with the child was scheduled for 26 February 2021, and the mother says she was told by the Department that she would be contacted about this, but that this did not occur. On this basis she says that the child did not spend face to face time with the father on this occasion.[16]
[15] Mother’s affidavit filed 5 March 2021, paragraph 50
[16] Mother’s affidavit filed 5 March 2021, paragraph 51-52
On 18 February 2021 a registrar made orders that the Department provide a further s 69ZW report by 11 March 2021, which report was duly provided and released to the parties.
On 12 March 2021 the matter was the subject of a further mention. The ICL informed the Court that SOCIT had advised that a brief had been prepared, but that it was not clear whether that was for the purpose of prosecution or for some other purpose. Counsel for the father indicated that the father wished to proceed on 22 March 2021, and that he faced the possibility of not seeing child for an even longer period of time if criminal proceedings were commenced. According to the ICL, the Department had indicated that they would not move to the next phase of their investigation until SOCIT had made a determination.
I indicated to the parties that although the Court was loathe to commence the hearing in light of a pending decision by SOCIT, and in the face of an inconclusive report from the Department, the best interests of the child required that there be a hearing as soon as possible. I canvased a variety of dates with the parties, ultimately ordering that the hearing listed for 22 March 2021 be vacated, and noting that it was the Court’s expectation that SOCIT and the Department would finalise their investigations as soon as practicable and that upon that occurring the Court would relist the matter.
On 30 March 2021 the ICL informed the Court that the Department and SOCIT had concluded their investigation and that the matter should be listed for mention. For their part, the Department advised that they had not yet finally concluded their investigation, but that this would likely happen in the near future. The Department also indicated that a further section 69ZW report would need to be provided if information was required from 11 March 2021 onwards. In the circumstances I listed the matter for a further mention the following day.
Later on 30 March 2021 the Department informed the Court by email to my chambers that SOCIT had concluded its investigation and that the Department considered that the pause in contact between the child and the father should end if there was to be no further action taken by SOCIT. However the Department advised that the matter remained in the “investigation and assessment phase”, and that its investigation had not yet concluded. According to the Department, further consideration was being given to whether the new concerns raised could be substantiated, and that the local office was seeking guidance from above. It was said that once that had occurred, the Department could “provide further clarity”.
At the mention on 31 March 2021 the Court was advised that the unsupervised time that had proceeded the previous weekend had gone extremely well, and the matter was listed for final hearing on 10 May 2021 on an estimate of five days. Orders were also made for the filing of further material, for the Department to provide a further s 69ZW report, for an addendum report from the family consultant, and facilitating the viewing by the parties of the Visual and Audio Recording of Evidence (“VARE”) tapes of the interview with the child on 15 January. During the hearing my associate received a further email from the Department advising that its investigation had concluded on an essentially inconclusive basis, and that it would now move into the “protective intervention phase”. A feature of this, apparently, was exploring how the parents can be supported in improving their relationship. The Department informed the Court that it would seek to appear amicus curiae at the hearing.
By the time the defended hearing commenced on 10 May 2021 the father had been having unsupervised time with the child since 26 March 2021 on the basis of the interim orders which had been agreed on 16 November 2020. The hearing proceeded before me over eight days in the period 10 May to 4 June 2021. It took longer than anticipated principally by reason of the extensive, but important, cross examination of the mother. Although the Department initially sought to appear as amicus, which I was content to allow, the Department decided that it would not continue to appear after the morning of the second day.
At the conclusion of the hearing the parties and the ICL submitted interim consent orders which, amongst other things, continued in place the parenting orders of 16 November 2020. I will return in due course to the other aspects of these orders.
THE PARTIES’ POSITIONS
As has been mentioned, the father’s position, as set out in his Further Amended Application filed 10 February 2021, was that he should have sole parental responsibility and that the child should live with him. The father’s proposal originally provided for the child to spend supervised time with the mother for six consecutive visits, gradually increasing to unsupervised visits each alternate weekend during school term, and for half of all school term and long summer holidays. There was no provision made for a period of transition during which the child would not see the mother at all.
However at the conclusion of the hearing the father’s counsel provided an amended minute of orders. While still pressing for sole parental responsibility (but with a requirement that he consult with the mother before making decisions in relation to educational, medical or religious decisions) and that the child live with him, the father says that the child shall spend no time with the mother for a period of six months from the date of judgment. The father proposes the following, including in relation to ancillary matters, after this initial suspension of time:
7. That the child spend time and communicate with the mother for up to three hours each fortnight as and when can be accommodated by the (nominated) professional supervision service with the mother to bear the cost of said supervision and the supervision to last for a period of not less than four (4) months.
8. That at the conclusion of the four (4) months supervision period the parents do all acts and things necessary to obtain a report from the (nominated) professional supervision service and that the cost of the report be shared between the parents.
9.That the father be at liberty to provide to the (nominated) supervision service a copy of the Final Parenting Orders and subject to approval by his Honour a copy of the Honourable Justice McEvoy’s Judgement to the following persons and/or organisations:
a. The (nominated) supervision service;
b. F School;
c.The child’s treating Paediatrician Dr G or her nominee, occupational therapist/s, speech therapist/s, Ms K NDIS Support Co-ordinator, Ms L or her replacement, the Principal of U School and any health professional engaged by the mother pursuant to paragraph 17 below and any other allied health professional that the Independent Children’s Lawyer or the Father deem appropriate.
10. Upon the expiration of the four (4) month period referred to in paragraph 7 above and the provision of the report referred to in paragraph 8 above, the child spend time with the mother as follows:
a. Each Saturday from 10:00am until 5:00pm for a period of (8) eight weeks.
b. Thereafter:
i.In week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until 5.00 Saturday and fortnightly thereafter.
ii.In week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day until 7.30pm) and fortnightly thereafter for a period of twelve (12) weeks.
c. Thereafter:
i. In week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until 5.00 Sunday and fortnightly thereafter; and
ii. In week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day until 7.30pm) and fortnightly thereafter for a period of twelve (12) weeks.
d. Thereafter:
i. In week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day) and fortnightly thereafter; and
ii. In week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day until 7.30pm) and fortnightly thereafter.
e. For half of all school term holidays commencing third term of 2023 as agreed between the Mother and Father in writing and failing agreement:
i. for the first half in even-numbered years, from the conclusion of school on Friday on the last day of term until 12:00pm on the middle Saturday of the school term holiday; and
ii. for the second half in odd-numbered years, from 12:00pm on the middle Saturday of the school term holiday until the commencement of school/kindergarten on the first day of the next term.
f. For the long summer holidays;
i.commencing the summer holidays in 2023/2024 on a week about basis as agreed between the parties in writing and failing agreement the Mother to have the first week from the conclusion of school in term 4 for a period of 7 consecutive nights until 12.00pm on the seventh day.
ii.Commencing 2024/202 and each year thereafter for half of the long summer holidays as agreed between the parties in writing and failing agreement:
1. for the first half from the conclusion of the last day of school in term 4 for a period of consecutive nights until 12:00pm on the day representing half of the total days in long summer holiday period.
2. for the second half from12:00pm on the day representing half of the total days in long summer holiday period until 12.00pm on the day prior to the commencement of school in the new year.
Commencing 2022[17]
[17] See footnotes 18 and 19 below
g. From 12:00pm Christmas Eve until 12:00pm Christmas Day in even numbered years.
h. From 12:00noon on until 7:00pm on New Year’s Day in even numbered years.
i. On Mother’s Day weekend from 10:00am on Mother’s Day until the commencement of school, or 9:00am the following day.
j. On the child’s and the Mother’s birthdays should they fall on a date the could is at school, from the conclusion of school until 6:00pm in odd numbered years and from 6:00pm until the conclusion of school or 9:00am the following day in even numbered years and on a non-school day, if the child is not otherwise in her care, from 10:00am to 2:30pm;
k. At such other times as agreed between the mother and Father in writing.
11. The Mother’s time with the child be suspended as follows:
a.From 12:00pm Christmas Day until 12:00pm Boxing Day in odd numbered years.
b.From 12:00noon New Year’s Eve until 12:00pm New Year’s Day in odd numbered years.
c.On Father’s Day weekend from 10:00am on Father’s Day should they fall on a date the child is at school, from the conclusion of school until 6:00pm in odd numbered years and from 6:00pm until the conclusion of school or 9:00am the following day in even numbered years;
d.On the child or the Father’s birthday should they fall on a date the child is at school, from the conclusion of school until 6:00pm in even numbered years and from 6:00pm until the conclusion of school or 9:00am the following day in odd numbered years and on a non-school day, if the child is not otherwise in his care, from 10:00am to 2:30pm.
12.The time the child spends with the mother pursuant to Order 10 be suspended during school term and long summer holiday periods and shall resume in the same cycle as if the holiday periods had not intervened.
13. For the purposes of changeover that does not occur at the child’s school same occur at McDonalds Family Restaurant, C Street, Suburb E, or a location agreed between the parties in writing.
14. The Father shall not remove the child from F School and enrol him elsewhere until the conclusion of term 4 2021 school year.
15. That F School be provided with a copy of the Final Parenting Orders.
16. The Mother forthwith authorise the father to enable him to do all acts and things necessary for the purposes of continuation of those matters raised at pages 8 and 9 in the section 69ZW report dated 26 April 2021 and authorise the father to take over that role.
17. The Mother forthwith terminate consulting with Ms P mental health social worker and member of the V Group of Melbourne and instead provide proof of engagement with a clinical psychologist preferably with expertise in family law matters and that the Independent Children’s Lawyer nominate said professional who shall assist the mother in this regard.
18. That the father forthwith engage with a clinical psychologist other than Ms W with expertise in the development of behaviour support plans with particular emphasis on parenting children with autism spectrum disorder and that the Independent Children’s Lawyer be at liberty to make enquires with the said professional chosen by the father as to their suitability or otherwise.
19. That the father continue to engage with the psychologist referred to in the previous paragraph with such frequency as required by the said psychologist and/or their nominee and follow all lawful recommendations of the treating psychologist and/or their nominee.
20. That the mother forthwith provide to the father a list of the child’s medical and/or allied health practitioners their email, telephone and contact details and advise the father in writing of any future appointments the child may have with any of the said medical and/or allied health professionals by tele-health or in person that may be scheduled in the future.
21. That the mother forthwith provide to the father a copy of the child’s NDIS plan and details of any review of the plan scheduled to occur on 25 May 2021.
22. Upon the receipt of the list referred to in the above paragraph the father will consult with each and every one of the child’s medical and/or allied health practitioners treating health professionals at his own cost if any, and this Order acts as an authority for him to do so.
23.That the parent with care of the child shall promptly notify the other parent of any significant illness or medical condition suffered by the child as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by the child with the name and address of the treatment provider.
24. That the parents authorise the child’s school to provide all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports, school photographs directly to each parent at their cost.
25. The parents be at liberty to attend the child’s school events and/or functions normally attended to by parents.
26.That the parents each hereby be restrained by injunction from:
a.Consuming alcohol to excess or using illicit substances whilst the child is in their respective care;
b.Denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship within the presence or hearing of the child;
c. Discussing family law matters in the presence or hearing of the child.
27. That all previous Orders for international travel be and are hereby discharged.
28. That the Father be authorised and permitted to apply for and receive an Australian Passport and Visa for the child without first obtaining the written consent of the mother, pursuant to Section 11 of the Australian Passports Act 2005 (Cth) and or pursuant to Sections 65D and 67ZC Family Law Act 1975 (Cth).
29. That the Father be permitted to take the child out of the Commonwealth of Australia during summer school holidays and at other times to visit family in the United States of America and elsewhere, on more than one occasion every year for a period of up to three weeks at a time.
30. The Father will notify the mother of such travel in writing and provide her with the itinerary details, including contact telephone numbers.
31.In the event of an emergency while travelling, the travelling parent must notify the other parent by telephone of any emergency medical treatment required by the child within 24 hours.
32.The mother be at liberty to contact and communicate with the child via telephone, Skype or Facetime during the period of travel every alternate weekend on Sunday for a period of not less than 15 minutes.
33.That both parties keep each other informed of any changes to their residential address, email address and contact telephone number, and advise that other parent of any change in these details in writing no later than 48 hours of such change taking place.
34.That the Independent Children’s Lawyer be discharged after a period of 12 months AND IT IS REQUESTED that Victoria Legal Aid continue to fund the Independent Children’s Lawyer.
35.Usual Order for 62(B) and 65(DA)
64In her outline of case filed 7 May 2021 the mother proposed that the parties have equal shared parental responsibility, save for education and medical decisions for which she sought sole parental responsibility. The mother otherwise proposed that the child live with her and spend time with the father during school term each alternate weekend, and for half of all school holidays. As has been mentioned, by the time of the final hearing the mother had abandoned her earlier position that the father posed an unacceptable risk to the child.
65However at the conclusion of the hearing the mother also provided an amended set of final orders. She maintained her position that the parties have equal shared parental responsibility save for in relation to education and medical decisions which she would decide, with an obligation to consult the father and consider his views. She also maintained her position that the child should live with her. However her proposal for the child to spend time with the father and for ancillary matters was as follows:
5. [The child] spend time and communicate with the Father during the school term as follows:
a.Until [the child] commences school in 2022 - each alternate weekend from the conclusion of school on Friday (or 3.30pm if not a school day) until the commencement of school on Monday (or 3.30pm if not a school day);
b.From the time [the child] commences school in 2022 - each alternate weekend from the conclusion of school on Thursday (or 3.30pm if not a school day) until the commencement of school on Monday (or 3.30pm if not a school day);
c.During school term holidays for one half of all school holidays by agreement and, failing agreement, for the first half from 9:30am on the first day of the holidays until 12:00pm on the middle Saturday of the holidays;
d.During the long summer school holidays:
i.for the 2021/2022 long summer school holidays, for a period of 14 days by agreement, and failing agreement such time to commence from 9:30am on the first day of the holidays;
ii.thereafter, for one half of the long summer school holidays by agreement and, failing agreement from 9:30am on the first day of holidays until 12:00 noon on the middle day of the long summer school holiday period.
e.By telephone;
i.each Thursday and Saturday between 5:30pm and 6:00pm;
ii.any time that [the child] reasonably requests;
with the Mother to facilitate such calls in a quiet location.
f.As otherwise agreed between the parties in writing.
6. [The child] communicate with the Mother as follows:
a. By telephone each Saturday between 5:30pm and 6:00pm;
b.By telephone each Thursday between 5:30pm and 6:00pm during school holidays
c. Any time that X reasonably requests;
With the Father to facilitate such calls in a quiet location.
7. Notwithstanding any other provision in these Orders [the child] spend time:
a. With the Father (if he is not otherwise in the care of the Father at such times):
i. on [the child’s] birthday by agreement, and failing agreement:
1. if the birthday occurs on a school day from the conclusion of school until 5:00pm;
2. if the birthday occurs on a non-school day from 9:30am until 1:30pm;
ii. on the Father’s birthday by agreement, and failing agreement:
1.if the birthday occurs on a school day from the conclusion of school until 9:30am or the commencement of school the following day;
2.if the birthday occurs on non-school day from 9:30am 9:30am or the commencement of school the following day;
iii.on the weekend of Father’s Day from conclusion of school on Friday (or 3.30pm if not a school day) until the commencement of school on Monday (or 3.30pm if not a school day);
iv.in even numbered years from 3:30pm on 24 December to 12:00pm on 25 December;
v.in odd numbered years from 12:00pm on 25 December to 3:30pm on 26 December;
vi.in even numbered years from 12:00pm on 1 January to 12:00pm on 2 January;
vii.in odd numbered years from 12:00pm on 31 December to 12:00pm on 1 January;
viii.on the 4th Thursday in November (Thanksgiving) from the conclusion of school or 3:30pm until 9:30am or the commencement of school the following day.
b.With the Mother (if he is not otherwise in the care of the Mother at such times):
i. on [the child’s] birthday by agreement, and failing agreement:
1. if the birthday occurs on a school day from the conclusion of school until 5:00pm;
2. if the birthday occurs on a non-school day from 9:30am until 1:30pm;
ii. on the Mother’s birthday by agreement, and failing agreement:
1. if the birthday occurs on a school day from the conclusion of school until 9:30am or the commencement of school the following day;
2. if the birthday occurs on non-school day from 9:30am until 9:30am or the commencement of school the following day;
iii.on the weekend of Mother’s Day from conclusion of school on Friday (or 3.30pm if not a school day) until the commencement of school on Monday (or 3.30pm if not a school day);
iv.in odd numbered years from 3:30pm on 24 December to 12:00pm on 25 December;
v.in even numbered years from 12:00pm on 25 December to 3:30pm on 26 December;
vi.in odd numbered years from 12:00pm on 1 January to 12:00pm on 2 January;
vii.in even numbered years from 12:00pm on 31 December to 12:00pm on 1 January;
viii. on Easter Sunday from 9:30am to 9:30am the following day.
8.All changeovers occur (unless otherwise agreed between the parents in writing):
a. At [the child’s] school where changeovers occurs on a school day; and
b. Otherwise for changeovers not on a school day at McDonalds Z Street, Suburb Y.
9.Each parent provide notice in writing to the other parent as soon as reasonably practicable in the event that they intend to send a nominee to facilitate changeover at McDonalds Z Street, Suburb Y.
10.The Mother attend any mental health professional nominated by Independent Children’s lawyer for the purposes of counselling, treatment or therapy, and will do all acts as recommended by the therapist/s so nominated, at her expense.
11.The Father attend any mental health professional nominated by Independent Children’s lawyer for the purposes of counselling, treatment or therapy, and will do all acts as recommended by the therapist/s so nominated, at his expense.
12.The parents do all such acts and things necessary to facilitate [the child] attending upon any mental health professional nominated by Independent Children’s lawyer for the purposes of counselling, treatment or therapy, and will do all acts as recommended by the therapist/s so nominated, at their equally shared expense.
13.Both parents keep the other informed as to each other’s current email address and contact telephone number and advise the other of any change in these details in writing as soon as practicable and no later than 48 hours of such change taking place.
14.Each of the Mother and Father ensure that [the child] sleeps in his own bed and bedroom.
15.Each of the Mother and Father shall notify the other of any significant illness or medical condition suffered by [the child] within 24 hours, or as soon as practicable in the case of an emergency, and each party shall be at liberty to attend any hospital in which [the child] may be admitted.
16.Each of the parents notify the other parent where [the child] is too unwell to attend school and provide evidence that [the child] has attended a physician.
17.Each of the parents provide all necessary authorisations to all of [the child’s] treating medical practitioners to allow both parents to have direct access to [the child’s] medical records so as to ensure that any progress reports, recommendations, diagnoses, prescriptions or other information are able to be issued to both parents.
18.Each of the parents comply with all directions provided to the parents by any of [the child’s] treating medical professionals including, but not limited to, administering medication as prescribed or directed.
19.Each of the parents be, and are hereby, restrained from providing [the child] with any therapies, treatments, medications or anything else that has not been recommended by [the child’s] medical or allied health professionals without the agreement of the other parent.
20.Unless otherwise agreed between the parents in writing, each of the parents shall ensure that [the child] does not attend any faith based activity, church or other religious event than that which is of the Roman Catholic denomination.
21.Neither parent enrol [the child] in any extracurricular activity which impinges on the other parent's time with [the child] without the consent of the other parent.
22.Each of the parents, by themselves, their servants and/or their agents be and are hereby restrained by injunction from using any form of physical discipline on [the child].
23.Each of the parents, by themselves, their servants and/or their agents be and are hereby restrained by injunction from:
a.Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent; and/or
b. Discussing these proceedings
With or in the presence or hearing of [the child] and from permitting any other person to do so.
24.Until further Order, both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child [the child], born in 2011, from the Commonwealth of Australia; and this Order ceases to have effect on 10 May 2026.
25.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders.
26.The Court requests that the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these Orders; and this Order ceases to have effect on 10 May 2026.
27.Upon the Airport Watch List order ceasing, that the parties do all such acts and sign all such documents necessary to obtain an Australian passport for X, and thereafter, to ensure that [the child] has a current Australian passport at all times at the Father’s expense.
28.At all times when [the child] is not travelling overseas, [the child’s] passport will be retained by the Mother.
29.Following the discharge of the Airport Watch List Order on 10 May 2026, the parents be permitted to take [the child] out of the Commonwealth of Australia during the summer school holidays and on not more than 1 occasion every 2 years, or as otherwise agreed in writing, subject to the following conditions:
a.Unless otherwise agreed in writing between the parties, the intended travelling parent must notify the other parent at least 6 weeks prior to the intended travel in writing, of their intention to travel with [the child] and remove him from the Commonwealth of Australia;
b.The intended travelling parent shall provide the other parent with confirmed return airfares for [the child] and a detailed and final copy of all travel itineraries, such itinerary to include contact details and telephone numbers for all accommodation where the child will be staying and a working mobile telephone number, at least 30 days prior to the intended travel;
c.For the purpose of this Order written notification from the intended travelling parent must include the proposed travel dates, including departure and return dates and all travel destinations for [the child] whilst he is out of the Commonwealth of Australia;
d. The intended travelling parent must travel with [the child] at all times;
e.The period for which the child is outside of the Commonwealth of Australia must not exceed 14 consecutive days, unless by agreement between the parents in writing;
f.[The child] must be registered with the Australia Government (Smart Traveller) for all intended destinations and the travelling parent must provide evidence of same to the other parent prior to such travel taking place;
g.In the event of an emergency, the travelling parent must immediately notify the other parent by telephone of any emergency medical treatment required for [the child], irrespective of the time zone and within 24 hours for any non-urgent medical treatment required for the child;
h.For the purpose of this Order, the information to be provided includes and is not limited to the nature of the medical emergency, the proposed treatment, the name and location of the medical facility and the treating medical practitioner and the traveling parent is to ensure authorisation is provided for the non-traveling parent to receive information from the treating medical practitioner;
i.The travelling parent must ensure that they take with them, and administer as directed by a physician, all medications prescribed to X;
j.The non-travelling parent be at liberty to contact and communicate with [the child] via telephone, skype and/or facetime during the period of travel every second day for not less than 15 minutes at such times to be agreed within 7 days of receipt of the 9 travelling parent providing full and final itineraries as required this Order and failing agreement, as proposed by the non-travelling parent and the travelling parent must initiate such contact;
k.In the event of an unforeseeable travel delay, the travelling parent must immediately notify the other parent by telephone;
l.The travelling parent must ensure that appropriate travel insurance is obtained, and that [the child] is covered pursuant to that policy, and evidence of same is to be provided to the other parent at least 30 days prior to such travel;
30. Unless otherwise agreed between the parents in writing, all international travel occur during the traveling parents’ time during the long summer school holiday periods with such travel not to impinge upon [the child’s] attendance at school.
31. Neither parent shall unreasonably withhold their consent for [the child] to travel outside of the Commonwealth of Australia.
32. Unless otherwise agreed in writing between the parties, both parties are hereby restrained by injunction from travelling with the child to any country which is not signatory to the Hague Convention on the Civil Aspects of International Child Abduction as defined in Schedule 1 of the Family Law Act 1975.
33.Additionally:
a.The travelling parent provide to the non-travelling parent a cash bond of $10,000.00 (the cash bond) with such amount to be deposited into an account nominated by the non-travelling parent at least 30 days prior to the travelling parent and [the child] departing from the Commonwealth of Australia; and
b.The non-travelling parent return the cash bond to the travelling parent with 7 days of the travelling parent’s return to the Commonwealth of Australia and into an account nominated by the travelling parent.
34. The parents provide a copy of this Order to:
a. [the child’s] school;
b. Any mental health practitioner assisting either of the parent/s or [the child]; and
c. [The child’s] treating medical and/or health care practitioners or other entities involved in [the child’s] care as required.
35. The parents provide a copy of:
a. Any Reason/s for Judgement;
b. The Family Reports of Ms AA;
c. The Psychological Assessment Reports of Dr R; and
d. The Magellan and s69ZW Reports of the Department;
To any mental health practitioner assisting either of the parent/s or [the child].
36. In the event that:
a. Either parent alleges a breach of these Orders;
b. Any further report is made to the Department of sexual or other abuse of [the child]
The parties have liberty to seek that the matter be listed urgently before the Honourable Justice McEvoy.
37.In these Orders a reference to school dates and school holidays is to be calculated in accordance with the Victorian government gazetted school holiday dates.
38.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligation these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
At the conclusion of the hearing the ICL provided a minute of proposed final orders in much the same terms as the father’s revised orders. The ICL proposed that the father have sole parental responsibility with an obligation to consult the mother about educational, medical and religious decisions and that the child live with the father and spend no time with the mother for a period of three months (as distinct from the six months proposed by the father) after the date of judgment, progressing to supervised and ultimately to unsupervised time. The ICL’s proposed final orders for the progression to unsupervised time and for ancillary matters were as follows:
5. That the child spend no time with the Respondent Mother for a period three (3) months (hereafter referred to as the “suspended time period”) from the date of the delivery of the Honourable Justice McEvoy’s judgement (“the judgement”).
6. Within the suspended time period, the Mother nominate and the parents do all acts and things necessary to engage with a professional supervision service (such as B Contact Service and/or the D Contact Service) for the purposes of the child spending supervised time with the Mother at the expiration of the suspended time period.
7. At the conclusion of the suspended time period, the child spend professionally supervised time and communicate with the Mother as follows (“the supervised time period”):
a. for a period of not less than six (6) months;
b. for up to three hours each fortnight at times, dates and at venues as can be accommodated by the supervision service; and
c. with the Mother to bear the cost of said supervision;
d. and any report requested by the parties to be shared equally between the parties.
8.Upon the expiration of the supervised time period, the child spend time with the Mother as follows:
a. Each Saturday from 10:00am until 5:00pm for a period of (8) eight weeks; and
b. Thereafter:
i. In week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until 5.00 Saturday and fortnightly thereafter; and
ii.In week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day until 7.30pm) and fortnightly thereafter for a period of twelve (12) weeks.
c. Thereafter:
i.In week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until 5.00 Sunday and fortnightly thereafter; and
ii. In week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day until 7.30pm) and fortnightly thereafter for a period of twelve (12) weeks.
d. Thereafter:
i. In week 1, from the conclusion of school Friday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day) and fortnightly thereafter; and
ii. In week 2, from the conclusion of school Wednesday or (3.30pm if a non-school day until 7.30pm) and fortnightly thereafter.
e. For half of all school term holidays commencing at the end of the second term of 2023 as agreed between the Mother and Father in writing and failing agreement:
i. for the first half in even-numbered years, from the conclusion of school on Friday on the last day of term until 12:00pm on the middle Saturday of the school term holiday; and
ii. for the second half in odd-numbered years, from 12:00pm on the middle Saturday of the school term holiday until the commencement of school/kindergarten on the first day of the next term.
f. For the long summer holidays;
i. commencing in 2023/2024 on a week about basis as agreed between the parties in writing and failing agreement the Mother to have the first week from the conclusion of school in term 4 for a period of 7 consecutive nights until 12.00pm on the seventh day.
ii.commencing 2024/2025 and each year thereafter for half of the long summer holidays as agreed between the parties in writing and failing agreement:
1. for the first half from the conclusion of the last day of school in term 4 for a period of consecutive nights until 12:00pm on the day representing half of the total days in long summer holiday period.
2. for the second half from12:00pm on the day representing half of the total days in long summer holiday period until 12.00pm on the day prior to the commencement of school in the new year.
g. From 12:00pm Christmas Eve until 12:00pm Christmas Day in even numbered years, commencing in 2022;
h. From 12:00pm Christmas Day until 12:00pm Boxing Day in odd years, commencing in 2023;
i. On Mother’s Day weekend from 10:00am on Mother’s Day until the commencement of school, or 9:00am the following day, commencing in 2022;[18]
[18] Counsel for the ICL and the father’s solicitor confirmed at the delivery of judgment that the reference to 2022 should have been a reference to 2023
j. From 2022,[19] on the child’s and the Mother’s birthdays should they fall on a date the child is at school, from the conclusion of school until 6:00pm in odd numbered years and from 6:00pm until the conclusion of school or 9:00am the following day in even numbered years and on a non-school day, if the child is not otherwise in her care, from 10:00am to 2:30pm;
[19] As above
k. At such other times as agreed between the Mother and Father in writing.
9.The time the child spends with the Mother pursuant to Order 8a. to 8d. be suspended during school term and long summer holiday periods and shall resume in the same cycle as if the holiday periods had not intervened.
10.For the purposes of changeover that does not occur at the child’s school, the parties or their servants and agents (people well known to the child and notice of the third party attending being given in advance of the changeover) meet at McDonald’s Family Restaurant in C Street, Suburb E, or a location agreed between the parties in writing.
11.That the Mother forthwith provide to the Father a list of the child’s medical and allied health practitioners including their email, telephone and contact details and advise the Father in writing of any future appointments the child may have with any of the said medical and/or allied health professionals by tele-health or in person that may be scheduled in the future.
12.That the Mother forthwith provide to the Father a copy of the child’s NDIS plan and details of any review of the plan.
13.Upon receipt of the list of the child’s treating medical and allied health practitioners referred to above, the Father will consult with each and everyone of the child’s medical and/or allied health practitioners treating health professionals at his own cost if any, and this Order acts as an authority for him to do so.
14.That the Father provide to the organisations below a copy of the final parenting Orders and subject to approval by his Honour a copy of the Honourable Justice McEvoy’s judgement to the following persons and/or organisations, within 7 days of receipt of the same:
a. The supervision service;
b. the Principal of F School;
c. The child’s treating paediatrician Dr G, or her nominee;
d. the child’s occupational therapist, Ms H, or her nominee;
e. the child’s speech therapist, Ms J, or her nominee;
f. the NDIS Support Co-ordinator, Ms K, or her nominee;
g. the child’s psychologist, Ms L or her nominee;
h. the Principal of the secondary school selected for the child to attend;
i. M Service at N Hospital; and
j. any other professional engaged with the child in the next 12 months.
15.The Mother be at liberty to liaise with and to obtain information and updates as to the child’s treatment (noting the Father has sole parental responsibility) with the child’s treating medical and allied health practitioners, at her expense, and these Orders serve as the authority for the same.
16.The Father shall facilitate the child remaining at F School in order to complete his primary school education at that school (expected to conclude his primary school education in 2023).
17.The Mother forthwith authorise the Father to enable him to do all acts and things necessary for the purposes of continuation of an assessment and treatment of the child’s sexualised behaviours (as opposed to treatment as a victim of sexual abuse) with M Service at N Hospital as raised at pages 8 and 9 in the Department of Families, Fairness and Housing’s section 69ZW report dated 26 April 2021 and authorise the Father to take over that role, with the Father to follow all lawful and reasonable directions for the child’s treatment and attendance at appointments.
18.Upon the receipt of these Orders and the judgement, the Mother shall provide a copy of the same to her clinical psychologist, and provide confirmation of the same to the Father.
19.That the Mother and Father continue to engage with the psychologists referred to in the Interim Orders made 4 June 2021, with such frequency as required by the said psychologists and/or their nominees and follow all lawful and reasonable recommendations as to treatment.
20.That the parent with care of the child shall promptly notify the other parent of any significant illness or medical condition suffered by the child as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by the child with the name and address of the treating provider.
21.The Father and Mother shall:
a.administer all medications to the child strictly in accordance with the recommendations of the prescribing Doctor; and
b.attend at all appointments and comply with all treatment regimes as recommended by the child’s treating medical and allied health practitioners.
22.That the parents authorise the child’s school to provide all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports, school photographs directly to each parent at their cost.
23.The parents be at liberty to attend the child’s school events and/or functions normally attended to by parents, and in the case of the Mother she be at liberty to attend after the suspended time period.
24. That the parents each hereby be restrained by injunction from:
a.consuming alcohol to excess or using illicit substances whilst the child is in their respective care;
b.denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship within the presence or hearing of the child;
c. discussing family law matters in the presence or hearing of the child.
25.The Mother and the Father, and their servants and agents, be and are hereby restrained by injunction from removing or attempting to remove the children [the child] born in 2011 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police place the children’s name on the Airport Watchlist at all ports of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Airport Watchlist for a further period of two years from the date of these Orders.
26.That the Father be authorised and permitted to apply for and receive an Australian Passport and Visa for the child without first obtaining the written consent of the mother, pursuant to Section 11 of the Australian Passports Act 2005 (Cth) and or pursuant to Sections 65D and 67ZC Family Law Act 1975 (Cth).
27.After the expiration of 2 years from the making of these Orders, the Mother and the Father each be permitted to take the child out of the Commonwealth of Australia as follows:
a. during summer school holidays (but not during the Christmas period, save with the written consent of the other) on no more than one occasion every year for a period of up to three weeks at a time; and
b. otherwise during their periods of school term holiday time with the child.
28.Each party will notify the other of proposed travel plans in writing no later than 28 days prior to the proposed travel and thereafter provide the other with a copy of the return tickets, all the itinerary details, including contact telephone numbers of the destinations they intend to stay.
29.In the event of an emergency while travelling, the travelling parent must notify the other parent (non-travelling parent) by telephone of any emergency medical treatment required by the child within 24 hours.
30.The non-travelling parent be at liberty to contact and communicate with the child via telephone, Skype or Facetime during the period of travel every alternate weekend on Sunday for a period of not less than 15 minutes.
31.The non-travelling parent shall be afforded make-up time upon the travelling parent and the child’s return.
32.That both parties keep each other informed of any changes to their residential address, email address and contact telephone number, and advise that other parent of any change in these details in writing no later than 48 hours of such change taking place, with the parents restrained from attending at the other’s home except in the case of an emergency relating to the child or with the express written consent of the other.
33.That the Independent Children’s Lawyer be discharged upon the provision of the final parenting Orders and the accompanying judgement to the Department of Fairness, Families and Housing.
34.In the event that either parent issues an Application in a Case or an Enforcement or Contravention Application in respect of the child within the next 24 months, the application be listed, if practicable, before the Honourable Justice McEvoy.
35.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
MATERIAL RELIED ON
The father relied upon the following material:
(a)Family report dated 27 June 2019 prepared by Mr Q;
(b)Affidavit of the father filed 26 November 2019;
(c)Notice of risk of the father filed 26 November 2019;
(d)Initiating Application of the father filed 26 November 2019;
(e)Magellan Report dated 16 January 2020 (“the Magellan report”);
(f)Affidavit of the father filed 21 April 2020;
(g)Affidavit of Dr GG filed 21 April 2020;
(h)Affidavit of Ms W filed 21 April 2020;
(i)Affidavit of the father filed 13 May 2020;
(j)Amended Application for Final Orders filed 15 May 2020;
(k)Affidavit of Dr R filed 26 October 2020;
(l)Affidavit of the father filed 10 February 2021;
(m)Further Amended Initiating Application filed 10 February 2021;
(n)Section 69ZW reports dated 11 March 2021 and 26 April 2021
(o)Affidavit of the father filed 18 April 2021;
(p)Family reports prepared by Family Consultant Ms AA dated 3 June 2020, 16 February 2021 and 3 May 2021;
(q)Outline of Case filed 7 May 2021;
(r)Written submissions dated 4 June 2021; and
(s)Exhibits tendered at trial including:
(i)A1, being the three prescriptions (Risperdal, Intuniv and Minirin) dated 3 December 2020 and a box each of Risperdal and Intuniv;
(ii)A2, being the train of text messages commencing Thursday 16 June 2016;
(iii)A3, being child behaviour checklist for ages 1 1/2 to 5 dated 7 April 2016;
(iv)A4, being bundle of subpoenaed notes of Ms P in the period 21 May 2016 through to 21 March 2020;
(v)A5, being family contact service observational report dated 10 November 2020;
(vi)A6, being confidential psychological assessment – Dr BB dated 27 May 2017;
(vii)A7, being copy of F school reader entry on 1 April 2018;
(viii)A8, being page 4 mental health care plan dated 21 June 2016 prepared by Dr CC, and, one page of mental health care plan review dated 6 January 2017 prepared by Dr DD;
(ix)A9, being symptoms and history document of uncertain date;
(x)A10, being session notes of Ms L dated 28 October 2020;
(xi)A11, being the book: Some Secrets Should Never be Kept;
(xii)A12, letter from the Department dated 9 November 2020;
(xiii)A13, being Notice of Risk filed 17 June 2016 by the mother in the Circuit Court;
(xiv)A14, being affidavit of the mother filed on 17 June 2016 in the Circuit Court; and
(xv)A15, being the applicant’s selection of N Hospital documents produced on subpoena.
The mother relied upon the following material:
(a)Child Inclusive Memorandum dated 9 August 2016 prepared by Ms EE;
(b)Magellan report dated 16 January 2020;
(c)Affidavit of the mother filed 16 January 2020;
(d)Family reports prepared by Family Consultant Ms AA dated 3 June 2020, 16 February 2021 and 3 May 2021;
(e)Affidavit of the mother filed 5 March 2021;
(f)Section 69ZW reports dated 11 March 2021 and 26 April 2021;
(g)Affidavit of the mother filed 28 April 2021;
(h)Outline of Case document filed 7 May 2021; and
(i)Exhibits tendered at the trial including:
(i)R1, being XX Clinic notes; and
(ii)R2, being notes of Ms W.
The ICL relied upon the following material:
(a)Magellan report dated 16 January 2020;
(b)Affidavit of Dr R filed 26 October 2020;
(c)Outline of Case document filed 7 May 2021;
(d)Section 69ZW reports dated 11 March 2021 and 26 April 2021;
(e)Exhibits tendered at the trial including:
(i)ICL1, being session notes with Ms L dated 13 November 2019;
(ii)ICL2, being session notes with Ms L dated 30 October 2019;
(iii)ICL3, being the Department letter to the mother dated 29 July 2019;
(iv)ICL4, being letter from the mother to the child’s school in February 2017;
(v)ICL5, being the child’s writing notebook from 2021 at the entry of 25 February 2021
(vi)ICL6, being the 2017 school enrolment form;
(vii)ICL7, being an email from the mother to the child’s school dated 10 September 2019 and 21 May 2019;
(viii)ICL8, being an email from the mother to the child’s school dated 15 February 2018;
(ix)ICL9, being a letter from the child’s school to the mother and father dated 27 October 2017; and
(x)ICL10, being a letter from Dr G to General Practitioner at T Medical Centre of 4 November 2017.
Although not all of this material is explicitly mentioned in the balance of these reasons for judgment, it has all been the subject of careful review and consideration by the Court.
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order, the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VIII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
As will be apparent from my consideration of the evidence, I accept the submissions of the father and the ICL that the mother poses an unacceptable risk to the child’s emotional and psychological wellbeing having regard to the course of conduct she has engaged in since 2016 to undermine the child’s relationship with his father. In my assessment whether the mother intended to undermine the child’s relationship with his father (which I consider to be much more likely) or this was merely the product of fixed and rigid thinking on the mother’s part, does not much matter. What matters is the effect that it has had on the child and his relationship with his father. That effect, on any view, has been profound.
I have formed this view on the following bases. The mother embarked upon her course of conduct with allegations in May 2016 that the father had sexually abused the child by reference to the child’s perianal fissure. When she could find no support for this allegation from medical professionals, SOCIT, or the Department, and there existed strong evidence of a more likely cause, she continued to make the allegation to her therapist and to the child’s new school as soon as the child had commenced his preparatory year in 2017. As I have found, her conduct in this regard demonstrated a determination to do all she could to minimise the father’s role in the child’s life and to demonise and disenfranchise him in the eyes of the school and anyone else who would listen.
Yet the mother’s efforts to impede the child’s relationship with his father have extended well beyond this. She left the marriage in June 2016 without any notice to the father, and withheld the child from him for some two months until agreeing after a Child Inclusive Conference in the Circuit Court in August 2016 to orders allowing the child to have limited time on alternate weekends with his father. She made further allegations to her therapist in March 2017 that the child had disclosed to her that the father was sexually abusing him, and at around this time she began to expose the child to literature about inappropriate touching. The day after she agreed to final parenting orders in February 2018, which provided for the father to have gradually increasing time with the child, she sought to involve the child’s school in the gathering of evidence against the father to revisit the final orders that had just been made. By April of 2018 it is apparent that the mother was continuing to expose the child to literature about child sexual abuse and what to do to prevent it, and by July 2018 she had reported to the Department further disclosures of sexual abuse which she alleged the child had made of the father to her.
From this time the mother substantially realised her stated objective of keeping the child away from his father. The Department suspended the child’s time with the father after the July 2018 disclosures, and in the face of further disclosures it would not be reinstated on an unsupervised basis until November 2020.
In August 2018, immediately after the Department had informed the mother that the July 2018 disclosures could not be substantiated and the child’s time with the father could resume, the mother procured the child to make a further disclosure to his speech therapist, setting the whole process of investigation and assessment in train again. If the circumstances in which she did this did not amount to outright coaching, it is clear that the mother had at the very least created an environment in which whatever the child said about sexual abuse at the hands of his father, no matter how unlikely, outlandish or physiologically impossible, would be uncritically accepted and validated by her. Once again, this disclosure did not result in any substantiation by SOCIT or the Department, however the father’s time was further suspended.
This August 2018 disclosure resulted in a second intrusive physical and genital examination of the child, by now aged seven. The Department expressed a concern about possible alienation by the mother, and the examining doctor pointed to the emotional harm which the child would suffer from repeated false allegations of sexual assault, investigation, and forensic assessment.
The mother reported a further outlandish disclosure to the Department which she said the child made to her in early 2019, and the child’s behaviour at school became increasingly sexualised. The mother made highly critical statements about the father when being interviewed by Mr Q for the purposes of the preparation of a further report in mid-2019, and she also made allegations of sexual assault against her by the father to Mr Q. She continued her campaign of denigration against the father with a series of nasty emails to the school in 2019.
It was not until the father had commenced proceedings in the Family Court in late 2019, and the parties received a report about the mother from Dr R in October 2020 which was adverse to the mother in its terms, that the mother agreed to the child having unsupervised time with the father from late 2020. However notwithstanding the reintroduction of the child’s time with the father in October 2020, which was reported to have gone well, the child was continuing to make allegations to his mother (so she said), to his treating professionals, at school, and to child protection officers of the Department, that he had been sexually abused by the father in some way. The mother, it would seem, was continuing to validate the making of these allegations by the child, if not actually procuring the making of them herself. As has been described, the child was to continue to make allegations up to and beyond the hearing of the matter in May and June 2021. The evidence of Ms AA is that he will continue to do so.
As I have said, whether or not, as the father contends, the mother actually set out to paint him as a sexual pervert to ensure that he would have no time with the child is ultimately beside the point. Regardless of her intention I am satisfied that the mother’s conduct over the past five years has produced a situation where the child’s relationship with his father has been significantly compromised and the Court can have no confidence that if the child were to remain living with his mother this would not continue to occur, and indeed become worse. In my assessment the mother’s conduct has also substantially contributed to a situation where the child’s psycho-sexual development and functioning has been severely disrupted, and he has become more than usually difficult to manage at school and in his dealings with people. There is every indication that without some significant intervention the situation in this regard will only become worse.
Insofar as the mother submits that her actions over the past five years have been, in all the circumstances, a proportionate and legitimate response to a genuinely held concern and that she has been consistently supported by the Department in suspending the child’s time with the father, I do not accept this submission. The argument mischaracterises what has actually occurred. The only reason that the Department has, at various times, supported the suspension of the child’s time with the father is because the mother’s activities have succeeded in creating a sufficient appearance of paternal sexual abuse that the Department has considered no other course to be tenable. The mother cannot rely on her own manipulation of the child protection system to call its ill-founded responses in aid of her position when that very manipulation is on trial.
Further, the mother’s submission that she does not maintain that the child’s allegations against the father have actually occurred, only that they are what the child has said, cannot sensibly be accepted. In the first place she accepted in cross examination that she retained a concern that the father may still be sexually abusing the child. Secondly, it is plain that the mother has consistently affirmed and validated the making of allegations by the child against his father. There is no evidence that she has ever explored them with the child, or subjected the child to any serious interrogation about them. I accept that whether intentionally or not, the mother has created an environment where the child perceives that the making of these allegations is what she wants, and that if he wishes to remain living with her he must continue to make them.
Insofar as the mother submits that the Court should be suspicious of the father’s candour, that he does not accept the child’s diagnoses, and that he has not properly prepared to have the child in his care, I reject these submissions. I have not found the father’s candour to be wanting, certainly not when measured against the mother’s. Nor is it apparent that he does not accept the child’s diagnoses – he says that he does, and according to the Department he has commenced the process of engagement with the child’s health professionals. And as to the suggestion that the father has not sufficiently prepared to assume the primary care of the child, I am not convinced that this is a disabling factor. He has clearly engaged to some extent with what he would need to do, and in my view he can be forgiven for focusing his attention on maintaining his relationship with the child, defending himself from the serious aspersions that have come his way, and prosecuting his case against the mother. Assuming primary care of this child will not be easy for the father, but he has been committed to it for some time now, and he has stayed a very difficult course.
The suggestion made by the mother that she has been an engaged parent who has provided for the child’s physical and emotional needs requires special scrutiny. At one level it may be accepted that she has provided for the child’s basic physical needs. She has fed him, clothed him, and sheltered him. However as has been the subject of detailed consideration, the child is in a fragile and difficult emotional state. He is torn between two parents who love him, one of whom has dedicated the last five years of her own life and his to keeping him away from his father. Indeed, she has confided in her therapist that she intended to continue to do this until the child was 18 years old. The child is not coping well at school, and his interaction with other children and sometimes adults is characterised by highly problematic sexualised behaviour. The child’s difficult emotional state, the evidence discloses, is a product of the toxicity in the relationship between his parents which I accept has been predominately driven by the mother, and her unshakable conviction that the child has been the victim of sexual abuse. The involvement of the child by the mother in this narrative, in all the ways the evidence discloses, makes it impossible to accept that she has properly provided for the child’s emotional needs. Indeed, in many ways she has not provided for them at all. For all these reasons it must be accepted that the mother poses an unacceptable risk to the child’s emotional and psychological wellbeing.
Residence and Parental Responsibility
What then, in all the complicated circumstances of this case, is to be done? There can be no doubt that moving the child’s residence to the father will be very disruptive to the child, particularly in the short to medium term. The mother has been his primary carer for at least the past five years, and for much of the first five years of his life as well. That consideration weighs heavily in the balance. However s 60CC(2) of the Act requires that the primary considerations in determining what is in a child’s best interests are the benefit of having a meaningful relationship with both parents, and the need to protect the child from, in this case, psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. Section 60CC(2A), of course, requires that greater weight be given to the second of these matters.
In the particular circumstances of this case I consider that both these primary considerations compel orders in the best interests of the child that his residence be changed so that he live with the father, and that the father have sole parental responsibility subject to a requirement that he consult with the mother in relation to major long term issues. As I have found, there is no serious prospect that the mother will facilitate a relationship between the child and his father. She has had many chances to do so, but as the evidence discloses she has demonstrated consistently that the task is beyond her. The mother’s conduct in this regard is a clear example of family violence (see s 4AB(2)(i) of the Act) for the purposes of s 60C(2)(b) of the Act, as well as being abusive and neglectful.
In my assessment there is a much better prospect that the father will act so as to facilitate a relationship between the child and his mother, and he should be given the opportunity to do this. Although I accept the mother’s submission that the father was not much enamoured of her in the witness box, in light of the ordeal to which she has subjected him this is hardly surprising. I take comfort however from the father’s historic commitment to ensuring that the child has both parents in his life, and his indication at trial that, in due course, he would wish for the child to be able to maintain a relationship with his mother. I am also of the view that, although the change in residence will likely be difficult at first, ultimately the child will be able to cope with it. The evidence of Dr R is relevant in this regard, as is the evidence that the child delights in the company of his father when he actually sees him.
Fundamentally however, in light of my finding that the mother poses an unacceptable risk of psychological and emotional harm to the child by reason of her exposure of him to abuse, neglect and family violence in the manner which has been described, his continuing residence with her is simply untenable. It cannot be regarded as being in his best interests, and it must change. Further, it follows from this analysis that having regard to all of the evidence I do not consider that any of the additional considerations in s 60CC(3) of the Act, particularly s 60CC(3)(a), (b), (c), (ca), (d), (f), (g), (i), and (j), can operate to produce any different result. I have considered each of the relevant subsections of s 60CC(3) in reaching this decision, although I have not specifically referred to each consideration: Banks & Banks (2015) FLC 93-637 at [49], [52].
Insofar as equal shared parental responsibility is concerned, by reason of the mother’s abuse of the child and the family violence she has perpetrated on him, the presumption of equal shared parental responsibility does not apply (s 61DA(2)). In all the circumstances I do not consider that an order for equal shared parental responsibility would be in the best interests of the child or workable. It is clear on the evidence that the relationship between the mother and the father has completely broken down. I doubt that it will be assisted by the findings that I have made in these reasons for judgment. The history of these parties is such that they could not be expected to be able to communicate with one another about matters of significance for the child in a way which would be necessary if they were to have equal shared parental responsibility. I do not consider that they are capable now, or in the foreseeable future, of achieving what the Act requires of those who share parental responsibility: s 65DAC of the Act. Accordingly the father will have sole parental responsibility for the child. That this is necessary is a function of the evidence which I have accepted of the mother’s behaviour over the last five years. It would not be in the best interests of the child or feasible for the father to be compelled to make joint decisions with her about the child’s interests moving forward.
However, the father says that he is prepared to consult with the mother in writing about educational, medical or religious decisions that he proposes. In these circumstances it is appropriate that there be orders that he does so, particularly having regard to the significance of excluding one parent altogether from decision making in respect of major long-term issues for their child.[127]
[127] See Hardie & Capris [2010] FamCA 1046 at [70]-[73] (Murphy J)
Insofar as the mother submits that her retaining the child’s residency would be the “least worst option”, and the Department urges caution in changing the child’s residence, it is apparent that in the face of all the evidence I am unable to accept that such a course would be in the best interests of this child. As I have said, I consider it to be clear that unless the child lives with his father he will not be able to have a meaningful relationship with him, the mother will continue to subject the child to abuse, neglect, and family violence, and the child’s highly problematic behaviours will become worse. The child’s best interests will be served by the change of residence and parental responsibility.
Orders
Although the father and the ICL submitted different versions of proposed final orders, there was considerable similarity between them, and in final submissions those similarities converged to a point where counsel for the father accepted that for the most part the orders proposed by the ICL should be made. Obviously enough the mother proposes a wholly separate regime. Having regard to and subject to what follows, there will be orders in the terms proposed by the ICL.
On the basis that the child would live with the father, the principal issue between the parties in relation to time was the suspended time period; that is how long the child should have no time with the mother to enable him to settle into the new arrangements and break the circuit of damage caused. The mother’s position was that the ICL’s proposed orders should be preferred because, amongst other things, it would be inappropriately punitive to cease time between the mother and child for six months to be followed by four months of supervised time. The ICL’s position was that three months would be sufficient. The father pressed for six months, although his counsel conceded that only the time necessary to ameliorate the damage the mother has done and enable the child to readjust was necessary. She submitted that regard should be had to what Ms AA and Dr R said on this subject, and that ultimately the father would be content with a lesser period than six months if that was thought to be appropriate.
Dr R’s positon was that an initial period of three months of suspended time was probably appropriate, building up to around six months of supervised time, moving to unsupervised time conditional on the mother’s behaviour having changed. Ms AA was more equivocal, although she accepted in cross examination that some period of suspended time would be necessary.
In all the circumstances I accept the evidence of Dr R and Ms AA that some period of suspended time is appropriate, and in light of Dr R’s recommendation there will be orders that the mother’s time with the child be suspended for three months.
Thereafter the child’s time with the mother should be supervised for a period: the ICL says six months, the father says four months, although ultimately the father’s counsel suggested that five months would be appropriate. There is no particular magic to this, and of course much depends on how the mother’s cognitive behavioural therapy progresses. In all the circumstances however I accept Dr R’s recommendation that six months of supervised time is the appropriate period for up to three hours each fortnight and at the mother’s expense.
Neither the orders proposed by the ICL nor the orders proposed by the father contemplate that the mother’s progression to unsupervised time with the child should be conditional on a satisfactory report from the professional supervisor, although they both contemplate the preparation of such a report. In these circumstances I will not require a satisfactory report from the professional supervisor before the mother moves to unsupervised time, but as I have provided in the orders that the parties have liberty to apply to me by way of an application in a proceeding, the parties may apply for the variation of the orders for the mother to have unsupervised time with the child in the event that this is contraindicated by any report prepared by the professional supervisor.
Insofar as the child’s progression to overnight time with the mother is concerned, the ICL proposes there be a period of eight weeks where the child has unsupervised time with the mother before moving to overnight time, whereas the father proposes six weeks. Once again, there is no particular magic to this, and the success or otherwise of the reintroduction of the mother to the child will depend on the progress of her therapy. Nonetheless, if the father is content with a six week period I am prepared to make orders in those terms. Contrary to the mother’s submissions I consider that there should be a staggered progression of overnight time thereafter.
Ultimately therefore there will be a three month period of no time with the mother, followed by a six month period of supervised time, followed by a movement to unsupervised time. In due course the child will spend time with the mother every other weekend, on the Wednesday evening after school and for dinner in the alternate week, and will progress to half of school holidays. In my assessment such a regime will be in the best interests of the child, assuming the mother responds effectively to the cognitive therapy in which I have ordered her to engage.
Insofar as the distribution of these reasons for judgment to certain necessary persons is concerned, I accept that this should occur in the terms sought by the ICL, albeit that I would reserve to the Principal of the child’s school the discretion to provide the reason to other relevant teachers as appropriate (most obviously the child’s classroom teacher each year).
On the subject of whether the child should remain at his present primary school, in light of Dr R’s evidence that a transition to a new school may not be any more difficult for the child than transition into the next grade at his existing school, and having regard to the difficulties already being experienced by the child at his existing school, I do not consider it desirable to be too prescriptive about which school the child attends next year and the following year. It may be better that the child stays at his existing school, it may be better that he moves. The father will have sole parental responsibility and it will be for him to decide what is best in this regard, taking advice as appropriate from the professionals involved and having regard to the mother’s views also. Accordingly I will not make an order that the child remain at his existing school, although obviously it would presumably be desirable that he at least do so for the balance of this year.
In relation to whether the mother can attend events at the child’s school after the suspended time period, I am content for this to occur. I do not consider that, for the purposes of these occasions, supervision would be required or practicable.
On the subject of travel, the ICL has proposed that the child remain on the watch list for a further period of two years but be able to travel thereafter, with a series of ancillary orders to govern any travel. The father is content with these proposals, although the mother says that the child should remain on the watch list until May 2026 and she proposes other travel-related orders.
I am content with the orders the ICL proposes in relation to travel, save for the frequency of communications when the child is abroad. In my assessment there is no requirement for the child to remain on the watch list until 2026 or for any injunction in the terms sought by the mother preventing the parties from taking the child to a non-Hague Convention country. There is nothing to suggest that the father wishes to or would do anything more than take the child to see his paternal family in the United States, where they have lived for many years. He cannot easily do this at present anyway because of the COVID-19 travel restrictions which are in place. I do not accept that as a Country WW American there would be any serious prospect of him seeking to take up residence in Country WW with the child. Nor do I accept that there is any need for the payment of a cash bond or any of the other orders relating to travel that the mother seeks. Insofar as the ICL and the father propose communication for only 15 minutes each alternate Sunday while the child is travelling, I consider that a preferable regime would be every weekend for 30 minutes. The mother’s proposal that the child be able to speak with the non-travelling parent every other day is unduly intrusive and likely to be difficult to organise.
On the subject of the parties keeping one another informed of their residential addresses, although the mother has resisted an order in these terms it was conceded by her counsel that it would be untenable for the father to have residence and not know where the child was living when he was with the mother. There will be an order in this regard in the terms proposed by the ICL.
Insofar as the mother seeks orders relating to faith based and extra-curricular activities, that the child sleep in his own bed and bedroom, restraints from physical discipline and that the father be required to take the child to the doctor if he is too unwell to go to school, I do not consider that there is a need for such orders. I am not concerned that the father will seek to sleep with the child or to discipline him physically, or unnecessarily keep him away from school, and the father is to have sole parental responsibility. I am confident that he will be able to discharge this responsibility appropriately.
I will hear the parties as necessary if there are any outstanding matters relating to the orders to be made.
It remains, finally, to acknowledge the Court’s appreciation of the considerable efforts of counsel and solicitors for each of the parties and the ICL. The proceeding has been complicated, difficult and unfortunate. The Court has been greatly assisted by the efforts and professionalism of the practitioners involved.
I certify that the preceding four hundred and fifty-eight (458) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Dated: 23 September 2021
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