HAMILTON & LOGAN

FAMILY COURT OF AUSTRALIA

HAMILTON & LOGAN

[2015] FamCA 647

FAMILY LAW – CHILDREN – Best interests – with whom a child lives – with whom a child spends time – parental responsibility – where the child has been diagnosed with autism spectrum disorder – where the child has a need for stability and routine – where there is a greater likelihood that the father will be able to provide the child with stability – where the mother failed to appear on the final day of hearing – where the mother’s inability to provide a stable presence in the child’s life coincides with court events – where the father lacks insight into the importance of the mother’s role in the child’s life – no risk of physical harm posed by the mother to the child – inability of the parties to communicate – final orders that the father have sole parental responsibility, that the child live with the father and that the child spend time with the mother for four nights per fortnight

FAMILY LAW – PROPERTY – Just and equitable – final orders made by consent

Family Law Act 1975 (Cth)

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT:

Ms Hamilton

RESPONDENT:

Mr Logan

INDEPENDENT CHILDREN’S LAWYER:

Taylor Splatt & Partners

FILE NUMBER:

MLC

3521

2011

DATE DELIVERED:

5 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

23 - 25 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Mawson QC with Mr Smith
SOLICITOR FOR THE APPLICANT:	N/A

COUNSEL FOR THE RESPONDENT:

Ms Juneja

SOLICITOR FOR THE RESPONDENT:

G A Black & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taylor Splatt & Partners

Orders

(1)That all previous parenting orders be discharged.
(2)That the father have sole parental responsibility for the child B born … 2005.
(3)That prior to making any decision pursuant to order 2 hereof regarding the child’s health (save in the event of a medical emergency), education, religion or living arrangements, the father provide to the mother not less than 14 days prior notice in writing of his proposed decision and not implement such decision until the expiration of 14 days from the date of that notice being sent to the mother to enable the mother to provide to him a written statement of her view concerning the proposed decision.
(4)That the child live with the father.
(5)That the child spend time and communicate with the mother as follows:-
(a)During school term:-
(i) each alternate weekend from after school Friday until the commencement of school Monday, commencing…;
(ii) each alternate week from after school Thursday to the commencement of school Friday commencing…;
(b)By telephone each Tuesday and each alternate Thursday when the child is not spending time with the mother between 6.00 pm and 6.30 pm, with the mother to initiate such call;
(c)On Mother's Day each year from 10.00 am to 4.00 pm in the event that such day does not fall on the mother’s weekend with the child;
(d)For three hours on the child’s birthday at times to be agreed and failing agreement from 4.00 pm to 7.00 pm;
(e)From 2.00 pm 24 December to 2.00 pm 25 December in 2015 and each alternate year thereafter;
(f)From 2.00 pm 25 December to 2.00 pm 26 December in 2016 and each alternate year thereafter;
(g)For one half of all school term holidays at times to be agreed and failing agreement for the first half of the said holiday period;
(h)For one half of the long summer holiday period at times to be agreed and in the absence of agreement on a week-about basis with the mother to have the first week and each alternate week thereafter; and
(i)As may otherwise be agreed between the parties from time-to-time.

(6)That for the purposes of the mother’s time pursuant to order 5 hereof, changeovers occur at the child’s school and in the event that it is a non-school day such changeovers occur at McDonald’s Restaurant, Suburb G.
(7)That the mother’s time be suspended during the following periods:-
(a)From 10.00 am to 4.00 pm on Father’s Day;
(b)In the event that the child’s birthday falls during the mother’s time for three hours on the child’s birthday at times to be agreed and failing agreement from 4.00 pm to 7.00 pm;
(c)From 2.00 pm 25 December to 2.00 pm 26 December in 2015 and each alternate year thereafter; and
(d)From 2.00 pm 24 December to 2.00 pm 25 December in 2016 and each alternate year thereafter.

(8)That the mother’s time pursuant to orders 5(a) to 5(b) inclusive be suspended during school holiday periods.
(9)That the mother and the father do all acts and things and sign all documents as may be required from time-to-time to facilitate the child’s dual enrolment at C School and Suburb G Primary School.
(10)That the mother and the father by themselves their servants and agents be and are hereby restrained from:-
(a)Criticising or denigrating the other party in the presence or hearing of the child; and
(b)Discussing these proceedings or any documents or reports prepared in relation to these proceedings in the presence or hearing of the child.

(11)That the mother and the father do all such acts and things as may be required to complete a course of therapeutic counselling to assist them in their co-parenting relationship, such course to be nominated by the Independent Children’s Lawyer, and the parties share equally the costs of such therapeutic counselling.
(12)That the mother do all such acts and things as may be required to continue therapeutic counselling as directed by her general medical practitioner and her psychologist Ms H.
(13)That the father do all such acts and things as may be required to facilitate the child’s attendance at a Supporting Children after Separation Program, such program to be nominated by the Independent Children’s Lawyer.
(14)That the mother and the father each keep the other informed of any change of their residential address or contact telephone numbers, notice of such change to be provided to the other parent within 48 hours of such change occurring.
(15)That as soon as practicable the mother and the father do all such acts and things as may be required to keep the other informed of any significant injury or illness suffered by the child when in their respective care, such information to include:-
(a)The nature of the significant injury or illness;
(b)The names of all relevant treating medical and like practitioners; and
(c)The treatment given to date and any information in his or her possession about the diagnosis.

(16)That the mother and the father each be authorised to communicate with any treating medical practitioner or allied health professional consulted by the child regarding their treatment or assessment of the child.
(17)That the father do all acts and things as may be required to authorise the child’s school to forward to the mother at her expense all school reports, newsletters and information ordinarily provided to parents and the mother be at liberty to attend all school-related events which parents are invited to attend.
(18)That within 30 days of the date of these orders the appointment of the Independent Children’s Lawyer be discharged.
(19)That 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 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.

IT IS DIRECTED

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3521 of 2011

Ms Hamilton

Applicant

And

Mr Logan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

F is 9 years old. She is the only child of her parents and is much loved by them.
When she was aged three years, the child was diagnosed with autism spectrum disorder (“ASD”). It is agreed between her parents that the nature of her condition means that the child is a child who requires a high degree of structure, predictability and consistency in her daily routines.
At issue are the parties’ competing applications with respect to the future parenting arrangements for the child.
Prior to the commencement of these proceedings the child lived with the mother and spent time with the father. Since March 2012, due to concerns with respect to the mother’s mental health and her ability to provide a stable and safe environment for the child, the child has lived with the father and spent time with the mother. At the time of the hearing, the child spent time with the mother each alternate weekend from after school Friday to the commencement of school Monday.
At the commencement of the hearing the mother sought orders that the child live with the parties on a “week about” basis and that they have equal shared parental responsibility. The mother’s conduct in failing to attend Court on the last day of the hearing significantly undermined her application. In the absence of instructions from his client, Senior Counsel, who appeared on behalf of the mother on a pro bono basis, was not in a position to make any submissions on behalf of the mother in closing addresses.
The father opposes the mother’s application. The father alleges that the mother has threatened suicide at times when the child has been in her care. As a result, he has concerns for the child’s safety when in the mother’s care. The father alleges that the mother’s behaviour is erratic and unpredictable (the most recent example of that being her non-attendance at Court on the final day of the hearing) and that such behaviour compromises the mother’s ability to provide the consistent routine that the child needs. As a consequence, the father seeks orders that he have sole parental responsibility for making decisions regarding the child, that she live with him and that the mother spend such time with the child as may be agreed between the parties.
The Independent Children’s Lawyer (“the ICL”) supports the father’s position that the child should live with him. The ICL submits that the father should have sole parental responsibility for decisions regarding the child’s education. As to the mother’s time, the ICL submits that the mother should spend time with the child on alternate weekends from after school Friday to the commencement of school Monday and for one night each alternate week from after school to the commencement of school the following day.
The matter was heard over three days. Prior to the commencement of the final hearing the parties presented a signed minute of consent with respect to their competing property applications. Having been satisfied that the orders proposed were just and equitable, I made final orders by consent in accordance with that minute.
These are my reasons for judgment with respect to the remaining parenting issues.

The Parties

The applicant is the child’s mother. She was born in 1961 and is aged 53. She currently works on a part-time basis as a store person. The mother does not work when the child is in her care.
The mother lives in the former matrimonial home at Suburb E, which she will retain pursuant to the final property orders made by me. The mother has not re-partnered.
The mother suffers from anxiety and depression. She has attended upon her psychologist, Ms H, since 2010 in relation to these issues. At the time of the hearing the mother was attending upon Ms H on a monthly basis and was taking antidepressant medication prescribed by her general medical practitioner.
The respondent is the child’s father. He was born in 1976 and is aged 39. He is currently unemployed and is dependent upon Centrelink benefits and modest child support paid by the mother. The father last worked in May 2012. He ceased working when the child commenced living with him. The father is currently undertaking study with the aim of re-entering the workforce. He also volunteers at a community newspaper.
The father lives in rental accommodation in Suburb G.
The father is in a relationship with Ms I. That relationship commenced in 2011. Ms I lives in J Town with her children from a previous relationship, who are aged 16, 12 and nine. Ms I’s 12 year old son also has autism.
The father’s evidence is that he and the child spend one or two nights per fortnight at the home of Ms I. Further, Ms I spends nights during the week with them at the father’s home.
The parties commenced cohabitation during 2003 and married in 2004. They separated on a final basis in April 2011. The parties divorced in November 2013.
B is the only child of the marriage. She was born in 2005 and is nine years. As previously noted, the child was diagnosed with ASD at age three.
Since 2011, the child has attended C School in Suburb K, a specialist school for children with ASD. She is in Grade 4.
B is observed by her parents and teachers to be a bright and bubbly child. In 2014 the child undertook Naplan testing at Grade 3 level. Her results from that testing indicate that she fell within the average achievement range for 60 per cent of Grade 3 students in reading, above the national average in spelling and just below the achievement band range for persuasive writing, grammar and punctuation and numeracy. As a result of that assessment Ms L, the principal of C School, has recommended that the child commence a dual enrolment with a local primary school (Exhibit ICL4). Accordingly, with the agreement of the mother and the father, the child will commence transitioning into Suburb G Primary School, a mainstream school, in 2015 for the purpose of dual-enrolment.

Material Relied Upon

The mother relied upon the following material:-
·The mother’s trial affidavit filed on 23 February 2015; and
·The affidavit of Ms H filed on 21 January 2014.
The father relied upon the following documents:-
·Outline of Case filed 20 February 2015;
·The father’s trial affidavit filed 20 February 2015;
·The father’s affidavit filed 7 May 2014;
·Family Report of Ms B dated 28 March 2014; and
·The updated Family Report of Ms B dated 1 August 2014.
The ICL relied upon the following material:-
·Outline of case filed 26 November 2014;
·Family Report of Ms B dated 28 March 2014; and
·The updated Family Report of Ms B dated 1 August 2014.

The Hearing

Each of the parties was represented by counsel at the hearing. The mother was represented by Senior and Junior Counsel who appeared pro bono following a request made by the Registrar of this Court to the Victorian Bar Family Law Pro Bono Scheme. The Court is most grateful for the assistance generously provided by both Senior and Junior Counsel in ensuring that the mother’s case was prepared and able to proceed, and in appearing on her behalf for the three days of the hearing.
The witnesses were the mother, the father and Ms B, the family consultant. Each witness was cross-examined. The mother’s psychologist was not required for cross-examination.
The mother failed to attend Court on the third day of the hearing. I was informed by Senior Counsel for the mother that the mother had withdrawn her instructions to appear after Court the previous day. As a consequence, Senior Counsel for the mother was not able to make any closing submissions on behalf of his client.
On the third day of the hearing Counsel for the father sought leave to recall the father as a witness to give evidence of communications the father had with the mother the preceding evening after Court had concluded. Given the unexplained absence of the mother, I granted leave to the father to give that evidence.
The father gave evidence of four text messages he had received from the mother over the course of the previous night and that morning. The content of those text messages from the mother to the father’s mobile telephone was as follows:-
Message 1:You can celebrate tomorrow. [Ms Hamilton].
Message 2:As from tomorrow you’ll have full custody. I hope you are happy.
Message 3: F’s going to miss her [Ms Hamilton].
Message 4:I have instructed my lawyer to give you full custody of [the child]. So I will never see her again. I will miss her more than anything in the world but at least you will be happy that I won’t ruin your little girl.
The father’s evidence was that he did not respond to any of those text messages.
The failure of the mother to attend Court on the final day of the hearing is troubling, particularly in circumstances where it is alleged by the father that the mother’s behaviour is erratic and unstable and as a result of that behaviour it is said that the mother has been a source of instability in the child’s life.
Counsel for the father and the ICL each made closing submissions on the third day of the hearing in the absence of the mother.

The Mother’s Proposals

The orders sought by the mother are set out in Exhibit A1, which was tendered by Senior Counsel for the mother in the course of his opening submissions. It provides as follows:-
1.All previous orders be discharged.
2.The wife and husband have equal shared parental responsibility for the child the child [F] born in 2005.
3.The child live with each parent on a week about basis commencing at after school (or 3pm if a non-school day) each Monday.
4.Notwithstanding para.3 herein, the child spend time with the husband as follows:
(a)For Christmas as follows:
(i)     In even numbered years, from 3pm Christmas Eve to 3pm Christmas Day;
(ii)    In odd numbered years, from 3pm Christmas Day to 3pm Boxing Day;
(b)For the weekend of Fathers’ Day from 5pm on the day before Fathers’ Day to 5pm on Fathers’ Day;
(c)On the child’s birthday and the husband’s birthday (if the child is not otherwise spending time with the husband):
(i)     For 3 hours if the birthday falls on a week day as agreed and failing agreement from 3.30pm to 6.30pm; or
(ii)    For 5 hours if the birthday falls on a weekend as agreed and failing agreement from 10.00am to 3pm;
(d)As otherwise agreed between the parties in writing.
5.Notwithstanding para.4 herein, the child spend time with the Wife as follows:
(a)For the weekend of Mothers’ Day from 5pm on the day before Mothers’ Day to 5pm on Mothers’ Day;
(b)For Christmas as follows:
(i)     In odd numbered years, from 3pm Christmas Eve to 3pm Christmas Day;
(ii)    In even numbered years, from 3pm Christmas Day to 3pm Boxing Day;
(c)On the child’s birthdays and the Wife’s birthday (if the child are [sic] not otherwise in the Wife’s care):
(i)     For 3 hours if the birthday falls on a week day as agreed and failing agreement from 3.30pm to 6.30pm; or
(ii)    For 5 hours if the birthday falls on a weekend as agreed and failing agreement from 10.00am to 3pm;
(d)As otherwise agreed between the parties in writing.
6.The child communicate with either parent at all reasonable times with the other parent to facilitate same.
7.When changeover does not occur at the child’s school, changeover take place at the McDonalds Restaurant on [Ms Street, Suburb N] or as otherwise agreed between the parties in writing.
8.The wife and the husband be restrained from:
(a)Denigrating the other parent or the other parent’s family in the presence and/or hearing of the child, or allowing anyone else to do so;
(b)Discussing these proceedings with or in the presence and/or hearing of the child or allowing anyone else to do so;
(c)Passing messages through the child;
(d)Allowing the child to watch or hear television shows, films, videos, computer games, publications, classified above G rating;
(e)Involving the child in any form of conflict, between the parents or otherwise.
9.The wife and the husband keep each other informed of any significant injury or illness suffered by the child when in their respective care, as soon as practicable, advising the other of:
(a)The nature of the significant injury or illness;
(b)The names of all relevant treating medical and like practitioners;
(c)The treatment given to date and any information in his or her possession about the diagnosis; and
(d)Either parent be at liberty to contact treating medical and like practitioners to seek further information and advice.
10.The wife and the husband be authorised to communicate with any treating medical and like practitioners of the child.
11.The wife and the husband each keep the other informed of their contact details including residential address, email address and telephone number.
12.The wife and the husband:
(a)Be authorised to communicate with any school that the child may from time to time attend for the purposes of obtaining information and providing input into the child’s learning and development; and
(b)Be at liberty to request school reports and records, photos and other notices be sent to them at their own expense; and
(c)Be named as the primary emergency contacts for the child.
13.The wife and the husband be at liberty to attend all school functions, extracurricular, social and sporting activities of the child to which parents are normally invited.

The Father’s Proposals

The orders sought by the father at the commencement of the trial are set out in Exhibit R1, which provides as follows:-
1.That the husband have sole parental responsibility of the child of the relationship the child [F] (b. 13/9/2005) (“B”).
2.That the child live with the husband and spend time with the wife as follows:
(a)Each alternate weekend from Friday at 3.00pm until Monday morning at 9.00am;
(b)From 2.00pm Christmas Day until 2.00pm Boxing Day in 2016 and each alternate year thereafter;
(c)From 2.00pm Christmas Eve until 2.00pm Christmas Day in 2015 and each alternate year thereafter;
(d)From 2.00om Easter Eve until 2.00om Easter Day in 2015 and each alternate year thereafter;
(e)From 2.00pm Easter Day until 2.00pm the following day for 2016 and each alternate year thereafter;
(f)For three hours on the child’s birthday if it falls on a day on which the wife does not have the care of the child;
(g)From 10.00 and [sic] to 3.00pm on Mother's Day;
(h)For three hours on the wife’s birthday if it falls on a day when the chid [sic] is not in the care of the wife;
(i)At other times as agreed between the parties.
3.That changeover take place during school time at the child’s school and during non-school times at McDonald’s, Suburb G.
4.That the husband is to spend time with the child as follows:-
(a)From 2.00pm Christmas day until 2.00pm Boxing Day in 2015 and each alternate year thereafter;
(b)From 2.00pm Christmas Eve until 2.00pm Christmas Day in 2016 and each alternate year thereafter;
(c)From 2.00pm Easter Day until 2.00pm the following day in 2015 and each year thereafter;
(d)From 2.00pm Easter Eve until 2.00pm Easter Day in 2016 and each alternate year thereafter;
(e)For three hours on the child’s birthday if it falls on a day on which the husband does not have the care of the child;
(f)From 10.00am top [sic] 3.00pm on Fathers [sic] Day;
(g)For three hours on the husband’s birthday if it falls on a day when [the child] is not on the fathers [sic] care;
(h)At other times as greed between the parties.
5.That in the event that either parent wishes to take the child on holiday they shall notify the other parent 14 days prior to the date of departure and provide an itinerary and relevant contact details to that parent.
6.That the wife continue to access therapeutic support as advised by her treating practitioner until assessed as no longer required.
7.That in the event the child suffers a medical emergency or condition, the parent with whom the child is residing pursuant to these orders shall immediately contact the other parent and advise the nature of the emergency, medical condition and any suggested medical treatment or hospitalisation.
8.That [the child] continue to attend [C School] and the parents liaise and follow guidelines of the Principal of the school regarding her transition to mainstream education at [Suburb G] School.
9.That the parents and their agents are hereby prohibited from discussing these proceedings or denigrating the other parent or members of their family in the presence or hearing of the child.
10.That s 65DA(2) and s.62B of the Family Law Act 1975 apply.
The father modified his position on the last day of the hearing. Given the failure of the mother to appear on the final day, it was submitted on behalf of the father that the only order that I should make regarding the mother’s time with the child was that such time be as agreed between the parties.

The ICL’s Proposals

The position of the ICL at the commencement of the trial was framed in similar terms to that of the father, save in respect of parental responsibility. The orders sought by the ICL at the commencement of the hearing, as contained in Exhibit ICL1, are summarised as follows:-
·That the parties have equal shared parental responsibility for the child except in relation to the question of the child’s schooling and education;
·That the father have sole parental responsibility for the schooling and education of the child and that he authorise the child’s school to forward all school material to the mother at her expense and that the mother be at liberty to attend all school-related events which parents usually attend;
·That the child live with the father;
·That the child spend time and communicate with the mother:-
oDuring school term each alternate weekend from after school on Friday until before school on Monday;
oBy telephone each Tuesday and Thursday between 6.00 pm and 6.30 pm;
oFor half of all school term holidays commencing Term 1, 2015 on dates to be agreed and in default of agreement, the first half subject to the mother having leave from work; and
oFor half of the long summer school holidays commencing 2015 / 2016 on a week-about basis on dates to be agreed and in default of agreement, the mother to have the first, third and fifth weeks.
By the time of closing submissions, the position of the ICL had altered with respect to the orders sought in relation to the time the mother spends with the child. The ICL proposed that the mother spend time with the child each alternate weekend from after school Friday to the commencement of school Monday and each alternate week from after school Thursday to the commencement of school Friday.

Relevant Legal Principles

Section 60B(1) of the Family Law Act1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act. Those objects are to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Sections 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. Section 60 CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent; the Court must have regard to the circumstances since separation (s 60CC(4A)). I will return to those considerations in detail below.
The determination of what is in the best interests of the child in question in the particular circumstances of the case must be made in a way that is consistent with the objectives of Part VII of the Act and the principles underlying those objectives, the primary considerations identified at s 60CC directly taking up the first two of those objectives.
The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is that they seek orders with respect to:-
(a)With whom the child is to live;
(b)With whom the child is to spend time;
(c)The allocation of parental responsibility for the child.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. For the reasons set out hereunder, I am satisfied that it would be contrary to the child’s best interests for the father and the mother to have equal shared parental responsibility. Accordingly, I am satisfied that the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility does not apply in this matter.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses. I have considered all of the evidence and had the opportunity to observe the appearance and demeanour of the mother and the father. I make my findings on the balance of probabilities, having regard to the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

Background

Final parenting orders were made by consent in the Federal Magistrates’ Court (as it then was) at Melbourne in August 2011. Those orders provided that the parties have equal shared parental responsibility, that the child live with the mother and spend time with the father. The amount of time the father was to spend with the child was conditional upon him obtaining independent accommodation for himself and the child. Subject to the father securing such accommodation, the orders provide that the father spend three nights per fortnight and one afternoon per fortnight with the child, as well as time over the Christmas period.

Events of March 2012

On 24 March 2012, approximately nine months after the orders were made the mother sent a series of text messages to the father. The father’s interpretation of those text messages is that the mother was threatening suicide. The mother admits texting the father but denies his interpretation of those messages.
The chain of text messages passing between the parties that day is set out at paragraph 14 of the father’s trial affidavit filed 20 February 2015 (“the father’s trial affidavit”) and is as follows:-
Wife:Its great 2 b alive excuse the pun but no 4 long. [the child] doesn’t want me to visit grandma but I said its [sic] gods [sic] way.
Wife:Its [sic] all good gas & booze and sleep in pills cool eh.
Me:[F] needs u
Wife:No she doesn’t we have talked about it. I can’t give her wot [sic] u can eg finacel [sic] security mom and dad u have [s]een 2 that. I can’t pay my elect bill my car is fucked & sop [sic] am I. I am preparing her 4 it. I have told her I cant [sic] support her. She doesn’t understand but she will when I am not around. Plz [sic] tell me if u can have [the pets]. Otherwise I will have 2 find homes 4 then.
Wife:I need 2 go really soon plz [sic] ring me
Wife:its [sic] clear you don’t care about my life
Wife:[F] is upset I am going to heaven
Wife:U really need 2 ring me plz [sic]
Wife:Plz [sic] ring me plz [sic]
Wife:U will regret it one day when u don’t ring me.
Wife:U need 2 talk 2 the child she is upset plz [sic] [Mr Logan]
Wife:Fuck u if u don’t want 2 speak 2 me or the child u will regret it
Wife: I am gonna [sic] die yeah!
Wife:If u don’t wanna talk 2 me 4 get 2 morrow
Wife:u know people say she not gonna [sic] do it but uknow [sic] wot [sic] u better the police 2 come around
Wife:Ur not gunna [sic] talk 2tme ring the police plz [sic]
Wife:Bye bye p
Wife:I am gonna go 2nite u want the child
Wife:Gas is on bye
Wife:Goodbye
Wife:Can drop the child off plz [sic]
Wife:Hello
Wife: [Mr Logan] can I drop the child off plz [sic]
Wife:If u don’t answer me we will go 2 gether [sic] ok
Wife:its [sic] all happening smells good bye
Wife:Ring me
Wife: almost gone
Wife:I need u help plz [sic]
Wife:Can u ring 000
Wife:I want 2 die 2nite!
Me:Where is the child?
Wife:Here I bring the child over or u can crash on the couch?
Me:I will crash in the couch
Wife:ok b there in 5
Me: Yep
In her trial affidavit filed 23 February 2015 (“the mother’s trial affidavit”) the mother does not specifically address the circumstances surrounding the exchange of text messages between the parties on 24 March 2012. At paragraph 41 of that affidavit the mother admits that she sent “inappropriate” text messages in 2013 and 2014 and that those messages were sent to “get attention”. The mother deposes that she has “never been suicidal”.
The mother was cross-examined by counsel for the father in relation to the text messages sent by her. During that cross-examination the mother confirmed that she had sent the text messages. The father alleges that he observed the mother to be intoxicated that evening. In her oral evidence the mother denied that she was intoxicated at the time of sending the messages but admitted that she “might have had one or two” drinks that evening.
The father’s evidence is that following his receipt of those messages, he agreed to attend the mother’s home. At that time, the father did not have a motor vehicle. As a result the mother attended the father’s home to collect him and drive him to the mother’s residence. The father deposes that when the mother arrived at his home, it was his impression that she was drunk. Accordingly, he drove her vehicle back to her home. The father alleges that the mother told him that she had attempted suicide that evening by gassing herself.
In the father’s trial affidavit, at paragraph 16, he deposes that upon arrival at the mother’s home he could smell gas; he opened the doors and windows to the home to disperse the gas. The child was in the home at that time. The father alleges that the mother was distraught and was repeatedly saying that she wanted to die and be with her mother (who had recently died) and that she also asked that he reconcile his relationship with her. The father alleges that the mother turned the gas on again. The father deposes that he immediately turned off the gas and called emergency services.
The mother does not respond in any detail to those allegations in her trial affidavit.
During her oral evidence the mother denied the father’s allegations that she had turned the gas on in the home or that she had sought to reconcile her relationship with him. At paragraph 16 of her trial affidavit the mother alleges that the father pushed her causing her to fall and hit her head and it was as a result of that injury that she was hospitalised. The father denies pushing the mother.
The police and ambulance services were called to the mother’s home. The mother was admitted to the psychiatric unit of O Hospital as an involuntary patient. She remained as an involuntary patient at that hospital for a period of approximately five days. The child remained in the father’s care following that incident and has lived with him since that time.
During cross-examination it was put to the mother that the discharge summary in relation to her hospitalisation indicates that at the time of her admission to hospital, the mother was intoxicated and had self-harmed. The mother took issue with that summary; she stated that she did not believe she had self-harmed. When giving her evidence in relation to these matters the mother appeared defensive and her manner was hostile. The mother maintained her denial that she was suicidal at that time.
The father’s evidence of what occurred on 24 March 2012 was not challenged during his cross-examination. I accept the father’s evidence of the events of 24 March 2012. In my view, the mother’s explanation as to what occurred that day is implausible. The mother’s account ignores the exchange of text messages which is the prelude to the events that occurred at her home.
I am satisfied that the messages sent by the mother to the father provide unambiguous statements by her of her threats to suicide. I am satisfied that statements such as “I am gonna [sic] go 2nite u want the child?” and “Gas is on bye” are clear statements of an intention to self-harm. Further, I am satisfied that it was open to the father to interpret the message “If u don’t answer me we will go 2 gether [sic] ok” as a threat by the mother to harm the child. I am satisfied that the father acted appropriately in the face of the series of messages sent by the mother to him that evening; his actions in attending the mother’s home were motivated to ensure the safety and well-being of the child and the mother.

Commencement of Proceedings

Following her discharge from hospital, in April 2012, the mother filed an application in the Federal Magistrates’ Court (as it then was) seeking a recovery order in respect of the child. The father filed a response to that application seeking orders for sole parental responsibility, that the child live with him and that the child spend such time with the mother as the Court deems appropriate. The father also filed a Notice of Child Abuse or Family Violence.
On 24 April 2012 Federal Magistrate Connolly (as he then was) made orders for the appointment of the ICL. Orders were made that the mother spend time with the child as agreed between the parties and there was a notation to those orders that the mother agrees to her time with the child being supervised. The proceedings were otherwise adjourned to 30 April 2012.
On 30 April 2012 interim orders were made that the child live with the father. Further, orders were made that the mother spend time with the child on a supervised basis, such time to be supervised by her friend, Ms P, or such other adult as agreed between the parties and to occur each weekend between 1.00 pm and 4.00 pm on Saturday. Orders were made for the mother to be psychiatrically assessed by a psychiatrist nominated by the ICL. Orders were also made for the mother to file and serve an affidavit of her treating psychologist, Ms H. The proceedings were otherwise adjourned to May 2012.
On 23 May 2012 orders were made transferring the proceedings to the Family Court. In addition, further interim orders were made regarding the time the mother was to spend with the child. Those orders provide that the mother spend time with the child from 10.00 am until 4.00 pm each Saturday and Sunday, such time to be supervised by Ms P or such other adult as agreed between the parties.
The proceedings were listed before Senior Registrar FitzGibbon on 2 August 2012. That day interim orders were made with respect to the mother’s time with the child. Commencing 4 August 2012, the mother was to spend time with the child each weekend from 10.00 am Saturday until 4.00 pm Sunday, with no requirement that the mother’s time be supervised. Orders were also made enabling the mother to communicate with the child by telephone each Tuesday and Thursday at specified times.
On 20 September 2012 further interim orders were made by Senior Registrar FitzGibbon with respect to the mother’s time with the child. The orders made that day provide that commencing Term 4 2012 the mother spend time with the child from after school Wednesday until the commencement of school Friday each alternate week and from after school Thursday until the commencement of school Monday each alternate week, a total of six nights per fortnight. Further orders were made with respect to the time spent by the child with her parents during the long summer holiday period, with the child to spend time with each of her parents on a “week-about” basis. Orders were also made requiring the mother to continue attending counselling for parents with disabled children and the mother was also required to attend upon a forensic psychologist to undergo psychometric testing (including risk assessment).

In August 2013 the father filed an Amended Response to Initiating Application. That application raised, for the first time, property matters; the father sought orders for the sale of the former matrimonial home and division of the proceeds of sale.
The matter was first listed before me on 4 September 2013. That day I made orders listing the matter for final hearing in January 2014 and made directions for preparation of the matter for final hearing.
The matter was listed for mention before me in December 2013 and I made directions for the parties to attend upon a Family Consultant for an updated Family Report. Further, I made orders for the valuation of various property interests.
The matter could not proceed before me as listed in January 2014 and the trial was adjourned to 28 April 2014.

Events of March/April 2014

At the commencement of the hearing on 28 April 2014 counsel for the father raised issue with respect to the mother’s behaviour in the months leading up to the hearing. The father alleged that again the mother had sent a series of text messages to him threatening suicide. Further, the father alleged that on 11 April 2014 the mother told him that she would no longer see the child and at changeover delivered to him a bag of the child’s belongings, including toys, clothing, her school uniform and scooter.
Whilst the mother was present at Court at the commencement of that hearing when these matters were raised by counsel for the father, the mother left the Court and did not return. At that time, there was no recent evidence as to the mother’s psychiatric state or psychological functioning. Further, the matters raised by counsel for the father were not part of the affidavit material filed in the proceedings to that date. In the circumstances, I made orders adjourning the hearing and directed the father to file an affidavit with respect to the matters raised by him through his counsel. I also made orders suspending the operation of previous parenting orders. Further interim orders were made that the child’s time with the mother be supervised and that the mother attend upon her treating psychologist for updated assessment and report.
At paragraph 50 of the father’s trial affidavit, he deposes that between late-February 2014 and May 2014 he received a series of text messages from the mother which he interpreted as threats to suicide. Annexed to his affidavit at MSL-9 are copies of those text messages. Those messages included:-
28 February 20:10    I am going to write to the child & try to explain what went wrong..And that its [sic] not her fault what happened.And why the courts decide what happens to her. U & gf will b [sic] happy with the out come. U will have everything.I am not going to play games as u said..I just want a [the child] to b [sic] happy. And she can with ur new family..Cheers…
6 March 23:21         If u want the house let me know & I will get the ball rollin [sic]..Then u & her can live happy ever after..U will have the child & the house…$300,000 think what u can do with that & plus my super u both will be laughing all the way to the bank….
9 March 17:22         If you go through with this [F] will not have a mom…Hope ur [sic] happy (u r happy) UR [sic] evil…
Not talking in riddles [Mr Logan] u know darn well whats [sic] going to happen…I just wish we could have settled all this with out the bullshit. I feel so sorry for [F]…She is the one who is goin [sic] to miss out on not seeing me or being with me…No child should b [sic] without their mom…
23 March 19:52       get lost u will never see me again k…hope u r happy with ur new family…I will tell [F] she will never see me again thks u [sic]..U will have a very sad little girl for a long time……
29 March 21:10       I can’t wait till [the child] finds out what a nasty person u r it won’t take long as she is very smart. Hope u have a good story for her why she doesn’t have a mom…
The father deposes at paragraph 51 of his trial affidavit that at a changeover with the mother on 11 April 2014 she told him that she would not be seeing the father or the child again. The father deposes that:-
At this changeover she brought a bag of the child’s toys, clothes, school uniform and her scooter. She took those items out of her car and left them in the carpark where changeover was taking place saying “This is all the child’s stuff and there’s more to come”. As the Wife was getting back into her car and in [the child’s] hearing she said that she was going to kill herself. [The child] was upset by this and after the Wife had left [the child] disclosed to me that the mother had told her several times over the time she had just spent with her that she would not see her again.
As noted earlier in this judgment, at paragraph 41 of her trial affidavit, the mother’s explanation for her text messaging is that she was seeking attention. She denies having ever been suicidal and concedes that the text messages sent by her were inappropriate.
As to the father’s allegation that the mother delivered the child and her belongings to the father on 11 April 2014 and stated that she would no longer see the child, the mother responds at paragraph 42 of her trial affidavit as follows:-
Last year, I went to change-over and provided a lot of [the child’s] belongings in bags. I did this because [the child] had been saying she wanted these things at her dad’s. I did not throw them on the ground. I put them on the ground. I did not throw [the child’s] helmet at her. She had left it in the car and I handed it to her. I did not say I was going to kill myself.
When cross-examined by counsel for the father in relation to her conduct at changeover, the mother denied that she had told the child that she would never see her again. However, she admitted delivering the child’s belongings to changeover, those belongings including her scooter.
During interview with Ms B for the purposes of the preparation of the updated Family Report dated 1 August 2014 (“the updated Family Report”) the mother is reported at paragraph 5 to have denied to Ms B that she was suicidal at the time of this incident but rather stated that her text messages to the father were intended to “manipulate” him into adopting a more sympathetic position towards her.
Many of the text messages sent by the mother to the father between February 2014 and May 2014 include statements by her to the effect that she will absent herself from the child’s life, statements that the child will be a child without a mother, and that the mother will be out of the father’s life soon.
Having regard to the content of those text messages and their frequency, I am satisfied that it was open to the father to have concern that the mother was intending self-harm. As a consequence of the mother’s actions on 11 April 2014 in delivering the child and her belongings to him, the father refused to permit the mother to spend time with the child after that date.
The father expresses serious concerns as to the impact of the mother’s behaviour on the child. At paragraph 52 of his trial affidavit he deposes that the child was “extremely unsettled and upset” by the mother’s behaviour. Those concerns were reiterated by the father to Ms B at interview for the updated Family Report. At paragraph 4 of that report Ms B notes the father’s statement that the child was “beside herself” as a result of the mother’s conduct.
The mother’s oral evidence in relation to the events of April 2014 was unimpressive. The mother appeared to minimise her actions. She reiterated in her evidence that the text messages were sent as a means of manipulating the father rather than as statements of her intention to commit suicide. The mother demonstrated little insight as to the impact of such behaviour on the child or for that matter the father who was responsible for the child’s day-to-day care.
The father’s evidence was that he found the mother’s behaviour deeply concerning. I accept that evidence.
I am satisfied that the mother’s text messages indicate a clear intention by her to remove herself from the child’s life; her conduct in delivering the child’s belongings to the father at changeover suggests that the mother was seeking to action her stated intention that the child live with the father.
As noted earlier, the mother has previously stated in the plainest of terms her intention to kill herself. In all of the circumstances, I am satisfied that the father’s concerns as to the mother’s intentions and as to the potential impact of the mother’s behaviour upon the child were well founded.

Events between 28 April 2014 and the hearing

Notwithstanding the interim orders made on 28 April 2014 which provided for the mother to have supervised time with the child, between April 2014 and August 2014 the mother elected to spend no time with her rather than be subject to supervision.
The mother was cross-examined by counsel for the ICL in relation to her decision to spend no time with the child during that period. When asked as to the impact of that decision on the child and whether the mother held any concerns that the child may feel abandoned by her mother, the mother responded that she did not hold such concerns as it was her belief that the father had told the child that the mother was “sick in the head”. The mother appeared dismissive as to the effect upon the child of her complete absence from the child’s life for that four month period. Further, the mother sought to blame the Court rather than accept any responsibility for her role in the decision to require that her time with the child be supervised.
I am satisfied that the mother has little insight as to the potential impact upon the child of her behaviour. The mother’s response to questions in relation to her conduct at that time indicated her hostility and anger towards the father and the Court; the mother showed no regard for the potentially damaging consequences those actions may have upon the child and her relationship with the child.
In July 2014 the parties attended upon Ms B, family consultant, for the purposes of the preparation of the updated Family Report. That report, dated 1 August 2014, was released to the parties on 14 August 2014. That report made recommendations that the mother’s time with the child be unsupervised. Further interim orders were made in August 2014 in accordance with the recommendations of Ms B contained in the updated Family Report. Orders were also made fixing the matter for hearing in December 2014.
In the period leading up to the trial date the mother resumed sending text messages to the father threatening to absent herself from the child’s life.
As noted earlier in this judgment, the mother concedes in her trial affidavit that the text messages sent by her to the father in 2013 and 2014 were inappropriate and were sent to “get attention”. Further, at paragraph 41 of her trial affidavit the mother deposes as follows:-
They were not [sent] because I was suicidal. When I said that I wouldn’t see the child again, I meant that I would move to Perth, not that I would kill myself. I regret these text messages. I shouldn’t have sent them.
I am satisfied that the mother has little appreciation of the impact her conduct in sending such messages to the father has upon him and the child. I am satisfied that those messages are likely to have had a significant effect upon the father’s ability to parent the child; I have no doubt that the messages were a source of ongoing concern to the father, both for the welfare of the child when with the mother but also for the mother, who is one of the two most important people in the child’s life.
The final hearing was listed to commence before me on 8 December 2014. That day the mother was represented by Senior and Junior Counsel (appearing pro bono) who sought an adjournment of the hearing on the basis that they had had insufficient time to adequately prepare the matter on behalf of the mother.
Reluctantly, I acceded to that application for an adjournment. Interim orders were made that day for the mother to spend time with the child on a week-about basis during the long summer vacation period.

The Issues

The issues in this case, as identified in the parties’ material, the Family Reports and during the course of the hearing may be summarised as follows:-
·With whom the child should live, and the amount of time she should spend with each of her parents.
·Whether the mother poses a risk of harm, whether physical, emotional or psychological to the child.
·The allocation of parental responsibility in circumstances where it is alleged the parties’ relationship is highly conflictual.
The issues identified can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).

Section 60CC(2) Primary Considerations

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

Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents as well as other members of her extended family.
The question of what is a meaningful relationship was considered by Brown J in the decision of Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement “is one which is important, significant and valuable to the child”.
The Full Court in McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 reviewed previous decisions as to the meaning of “meaningful relationship” and analysed what it said were three possible interpretations of s 60CC(2)(a) at paragraph 118 as follows:-
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)A second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents (“the prospective approach”).
In considering what is meant by a meaningful relationship, the Full Court concluded as follows:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
Ms B gave evidence and was cross-examined about the nature of the child’s relationship with her parents at the time of the hearing. Ms B has had extensive engagement with the family, having conducted child-inclusive conferences with the family in May 2011 and May 2012 and having prepared two Family Reports dated 28 March 2014 and 1 August 2014. Ms B interviewed the family in February 2014 and July 2014 in the course of her preparation of those Family Reports.
Ms B was an impressive witness. Her evidence was thoughtful and well-considered. I found Ms B’s evidence to be of great assistance in reaching my decision in this case.
Across both Family Reports, Ms B observes the child to have a strong and loving bond with both the mother and the father. In the Family Report dated 28 March 2014 (“the first Family Report”), Ms B observed the child to be “a talkative, confident and friendly nine year old, with what would appear to be clearly Autistic traits in her social communication style”.
At paragraph 28 of the first Family Report Ms B reports that “[F] feels closest to both her mother and father”. At paragraph 29 she reports that the child is protective of her mother, describing her as follows:-
She’s not mean, she’s my beautiful mum… she gives me lots of surprises, slurpies, Coke and doughnuts.
F is reported to enjoy activities with both of her parents.
During observations of the child with the mother, she was observed to greet her warmly with hugs and kisses. At paragraph 30 of the first Family Report, Ms B notes as follows:-
[The child] interacted with her mother in a confident and relaxed manner. She sought assistance from [the mother] with meeting her care needs and [the mother] was attentive and attuned to these needs. At the end of the observation period, the child hugged her mother and cheerily explained that she had had fun playing with her.
The observations by Ms B of the mother’s relationship with the child in the updated Family Report are equally positive. At the time that that report was prepared, the mother was not spending time with the child, and had not seen her since April 2014. the child described her mother to Ms B as “a very nice mum to me”. At paragraph 31 of the updated Family Report Ms B observes that:-
[The child] and [the mother] ran to each other and embraced warmly for a long time. [The mother] then brought out her iPad and the child, excitedly, commenced playing various games with [the mother] sitting close by and assisting when required. [The mother] shared information about herself in an animated fashion, sharing photos and giving updates on the wellbeing of the various animals at her home. the child, whilst engaged in play on the iPad, listened intently and showed interest in this information. [The mother] queried the child on her own progress and various aspects of her life and noted physical changes including the child’s haircut and an apparent growth spurt. [The mother] showed skill in engaging [the child] in appropriate conversation which was enjoyable for the child. As [the child] became more preoccupied with her game-play, the pair chatted comfortably about the games. [The mother] encouraged turn taking and the child was entirely compliant. At the end of their time together, the child and her mother again shared long and warm embraces with [the mother] reassuring [the child] that she missed her, and to be good.
There was no challenge to Ms B’s evidence regarding her observations of the mother’s relationship with the child. I am satisfied that the mother and the child enjoy a close and loving relationship. At issue is how that relationship can be supported in circumstances where it is alleged that the mother’s erratic behaviour and poor insight as to the impact of that behaviour compromises her ability to parent the child. I will address those issues later in this judgment.
The observations of Ms B in respect of the father’s relationship with the child were equally positive across the two Family Reports. In the first Family Report, at paragraph 31, Ms B observed that the child was excited that her father had arrived to play and that the father engaged in the games played with the child during that session. In the updated Family Report the child was observed to excitedly greet her father, telling him “daddy I was so happy to see my mum”. The father was noted to respond to that statement appropriately. Observations were also made that the child and the father played together quietly, shared jokes and laughter. The father’s approach towards the child was observed to be gentle and patient. Again, that evidence was unchallenged. Accordingly, I am satisfied that there is a strong and positive relationship between the child and her father. I am further satisfied that there is significant benefit to the child in maintaining a meaningful relationship with the father.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

Ms B gave evidence regarding the parties’ communication. When asked about the parties’ capacity to communicate, Ms B observed as follows:-
The parents have a highly problematic relationship that, from all reports to me, has been characterised by poor communication or highly conflicted communication. Yet there have been periods where they have been able to make joint decisions for [the child] and work together to meet her needs, even though that has been a difficult process for them, so I don’t think that it’s easy, but there have been periods where they’ve managed to do that.
Ms B later observed of the parents that:-
They’re both very reactive, and when you look at the pattern of their communication, it descends quite quickly into very negative dialogue.
Given the long history of difficult communication between the parties which has culminated in the hearing before me, I have little confidence as to the parties’ ability to communicate appropriately and in the child’s best interests.
Further, in circumstances where the mother simply failed to participate in the final day of the hearing, I have little confidence that she will have the capacity to communicate with the father in the future in relation to issues of significance relating to the child’s welfare. The parent who has the primary care of the child must be in a position to make decisions regarding her welfare in a timely and efficient manner. I am satisfied, having regard to the highly conflictual nature of the parties’ relationship and their long-standing difficulties in communicating with each other, that it would be contrary to the child’s best interests for them to share decision-making responsibility.
As to the question of the time the mother should spend with the child, notwithstanding concerns around the mother’s at times erratic and unpredictable behaviour, I am satisfied that it is appropriate that orders be made for her to spend time with the child. The ICL seeks orders that the child spend time and communicate with her mother on alternate weekends from after school Friday until the commencement of school Monday and each alternate week from after school Thursday to the commencement of school Friday. The father and Ms B both gave evidence confirming their support of that proposal.
Whilst the father resiled from that position in closing submissions, seeking orders that the mother’s time be as agreed, that position was put as a response to the mother’s failure to attend Court on the final day. When that behaviour is considered having regard to the history of the mother’s behaviour during these proceedings, and the evidence of Dr Q, Dr R and Ms H with respect to the mother’s capacity to cope with the litigation, such behaviour may be recognised as the mother’s response to the pressures of the litigation process.
The child has much to gain from the support and maintenance of her relationship with the mother. Orders as sought by the father are likely to provide a forum for further dispute between her parents and must be avoided. I am satisfied that orders in the terms sought by the ICL are in the child’s best interests.
The ICL also seeks orders which will enable the child to spend time with her mother on special days including Mother's Day and at Christmas. At the commencement of his case, the father sought orders in similar terms. I am satisfied that it is appropriate that orders be made to ensure that the child has the opportunity to spend time with the mother on those special days.
It was common ground between the parties that changeover take place at school. Currently the interim orders provide that when changeovers occur outside school hours, they occur at McDonald’s in Suburb G. That arrangement has been in place between the parties for a considerable period of time. The orders I make will ensure that those arrangements continue.
It is also common ground between the parties that the child should commence dual enrolment at C School and Suburb G Primary School. I will make orders to ensure that the parties do all acts and things to facilitate that arrangement.
In light of the findings that I have made in relation to the parties’ attitudes towards each other and their inability to communicate with each other, I am satisfied that it is in the child’s best interests that orders be made restraining each of them from criticising or denigrating the other and from discussing these proceedings in the presence or hearing of the child.
Both the mother and the father seek orders requiring them to inform the other in the event of any injury or illness sustained by the child whilst in their care. I am satisfied that it is in the child’s best interests that her parents share such information.
Similarly, both parties seek orders that the other participate in the child’s school life. I am satisfied that the child will benefit from the engagement of both of her parents in her education and will make orders that the mother be permitted to attend such school events as parents are ordinarily invited to attend and be provided with school reports and newsletters.
Further, I am satisfied in light of the evidence of Ms B that the parties may benefit from attending therapeutic counselling to assist them with their co-parenting relationship. I will make orders requiring them to attend such counselling.
Given the issues identified around the mother’s behaviour, I am satisfied that it is important that she continue to access therapeutic support as recommended by her treating general medical practitioner and by her psychologist, Ms H. I will make orders requiring the mother to continue to engage with those supports.
Ms B gave oral evidence as to the benefit of the child attending a Supporting Children after Separation Program to assist her in understanding and managing the conflict between her parents. In the updated Family Report, Ms B noted the child’s growing awareness of the conflict between the parties. In her oral evidence she observed that the child would likely benefit from attendance at such a program to assist her in understanding and managing that conflict. Accordingly, I will make orders requiring the father to facilitate the child’s attendance at such program.
Accordingly, the orders I propose to make are as follows:-

Orders

1.That all previous parenting orders be discharged.
2.That the father have sole parental responsibility for the child the child F born … 2005.
3.That prior to making any decision pursuant to order 2 hereof regarding the child’s health (save in the event of a medical emergency), education, religion or living arrangements, the father provide to the mother not less than 14 days prior notice in writing of his proposed decision and not implement such decision until the expiration of 14 days from the date of that notice being sent to the mother to enable the mother to provide to him a written statement of her view concerning the proposed decision.
4.That the child live with the father.
5.That the child spend time and communicate with the mother as follows:-
(a)During school term:-
(i) each alternate weekend from after school Friday until the commencement of school Monday, commencing…;
(ii) each alternate week from after school Thursday to the commencement of school Friday commencing…;
(b)By telephone each Tuesday and each alternate Thursday when the child is not spending time with the mother between 6.00 pm and 6.30 pm, with the mother to initiate such call;
(c)On Mother's Day each year from 10.00 am to 4.00 pm in the event that such day does not fall on the mother’s weekend with the child;
(d)For three hours on the child’s birthday at times to be agreed and failing agreement from 4.00 pm to 7.00 pm;
(e)From 2.00 pm 24 December to 2.00 pm 25 December in 2015 and each alternate year thereafter;
(f)From 2.00 pm 25 December to 2.00 pm 26 December in 2016 and each alternate year thereafter;
(g)For one half of all school term holidays at times to be agreed and failing agreement for the first half of the said holiday period;
(h)For one half of the long summer holiday period at times to be agreed and in the absence of agreement on a week-about basis with the mother to have the first week and each alternate week thereafter; and
(i)As may otherwise be agreed between the parties from time-to-time.

6.That for the purposes of the mother’s time pursuant to order 5 hereof, changeovers occur at the child’s school and in the event that it is a non-school day such changeovers occur at McDonald’s Restaurant, Suburb G.
7.That the mother’s time be suspended during the following periods:-
(a)From 10.00 am to 4.00 pm on Father’s Day;
(b)In the event that the child’s birthday falls during the mother’s time for three hours on the child’s birthday at times to be agreed and failing agreement from 4.00 pm to 7.00 pm;
(c)From 2.00 pm 25 December to 2.00 pm 26 December in 2015 and each alternate year thereafter; and
(d)From 2.00 pm 24 December to 2.00 pm 25 December in 2016 and each alternate year thereafter.

8.That the mother’s time pursuant to orders 5(a) to 5(b) inclusive be suspended during school holiday periods.
9.That the mother and the father do all acts and things and sign all documents as may be required from time-to-time to facilitate the child’s dual enrolment at C School and Suburb G Primary School.
10.That the mother and the father by themselves their servants and agents be and are hereby restrained from:-
(a)Criticising or denigrating the other party in the presence or hearing of the child; and
(b)Discussing these proceedings or any documents or reports prepared in relation to these proceedings in the presence or hearing of the child.

11.That the mother and the father do all such acts and things as may be required to complete a course of therapeutic counselling to assist them in their co-parenting relationship, such course to be nominated by the Independent Children’s Lawyer, and the parties share equally the costs of such therapeutic counselling.
12.That the mother do all such acts and things as may be required to continue therapeutic counselling as directed by her general medical practitioner and her psychologist Ms H.
13.That the father do all such acts and things as may be required to facilitate the child’s attendance at a Supporting Children after Separation Program, such program to be nominated by the Independent Children’s Lawyer.
14.That the mother and the father each keep the other informed of any change of their residential address or contact telephone numbers, notice of such change to be provided to the other parent within 48 hours of such change occurring.
15.That as soon as practicable the mother and the father do all such acts and things as may be required to keep the other informed of any significant injury or illness suffered by the child when in their respective care, such information to include:-
(a)The nature of the significant injury or illness;
(b)The names of all relevant treating medical and like practitioners; and
(c)The treatment given to date and any information in his or her possession about the diagnosis.

16.That the mother and the father each be authorised to communicate with any treating medical practitioner or allied health professional consulted by the child regarding their treatment or assessment of the child.
17.That the father do all acts and things as may be required to authorise the child’s school to forward to the mother at her expense all school reports, newsletters and information ordinarily provided to parents and the mother be at liberty to attend all school-related events which parents are invited to attend.
18.That within 30 days of the date of these orders the appointment of the Independent Children’s Lawyer be discharged.
19.That 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 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.

IT IS DIRECTED

I certify that the preceding two-hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 5 August 2015.

Associate:

Date: 5 August 2015

[2015] FamCA 647

5 August 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Remedies

Standing

Statutory Construction