Heath & Pascall (No 4) - [2021] FCCA 1494

FEDERAL CIRCUIT COURT OF AUSTRALIA
Heath & Pascall (No 4) [2021] FCCA 1494

File number(s): BRC 8029 of 2018

Judgment of: JUDGE MONAHAN

Date of judgment: 7 July 2021

Catchwords:
FAMILY LAW – parenting – final hearing – three year old child – parental responsibility – whether child should transition to live in an equal time arrangement or live primarily with one parent – changeover – consideration of expert report and updated family report recommendations – allegations of family violence – best interests of the child

FAMILY LAW – parenting – interim application – application for the removal of the Independent Children’s Lawyer by the mother – application dismissed – costs awarded to Independent Children’s Lawyer

Legislation:
Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65D, 65DAA, 68L, 68LA, 117, 102NA

Evidence Act 1995 (Cth), s 128

Federal Circuit Court Rules 2011 (Cth), r 21.02

Cases cited: Heath & Pascall [2019] FCCA 2896
Heath & Pascall (No.2) [2019] FCCA 3898
Heath & Pascall (No.3) [2020] FCCA 3050
In the Marriage of Hall (1979) 5 Fam LR 609
Leroux & Leroux and Ors [2015] FamCA 1128
Legal Aid ACT & Williams [2021] FamCAFC 50
Lindell & Ranteri [2010] FamCA 52
McCall & Clark [2009] FamCAFC 92
Newlands & Newlands [2007] FamCA 168

Number of paragraphs: 258

Date of last submission/s: 6 November 2020

Date of hearing: 2, 3, 4 and 5 December 2019 and 4, 5 and 6 November 2020

Place: Brisbane

Counsel for the Applicant: Ms Frizelle

Counsel for the Respondent: Mr George (December 2019) and
Mr Larson (November 2020)

Counsel for the Independent Children's Lawyer: Mr Waterman
ORDERS

BRC 8029 of 2018

BETWEEN:
MR HEATH

Applicant

AND:
MS PASCALL

Respondent

ORDER MADE BY:

JUDGE MONAHAN

DATE OF ORDER:

7 JULY 2021

THE COURT ORDERS ON A FINAL BASIS THAT:
1.All previous orders and undertakings provided in these proceedings be discharged.
2.X born in 2018 (“the child”) live with the mother except for the times specified herein when the child will live with the father and spend time with each party.
3.The mother and father have day-to-day responsibility for the care of the child whilst the child is in their respective care.
4.Subject to paragraph 5 herein, the mother and father have equal shared parental responsibility for the child.
5.The father have sole parental responsibility for decisions regarding the child’s health and education and prior to making the final decision he do the following:
a.advise the mother in writing of the decision intended to be made by him;
b.seek the written response of the mother within 14 days of the date of the father’s written notice;
c.consider by reference to the best interests of the child, any such response from the mother prior to making his decision;
d.advise the mother in writing as soon as reasonably practicable of his final decision; and
e.the above provisions will apply except for any medical emergencies pertaining to the child, and in those circumstances, the father will use his best endeavours to consult with the mother about any intended urgent medical decision to be made subject to the medical advice of the child’s treating medical practitioners, including any medical specialists, and if the parties are unable to come to agreement on the decision to be made, the father will make the final decision and inform the mother of his decision.

6.Subject to paragraph 2 herein, the child live with the father at all reasonable times as may be agreed between the parties in writing, and failing agreement as follows:
a.Commencing with immediate effect and until the commencement of paragraph 6(b) herein, in a two week cycle as follows:
i.In Week 1 (commencing 8 July 2021) from Thursday after day care/pre-school or 3.00pm on a non-day care/preschool day to Saturday at 9.00am; and
ii.In Week 2 (commencing 16 July 2021) from Friday at 5.00pm or after day care/preschool (if applicable) to Monday before day care/pre-school or 9.00am on non-day care/preschool days;

b.Commencing on 9 March 2022 and until the commencement of paragraph 6(c):
i.During school terms (and commencing in the first week of each school term) from Wednesday after school/pre-school (or 5.00pm on a non-school/pre-school day) to the following Monday before school/pre-school (or 9.00am on a non-school/pre-school day) and each alternate week thereafter; and
ii.During Term 1, 2 and 3 school holidays for a seven (7) day period as agreed in writing and failing agreement in the first week commencing in the last week of school term from Friday after school/preschool (or 5.00pm on a non-school/pre-school day) to the following Friday at 5.00pm or before preschool (if applicable); and
iii.During the Term 4 long school holidays (and subject to paragraph 7) herein), each alternate week commencing in the last week of school term from Friday after school/preschool (or 5.00pm on a non-school/pre-school day) to the following Friday at 5.00pm or before preschool (if applicable) and, in the event that the child is in the father’s care in the final week of the holiday period, that time conclude at 5.00pm on the Sunday before school recommences;

c.Commencing on 26 January 2024 and thereafter:
i.During school terms and the Term 1, 2 and 3 school holidays from Friday after school (or 5.00pm on a non-school day) to the following Friday before school (or 5.00pm on a non-school day) and each alternate week thereafter; and
ii.During the Term 4 long school holidays (and subject to paragraph 7), for one half of each holiday period as agreed in writing and failing agreement as follows:
A.In the second half in the holiday periods commencing in even numbered years from the mid-point of the relevant holiday period at 5.00pm until the Sunday before the commencement of the next school term at 5.00pm;
B.In the first half in the holiday periods commencing in odd numbered years and each alternate year thereafter from after school on the last day of Term 4 until the mid-point of the relevant holiday period at 5.00pm; and
C.In the event that a holiday period has two mid-points, the time will commence or end (as applicable) on the second mid-point date.

7.Notwithstanding any Order to the contrary, the child spend time or communicate with each parent as agreed between the parents in writing and failing agreement as follows:
a.On the child’s birthday, the parent who does not have the child in their care at that time, be permitted to telephone/Facetime the child at 5.00pm and the parent with care of the child on that day is to ensure the child is available to receive the call;
b.On the Mother’s Day weekend, in the event that the child is not otherwise in the care of the mother on that weekend, then the child spend time with the mother from 5.00pm Saturday until 5.00pm Sunday;
c.On the Father’s Day weekend, in the event that the child is not otherwise in the care of the father on that weekend, then the child spend time with the father from 5.00pm Saturday until 5.00pm Sunday;
d.Commencing with immediate effect and until the commencement of paragraph 7(f) herein:
i.     the father be permitted to telephone/FaceTime the child each Wednesday not earlier than 6.00pm and not later than 7.00pm for an age appropriate length of time and the mother is to ensure the child is available to receive the call; and
ii.    the mother be permitted to telephone/FaceTime the child each Friday not earlier than 6.00pm and not later than 7.00pm for an age appropriate length of time and the father is to ensure the child is available to receive the call.
f.Commencing from 9 March 2022 and thereafter, during all school terms and all school holiday periods, the parent with whom the child is not living or spending time with have telephone/FaceTime contact with the child each Monday and Thursday not earlier than 6.00pm and not later than 7.00pm for an age appropriate length of time.
g.During the Christmas period (24 to 26 December each year) the child:
i.Spend time with the mother from 9.00am 24 December 2021 to 5.00pm 26 December 2021;
ii.Spend time with the father from 9.00am 24 December 2022 to 5.00pm 26 December 2022;
iii.Spend time with the mother from 9.00am 24 December 2023 to 5.00pm 26 December 2023; and
iv.Thereafter the child spend the Christmas period with the parent that she is living with pursuant to these Orders; and
v.The parent with whom the child is not spending time during the Christmas period have telephone/FaceTime contact with the child on 25 December of the relevant year not earlier than 10.00am and not later 11.00am for an age appropriate length of time.

8.Unless otherwise agreed in writing or as specified herein, all changeovers of the child between the parties not occurring at day care/pre-school/school occur at the G Contact Centre (herein after referred to as the “contact centre”), with each party to register with the contact centre for intake within 48 hours of the date of these Orders (if not already registered), and each party to be responsible for their own intake application costs (if applicable) and the parties be equally responsible for the costs associated with changeovers at the contact centre.
9.For the purposes of paragraph 8 herein, if changeover at the child’s day care centre/pre-school/school (as the case may be) is not possible due to closure, then unless the parties otherwise agree in writing, the changeover of the child between the parties occur at the contact centre.
10.Each party keep the other party informed at all times, of their residential address, their email address and the mobile phone number and to notify the other party in writing, within 24 hours of any change to those details.
11.The parties communicate with each other about all aspects of parenting utilising an electronic communications book and each be responsible for their own application/administration fee associated with the use of such a website and they share equally in the ongoing costs associated with the continued use of such electronic communications book.
12.The parties be restrained by injunction from approaching within 100m of the other party at their home or place of work, unless otherwise invited in writing to approach. This injunction will not apply to instances where the parties are otherwise effecting changeover of the child between them or attending any day care/pre-school/school activity or function or activity, or any extra-curricular/sport activity, which parents are invited to.
13.Unless otherwise agreed in writing:
a.   The father be restrained from relocating his residence from the Brisbane suburb of Suburb Z until the child turns 18 years of age, or completes her Year 12 high school studies, whichever occurs first; and
b.   By no later than 7 January 2022 the mother relocate herself with the child to live within a 30km radius of the father’s residence in the Brisbane suburb of Suburb Z and the mother thereafter maintain a residence for herself or the child that is within a 30km radius of the father’s residence in the Brisbane suburb of Suburb Z, until the child turns 18 years of age, or completes her Year 12 high school studies, whichever occurs first.
14.Each party be granted authority to obtain at their request and cost from the child’s day care/pre-school/school, any information pertaining to the child’s educational development and progress and to obtain copies of any school reports, school newsletters, guidance officer reports and school photographs.
15.These Orders be sufficient authority for the child’s day care centre/pre-school/school/medical practitioners/allied health carers to note all their records, of the father as an emergency contact and next of kin for the child, in addition to the mother.
16.Each party is permitted to attend at the child’s day care centre/pre-school/school from time to time for any events to which parents are invited by the school to attend, such as parent/teacher interviews, school sports days, cultural days, concerts.
17.Once the child commences Prep at primary school, the parties are not to enrol the child in more than two extra-curricular activities/sports per term, with any enrolment in such activity/sport to be done after consultation with each other and if the parties are unable to agree, the provisions set out in paragraph 5 herein will apply. Furthermore, once the child is enrolled in any such activity/sport, both parties ensure the child attends and fully participates in the extra-curricular activity.
18.The child is permitted to have an Australian Passport and both parties are to sign for and renew the child’s passport when appropriate.
19.Any Australian Passport of the child is to be held by the father in odd numbered years and with the mother in even numbered years provided that the parties deliver the passport to the other upon request and thereafter return it following the conclusion of travel.
20.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother and father each be at liberty to travel overseas with the child during their time with the child as provided for in these Orders, and shall not travel with the child to countries where the DFAT travel warning is ‘level 3’ or above.
21.For the purposes of paragraph 20 herein:
a.   The party proposing to take the child overseas shall give the other party at least two (2) calendar months prior written notice of the proposed trip overseas including:
i.The proposed departure and return dates;
ii.Full details of who is travelling with the child including the full names and relationship to the child/and or parent;

iii.Flight details (including names of airlines and flight numbers) and, if applicable, cruise ship details (including full details of the cruise liner);
iv.Full travel itinerary of all locations where the child is visiting, including arrival and departure dates for each city visited and all details of where the child will be staying overnight (including full addresses); and
v.Full details of the means of contacting the child and parent while travelling overseas including landline and mobile phone numbers;

b.   The travelling party provide to the other party with a copy of the airline return tickets (or cruise ticket if applicable) no less than 14 days before the proposed departure date; and
c.   During all travel, the travelling party cause the child to telephone/FaceTime the other party at least once per week.
22.The child be known at all times and enrolled at day care/pre-school/school as X, and the parties be restrained by injunction from changing the child’s name.
23.Each party keep the other party informed as soon as reasonably practicable of the child being unwell and of any attendance for medical consultation with a doctor. If there is any medical emergency involving the child, the party with care of the child at the relevant time immediately notify the other party by SMS TEXT and the receiving party immediately upon receiving the SMS TEXT, reply to confirm receipt of the message.
24.In relation to paragraph 23 herein, the party sending the notification of the emergency ensure that the message includes information such as:
a.   Nature of the illness/injury/condition of the child;
b.   What hospital/medical centre the child is at including full address and contact details;
c.   Name/s of medical practitioner/s; and
d.   Diagnosis/recommendation of the relevant medical practitioner (if any).
25.Neither party denigrate or say negative things about the other party or members of the other party’s family or household, to the child or within the hearing of the child and each party use their best endeavours to ensure that no member of their family/household denigrates or says negative things about the other parent to the child or within the hearing of the child.
26.Each parent is restrained from discussing the Court proceedings with the child or in the hearing of presence of the child or allowing any other person to do so.
27.Unless otherwise agreed in writing, the parties communicate with each other in writing in 2021 regarding the proposals for the child’s primary school enrolment as follows:
a.   The mother write to the father by 1 August 2021 setting out the names of three schools she proposes as suitable for the child to attend from Prep;
b.   The father consider the mother’s proposal and reply by 1 September 2021 choosing one of the proposed schools for X, or if he does not agree with any of the proposed schools, he set out in writing to the mother his reasons why and provide to the mother his proposed list of three schools;
c.   The mother upon receipt of the father’s reply referred to in paragraph 27(b) herein, if other schools are nominated, she then choose one of the schools nominated and notify the father by written reply, by 1 October 2021.
d.   If the mother fails to select a school or fails to reply by 1 October 2021, the father make the final decision for the child’s education and arrange the enrolment, keeping the mother notified in writing once the enrolment is made.
28.For the child’s high school enrolment, the parties use the same method as outlined in paragraph 27 herein save that the discussion between the parties occur by the time the child is in year 5:
a.   1 July of the relevant year.
b.   1 August of the relevant year.
c.   1 September of the relevant year.
29.In relation to paragraph 13 herein and subject to paragraph 5 herein, upon the mother’s relocation, the parties discuss new day care arrangements for the child to attend.
30.With respect to the child’s health matters, the mother and the father each nominate a medical centre for X to attend for all medical consultations and notify the other party of the name and address of the medical centre and each party endeavour to take X to the same medical centre for consultations and review, except in cases of a medical emergency in which case each party take X for medical attention at the nearest medical centre/hospital as the case may be and that party IMMEDIATELY notify the other party of the medical emergency by SMS text messaging, including providing the name and address for the medical centre/hospital, the nature of the medical emergency and any recommendations made by the treating medical practitioner.
31.Each party ensure that any medication that is prescribed for the child by the child’s medical practitioner, is provided to the child in accordance with the medical directions indicated on the prescription and the medication shall travel with the child at all changeovers.
32.The mother continue to seek and attend psychotherapy with Dr F, Clinical Psychologist or if she is not available, another clinical psychologist referred by her general medical practitioner, for two years from the date of these Orders, or such longer period as recommended by the treating clinical psychologist, and if the mother changes psychologists from Dr F to another such expert, she provide written notice of this to the father through the electronic communications book within 24 hours of such change and also provide to the father, the name and contact details of her new treating clinical psychologist, in addition to advising the father as to any cessation of her psychotherapy.

33.The ICL be granted leave to provide the mother’s general medical practitioner at Suburb AA Medical Centre and Dr F a copy of:
a.   The Affidavits of Dr B annexing his psychiatric assessments filed on 15 May 2019 and on 27 March 2020;
b.   The Family Report of Ms BB dated 6 May 2020; and
c.   A sealed copy of these final Orders and written reasons for judgment.

AND THE COURT FURTHER ORDERS THAT:
34.In the event that:
a.either the father or the mother seeks to press an application for costs in these proceedings, they are to make, file and serve an Application in a Case within 28 days of the date of these Orders; and
b.should the Independent Children’s Lawyer seek to press an application for costs in these proceedings, she have liberty to apply within 28 days of the date of these Orders.

35.Subject to paragraph 34(b) herein, the appointment of the Independent Children’s Lawyer be discharged.
36.Subject to paragraph 34 herein, all extant applications be otherwise dismissed.

THE COURT NOTES THAT:
A.These Orders incorporate the agreed issues Minute with certain amendments presented to the Court on the last day of the final hearing.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these Orders.

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 under the pseudonym Heath & Pascall (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

This final decision arises from parenting proceedings between the Applicant, MR HEATH (“the father”) and the Respondent, MS PASCALL (“the mother”).
The relevant child of the parties’ relationship is X born in 2018 (“X” or “the child”).
This final hearing proceeded before me on 2, 3, 4 and 5 December 2019 (in Brisbane) and 4, 5 and 6 November 2020 (in Brisbane but by video-link to Sydney due to my inability to travel to Queensland because of the Covid-19 border restrictions). Regrettably, the parties were unable to reach any agreement on a final basis. I also note that the matter had a number of interim hearings both prior to, and during, the matter being heard on a final basis.
The primary issue in dispute requiring determination is which parent X should primarily live with or whether there should be a progression to an equal time arrangement. In the event that the Court makes an order for the child to live primarily with one parent, there is also a dispute as to the frequency and circumstances of the child spending time with the other parent as well as the issue of changeovers.
In addition, when the final hearing resumed part-heard on 4 November 2020, the mother pressed for the Court to hear her application for the dismissal of the Independent Children’s Lawyer (“ICL”).
At the final hearing, Ms Frizelle of counsel appeared for the father, Mr George of counsel appeared for the mother on the December 2019 hearing days, Mr Larson of counsel appeared for the mother on the November 2020 hearing days, and Mr Waterman of counsel appeared for the ICL.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
BACKGROUND
The father was born in 1984 and he is currently 37 years of age. The mother was born in 1984 and she is currently 36 years of age.
The mother asserts that the parties started living together in approximately 2015 after meeting online several weeks prior, whilst the father asserts that they started living together in approximately 2016 after the father purchased his home in the Brisbane suburb of Suburb Z.
X was born in 2018 and is currently 3 years of age.
The parties separated on a final basis in May 2018.
Since separation, the mother has made family violence allegations against the father. The mother filed an Application for a Protection Order in the Brisbane Magistrates Court where the father was named as the Respondent on 24 May 2018. The Temporary Protection Order (“TPO”) was served upon the father and prevented him from making contact with or being within 100 metres of the mother and the child. The matter was made returnable at the Brisbane Magistrates Court on 14 June 2018 where the father formally opposed the application and judgment was reserved.
On the 9 November 2018 reasons for judgment were delivered which dismissed the mother’s Application for a Protection Order. The mother filed a Notice of Appeal and Application for a Stay Order, which was also subsequently dismissed by Judge CC in the Brisbane District Court on 23 November 2018. A second Application for a Stay Order was filed by the mother on 6 December 2018 and was again dismissed on 13 December 2018. On this occasion Judge DD made additional orders for the mother to pay the father’s costs fixed in the amount of $1,650 and restrained the mother from making any further application without leave of the Court.
The father commenced these family law proceedings by way of Initiating Application filed on 18 July 2018. The father was initially only seeking interim orders, but later filed an Amended Initiating Application on 11 November 2019 seeking final parenting orders. The mother filed her Response on 22 August 2018, which was later amended on 7 December 2018 and again on 27 November 2019.
The matter first came before Judge Spelleken in the Brisbane Registry of this Court on 29 August 2018 and the parties were able to consent to certain interim parenting orders relating to the child spending supervised time with the father and an order consenting to equal shared parental responsibility on major long term decisions. An order for the appointment of an ICL was also made.
The matter returned for mention before Judge Spelleken on 11 December 2018 and orders were made by consent for the child’s supervised time with the father to resume. Orders for the parties to participate in Family Report interviews as commissioned by the ICL were also made. The matter came before the Court for mention on several occasions being 19 March 2019 and 16 April 2019 on issues relating to notice of objections to subpoena by the mother and related parenting issues.
The matter returned again before Judge Spelleken on 20 May 2019 on the issue of the child’s time with the father and Her Honour reserved judgment and delivered her decision on 22 May 2021. The following orders were made Her Honour:
1. That the child X born in 2018 (“the child”) live with the mother.
2. That the child spend unsupervised time with the father as follows:
a. Commencing 25 May 2019 from 9.00am to 5.00pm on Saturday and 9.00am to 5.00pm on Sunday;
b. Commencing 1 June 2019 from 9.00am to 5.00pm on Saturday and 9.00am to 5.00pm on Sunday;
c. For two consecutive weekends out of every three weekends as follows:
i. commencing 15 June 2019 from 9.00am Saturday to 5.00pm Sunday;
ii. commencing 22 June 2019 from 9.00am Saturday to 5.00pm Sunday;
iii. commencing 6 July 2019 from 9.00am Saturday to 5.00pm Sunday;
iv. commencing 13 July 2019 from 9.00am Saturday to 5.00pm Sunday;
v. commencing 27 July 2019 from.9.00am Saturday to 5.00pm Sunday;
vi. commencing 3 August 2019, from 9.00am to 5.00pm Sunday; and
With such time to continue and follow suit.
3. That in the event that Father’s Day falls on a weekend that the child is not in the care of the father, the child shall spend additional time with the father during that weekend from 9.00am Saturday to 5.00pm Sunday.
4. That changeover occur at the C Contact Centre.
5. That pursuant to section 121 of the Family Law Act 1975 the Independent Children’s be permitted to provide copies of the family reports by Ms D and the psychiatric report by Dr B produced in these proceedings to the medical professionals and counsellor’s treating the mother, the father and child.
Her Honour adjourned the matter to a date to be fixed for the allocation of final hearing dates to be provided with priority.
Her Honour also heard an Application in a Case filed by the mother on 14 June 2019 seeking inter alia the removal of the ICL. That application was heard on 30 September 2019 and judgment released on 10 October 2019 (see Heath & Pascall [2019] FCCA 2896). I note that as both parties were self-represented and given the allegations of family violence, Her Honour also made orders pursuant to section 102NA(1)(c)(iv) not allowing either the mother or the father to personally cross examine each other.
Her Honour considered the mother’s ICL dismissal application and summarised the mother’s areas of concern as follows:
To summarise, I understand the concerns raised by the mother to support her application to remove the independent children’s lawyer include as follows:
That the independent children’s lawyer is not acting in the child’s best interests;
The independent children’s lawyer has failed to undertake her role properly;
The independent children’s lawyer has not made independent decisions;
The independent children’s lawyer has a conflict of interest, is not acting impartially and/or at arm’s length from the father and is biased against the mother.[1]
[1] Heath & Pascall [2019] FCCA 2896.
After consideration of the evidence Her Honour dismissed the mother’s application and made the following orders:
(1)That within fourteen (14) days of the date of this Order, the father is to provide the mother with copies the emails sent by him to X’s day care centre and to the Independent Children’s Lawyer.
(2)That the application filed by the mother on 14 June 2019 for the Independent Children’s Lawyer to be discharged is dismissed.
(3)That the Independent Children’s Lawyer is to issue a further subpoena to the C Contact Centre with the documents to be produced prior to the final hearing of this matter.
As stated, the final hearing proceeded before me on 2, 3, 4 and 5 December 2019 in Brisbane but did not conclude by the fourth hearing day. In addition, there was a need for the mother to file material relevant to the mother’s consultations with her psychologist and to obtain updated expert evidence. As a consequence, the Court was asked to determine the following issues:
·first, whether the updated Family Report should be authored by Ms D (name omitted) who authored the initial Family Report dated 20 February 2019, and the addendum Family Report dated 17 May 2019, or whether a new Family Consultant should be ordered to prepare a new or updated Family Report;
·Second, whether an updated Psychiatric Report should be obtained from the Single Expert, Dr B, or not; and
·Third, whether there should be, in the interim period, an increase in the time that the child spends with the father, to include a period from Thursday afternoon until Friday afternoon in, effectively, the first week of the current three-week cycle.
The Court delivered its decision on these issues on 20 December 2019 (see Heath & Pascall [2019] FCCA 3898). The Court determined that:
·First, Ms D should not be engaged to author the updated Family Report, but rather it should be ordered pursuant to section 62G of the Act and that Child Dispute Services in the Brisbane Registry are to select the relevant Family Consultant;
·Second, that the parties are to obtain a short updated report from Dr B following the release of the proposed report from the mother’s Clinical Psychologist and prior to the interviews for the updated Family Report; and
·Third, that on an interim basis the child’s time with the father will increase from mid-March 2020 to include a Thursday overnight period (being the first week of the current three-week cycle).
The final hearing resumed on 4 November 2020 and continued on 5 and 6 November 2020. Although the parties appeared in Brisbane, I appeared by way of video-link from Sydney due to my inability to travel to Queensland because of the Covid-19 border restrictions. At this point of my reasons I note that the mother filed an Application in a Case on 20 October 2020 seeking, for a second time, the removal of the ICL. That application was opposed by both the ICL and the father. After hearing the parties’ submissions I made orders dismissing the mother’s application. I state again in these reasons that the Court was satisfied that there was insufficient evidence to justify the ICL’s removal in this case. I note that I heard submissions in relation to costs on the final day of the hearing following the close of the substantive case. I further note that the Court made orders that the mother pay the ICL’s costs fixed in the sum of $2,638 to be paid by six (6) monthly instalments. The father ultimately did not seek his costs against the mother relevant to the dismissed application, as his counsel indicated that she and her instructing solicitors had acted pro bono in relation to that application. Further reasons to underpin these decisions relevant to the mother’s Application in a Case are provided later in this judgment.
As stated, the final hearing concluded on 6 November 2020. At the conclusion of submissions, the Court raised a concern about the changeover location. More specifically, the Court was concerned about the child having to travel a significant distance to attend the relevant contact centre for changeover, noting that the location was also a considerable distance from each party’s residence. As a consequence, I made directions for the parties to make a genuine attempt to reach agreement on the issue of changeover by no later than 4.00pm on Monday 9 November 2020, and failing agreement, to provide the Court with brief written submissions. As no agreement was reached, the Court considered their submissions on 10 November 2020 and thereafter released its interim decision on the changeover issue on 11 November 2020 (see Heath & Pascall [2020] FCCA 3050). The Court made the following interim orders:
(2) Unless otherwise agreed in writing between the parties, all changeovers occur when applicable:
(a)at the child’s day care centre or pre-school on all days that the child attends; and
(b)on all other occasions, and subject to paragraph 3 herein, at G Contact Centre (“the new contact centre”) with the parties being equally responsible for the costs associated with the changeovers at the new contact centre.
(3) For the purposes of paragraph 2(b) herein:
(a)within seven (7) days of the date of these Orders, each party contact the new contact centre to enrol for their respective intake session and each party be solely responsible for the cost of their intake fee;
(b)pending the new contact centre being available, the parties continue to use the C Contact Centre located at Suburb C; and
(c)once the new contact centre becomes available, on days that the new contact centre is not open or not operating for whatever reason on any relevant day, changeovers occur at the Suburb H Police Station carpark located at J Street, Suburb H.
A summary version of the comprehensive chronology prepared by the ICL is reproduced in Schedule 1 to these reasons.
AGREED OUTCOMES
On the last day of the final hearing the father and mother’s counsel were able to identify areas of agreement based on the ICL’s minute of proposed orders, which has been produced in Schedule 2 to these reasons. In summary the parties were able to agree to paragraphs 1, 3, 9, 11, 14, 15, 18, 19, 21, 22, 23, 25, 33 and 35.[2]
[2] Transcript 6 November 2020, pages 193-197.
PROPOSALS
ICL
In summary, the ICL proposes the following:
·The father have sole parental responsibility for major long term decision-making for X, subject to consulting with the mother on issues of education or health.
·The parties have day-to-day responsibility for X whilst the child is in their respective care.
·X transition to live with each party in an equal time arrangement by the time she turns six (6) years of age:
oUp until X is four (4) years of age she live with the father for five (5) nights in a fortnightly cycle as follows (and with the mother at all other times):
(i) Week 1 – from Thursday afternoon to Saturday morning;
(ii) Week 2 – from Friday afternoon to Monday morning; and
oUpon X turning four (4) years of age and until she turns six (6) years of age she live with the father for five (5) nights each fortnight (being from Wednesday afternoon to Monday morning) and with the mother at all other times;
oUpon the child turning six (6) years of age she live with the parties on a week about basis, with changeover at 3.00pm each Friday at the child’s school.
·Upon X commencing school in 2022, the child spend time with each party during school holiday periods as follows:
oFor one half of the Queensland gazetted school term holiday periods (except for the school term holidays in 2022 where the child will spend a block period of one (1) week with the father and with the mother for the balance of each period); and
oFor one half of the Queensland gazetted long summer school holiday periods (except for the long summer school holiday period in December 2022/January 2023 where the child will spend time with each party on a week about basis).
·X spend time with each party during the Christmas period each year as follows:
oFor Christmas Day 2021 from 9.00am 24 December 2021 to noon 27 December 2021 with the mother;
oFor Christmas Day 2022 from 9.00am 24 December 2022 to noon 27 December 2022 with the father; and
oFrom 2023, the child spend Christmas Day and Boxing Day with the parent who has the first half of the school holidays and the parent who does not have the child in their care at that time, be permitted to telephone the child at 9.00am Brisbane time on Christmas Day and the parent with care of the child on that day to ensure the child is available to receive the telephone call.
·Notwithstanding any order to the contrary, X spend time:
oWith the father on Father’s Day each year from 9.00am Saturday to 5.00pm Sunday; and
oWith the mother on Mother’s Day each year from 9.00am Saturday to 5.00pm Sunday.
·On X’s birthday each year she communicate with the party who does not have X in their care on that day, with the relevant party to telephone the child at 9.00am Brisbane time and the party who has X in their care ensure that the child is available to receive the telephone call.
·Changeovers occur at X’s day care centre/pre-school/school when applicable and otherwise at the G Contact Centre.
·Each party keep the other party informed of all relevant contact details including telephone numbers and addresses.
·The parties communicate with each other about all aspects of parenting utilising an electronic communications book.
·Each party be restrained by injunction:
oFrom approaching within 100m of the other party residence or place of work, unless otherwise invited in writing and at changeover; and
oFrom relocating their residence beyond 50km from the Brisbane GPO located at 260 Queen Street Brisbane;
oFrom discussing the court proceedings with X or in the hearing of presence of the child or allow any other person to do so;
oFrom changing the child’s name from X Heath and to otherwise cause the child to be enrolled in, and known by, that name at all day care centres and schools; and
oUpon X commencing Prep at primary school, the parties be restrained from enrolling the child in more than one extra-curricular activity/sport per school term, with any enrolment in such activity/sport, to be done after consultation with each other and if the parties are unable to agree, the father may make the relevant decision. In addition, once the child is enrolled in such activity/sport, both parties are to ensure that the child attends and fully participates in the extra-curricular activity.
·By no later than 1 July 2021, the mother relocate herself and the child to live within 30km of the father’s residence at EE Street, Suburb Z, Brisbane (but is otherwise retrained from going 30 km further south of Suburb Z, Brisbane).
·The father be restrained from relocating his residence further away from Suburb Z in Brisbane.
·Each party be able to obtain at their request and cost from the child’s day care/school, any information pertaining to the child’s educational development and progress and to obtain copies of any school reports, school newsletters, guidance officer reports and school photographs.
·The parties cause the father to be added as an emergency contact and next of kin at the child’s day care centre/schools an all relevant medical practitioners/allied health carers.
·Each party be permitted to attend relevant school events.
·The parties cause X to be issued an Australian passport to be held by the father and the parties be at liberty to each travel internationally with the child during their time with the child (subject to specified conditions and, in addition, being restrained from travelling internationally to any country where the Australian Government has issued a travel warning of “Level 4 or above”) and with:
othe father to provide the passport to the mother when relevant and the mother to return the passport to the father within 24 hours of the child’s return to Australia; and
othe travelling party to arrange for the child to telephone the other party at least once per week whilst travelling internationally.
·Each party keep the other party informed as soon as reasonably practicable of the child being unwell and of any attendance for medical consultation with a doctor, and in the event of an emergency, the relevant party shall immediately notify the other party by SMS text of required information and the receiving party shall immediately upon receiving the SMS text, reply to confirm receipt of the message.
·Neither party is to denigrate or say negative things about the other party or members of the other party’s family or household, to the child or within the hearing of the child and each party is to use their best endeavours to ensure that no member of their family/household denigrates or say negative things about the other party to the child or within the hearing of the child.
·In relation to the child’s primary and high schooling, the parties are to communicate with each other using the defined processes as to their proposals for the child’s enrolment.
·Each party shall ensure that the child attends the designated medical centre and that the child takes any medication that is prescribed for her by the child’s medical practitioner, in accordance with the medical directions indicated on the prescription and the medication is to travel with the child at all changeovers.
·The mother continue to seek and attend psychotherapy with Dr F, Clinical Psychologist or if she is not available, another clinical psychologist referred by her general medical practitioner, for a period of two years or for as long as recommended by the treating clinical psychologist and:
oIn the event that the mother changes psychologists from Dr F to another such expert, she provide written notice of this to the father through the electronic communications book within 24 hours of such change and the mother also provide to the father, the name and contact details of her new treating clinical psychologist; and
oIn the event that the mother ceases to attend for such therapy at the recommendation of her treating clinical psychologist, she provide to the father a letter from the treating psychologist confirming the recommendation that therapy is no longer required.
·The ICL have the leave of the Court to provide the mother’s general medical practitioner, and Dr F, copies of:
oAffidavits of Dr B annexing his psychiatric assessments;
oFamily Report of Ms BB dated 6 May, 2020; and
oA sealed copy of the final orders.

The ICL’s Minute of proposed orders is reproduced in Schedule 2 to these reasons.
Father
The father seeks orders to the following effect:
·The father have sole parental responsibility for X subject to certain conditions;
·X to live with the father;
·Provided the mother resides within a 10 kilometre radius of the father’s address the child spend time with the mother as follows:
oUp until the child commences Grade 1, on a two (2) week rotation as follows:
i.Week 1 – From 9.00am Friday to 9.00am Monday; and
ii.Week 2 – From 9.00am Tuesday to 9.00am Thursday;
iii.For one (1) week commencing at the start of the school holiday period which occurs at the end of Term 1, Term 2 ,Term 3 and Term 4; and
iv.The mother collect the child from the school or day care and return the child to school or day care.
oOnce the child commences Grade 1 onwards:
i.From afterschool on Friday to before school on Monday in the first week; and
ii.From afterschool on Tuesday to before school on Thursday in the second week.
iii.The first half of the gazetted school holidays in even numbered years with the mother and in odd numbered years with the father; and
iv.The second half of the gazetted school holidays in odd numbered years with the mother and in even numbered years with the father.
·If the mother lives outside a 10 kilometre radius of the father’s address, the child spend time with the mother as follows:
oUp until the child commences Grade 1, on a two (2) week rotation as follows:
i.Week 1 – From 9.00am Friday to 9.00am Monday; and
ii.Week 2 – From 9.00am Wednesday to 9.00am Thursday.
iii.For one (1) week commencing at the start of the school holiday period which occurs at the end of Term 1, Term 2 ,Term 3 and Term 4; and
iv.The mother is to collect the child from the school or day care and return the child to school or day care.
oOnce the child commences Grade 1 onwards
i.From afterschool on Friday to before school on Monday in the first week, and
ii.From afterschool on Tuesday to before school on Wednesday in the second week,
iii.The first half of the gazetted school holidays in even numbered years with the mother and in odd numbered years with the father; and
iv.The second half of the gazetted school holidays in odd numbered years with the mother and in even numbered years with the father.
·Unless otherwise agreed in writing, all changeovers that are not otherwise at the child’s school or day care occur at the G Contact Centre with each party to be equally responsible for the costs associated with the changeovers.
·All undertakings to the Court by the paternal grandmother Ms E, the paternal aunt Ms FF and the paternal grandfather Mr GG (for supervision of the child in her time with the father) be discharged.
·The mother must not leave the child in the sole care of the maternal grandmother, Ms HH and any time the child has with the maternal grandmother must be supervised by the mother.
·Pursuant to section 11 of the Australian Passport Act 2005 the requirements for the mother’s signature on the passport application for the child X Heath (“the child”) born in 2018 be dispensed with and an Australian passport issue for the child.
·The father, or his nominee, is/are permitted pursuant to Section 65Y of the Family Law Act 1975 (Cth) to travel internationally with the child.
·Each party shall:
oAgree upon and use the same treating general practitioner, dentist and allied health practitioners except in the case of an emergency;
oKeep the other parent informed of the name and addresses of any treating general practitioners, dentists and other allied health practitioners who treat the child, and authorise those practitioners to provide each parent, at that parent’s request and cost, with information that those practitioners are lawfully able to provide about the child;
oInform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child, or any medication prescribed to the child, and authorise any treating medical practitioner to release the child’s medical information to each parent, at that parent’s request and cost;
oInform the other parent immediately by telephone of any medical emergency in relation to the child; and
oKeep the other parent informed at all times of their residential address, email address and contact telephone number;
oBe at liberty to attend and be involved in the child’s day care centre activities, school and extra-curricular activities, including but not limited to parent/teacher interviews, assemblies, sports carnivals, performances and training sessions;
oEnsure that the child attends all day care activities, school and extra-curricular activities when the child is in their respective care, unless unforeseeable circumstances prevent the child’s attendance;
oAuthorise any of the child’s day care centre, educational facility or extra-curricular provider to provide each parent with information that they are lawfully able to provide about the child, including but not limited to the child’s educational progress and other related activities, and to supply each parent with copies of reports, photographs, newsletters, certificates and awards (at that parent’s cost);
oEnsure that any medication that is prescribed to the child by the child’s medical practitioner is provided to the child in accordance with directions indicated on such prescription or as directed by each medical practitioner, and such medication shall travel with the child at all changeovers.
·During the time the child is with either party, that party shall:
oRespect the privacy of the other party and not question the child about the personal life of the other party; and
oSpeak of the other party respectfully; and
oNot denigrate or insult the other party in the presence or hearing of the child; and
oUse their best endeavours to ensure that others do not denigrate or insult the other party in the presence or hearing of the child.
oNot engage or allow any other person to engage in any physical or other discipline/behaviour causing physical or emotional harm to the child.
oNot discuss the Court proceedings in the hearing or presence of the children or allow any other person to do so.
The father’s minute of proposed orders is reproduced in Schedule 2 to these reasons.
Mother
The mother seeks orders to the following effect:
·The mother to have sole parental responsibility for X subject to the provision of certain information to the father.
·The parties be restrained from moving from the Brisbane area or from living more than 70km from each other’s residence.
·X live with the mother.
·In relation to X’s medical care, and except in the case of an emergency:
oX continue to attend upon existing specialists at Queensland Children’s Hospital when required;
oX’s General Practitioner be a General Practitioner located at Suburb AA Clinics situated at JJ Street, Suburb AA;
oX’s future medical practitioners be agreed upon by the parties in writing and, failing agreement, as decided by the mother;
oIn the event X is involved in an incident requiring urgent medical treatment then the party with whom X is currently spending with must immediately notify the other party by telephone or text message; and
oThe parties be equally responsible for all medical costs.
·X spend time with the father at all such times the parents agree in writing and in failing agreement:
oEach alternate weekend from 3:00pm Friday to 8:30am Monday commencing 20 November 2020; and in addition,
oFrom 10.00am Christmas Eve until 5:00pm Boxing Day in odd-numbered years;
oThe weekend that follows X’s birthday from 3:00pm Friday to 5:00pm Sunday in odd-numbered years; and
oThe Father’s Day weekend each year from 3:00pm Friday to 5:00pm Sunday.
·Notwithstanding an Order to the contrary, X spend time with the mother as follows:
oFrom 10.00am Christmas Eve until 5:00pm Boxing Day in even-numbered years;
oThe weekend that follows X’s birthday from 3:00pm Friday to 5:00pm Sunday in even-numbered years; and
oFor the Mother’s Day weekend each year from 3:00pm Friday to 5:00pm Sunday.
·Changeovers occur as follows:
oWhile X attends day care, the N Early Education Centre at Suburb P;
oWhen X commences Prep, the school that X is attending; and
oIn the event that changeover occurs on a day when X is not attending day care or school, at the Suburb YY Contact Centre.
·In relation to X’s education:
oX continue to attend The N Early Education Centre at Suburb P;
oEach parent be responsible for the cost of day care whilst X is in their care;
oX attend a school located in the catchment area of the mother’s residence; and
oThe parties equally share all costs associated with X’s schooling.
·In relation to travel with X:
oThe mother apply for a passport for X;
oThe parties equally share the cost of obtaining a passport for X;
oThe mother retain X’s passport while X is not travelling with the father; and
oThe party travelling with X be solely responsible for her associated travel costs.
·During the time X is with either party, that party must:
oRespect the privacy of the other party; and
oNot question X about the personal life of the other party; and
oSpeak of the other party respectfully; and
oNot denigrate or insult the other party nor their extended family in the presence or hearing of X; and
oNot engage nor allow any other person to engage in any physical or other discipline/behaviour causing physical or emotional harm to X; and
oNot discuss the court proceedings in the hearing or presence of X; and
oUse their best endeavours to ensure that others comply with these provisions.
·The parties be restrained from:
ocoming within 100m of each other’s residence and place of work without the written consent of the other party; and
ofrom changing X’s surname.
·The Orders constitute the consent of and the authority for each of the parties to obtain about X, at their own cost, all and any information concerning the provision of educational, day-care, sporting and recreational activities, health and allied-health services.
The mother’s minute of proposed orders is reproduced in Schedule 2 to these reasons.
Discussion
While the parties were unable to present a joint minute of agreement, the parties were able to agree to some aspects of the ICL’s proposed minute as detailed above and in summary as follows:
•That all previous Orders and undertakings provided in these proceedings shall be discharged.
•That each parent shall have day-today responsibility for their care of the child, whilst the child is in their respective care.
•An injunction shall issue restraining each party from approaching within 100m of the other party at their home or place of work, unless otherwise invited in writing to approach. This injunction shall not apply to instances where the parties are otherwise effecting hand over of the child, between them.
•That either party shall be permitted to the child out of Australia for holidays during the child’s school holiday time with them and in relation to taking the child out of Australia:
•The party proposing to take the child overseas shall give at least 2 calendar months prior written notice of the proposed trip overseas including:
•The proposed departure and return date.
•Who is travelling with the child – full names and relationship to the child/and or parent.
•Flight details – name of airlines, flight number. If any cruise ship travel, the full details of the cruise liner.
•Full travel itinerary of where the child is visiting overseas, arrival and departure dates for each city visited overseas; where the child will be staying (address) - including if visiting more than one location/city and
•Means of contacting the child and parent, whilst overseas – land line as well as mobile phone (if any).
•The party travelling shall provide to the other party a copy of the airline return tickets within 14 days before proposed departure date.
•During the trip away, the travelling party shall arrange for the child to call the other party at least once per week whilst overseas
•The child shall be known at all times and enrolled at school/day care as X Heath, and an injunction issues restraining the parties from changing the child’s name.
•Each party shall keep the other party informed as soon as reasonably practicable of the child being unwell and of any attendance for medical consultation with a doctor. If there is any medical emergency involving the child, the party with care of the child at the relevant time shall immediately notify the other party by SMS TEXT and the receiving party shall immediately upon receiving the SMS TEXT, reply to confirm receipt of the message.
•Neither party shall denigrate or say negative things about the other party or members of the other party’s family or household, to the child or within the hearing of the child and each party shall use their best endeavours to ensure that no member of their family/household denigrates or say negative things about the other parent to the child or within the hearing of the child.
•That each parent shall not discuss the court proceedings with the child or in the hearing of presence of the child nor allow any other person to do so.
•That the Independent Child’s Lawyer shall be discharged.
In addition, there was general agreement between the ICL and the father as to the following:
·the father having sole parental responsibility for X subject to certain conditions;
·all changeovers that are not otherwise at the child’s school or day care occurring at the G Contact Centre; and
·the parties each spending block time with the child during school holiday periods (noting that the mother makes no proposal for the child to spend block periods with the father).
The ICL and the mother agree that X should spend time with the mother on Mother’s Day and with the father on Father’s Day (noting that the father makes no proposal for the child to spend these periods with the relevant parent).
ISSUES
The following issues arise for determination in this case:
·whether the parties should have equal shared parental responsibility for the child, and if not, whether one party should be allocated sole parental responsibility;
·whether there should be a transition to an equal time arrangement:
oand if so, whether either party should be ordered to live within a specified distance of the other party’s residence or the child’s school;
oand if not, which party the child should primarily live with;
·if the child is primarily residing with one party, the frequency and circumstances of the child spending time with, and communicating with, the other party;
·the changeover locations;
·whether certain restraints or conditions should be imposed on the parties in relation to their parenting of X;
·whether X should be permitted to travel internationally with either party, and if so, the conditions that should be imposed for that travel to occur and which parent should hold X’s passport.
EVIDENCE
Both parties provided the Court with affidavit and oral evidence and were cross-examined.
In addition, the following also provided oral evidence and were cross-examined:
·the Family Consultants, Ms D (December 2019) and Ms BB (November 2020);
·Single Expert, Dr B;
·the father’s mother, Ms E; and
·the father’s sister, Ms FF.
Father
The father relied on the following documents at the final hearing:
·His Amended Initiating Application filed on 11 November 2019;
·His Affidavit sworn on 1 October 2018 and filed on 8 October 2018;
·His Affidavit sworn and filed on 21 October 2019;
·Affidavit of Ms E affirmed on 19 October 2019 and filed on 21 October 2019; and
·Affidavit of Ms FF affirmed on 20 October 2019 and filed on 21 October 2019.
The father also tendered the following documents:
·Correspondence with respect to the reconsideration for military compensation claim dated 17 August 2016 (Exhibit “AF1”);
·Mother’s primary claim document to the Department of Veterans Affairs dated 4 November 2016 (Exhibit “AF2”);
·Notes from Suburb KK Medical Centre relevant to Dr LL on or about February 2017 (Exhibit “AF3”);
·Document from Dr MM dated 24 March 2017 (Exhibit “AF4”);
·A copy of the mother’s letter in support of her claim to the Department of Veterans Affairs dated 7 June 2017 (Exhibit “AF5”);
·A copy of the document titled ‘Annual Review of Circumstances’ dated 9 August 2017 (Exhibit “AF6”);
·A copy of an email sent by the mother to the ICL dated 1 May 2019 (Exhibit “AF7”);
·A copy of text message exchange between the maternal aunt and the father (Exhibit “AF8”);
·A copy of the extracts of the relevant AAT decision involving the mother (Exhibit “AF9”); and
·Joint tender bundle between the father and the ICL (Exhibit “AF10”).
The father was overall a well-spoken witness. He made reasonable concessions to some of counsel’s questions, however at times his answers presented as somewhat fixed.
The paternal grandmother, Ms E, was only required for limited cross-examination and presented as a forthright witness. At times she failed to answer some questions in full, however provided a more complete answer when further prompted by counsel.
The paternal Aunt Ms FF was also only required for limited cross-examination and was a well-spoken witness who answered most questions in a direct and clear fashion.
Mother
The mother relied on the following documents at the final hearing:
·Her Amended Response filed 27 November 2019;
·Her Affidavit sworn and filed on 22 August 2018;
·Her Affidavit sworn on 22 August 2018 and filed on 23 August 2018;
·Her Affidavit sworn on 22 August 2018 and filed on 24 August 2018;
·Her Affidavit sworn and filed on 20 February 2019;
·Affidavit of Ms NN affirmed and filed on 20 February 2019;
·Her Affidavit filed on 3 April 2019; and
·Her Affidavit filed on 21 October 2019.
The mother tendered the following documents:
·Letter and email correspondence between the mother and the ICL (Exhibit “RM1”);
·Bundle of the mother’s material extracted from the ICL’s material (Exhibit “RM2”);
·Video material (Exhibit “RM3”);
The mother presented poorly during cross examination. She was difficult in directly answering questions and she cried frequently. While the Court recognises that answering questions under cross-examination can be a daunting and an uncomfortable process for any witness, particularly when dealing with allegations of family violence, it became evident that the requests for successive breaks during cross-examination were more likely a tactic to avoid answering questions and delay the process, or a response to being caught with prior inconsistent statements. This was particularly apparent during the line of questioning relevant to the mother’s dishonest statements that she provided to the Department of Veteran Affairs. I note that the Court was required to issue a Certificate under s.128 of the Evidence Act1995 (Cth) in relation to the evidence that the mother gave.
Expert Witness/Psychiatrist
Dr B’s Reports

Dr B has provided two reports in this matter. His first report is dated 10 May 2019 and his second report is dated 25 March 2020. They were tendered into evidence and became Exhibit “C”.
In his first report, and based upon his reading of the available material and his interview and mental assessment of each party, Dr B stated the following conclusions:
“The documentation clarifies issues and there is significant new information such that significant variation of the opinion expressed provisionally is required particularly with respect to the mother s psychiatric status.
I trust the following points are useful to the Court.
(i) With respect to the father, Mr Heath, apart from the noted drink driving charge some years ago, which may have been indicative of alcohol abuse at the time, the opinion expressed provisionally regarding his mental health issues does not require variation.
(ii) With respect to the mother, Ms Pascall, a major difficulty in conducting a reliable psychiatric evaluation is that deceit is a significant feature in her account at various times. In addition to deception there is inconsistency and contradiction.
The following are some examples:
·She informed the Court that she is unable to attend any male psychiatrists for assessment yet she has attended several male psychiatrists for IME’s with respect to the DVA. Moreover, the two psychiatrists she has seen for treatment are male and her General Practitioner, Dr LL.
·She reports that she considers the father to be a physical threat to the child and hence the need for supervised contact. On the other hand she leaves the child at the age of 12 weeks in the care of the father when she left the marital home to live with her own father.
·On collecting the child from the father with his agreement, she promises to return the child for visitation on the weekend (by his account). This does not happen and there is no contact between the child and the father for some months.
·The psychiatric/psychology history is much more extensive then she reveals at the evaluation including a history of counselling and presentation with emotional symptoms prior to joining the Military.
·The developmental history including her relationships with parents and family of origin as reported to myself and the family report writer is quite at odds with the account that emerges from the documentation.
·During the time there was a DVO out with respect to the father on the grounds of domestic violence towards her, rather than avoiding him she communicates through a mass of quite extraordinary text messages.
·Importantly the mother’s account to IME psychiatrists and her General Practitioner, Dr LL, regarding her alleged severe psychosocial dysfunction was at a time when she was in a relationship with the father and they were in a de factor live-in relationship for at least some of the time. The relationship is not mentioned to any of the evaluators. Her account to me of her functioning is markedly different from what is presented to the IME psychiatrists and the general practitioner.
(iii) It seems from the documentation that the mother suffered an episode of Major Depression while in the military and following on the suicide of her friend as diagnosed by Dr V. This would be unsurprising. It seems that the episode went into remission which is again unsurprising given it is an episodic and treatable disorder. As to whether there have been any subsequent episodes prior to the birth of the child is unclear. If Ms Pascall had an episode of postnatal depression, then the appropriate diagnosis would be Recurrent Major Depression.
Whatever the case, at the time I evaluated the mother she was in remission from any depressive illness. The fact that she has Recurrent Major Depression is, in my view, irrelevant to the current proceedings before the Family Court. All it means is that she is at risk of episodes in the future, whether in relation to adverse life events or independent of this, it should be noted that this is a very treatable illness and moreover episodes can be prevented with pharmacological intervention.
(iv) I note that the mother has been diagnosed as suffering from PTSD as a result of the experience of her friend’s suicide. The event she describes is certainly significant and of the type that could result in PTSD. As to whether it is continuing to affect her so as to prevent her working is doubtful. I do not believe the PTSD as such is an issue with respect to the mother’s care of the child.
(v) Given the issue of deceit it is difficult to know what to make of the mother’s accusation of domestic violence on the part of the father. However, the truth or otherwise of these allegations are ultimately a matter for the Court as against a medical evaluator.
(vi) I note the mother continues to take Seroquel (Quetiapine) in a dose of 200 mg a day although it has in the past been higher. It is probably the case that she is now psychologically dependent on this medication given that she has taken it for years for sleep. It is not a medication that will produce physical dependence. As she is now probably quite tolerant to the side effects of Quetiapine, it is unlikely that continuing to take the medication will affect her capacity to be an effective parent but it may be of benefit with respect to her overall functioning to gradually reduce the dose.
(vii) The principal clinical issue with respect to the mother relates to personality. That there should be personality vulnerability is unsurprising in light of the seriously adverse developmental history as emerges from the documentation. The personality configuration is complex. There appear to be obsessional traits with a need for control. There also appears to be emotional insecurity and problems of self-esteem. There are certainly narcissistic traits and the issue of deceit suggests that there are antisocial traits. I note loss of a driving licence at one stage through accumulation of demerit points and there is also reference to gambling being an issue at one stage.
(viii) Importantly the mother is not, by her account, abusing alcohol currently.
(ix) The personality issues in the mother are not necessarily such as to impact significantly on her capacity to be an effective parent of a child of X’s age. The only issue here is the extent to which she will encourage the child’s relationship with the father for the child’s benefit.
(x) I note that the mother is not opposing contact with the father as against wanting to restrict it. This is of itself a contradiction in that she cites safety issues as being the reason for the restriction. If the father is indeed a danger to the child, it is difficult to see how restricting his time with the child will reduce the danger.
(xi) As there is no dispute with respect to the father having contact with the child, it seems the only matter in contention is the extent of this and the circumstances in which it occurs. If the parents cannot agree on this, presumably the Court will make Orders based on a judgement as to the best interests of the child. I decline to make any recommendations other than to suggest that it is difficult to see how a “50/50 shared care arrangement can work for a child of this age unless there is a reasonable degree of co-operation and goodwill between the parents.”
I discussed Dr B’s first report and his oral evidence given to the Court on 5 December 2019, in my earlier interim decision Heath & Pascall [2019] FCCA 3898, in particular at [41] to [43]:
“41.     Dr B did raise some concerns about the mother’s honesty in his reports, and certainly raised a concern about her obsessions and ability to promote a relationship between the child and the father. That said, Dr B stated at page 29 of his report that the mother’s personality issues:
… are not necessarily such as to impact significantly on her capacity to be an effective parent of a child of X’s age.
42.      At no point in his report did Dr B state that there was any unacceptable risk for the child to remain in the mother’s primary care, and nor did he suggest that the child’s time with the mother required supervision. Dr B was asked about Ms D’s addendum report, and the family consultant’s fear that the mother may, in the family consultant’s words, “decompensate” in response to the release of Dr B’s report.
43.      I note the following exchange between Mr George for the mother, and Dr B, during cross-examination:
In her report, as his Honour indicated to you, Ms D referred to the possibility of decompensation – I keep thinking of the word ‘meltdown’ – decomposition. Does the fact that there hasn’t been decomposition – well, apparently – have any impact on your opinions?
Dr B replies as follows:
Yes. I must say I was – when I – when I said this – when I said to his Honour that I’d read the supplementary report – I haven’t actually.
And then Dr B says:
I must say I was surprised at its contents.
Mr George then asks:
In what way?
Dr B replies:
Well, I didn’t think that the mother would decompensate as a result of reading my report. I thought she would be distressed in a normal way, and I didn’t think there would be any decomposition … clinically – a clinical situation.
Mr George then asks:
Have you now had the opportunity to read that report through [referring to the addendum report]
Dr B replies:
I’ve read the brief report, yes.
Mr George then asks:
Is there any other comment that you would make in relation to that report?
Dr B replies:
The only other comment that I would make is that the recommendations Ms D cannot makes cannot – I don’t see how they can arise from my report. There’s nothing in my report that would have justified such a severe restriction on the mother – with supervised contact.
Mr George then says:
Nor the conclusion of change of primary care?
Dr B responds:
Well, that’s a different… different call. That’s – she’s has assessed the mother and the father and, you know, Ms D may be entitled to make that call.
Mr George then asks:
Doctor, in your expertise, do you feel comfortable making any recommendation about the nature of a relationship that this child this young being removed from the mother’s primary care, primary attachment?
Dr B replies:
If there is a rupture in the primary relationship, that could not be good for the child, the child requires at this age – well, at any age, but specifically at this age, below the age of two-and-a-half, secure, warm, protective relationship with a carer. So, putting an end to that relationship would be harmful to the child, but the question as to what restriction of that would not have the same effect – it’s the longer the child remains in some contact with the primary carer. As much – it would depend – as this – this is a question I cannot answer – on the extent to which the child has a secure attachment to the other parent or some other person that the child is relating to.”
In his second report, and in addition to re-interviewing the parties, Dr B had the benefit of more recent documentation, including material produced under subpoena from the mother’s psychologist, Dr F.
In relation to the mother’s mental state, Dr B stated on page 4 of his second report:
“The mental state was similar to what was present previously. While I could not describe Ms Pascall as guarded, she was very measured in what she said and with care about what she said giving the conversation a somewhat stilted character as against spontaneous and free-flowing.
With respect to affect, there was no evidence of any depression or anxiety and her affect was reactive and warm and indeed she seemed in reasonably good spirits. There was some tearfulness appropriate to content when describing her mother’s death. Of note is that she no longer considers she suffers from PTSD.”
In relation to the father’s mental state, Dr B stated on page 6 of his second report:
“At mental state examination Mr Heath was very pleasant and co-operative. There was knowing is anxiety or hesitancy about the interview. He seems fairly open about himself and he was easy to engage. His speech was of normal rate and rhythm. With respect to mood and affect, there was no evidence of any anxiety or depression. I note his affect was reactive and warm. What was particularly noticeable was how he brightened up excitedly when talking about his daughter.”
In relation to diagnostic issues, Dr B opined at page 6 of his second report:
“The diagnostic issues remain unchanged from when I last evaluated the parents. At the time of evaluation neither of the parties evaluated was suffering from any mental illness such as organic mental state, psychosis, mood disorder or anxiety disorder.
My comments with respect to personality issues remains unchanged.
It is of interest that the mother has significantly changed her attitude with respect to the extent to which the father can be involved in the child’s life. I note she is not opposing the current contact arrangement and reports that it is going well from the child’s point of view. This is a significant change from her previous position.
Also of note is that the father is not seeking a change of residence although he is more than willing to accept this if the Court orders it. He is seeking to change the current arrangements from 5 days every 21 days overnight to 7 days out of 21 overnight. It seems to me that this is a fairly modest proposal and the parties ought to be able to negotiate these issues without the necessity of the trial unless of course there are important matters from the first trial that require revisiting.
I note the mother reports seeing a psychologist that there appear and she finds this useful. I would strongly recommend she continue to see the psychologist. There ought to be no problem with costs as the sessions are paid for by the DVA.”
In relation to ‘conclusions’ to be drawn from his further assessment of the parties, Dr B opined at pages 7 and 8 of his second report:
“(i) The diagnostic issues with respect to the parents remains unchanged. Neither of the parents are currently suffering from any mental illness. The predominant matter with respect to the family Court proceedings relates to personality and personality differences.
(ii) The mother’s PTSD diagnosed on her discharge from the Military is now in remission.
(iii) The mother is seeing a psychologist and I strongly suggest that this continues on had leased a fortnightly basis for a year to assist her adjustments regarding parenting issues and any judgements of the Court which may affect her.
(iv) The mother does express a change of attitude with respect to the father’s relationship with the child. She no longer considers he is a danger to the child, such that contact needs to be restricted or supervised. As to whether this is a heartfelt change of attitude is difficult to say.
(v) By his account the father’s relationship with the child is developing well. From his account he does not have any difficulties looking after the child of this age. I trust the family report or three light on the extent of the child attachment to the father and his care of her.
(vi) I note again that the father wishes to extend his time with the child from the current 5 nights out of 21 to 7 nights out of 21. There is no psychiatric contraindication to this. It seems to me that his proposal is a fairly modest and the two parents ought to be able to negotiate this and mediate on this given there is no dispute as to whether the child or to have visitation with the father.”
Oral Evidence
Cross Examination by the father’s counsel
In answer to a question by Ms Frizelle, Dr B confirmed the while the mother continued to demonstrate personality vulnerability (including obsessional traits with a need for control, emotional insecurity, issues of self-esteem, narcissistic traits and deceitful behaviour), she “seemed to have had a bit of insight into how her behaviour may be self-defeating … In other words, contrary to her own interests”.[3] Dr B also agreed that the mother does exert characteristics of ‘drama’ and ‘overreaction’ when faced with situations she finds difficult to answer or deal with, and that “histrionic personalities tend to embellish their case”.[4] The mother’s behaviour suggests “extreme sensitivity, and also the need to find fault with the father in … some way”.[5]
[3] Transcript, 5 November 2020, page 120.
[4] Transcript, 5 November 2020, page 121.
[5] Transcript, 5 November 2020, page 124.
Dr B also agreed that the mother’s change in attitude to X spending unsupervised time with the father was “an extraordinary change [and] whether one accepts that or not, it’s a matter for the court rather than for me … There’s no way of knowing”.[6] Dr B was also asked about the mother’s deceptive conduct with the Department of Veteran Affairs and the possibility that the mother’s ‘change of attitude’ is not genuine and replied:
[6] Transcript, 5 November 2020, page 122.
“It could well be. It could well be. There is, as you say, a history of engaging in deceit, and serious deceit, for her advantage. And so you could take the view that what she’s telling me is strategic and it is an attempt to influence the family court proceedings. But at the end of the day, that’s the judgment his Honour has to make, rather than for me to make.”[7]
[7] Transcript, 5 November 2020, page 124.
Dr B went on to describe the mother’s propensity for not telling the truth as “lying for benefit” rather than “pathological lying [which] is lying for the sake of it”.[8] That said, Dr B agreed that such conduct is concerning, particularly when she lied under oath to the Administrative Appeals Tribunal in relation to her DVA claim.[9] Nevertheless, Dr B does not believe that the mother suffers from an anti-social personality disorder.[10] He does opine that the mother suffers from low self-esteem:
[8] Transcript, 5 November 2020, page 124.
[9] Transcript, 5 November 2020, page 125.
[10] Transcript, 5 November 2020, page 127.
“… that’s the hub of the matter, that the child will prefer somebody else and prefer the father to herself. And that’s why she needs to demonise the father, why she restricted – in my view, why she restricted any contact between … the father and the child. And it also manifests in her concern that … the child will prefer the mother-in-law.
… the impact could be if … the mother engaged in a behaviour so as to, in her view, bring the child close to her with maybe self-defeating, such as restricting the child’s relationship with the father, demeaning the father, criticising the father – that sort of thing. There’s no evidence that she has done. The child of a pretty tender age. But putting obstacles in the child’s relationship with the father would be what I would be concerned about.
… I think the mother will look at everything for evidence of the father being a bad father. I mean, that example that Ms BB wrote about with respect to the mouldy bottle is an example of that.”[11]
[11] Transcript, 5 November 2020, pages 128-129.
Cross-Examination by the mother’s counsel
Under cross-examination from Mr Larsen, Dr B agreed that one of the reasons that may explain the mother exhibiting behaviour consistent with histrionics may have been the stress associated with the ongoing litigation between herself and the father[12]. In addition, Dr B agreed that a victim of family violence would be reluctant to engage, or may avoid engaging, with the alleged perpetrator:
[12] Transcript, 5 November 2020, page 130.
“Yes, it would. I mean, personality has a context. So people have personality traits. We all have personality traits … in the case of your client, she has personality traits that are problematic. And these traits get accentuated in certain circumstances, particularly into personal circumstances. A court case, a threat to her relationship child – all those issues would accentuate problematic traits. [13]
[13] Transcript, 5 November 2020, pages 130-131.

47.Subject to paragraph 2, the child shall live with the father at all reasonable times as may be agreed between the parties and failing agreement shall be as follows:
(b)Up until the child is 4 years old, on a two weeks rotation as follows:
(i)Week 1 – from Thursday afternoon____ to Saturday morning 9am;
(ii)Week 2 – from Friday 5pm to Monday morning 9am.
(c)Upon the child turning four years of age, from Wednesday afternoon ______ to Monday morning 9am, each fortnight, commencing on the first Wednesday after the child attains four years of age.
(d)Upon the child turning six years of age, the child shall live equal time between the parties, on a week about basis, with hand over between the parties to be at 3pm each Friday at the child’s school, and this arrangement shall commence from the first Friday 3pm after the child turns six years of age.
(e)From 2022 being the year before the child commences Prep at school, the child shall spend a block period of 1 week with the father during all Queensland gazetted school holiday periods provided that during the Christmas school holiday in December 2022, the child shall live with the father for 1 week on a week about basis throughout that school holiday period, with the father to have child on the second week of the holidays and each alternate week thereafter provided that the child shall live with the mother for the other weeks of the Christmas school holiday, with hand over to be on the 5pm each Friday.
(f)The child shall spend Christmas in each year as follows:
(i)For Christmas Day 2020, from 9am 24^th December – to noon 27^th December, 2020 with the father.
(ii)For Christmas Day 2021 from 9am 24^th December to noon 27^th December, 2021 with the mother.
(iii)For Christmas day 2022 from 9am 24^th December to noon 27^th December, 2022 with the father.
(iv)From 2023, the child shall spend Christmas Day and Boxing Day with the parent who has the first half of the school holidays and the parent who does not have the child in their care at that time, shall be permitted to telephone the child at 9am Brisbane time on Christmas Day and the parent with care of the child on that day to ensure the child is available to receive the telephone call.
(g)From 2023 the child shall live with each parent for half of the Queensland gazetted school holidays as follows:
(i)With the Mother for the first half of the school holidays from 3pm on the last day of school term or what ever time, school finishes on the last day of school term, until 3pm on the Friday of the middle of the school holidays, for hand over of the child to the father for the second half of the school holidays and the child’s time with the father shall conclude at 5pm on the last Sunday of the school holiday, commencing in 2023 and each alternate years thereafter;
(ii)With the father for the first half of the school holidays from 3pm on the last day of school term or what ever time, school finishes on the last day of school term, until 3pm on the Friday of the middle of the school holidays, for hand over of the child to the mother for the second half of the school holidays and the child’s time with the mother shall conclude at 5pm on the last Sunday of the school holiday, commencing in 2024 and each alternate years thereafter.
(h)For the child’s birthday, the parent who does not have the child in their care at that time, shall be permitted to telephone the child at 9am Brisbane time and the parent with care of the child on that day is to ensure the child is available to receive the telephone call.
(i)For Father’s Day in each year, the child shall live with the father from Saturday 9am to Sunday 5pm of the Father’s Day weekend, if the child is not already in the father’s care, PROVIDED THAT Mother’s Day in each year, the child shall live with the mother from Saturday 9am to Sunday 5pm of the Mother’s Day weekend, if the child is not already in the care of the mother.

48.That unless otherwise specified herein, all handovers of the child between the parties shall be at the G Contact Centre (herein after referred to as the “contact centre”), with each party to register with the contact centre for intake within 48 hours of the date of these Orders, and each party to be responsible for their own intake application costs provided that the parties shall be equally responsible for the costs associated with changeovers at the contact centre.
49.With respect to paragraph 7 above, if hand over at the child’s day care centre/school – as the case may be, is not possible due to closure, then unless the parties agree otherwise, the handover of the child between the parties shall be at the above mentioned contact centre.
50.Each party shall keep the other party informed at all times, of their residential address, their email address and the mobile phone number and to notify the other party in writing, within 24 hours of any change to any of these.
51.The parties shall communicate with each other about all aspects of parenting utilising an electronic communications book and each shall be responsible for their own application/administration fee associated with the use of such a website and they shall share equally in the ongoing costs associated with the continued use of such electronic communications book.
52.An injunction shall issue restraining each party from approaching within 100m of the other party at their home or place of work, unless otherwise invited in writing to approach. This injunction shall not apply to instances where the parties are otherwise effecting hand over of the child, between them.
53.Each party is restrained from relocating their home beyond 50km from the Brisbane GPO at 260 Queen Street Brisbane in the State of QLD, whilst the child remains living in a shared care arrangement between them pursuant to these Orders.
54.Subject to paragraph 12, the mother shall by 1^st July 2021 relocate herself with the child to live within 30km of the father’s residence at EE Street, Suburb Z, Brisbane, (but not to go 30 km further south of EE Street, Suburb Z, Brisbane) in the best interests of the child to support the co-parenting arrangements set out herein and the father shall not relocate further away from EE Street, Suburb Z in Brisbane.
55.These Orders shall be sufficient authority for each party to obtain at their request and cost from the child’s day care/school, any information pertaining to the child’s educational development and progress and to obtain copies of any school reports, school newsletters, guidance officer reports and school photographs.
56.These Orders shall be sufficient authority for the child’s day care centre/schools/medical practitioners/allied health carers to note all their records, of the father as an emergency contact and next of kin for the child.
57.Each party is permitted to attend at the child’s school and day care from time to time for any events to which parents are invited by the school to attend, such as parent/teacher interviews, school sports days, cultural days, concerts.
58.Once the child commences Prep at primary school, the parties shall not enrol the child in more than one extra curricular activity/sport per term, with any enrolment in such activity/sport, to be done after consultation with each other and if the parties are unable to agree, the provisions set out in paragraph 5 above shall apply. Furthermore, once the child is enrolled in an such activity/sport, both parties shall ensure the child attends and fully participates in the extra curricular activity.
59.Pursuant to section 11(1) (b) (i) of the Australian Passports Act 2005 (Cth)), the child X Heath, a female, is permitted to have an Australian Travel Document.
60.That pursuant to section 65Y of the Family Law Act 1975 (Cth) the Mother and Father each be at liberty to travel overseas with the child during their time with the child as provided for in this Order, and shall not travel with the child overseas to countries where the DFAT travel warning is level 4 or above.
61.That any Passport of the child X is to be held by the father provided that where the child travels internationally with the mother pursuant to these orders, the father shall not unreasonably refuse to hand to the mother, the child’s passport for the travel, provided that the mother shall return the passport to the father within 24 hours of the child returning to Brisbane, in the State of Queensland.
62.That either party shall be permitted to the child out of Australia for holidays during the child’s school holiday time with them and in relation to taking the child out of Australia:
(i)The party proposing to take the child overseas shall give at least 2 calendar months prior written notice of the proposed trip overseas including:

(a)   The proposed departure and return date.
(b)   Who is travelling with the child – full names and relationship to the child/and or parent.
(c)   Flight details – name of airlines, flight number. If any cruise ship travel, the full details of the cruise liner.
(d)   Full travel itinerary of where the child is visiting overseas, arrival and departure dates for each city visited overseas; where the child will be staying (address) - including if visiting more than one location/city and
(e)   Means of contacting the child and parent, whilst overseas – land line as well as mobile phone (if any).
(f)    The party travelling shall provide to the other party a copy of the airline return tickets within 14 days before proposed departure date.
(g)   During the trip away, the travelling party shall arrange for the child to call the other party at least once per week whilst overseas
63.The child shall be known at all times and enrolled at school/day care as X Heath, and an injunction issues restraining the parties from changing the child’s name.
64.Each party shall keep the other party informed as soon as reasonably practicable of the child being unwell and of any attendance for medical consultation with a doctor. If there is any medical emergency involving the child, the party with care of the child at the relevant time shall immediately notify the other party by SMS TEXT and the receiving party shall immediately upon receiving the SMS TEXT, reply to confirm receipt of the message.
65.In relation to paragraph 23 above, the party sending the notification of the emergency shall ensure that the message includes information such as:
(a)   Nature of the illness/injury/condition of the child.
(b)   What hospital/medical centre the child is at – address.
(c)   Name of medical practitioner.
(d)   Diagnosis/ recommendation of the medical practitioner (if any).
66.Neither party shall denigrate or say negative things about the other party or members of the other party’s family or household, to the child or within the hearing of the child and each party shall use their best endeavours to ensure that no member of their family/household denigrates or say negative things about the other parent to the child or within the hearing of the child.
67.The parties shall communicate with each other in writing in 2021 regarding the proposals for the child’s primary school enrolment. In particular:
(a)   The mother shall write to the father by the 1^st July, 2021 setting out the names of three schools she proposes as suitable for the child to attend from Prep.
(b)   The father shall consider the mother’s proposal and reply by the 1^st August, 2021 choosing 1 of the proposed schools for X, or if he does not agree with any of the proposed schools, he shall set out in writing to the mother, his reasons why and provide to the mother his proposed list of 3 schools.
(c)   The mother upon receipt of the father’s reply referred to in paragraph 26 (b), if other schools are nominated, shall then choose one of the schools nominated and notify the father by written reply, by 1^st September, 2021.
(d)   If the mother fails to select a school or fails to reply by 1^st September, 2021, the father shall make the ultimate decision for the child’s education and arrange the enrolment, keeping the mother notified in writing once the enrolment is made.
68.For the child high school enrolment, the parties shall use the same method as outlined in paragraph 26 above save that the discussion between the parties shall occur by the time the child is in year 5:
·1^st July of the relevant year.
·1^st August of the relevant year.
·1^st September of the relevant year.

69.In relation to paragraph 12 and 13 above and subject to paragraph 4 and 5, upon the mother’s relocation, the parties shall discuss new day care arrangements for the child to attend.
70.With respect to the child’s health matters, the Father/Mother* shall nominate a medical centre for X to attend for all medical consultations and notify the other party of the name and address of the medical centre and each party shall endeavour to take X to the same medical centre for consultations and review, except in cases of a medical emergency in which case each party shall take X for medical attention at the nearest medical centre/hospital as the case may be and that party shall IMMEDIATELY notify the other party of the medical emergency by SMS text messaging, including providing the name and address for the medical centre/hospital, the nature of the medical emergency and any recommendations made by the treating medical practitioner.
71.That each party shall ensure that any medication that is prescribed for the child by the child’s medical practitioner, is provided to the child in accordance with the medical directions indicated on the prescription and the medication shall travel with the child at all handovers.
72.That the mother shall continue to seek and attend psychotherapy in accordance with the recommendations of Dr B with Dr F, Clinical Psychologist or if she is not available, another clinical psychologist referred by her general medical practitioner, for two years or for as long as recommended by the treating clinical psychologist, and the mother if the mother changes psychologists from Dr F to another such expert, that she shall provide written notice of this to the father through the electronic communications book within 24 hours of such change and also provide to the father, the name and contact details of her new treating clinical psychologist; PROVIDED THAT if the mother ceases to attend for such therapy at the recommendation of her treating clinical psychologist, she shall provide to the father a letter from the treating psychologist confirming the recommendation that therapy is no longer required.
73.That the ICL shall have the leave of the Court to publish to the mother’s general medical practitioner at Suburb AA Medical Centre and also to Dr F a copy of:
(a)   The Affidavits of Dr B annexing his psychiatric assessments filed 15^th May, 2019 and 27^th March, 2020;
(b)   The Family Report of Ms BB dated 6^th May, 2020; and
(c)   A sealed copy of these final orders.
74.That each parent shall not discuss the court proceedings with the child or in the hearing of presence of the child nor allow any other person to do so.
75.That the mother shall pay to the Legal Aid Trust Account, costs to the Independent Child Lawyer in the sum of $2686-00 within 14 days of the date hereof.
76.That the Independent Child’s Lawyer shall be discharged.

Father
1.   That all previous orders be discharged.
2.   That the child X Heath (“the child”) born in 2018 live with the father.
3.   The father is to have sole parental responsibility for the major long term decision for the child, including but not limited to:
a.   The child’s education (both current and future);
b.   The child’s religious and cultural upbringing;
c.   The child’s health; and
d.   Changes to the child’s living arrangements that might make it significantly more difficult for the child to spend time with the mother.

4. That before making a decision provided for in paragraph 3 hereof, the father shall:
(a)Inform the mother in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

(b)Save for in an emergency situation, allow the mother fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and

(c)Consider the mother’s response, if any, when coming to his decision about any such issue; and

(d)Inform the mother of the final decision he has made with respect to that issue as soon as practicable thereafter.

5.   That each party has responsibility for the daily decisions about the day to day care, welfare and development of the child while in his or her care.
6.   That unless otherwise agreed between the father and mother in writing, that if the mother lives within a 10 kilometre radius of the father’s address the child spend time with the mother as follows:
a.   Up until the child commences Grade 1, on a two (2) week rotation as follows:
i.       Week 1 – 9am Friday to 9am Monday; and
ii.       Week 2 – From 9am Tuesday to 9am Thursday.
iii.       For a one (1) week duration commencing at the start of the school holiday period which occurs at the end of Term 1, Term 2 ,Term 3 and Term 4; and
iv.       The mother is to collect the child from the school or day care and return the child to school or day care.

b.   Once the child commences Grade 1 onwards
i.       From afterschool on Friday to before school on Monday in the First week; and
ii.       From afterschool on Tuesday to before school on Thursday in the Second week.
iii.       The first half of the gazetted school holidays in even numbered years with the Mother and in odd numbered years with the Father; and
iv.       The second half of the gazetted school holidays in odd numbered years with the Mother and in even numbered years with the Father.

7.   That unless otherwise agreed between the father and mother in writing, that if the mother lives outside a 10 kilometre radius of the father’s address the child spend time with the mother as follows:
a.   Up until the child commences Grade 1, on a two (2) week rotation as follows:
i.       Week 1 – 9am Friday to 9am Monday; and
ii.       Week 2 – From 9am Wednesday to 9am Thursday.
iii.       For a one (1) week duration commencing at the start of the school holiday period which occurs at the end of Term 1, Term 2 ,Term 3 and Term 4; and
iv.       The mother is to collect the child from the school or day care and return the child to school or day care.

b.   Once the child commences Grade 1 onwards
i.       From afterschool on Friday to before school on Monday in the First week, and
ii.       From afterschool on Tuesday to before school on Wednesday in the Second week,
iii.       The first half of the gazetted school holidays in even numbered years with the Mother and in odd numbered years with the Father; and
iv.       The second half of the gazetted school holidays in odd numbered years with the Mother and in even numbered years with the Father.

8.   For the purpose of these Orders, the school holiday time shall commence:
a.   When a parent’s time falls in the first week or first half of the holidays, from after school on the day the school term finishes and conclude at 5pm on the day calculated to be the end of the week or half of the holidays;
b.   When a parent’s time falls in the second half of the school holidays from 5pm on the day calculated to represent half of the holidays when spending time shall end at 9am on the day the school term recommences;
c.   School holidays shall be deemed to commence at the close of school on the day the school term finishes and conclude at 9am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the Father shall retain the additional night;

d. The Mother’s time detailed in Order 6b. will be suspended during the child’s school holiday time and recommence as if there had not been a break during the school holiday period.

CHANGEOVER
9. That unless otherwise agreed between the parties in writing, all changeovers that are not otherwise at the child’s school or day care are to occur at the G Contact Centre (‘the Contact Centre’) with each party to be equally responsible for the costs associated with the changeovers at the Contact Centre.
10. Each party shall within 7 days of the date hereof, contact the Contact Centre referred to hereinabove, to book for their respective intake session and each party shall be solely responsible for the cost of their intake fee.

OTHER ORDERS
11. That all undertakings to the Court by the paternal grandmother Ms E, the paternal aunt Ms FF and the paternal grandfather Mr GG for supervision of the child in her time with the father previously given to the Court be discharged.
12. The mother must not leave the child in the sole care of the maternal grandmother, Ms HH and any time the child has with the maternal grandmother must be supervised by the mother.
13. That pursuant to section 11 of the Australian Passport Act 2005 the requirements for the mother’s signature on the passport application for the child X Heath (“the child”) born in 2018 be dispensed with and an Australian passport issue for the child.
14. That in the exercise of his sole parental responsibility the Father, or his nominee, is/are permitted pursuant to Section 65Y of the Family Law Act 1975 (Cth) to travel overseas with the child.
15. That each parent shall:
a.   Agree upon and use the same treating general practitioner, dentist and allied health practitioners except in the case of an emergency.
b.   Keep the other parent informed of the name and addresses of any treating general practitioners, dentists and other allied health practitioners who treat the child, and authorise those practitioners to provide each parent, at that parent’s request and cost, with information that those practitioners are lawfully able to provide about the child;
c.   Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child, or any medication prescribed to the child, and authorise any treating medical practitioner to release the child’s medical information to each parent, at that parent’s request and cost;
d.   Inform the other parent immediately by telephone of any medical emergency in relation to the child;
e.   Keep the other parent informed at all time of their residential address, email address and contact telephone number.

16. That each parent shall be at liberty to attend and be involved in the child’s day-care centre activities, school and extra-curricular activities, including but not limited to parent/teacher interviews, assemblies, sports carnivals, performances and training sessions, and
17. Ensure that the child attends all day-care activities, school and extra-curricular activities when the child is in their respective care, unless unforeseeable circumstances prevent the child’s attendance.
18. That each parent authorise any of the child’s day-care centre, educational facility or extra-curricular provider to provide each parent with information that they are lawfully able to provide about the child, including but not limited to the child’s educational progress and other related activities, and to supply each parent with copies of reports, photographs, newsletters, certificates and awards (at that parent’s cost).
19. That each parent ensure that any medication that is prescribed to the child by the child’s medical practitioner is provided to the child in accordance with directions indicated on such prescription or as directed by each medical practitioner, and such medication shall travel with the child at all changeovers.
20. That during the time the child is with either parent, that parent shall:
a.   Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
b.   Speak of the other parent respectfully; and
c.   Not denigrate or insult the other parent in the presence or hearing of the child; and
d.   Use their best endeavours to ensure that others do not denigrate or insult the other parent in the presence or hearing of the child.
e.   Not engage or allow any other person to engage in any physical or other discipline/behaviour causing physical or emotional harm to the child.
f.    Not discuss the Court proceedings in the hearing or presence of the children or allow any other person to do so.

Mother
Final Orders sought by the Respondent
1.That all previous Orders be discharged.

Residences
2.That X Heath (“X”) born in 2018 live with the Mother.
3.That the Father and the Mother be restrained from moving from the Brisbane Area.
4.That the Father and the Mother live not more than 70km from each other.

Parental Responsibility
5.The Mother is to have sole parental responsibility for the major long term decisions for the child, including but not limited to:
a.   X’s education (both current and future);
b.   X’s religious and cultural upbringing;
c.   X’s health; and
d.   Passport arrangements.

Medical
6.That except in the case of an emergency:
a.       X continues to attend upon existing specialists at Queensland Children’s Hospital when required;
b.       X’s General Practitioner be a General Practitioner located at Suburb AA Clinics situated at JJ Street, Suburb AA;
c.       X’s future medical practitioners be agreed upon by the Father and the Mother in writing and in failing agreement, as decided by the Mother.
7.That in the event X is involved in an incident requiring urgent medical treatment then the parent with whom X is currently spending with must immediately notify the other parent by telephone or text message.
8.That the Father and the Mother be equally responsible for all medical costs.

Time with X
9.That X spend time with the Father at all such times the parents agree in writing and in failing agreement, as follows:
a. Each alternate weekend from 3:00pm Friday to 8:30am Monday commencing 20 November 2020.

Special days
10.   That X spend time with the Father as follows:
a.   From 10am Christmas Eve until 5:00pm Boxing Day in odd-numbered years;
b.   The weekend that follows X’s birthday from 3:00pm Friday to 5:00pm Sunday in odd-numbered years;
c.   For the Father’s Day weekend each year from 3:00pm Friday to 5:00pm Sunday.

11.   That X spend time with the Mother as follows:
a.   From 10am Christmas Eve until 5:00pm Boxing Day in even-numbered years;
b.   The weekend that follows X’s birthday from 3:00pm Friday to 5:00pm Sunday in even-numbered years;
c.   For the Mother’s Day weekend each year from 3:00pm Friday to 5:00pm Sunday.

Changeovers
12.     That handovers occur at:
a.   While X attends day care, The N Early Education Centre at Suburb P;
b.   When X commences Prep, the school that X is attending;
c.   In the event that changeover occurs on a day when X is not attending day care or school, at the Suburb YY Contact Centre.

Education
13.   That X continue to attend The N Early Education Centre at Suburb P.
14.   That each parent be responsible for the cost of day care whilst X is in their care.
15.   That X attend a school located in the catchment area of the Mother’s residence.
16.   That the Father and Mother equally share all costs associated with X’s schooling.

Travel
17.   That the Mother apply for a Passport for X.
18.   That the Father and Mother equally share the cost of obtaining a Passport for X.
19.   That the Mother retain the Passport of X while X is not travelling with the Father.
20.   That the parent travelling with X be solely responsible for her associated travel costs.

Conduct
21.   That during the time X is with either parent, that parent shall:
a.   Respect the privacy of the other parent; and
b.   Not question X about the personal life of the other parent; and
c.   Speak of the other parent respectfully; and
d.   Not denigrate or insult the other parent nor their extended family in the presence or hearing of X; and
e.   Not engage nor allow any other person to engage in any physical or other discipline/behaviour causing physical or emotional harm to X; and
f.    Not discuss the court proceedings in the hearing or presence of X; and
g.   Use their best endeavours to ensure that others comply with these provisions.

22. That the Father and Mother be restrained from coming within 100m of each other’s residence and place of work without the written consent of the other party.

Other Matters
23. That the Mother provide timely information to the Father about X including but not limited to:
a.The identity of all educational and care facilities attended;
b.Progress reports from each educational and care facility;

c. Details of all sporting, recreational and leisure activities in which X participates;
d. The identity of all medical and allied health professionals providing care to X; and
e.Progress reports from each medical and allied health professional.

24. That these Orders constitute the consent of and the authority for each of the parents to obtain about X, at their own cost, all and any information concerning the provision of educational, day-care, sporting and recreational activities, health and allied-health services.
25. That the Father and Mother be restrained from changing X’s surname.

SCHEDULE 3
THE COURT DIRECTS THAT:
1.By no later than 4pm on 2 November 2020, the father or his legal representatives re-supply the mother with a copy of every email that he has sent to the ICL through the duration of these proceedings, with a statement of costs related to compliance with these orders, and with the Independent Children’s Lawyer to be copied into the father’s correspondence.
2.By no later 2pm on 3 November 2020, the Independent Children’s Lawyer verify and confirm to the parties in writing whether the correspondence provided encompassed the totality of correspondence between the father and the Independent Children’s lawyer, and if not, to supply missing correspondence, and with a statement of her costs as to such verification.
3.The question of costs of complying with these orders be determined at the final hearing.
4.Paragraphs 1 to 3 herein be stayed.
5.By no later than 4pm on 27 October 2020, the mother will confirm to the father and ICL whether she is seeking for paragraphs 1 to 3 herein to be complied with.
6.In the event the mother seeks the compliance, the stay pursuant to paragraph 4 herein be lifted.
THE COURT ORDERS THAT:
7.Subject to the question of whether the mother presses her Application in a Case and any costs applications made by the father or the Independent Children’s Lawyer in relation to these orders, the matter remain listed for final hearing on 4, 5, and 6 November 2020 at 10am in person at the Brisbane Registry of the Federal Circuit Court, with the Court to appear by videolink from the Sydney Registry.
8.The mother cause her psychologist Dr F to be available for cross-examination on 4 November 2020.

AND THE COURT NOTES THAT:
A.The father and mother are both represented in the substantive dispute under the s102NA scheme, however the mother has privately funded the litigation of her Application in a Case.
B.Chambers will make representations to ascertain whether Court transcripts are available for release in this matter.
C.Leave will have to be required if either party or the Independent Children’s Lawyer seeks to recall either party for further cross-examination.
D.Parties indicated that the trial will be conducted with the parties appearing in person, in Brisbane, and the judicial officer appearing by video link from Sydney.
E.Parties are not opposed to the Family Consultant hearing Dr B’s evidence in the event she is of the view it is appropriate to do so. Dr B and the Family Consultant will give their evidence on 5 November 2020.
F.The father will retain Ms Frizelle, the mother will brief Michael Larson of counsel, and the Independent Children’s Lawyer will brief Mr Waterman.
G.In the event that the mother’s application to discharge the Independent Children’s Lawyer is unsuccessful, the Independent Children’s Lawyer will be making an application for costs.
H.In the event the Court forms the view that the mother was already provided with the father’s emails and her request was unnecessary, the Court may hear costs applications from the father and the Independent Children’s Lawyer and the costs would not be covered by the s102NA scheme.

File number(s):	BRC 8029 of 2018
Judgment of:	JUDGE MONAHAN
Date of judgment:	7 July 2021
Catchwords:	FAMILY LAW – parenting – final hearing – three year old child – parental responsibility – whether child should transition to live in an equal time arrangement or live primarily with one parent – changeover – consideration of expert report and updated family report recommendations – allegations of family violence – best interests of the child FAMILY LAW – parenting – interim application – application for the removal of the Independent Children’s Lawyer by the mother – application dismissed – costs awarded to Independent Children’s Lawyer
Legislation:	Family Law Act 1975 (Cth), ss 4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65D, 65DAA, 68L, 68LA, 117, 102NA Evidence Act 1995 (Cth), s 128 Federal Circuit Court Rules 2011 (Cth), r 21.02
Cases cited:	Heath & Pascall [2019] FCCA 2896 Heath & Pascall (No.2) [2019] FCCA 3898 Heath & Pascall (No.3) [2020] FCCA 3050 In the Marriage of Hall (1979) 5 Fam LR 609 Leroux & Leroux and Ors [2015] FamCA 1128 Legal Aid ACT & Williams [2021] FamCAFC 50 Lindell & Ranteri [2010] FamCA 52 McCall & Clark [2009] FamCAFC 92 Newlands & Newlands [2007] FamCA 168
Number of paragraphs:	258
Date of last submission/s:	6 November 2020
Date of hearing:	2, 3, 4 and 5 December 2019 and 4, 5 and 6 November 2020
Place:	Brisbane
Counsel for the Applicant:	Ms Frizelle
Counsel for the Respondent:	Mr George (December 2019) and Mr Larson (November 2020)
Counsel for the Independent Children's Lawyer:	Mr Waterman

ORDER MADE BY:	JUDGE MONAHAN
DATE OF ORDER:	7 JULY 2021