Henry & Oden and Anor - [2020] FamCA 1029

FAMILY COURT OF AUSTRALIA
Henry & Oden and Anor [2020] FamCA 1029

File number(s): BRC 2450 of 2018

Judgment of: BAUMANN J

Date of judgment: 22 December 2020

Catchwords: FAMILY LAW – CHILDREN – Contested residence – Consideration of risk factors – Orders made for the child to live with the maternal grandmother and spend supervised time with the mother

Legislation: Family Law Act 1975 (Cth), ss 60CC, 68B, 61DA, 65DAA

Cases cited:
Carpenter & Lunn [2008] FamCAFC 128

Champness & Hanson [2009] FamCAFC 96

Goode & Goode (2006) FLC 93-286

Henry & Oden and Ors [2019] FamCA 744

Slater & Light [2013] FamCAFC 4

Vallans & Vallans (2019) 60 Fam LR 193

Number of paragraphs: 99

Date of hearing: 27, 28 & 29 October 2020 and 3 December 2020

Place: Brisbane

Counsel for the Applicant: Mr S Moon

First Respondent: Self-represented

Second Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Mr G Kalimnios
ORDERS

BRC 2450 of 2018

BETWEEN:
MS HENRY

Applicant

AND:
MS ODEN

First Respondent

MR KROME

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

22 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders are discharged.
Lives with
2.That the child, X ODEN born … 2011 (“the child”) shall live with the Applicant maternal grandmother MS HENRY in Western Australia.
Parental responsibility
3.That the maternal grandmother has sole parental responsibility for making decisions regarding major long-term issues for the child, subject to:
(a)the maternal grandmother in exercising her parental responsibility shall consult with relevant medical, Allied Health and Educational professionals and shall invite, evidenced in writing, comment and suggestion from the mother. The maternal grandmother will then consider the mother’s input before making any final decision regarding the child;
(b)the maternal grandmother will advise the mother in writing of the decision that has been made; and
(c)except as these Orders provide or as maybe practically necessary to implement the Orders the maternal grandmother shall not seek nor consider advice from any family member other than the mother.

Communication with the child
4.That the mother shall be permitted to communicate with the child by telephone or any electronic means such as Skype as might be agreed but failing any agreement as follows:
(a)each Wednesday evening commencing at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;
(b)each Sunday morning commencing at 10.00am (Western Australia time) for a duration of up to two (2) hours;
(c)the child’s birthday each year at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes, providing that if the child wishes to speak with her mother longer, she may do so;
(d)the mother’s birthday each year each year at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;
(e)Good Friday at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;
(f)Easter Sunday after the child attends Mass, for a duration of up to thirty (30) minutes;
(g)Christmas Day after the child attends Mass for a duration of up to thirty (30) minutes, providing that if the child wishes to speak with her mother longer, she may do so;
(h)Boxing Day at 7.30am (Western Australia time) for a duration of up to thirty (30) minutes; and
(i)if the child is too tired or is ill or does not wish to speak to her mother, the maternal grandmother will ensure that the child speaks to her mother at another time, as soon as possible afterwards.

5.That the maternal grandmother shall initiate the telephone or Skype (or similar platform) call at the nominated time to the mobile phone or other device of the mother and shall ensure that:
(a)the mobile phone or device being used has sufficient power, data and credit;
(b)the child is placed in a quiet room free from distractions; and
(c)the child prior to the communication is encouraged to speak with the mother.

6.That the child’s communications with her mother must not be recorded.
The child’s supervised time with her mother
7.That the child will spend supervised time with the mother as agreed between the mother and maternal grandmother, and failing agreement as follows:
In Western Australia
(a)the child will spend supervised time with her mother in Western Australia during the Western Australian school holiday periods at the end of term one (1), three (3) and four (4) in each year and the following shall apply:
(i)the child shall remain in Western Australia;
(ii)the mother when travelling to Western Australia and intending to see the child shall notify the maternal grandmother of her intended arrival date in Perth, no less than sixty (60) days prior to her arrival date, upon which notification the maternal grandmother shall nominate a contact centre in Perth and notify the mother no less than thirty (30) days before the commencement of the holiday period of the details of the contact centre;
(iii)the mother will travel at her own expense to Western Australia;
(iv)the maternal grandmother and the mother must comply with the induction requirements of the nominated contact centre, including paying any induction fee;
(v)the mother is to spend up to every second day with the child at the contact centre for up to a total of five (5) occasions during the nominated school holiday period; and
(vi)the parties are to equally bear the costs of the supervision.

In Queensland
(b)the child will spend supervised time with her mother in Queensland during the child’s end of term two (2) Western Australian school holiday period in each year and the following shall apply:
(i)the maternal grandmother and the child shall travel to Queensland for a period of no less than ten (10) days, at the cost of the maternal grandmother;
(ii)by 31 March each year, the mother shall confirm in writing to the maternal grandmother, her intention to exercise the supervised time under this Order in Queensland;
(iii)the maternal grandmother shall notify the mother of the details of the contact centre in Brisbane where the contact is to occur;
(iv)both parties are to comply with the induction requirements of the nominated contact centre, including paying any induction fee;
(v)the child shall spend supervised time with her mother on up to every second day during the visit to Queensland, such time to be at the contact centre nominated by the maternal grandmother; and
(vi)the parties are to equally bear the costs of the supervision.

Educational and health needs of the child
8.That the maternal grandmother will ensure that the child continues to engage with the child psychologist, Mr Q, or if Mr Q is unavailable, with another suitably qualified psychologist as referred by the child’s General Practitioner, and the child shall continue to engage with a child psychologist for as long as Mr Q or the other suitably qualified psychologist considers the sessions as helpful and beneficial for the child.
9.That the maternal grandmother will pursue all recommendations for extra tuition and education for the child that staff at the child’s school may instruct and/or recommend.
10.That this Order operates as an authority permitting the mother to seek, at her cost, information as to the child’s health, welfare and development from a school (including copies of school reports), medical professional, allied health professional, hospital or any other organisation with respect to whom the child is or has been a student or patient.
11.That the maternal grandmother advise the mother in writing, and keep her informed of the names and contact details of any school, medical or allied health professional the child regularly attends upon.
12.That the maternal grandmother shall advise the mother in writing, and in the case of an emergency as soon as practical by electronic means, of any serious health issue affecting the child or any serious accident involving the child.
13.That the maternal grandmother and the mother shall only communicate in relation to the child by way of SMS text message or email unless in an emergency.
Day to day matters
14.That neither party shall discuss these proceedings with the child.
15.That the mother and maternal grandmother shall keep each other informed of their current residential address, email address, mobile phone number (for SMS text message purposes) and advise of any change within twenty four (24) hours of such change.
Non-denigration
16.That when with the child or communicating with the child, neither party shall denigrate, criticise or speak ill of the other party or about the child’s family members, and both parties shall do all things necessary, including removing the child from the presence of a third party, or discontinuing the telephone or Skype (or similar platform) call to ensure that no third party denigrates, criticises or speaks ill of the other party or about the child’s family members.
17.That the parties will make every effort to speak in neutral or positive terms about the other party when the child is with them, or communicating with them.
18.That the maternal grandmother will continue to make every effort to facilitate a positive parent child relationship between the mother and the child.
Family dispute resolution to settle future dispute
19.That the process to be used for resolving disputes about the terms of operation of these Orders be as follows:
(a)the parties shall consult with a registered Family Dispute Resolution Practitioner (“FDRP”);
(b)the FDRP will assist the parties to resolve any dispute or reaching agreement about changes to be made;
(c)the party not seeking a change to the Orders shall nominate three (3) FDRPs and advise the other party in writing of the fees, experience and availability of the FDRPs;
(d)the party seeking a change shall choose one (1) of the listed practitioners within three (3) business days of receipt of the list;
(e)if the party seeking to change the Orders fails to choose, then the party not seeking the change may choose; and
(f)the party who is seeking to vary the Orders will be liable for the costs of the FDRP and the venue hire of the first three (3) hours of family dispute resolution.

20.That the mother and the maternal grandmother shall have authority to provide a copy of these Reasons to any health professional they consult for treatment, counselling or therapeutic support.
21.That the Independent Children’s Lawyer be discharged.

IT IS NOTED:
A.That consistent with the Reasons for Judgment of the Honourable Justice Baumann delivered 22 December 220, the Court notes the desire ultimately for the child to spend unsupervised time with the mother.
B.That it would assist the Court exercising a power to vary the current Orders at some time in the future, if any application to vary was supported by evidence that demonstrates:
(a)the mother maintaining a therapeutic relationship with an appropriately qualified health professional that has read at least the said Reasons for Judgment;
(b)the mother completing her course of study or training and demonstrating a stable lifestyle with some financial security or certainty enabling consistency of residence and/or employment;
(c)no adverse interaction with police or allegations of anti-social behaviour for a period of time; and
(d)the mother’s ongoing maintenance of a relationship with the child in accordance with the opportunities to continue to do so under these Orders, to the beast of the mother’s ability to do so.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Henry & Oden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
INTRODUCTION

This disputed parenting case relates to a child, X, born in 2011 (now aged nine and a-half years). The issue that has fuelled this dispute is the unresolved and intrinsic conflict that exists between the Applicant, Ms Henry (hereafter called the maternal grandmother) and the Respondent, her daughter, Ms Oden. As these Reasons reflect, there are many issues that have been raised in the proceedings and few optimal outcomes. There was no prospect of the parties reaching any agreements. In seeking to determine the best interests of this child, for the reasons which follow, the Court has elected not to deal with every issue between the mother and her mother, but as best as it can do to limit the fact-finding to the most relevant issues at this time.
As indicated to the mother, who is unrepresented in the proceedings, this case could not be an examination of the quality of her parenting, as the mother continues to assert is the root of all her problems as a 37 year old female. Thankfully, even though the maternal grandmother relied upon evidence from the mother’s sister, Ms K and a step-sibling, Ms R, the mother chose not to cross-examine those witnesses.
COMPETING PROPOSALS
Helpfully, after all the evidence had been completed on 29 October 2020, at the direction of the Court, the Independent Children’s Lawyer (“ICL”) circulated a final proposed minute of order (see Appendix One to these Reasons) which essentially provides that:
(a)X would live with the maternal grandmother in Western Australia, who would have sole parental responsibility with an obligation to consult with the mother;
(b)prescribed contact between the child and the mother three times a week by electronic means and on special occasions initiated by the maternal grandmother;
(c)the child spend supervised time with the mother in Western Australia during school holidays or other times, upon the mother providing 60 days’ notice to the maternal grandmother, and with the mother to be responsible for her own costs of travel and accommodation if she was not otherwise living in Western Australia and on returning to Queensland during school holidays pursuant to the conditions as to supervision;
(d)during the course of exchanges with Counsel for the ICL, Mr Kalimnios, the nature of the order sought varied slightly, but nonetheless the child’s time with the mother remained supervised on the ICL’s proposal. The proposal described at clause 13 sought to prescribe conditions which needed to be satisfied before the mother’s time with the child could move to unsupervised time, namely “only after consultation with and in strict accordance with the recommendations” of the two Court experts - Consultant Psychiatrist Dr B and the family report writer, Dr C. As exchanges with Counsel for the ICL made clear, the Court expressed concerns as to both the practicality of and the appropriateness of such conditions - including that, as drafted, the conditions could be construed as vesting the experts with the power to make the decision that ultimately, is a matter for a court. Mr Kalimnios ultimately conceded that the provisions as drafted in Appendix One are not appropriate, but were the best attempt at trying to provide some mechanism to move from supervised time to unsupervised time in the future;
(e)proposed clauses 14 and 15 required the maternal grandmother to continue the child’s therapeutic support. There was evidence available that X was consulting a therapist, Mr Q (see Exhibit 7) and that would continue;
(f)proposed clauses 17 and 18 seek to impose on the mother an obligation to engage with the psychiatrist and “accord with the recommendations” of the Court experts and to follow their recommendations. The Court expressed concerns about the appropriateness of seeking to impose, by Court order, such requirements where this clearly intelligent mother disputes some of those opinions of the experts, and may gain more therapeutic benefit if her seeking treatment is a voluntary act of herself to improve her functioning;
(g)proposed clauses 20 to 23 seeks to restrict the mother’s access to information about the child to “school … medical professional, allied health professional, hospital or any organisation with respect to whom the child is or has been a student or patient”. Counsel engaged in submissions, both the ICL and Counsel for the Applicant Mr Moon, about concerns in relation to the proposed orders, which appeared to be directed to protecting the Applicant maternal grandmother from enquiries made directly by the mother to seek out information about the child. I will return to this issue later; and
(h)proposed clauses 24 to 28 appeared to be a personal protection injunction under s 68B for the protection of the maternal grandmother from actions of her daughter, the mother. From the exchange between the Counsel for the parties, I found it difficult to draw out much evidence to support those orders other than the history of conflict between the parties. Clauses in relation to non-denigration and processes seeking to resolve future disputes were incorporated.
The maternal grandmother maintained her application that the orders set out at “option A” in the case outline filed 26 October 2020 should still be made. They are Appendix Two to these Reasons. In essence, they provide for the maternal grandmother to have sole parental responsibility for the child and for the child to live with her. It provided a regime of time, all supervised, between the child and the mother and, importantly, at paragraph 3(b) of the proposed orders, the proposal was refined by Counsel Mr Moon, on instructions that the maternal grandmother would, at her cost, bring the child to Queensland once a year (probably in the second school holiday period in June each year) to spend supervised time with the mother on five daily occasions during that period.
The proposed orders provide for how communication should occur on special days and otherwise and some other rather usual orders in relation to specific issues.
The mother’s proposal ought to have been set out in a case outline as directed by the Court, however, the mother failed to file such a case outline, but, in her trial affidavit filed on 20 October 2020 at paragraph 144 and thereafter, she set out her “parenting proposal”. It is fair to observe that the mother’s proposal is and has always been that the child, X, be returned to live with her.
In final submissions, which are the last submissions that the Court heard from the mother, who appeared by phone because she had symptoms of the flu (the other Counsel appeared in person before the Court on 3 December 2020), she indicated to the Court that:
(a)the child should return to her care immediately after the end of the 2020 school term in Western Australia;
(b)she should have sole parental responsibility, but would inform her mother of any urgent or emergency matters; and
(c)she would consent to the child travelling at the joint cost of the parties four times a year to Western Australia during school holidays, but not for the whole of those periods and in respect of Christmas school holidays, alternate in such a way that Christmas is spent one year with her and one year with her mother.

To be fair to the mother, she found it very difficult, at all, to engage in making a submission in response to the proposals of the ICL and the maternal grandmother that the child continue to live in Western Australia. Despite the Court’s endeavours to get her engagement, she became increasingly distressed on the telephone and lost some cogency in her arguments. On more than one occasion, she made comments that were highly inflammatory and provocative. In particular, however, she indicated that:
(a)she was not prepared to go Western Australia and could not afford to go there anyway; and
(b)if the Court ordered supervised time, she will not take up the opportunity to spend supervised time with her daughter, as she was not a risk and did not regard it as appropriate.
It was unclear whether, if the Court made an order for electronic communication as has been occurring, although the mother says, interfered with by the maternal grandmother on occasion, whether she would avail herself of that opportunity if the child lived in Western Australia.
On more than one occasion, the mother, both during the trial and final submissions, expressed disbelief that the child could be placed with any person other than her as the only parent available. It is worth noting that the biological father of the child, Mr Krome, has never participated in these proceedings and has had virtually no time with the child since her birth. It was necessary, sadly, to bring the mother’s submissions to a close when the level of her distress and her comments reached a stage where she could not articulate clearly her answers to questions raised by the Bench. Her parting comments were that her mother “does not want me in my child’s life”.
LEGISLATIVE PATHWAY
The statutory pathway incorporates numerous provisions to be considered in relation to parenting orders. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act 1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
In addition to the standard pathway, in this case, what arises for consideration on the proposals of the ICL and the Applicant maternal grandmother is that, if supervised time is ordered, on what basis can it be anticipated, if at all, that there is an opportunity for the child to spend unsupervised time with her mother in the future. Mr Kalimnios helpfully directed the Court to well-known authorities such as Champness & Hanson [2009] FamCAFC 96, Carpenter & Lunn [2008] FamCAFC 128 and Slater & Light [2013] FamCAFC 4, and distilled what he says were the appropriate principles of that line of authority, namely:
(a)that it is a matter for the discretion of the Court whether to order permanent supervision; and
(b)that the reasons for doing so need to be clear and cogent.
Although there are practical difficulties with such an order, that is not a bar to such an order being made. He noted that orders for a child to spend time with a parent or other person, even supervised, are not really final and are always subject to review if there has been a material change of circumstances. As set out at Slater & Light [2013] FamCAFC 4 at paragraphs 38 and 39, namely:
[38] While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.
[39] May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review:
8.Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund).
…
10.In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence…his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant…
it is desirable that some consideration be given to how the time the child spends with the parent could move from supervised time to unsupervised time. I deal with this dilemma later in these Reasons.
CONTEXTUAL BACKGROUND
With such a long and difficult history I choose to deal with the background in a succinct way. Hereafter statements of fact should be regarded as findings of facts.
In that regard, Mr Moon, on behalf of the maternal grandmother, made a submission that the mother’s evidence should be treated cautiously. I agree she is an unreliable historian. I also agree that there are many examples in her evidence before me where the mother moved from making clear denials of certain conduct, then when confronted with evidence such as police records, moved to being somewhat evasive and often defensive.
Whether this is a characteristic of the mother’s personality or a reflection of the very difficult and stressful history that she says she has experienced growing up and since she became an adult, is a matter that is at least alluded to by the experts whose evidence I deal with through these Reasons. In making this finding about the mother’s evidence, I do not make a finding that she is untruthful in every respect. However, the extent of her antipathy for her mother and her need, from her perspective, to blame her mother for all of the problems in her life that she has faced, is such that it gives a perception to her evidence which, when considering other evidence available to the Court, makes her versions at times unreliable and coloured by her own view of her childhood history.
The mother was born in 1983. She is now 37 years of age. Her mother was born in 1960 and is now approaching her 60^th birthday. Her biological father, Mr S Henry, has re-partnered and is approximately 63 years of age. Although the mother continues to assert she has never had support from her family and makes many other very serious allegations against the quality of the parenting that she received, I am satisfied on all the evidence that for much of this lady’s life, and despite many challenges in her behaviour, she was often supported by her family.
Certainly, when in September 2007 the mother’s baby, Z, tragically died, the mother was, not surprisingly, engulfed by grief which exacerbated underlying mental health challenges that were existing at the time. The mother was then only 24 years of age. The relationship with the father of Z was, it seems, shaped by family violence towards her. Although the relationship with the father of X was not, that relationship was of short duration. Certainly, from the birth of X, the mother had come into contact on a number of occasions with police and the Department of Child Safety. The mother says that nonetheless she was coping well with the child, as her primary and sole carer, amid the increasing conflict with her family.
There was a domestic violence incident between the mother and her then partner in February 2014, referred to in the material. The mother and child were involved in a motor vehicle accident in July 2014. It seems, however, that when the mother formed a relationship with a Mr BB, which resulted in an engagement to marry, she felt that she had found a partner who would support her and love her in the way that she hoped, but which she said had never been offered to her by her own family or others.
Sadly, when that engagement came to an end in or around December 2015, the mother’s reactions were to attempt to take an overdose and to be involved with police in a way which was destructive and antisocial. She was admitted to Ipswich Hospital and the notes of her admission are before the Court at Exhibit 2. Although X was due to, and did, commence prep at the beginning of the 2016 school year, there is evidence that the mother found engagement with the school and other parents difficult. There had been an earlier incident when the child was at day care in January 2015 where the notes of her admission to hospital suggested that the CEO of the childcare centre had to put the childcare centre into lockdown because of the mother’s behaviour. I make no finding on the evidence before me of that particular incident, but I am satisfied on the evidence of Exhibit 11, Exhibit 12, Exhibit 13 and Exhibit 14 that between the period from late 2016 until approximately October 2017, the mother was not coping well. While she denies ever having any suicidal ideation, some of her comments as recorded, most of which she denies, were troubling. I found her explanation for example, for her comment in or about 7 October 2017 (Exhibit 14) that she did not want to “be here anymore”, as a reference to living at Town CC as fiction.
I take into account that the mother says, and I accept, that in approximately August 2017, she was the subject of a serious sexual assault upon her, that is described by her as rape and sodomisation. She did not report the matter to the police sufficiently so as to enable them to investigate and prosecute any offender. The mother said, of course, that this incident, not surprisingly, was highly distressing for her and, on the history, resulted in a continuing downward spiral in her coping capacity. When the mother came to the attention of police on 7 October 2017 and thereafter on 11 October 2017 for the offences revealed in the evidence, she was charged and placed into custody on remand. She actually remained in prison on remand until 7 February 2018 – a period of 119 days.
During that period after X was initially placed in the care of the maternal grandfather who was living in Queensland. The maternal grandmother had moved to Perth with her husband in March 2017 where her relationship with her daughter had finally broken down irretrievably. There was then a need for X to be cared for by someone other than the maternal grandfather because of a health event he suffered. As Exhibit 21 demonstrates, the mother agreed on 7 December 2017 that X should live with the maternal grandmother in Perth while she was in custody.
The document reveals an agreement by the mother that the child live with the maternal grandmother for about one month. The mother was on remand for a further month. However, when the mother was released on 7 February 2018, the child was not returned to the mother and, as a result, on 7 March 2018, the mother filed an application in the Federal Circuit Court of Australia seeking recovery of the child and an order for residence. On 2 May 2018, Judge Jarrett of that Court made an order that the child live with the mother and, on 8 May, the maternal grandmother complied with the recovery order, returning the child to Queensland, who then, again, began living primarily and exclusively in the care of the mother.
The mother was dealt with for a string of criminal charges by the Magistrate’s Court on 25 May 2018 (see Exhibit 22). One may have hoped with the troubled history to that date the mother would have settled down and her behaviour might have regularised. In my view, the history indicates it did not. On 18 September 2018, it is alleged the mother assaulted a neighbour and she was taken into care under an emergency treatment order. The Department of Child Safety became involved and immediately took out Orders in the Children’s Court to take X into care. Whilst the child X was the subject of a care order from September 2018, the mother maintained supervised time facilitated by the Department.
The Order of the Department continued for 12 months until interim Orders were made by this Court in September 2019. During that period, the child, it seems, had been the subject of a number of placements organised by the Department. The proceedings in this Court continued to progress (even though the maternal grandmother had at one stage commenced proceedings in the Family Court of Western Australia which were ultimately transferred to the Federal Circuit Court of Australia). When it became apparent that the non-family carer of the child who had taken over the care of the child in Queensland was unable to do so further, the matter came before the Family Court of Australia on 20 September 2019. I rely upon but do not repeat much of the history set out in Reasons delivered by me on 24 September 2019 (see Henry & Oden and Ors [2019] FamCA 744) which not only sets out the history, but the basis upon which the Court made the very difficult decision, and one which further distressed the mother greatly, for the child, X, on an interim basis, to live with the maternal grandmother in Western Australia.
Those Orders provided, inter alia, that the mother complete a comprehensive psychiatric assessment. This was seen as appropriate in view of the report that the ICL had procured from consultant psychiatrist Dr B arising from interviews conducted with the mother on 5 February 2019 and resulting in a report dated 26 March 2019, filed in the Court on 25 June 2019. I deal further with that evidence in these Reasons.
After delivery of the Reasons on 24 September 2019, Orders were made on 1 November 2019 for the maternal grandmother to travel to Brisbane to facilitate X spending time with the mother on two occasions between 14 January 2020 and 24 January 2020 and 10 April 2020 and 24 April 2020. The supervised time so ordered in January did progress but was cut short by, it seems, either a confusion or failure by the maternal grandmother to comply with the Order.
In the end result, I was satisfied on submissions and the evidence I heard that there was some confusion. Because of the COVID-19 difficulties and border restrictions in Western Australia, the time scheduled for the mother to spend physical time supervised in Queensland with X in the April school holidays did not eventuate, and again, caused great distress to the mother.
Although the matter had been listed for a hearing on 3-5 August 2020, by 28 May 2020, it became clear that the difficulties with obtaining a family report, as had been envisaged in earlier Orders, could not be suitably overcome in the COVID-19 environment then prevailing and the trial was adjourned until 27 October 2020 when it did proceed for three days.
Critical to the Court’s determination was to allow the initial family report writer, Dr C, to have a further opportunity to prepare an updated report. The first report of psychologist Dr C had been prepared and was dated 16 May 2019. The updated report of Dr C is dated 4 October 2020. Dr C, as was Dr B, was cross-examined before me and I will return to that evidence later in these Reasons.
It only became apparent when the trial began (because the mother had failed to disclose to Dr C, it seems, and to her health professionals that she had independently engaged) that there were other issues with the mother’s behaviour that had occurred in 2020.
Exhibit 3 relates to an incident taking place less than one month before the beginning of the trial, on 30 September 2020, and Exhibit 10, relating to the incident on 1 May 2020. Exhibit 23, which has details of domestic violence orders, reflect poor behaviour by the mother or at the very least, and she conceded, evidence of poor choices by her of same sex relationships that she had decided to enter into.
Overall, the incidents reflect poorly on the mother and her capacity to lose emotional control. The mother said in submissions that those incidents should be seen as different from earlier incidents because she did not have a child in her care and that if she had had a child in her care, they would never have occurred. As the history reveals the child X has not been in the mother’s care since September 2018.
When the trial commenced on 27 October 2020, as earlier indicated, it was in person. The mother appeared before the Court. I should note at this stage of the Reasons that the mother is, in my assessment, an intelligent and highly articulate woman. She has re-enrolled to complete a Bachelor degree. Her self-prepared affidavit of evidence-in-chief was articulate and sought to deal with relevant matters, including, as it did, numerous annexures. She was well prepared, ultimately, for cross-examination of witnesses which would not have been easy for her, in particular her father and her mother. She showed some aplomb in cross-examining the experts Dr B and Dr C.
Sadly, however, there were examples during the trial of the mother having what I would describe as a “meltdown”.
As soon as the hearing began on 27 October, the mother said words to the effect that “there is really no point me being here because you’ve already made your mind up and so has everyone else”. The record will reveal that I did my best to encourage the mother to remain engaged in the process and she did so for a period.
On the first day of the hearing, the mother cross-examined her mother; cross-examined her father, Ms S Henry, and, in my view, overall conducted herself appropriately. I do not ignore how stressful it must have been for her.
It was always going to be more difficult for the mother when she came to be cross-examined and challenged. During her cross-examination on 28 October 2020, the mother became increasingly belligerent, aggressive, distressed and ultimately, as the transcript reveals, when the Court was seeking to get a response from her to a question she was avoiding answering, she left the witness box and the Court at 11.34am. Thankfully, she returned at 12.51pm and her cross-examination resumed. That evening she sent a letter by email to my Associate, which was tendered and marked as Exhibit 9, apologising for her behaviour and seeking to explain it.
To assist the mother at the end of the second day of testimony, a number of documents were tendered that had not been procured by the ICL, including notes of her treating psychiatrist, Dr M, her previous psychologist, Ms J and her current psychologist, Ms T.

On the final day of the trial, 29 October 2020, the mother was put under substantial pressure by cross-examination, which was in no way unfair and I pay tribute to both Mr Moon for the maternal grandmother and the ICL’s Counsel, Mr Kalimnios, in seeking, whilst undertaking their forensic duty, to treat the mother fairly.
She was particularly distressed when any suggestion was made in questioning to her by anybody that the child may not return to her primary care, which she ought to have known, was the position of the ICL and the maternal grandmother.
As I say, she very appropriately and, I think, adequately, cross-examined Dr B and Dr C and the trial concluded on 29 October with a direction that the ICL prepare a draft proposed minute and circulate it. Because of some need associated with the Court calendar, the initial date to take submissions was moved until 9.00am on 3 December, when, as I earlier indicated, Mr Moon appeared personally and made submissions on behalf of the Applicant, the maternal grandmother, Mr Kalimnios appeared personally on behalf of the ICL and the mother was granted leave, at her request, to appear by telephone from her home.
I sought to indicate to the mother that the submissions should only be based on the evidence that the Court had heard. The mother attempted to give evidence from the “bar table” about an asserted discussion between the ICL and her counsellor, Ms T, after the hearing completed. I have no evidence of that discussion and, in any event, in my view, it could not be relevant to the difficult decision I am required to make.
THE MOTHER’S MENTAL HEALTH
The report of Dr B is relied upon heavily by both the ICL and the Applicant maternal grandmother. Considering the material available to Dr B at the time of his assessment of the mother in the interview on 5 February 2019, his opinions as to function, treatment and prognosis are worth repeating and incorporating in these Reasons in full. They were as follows:
FUNCTION
With respect to the question of whether The Mother has the capacity to provide for the needs of the child, including her emotional and intellectual needs, I advise:-
She has been found to be entitled to public housing and is happy in her current accommodation, where she has a three year lease.
She has been functional to be able to access and care for a rescued dog for about six weeks.
She has been able to function to gain entry into and return to study a Bachelor Degree, at a Queensland University, which she originally commenced in 2014, and of which she has another two years to complete.
It is noted however that her capacity to focus on this course of study has been varied and interrupted by “the psychosocial turmoil” that has marked her life over the last five years.
I express a serious concern that Ms Oden has not been able to focus her energy on parenting functioning from 2014 to 2018, as she has had such serious family and personal relationship conflicts, trauma and loss, and her mental health has suffered severely as a result of these stressors.
The diagnostic formulation of the issues [1] to [3] outlined above create an increased risk that psychiatric issues with which Ms Oden presents, create a recurrent concern for impulsive aggressive behaviour leading to potential forensic involvement, suicide attempts and difficulties from coping should interpersonal relationship conflict recur.
This means I believe there is a need to protect The Child from physical and/or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence with respect to The Mother.
TREATMENT
I believe Ms Oden presents with a complex syndrome of psychiatric issues which requires assessment, reassessment and treatment over at least a five year period.
Foetal Alcohol Spectrum Disorder can be managed but not cured.
The therapist with the education, training, qualifications and experience to understand the complex medical, social, psychiatric and functional issues in this case is a medical specialist consultant psychiatrist.
This professional and expert assistance is considered mandatory in this case, given the nature and severity of the recurrent aggressive impulses Ms Oden has displayed which have led to the charges before The Court, and her attitude to them, which was not marked by any display of regret or remorse, but rather a rationalisation that the police officer involved reminded her of another person [the friend she said raped and sodomised her].
The diagnostic formulation of [1] to [3] outlined above means that the psychiatric issues with which Ms Oden presents will need management including investigations, counselling and psychotropic medication. This is a biopsychosocial plan of treatment.
In view of this history I would proscribe alcohol use totally and permanently until a post separation parenting is stable and functional.
It is likely that psychotropic medications of some sort will be needed as part of this treatment plan.
I believe she could benefit from 10 specific sessions of counselling to review the contents of this report and to support her involvement in the processes that follow from the matters before The Court. This process could include the following components:-
•A review of this medicolegal report.
•The success of her efforts to embrace the concepts in this report.
•Her understanding of the need to develop effective post separation parenting plans that may arise.
•Taking personal responsibility to develop and maintain a post separation parenting plan (which is a contract to adhere to best practice principles for parenting and raising the child, a key element being the PPP Parenting Guides developed by Dr Matt Sanders and the Department of Psychology at the University of Queensland).
•Commit to a strict compliance with the Orders made by The Court.
PROGNOSIS
I am concerned that Ms Oden is a person who has had lifelong social skills difficulties which link to the current nature of her relationships with her family and her personal relationship history.
I note she has had two consultations with a medical specialist consultant psychiatrist in the last four weeks. Medication changes are occurring with the goal of managing weight gain and sleep disturbance.
I note she is also accessing counselling from two therapists [one from September 2018, and another from November 2018 whom she first saw in November 2017 as part of a prison support service for when she was on remand].
It is a very positive step to access a medical specialist psychiatrist assessment and treatment and counselling in recent times, an excellent situation in light of the issues dating from 2014 up to 2018.
It is unclear if treatment will be sufficiently powerful to assist her to improve the impairment of function in this domain.
It is unclear if treatment will be sufficiently powerful to assist her to halt and recover the functional impairment which marks Ms Oden’s life history since 2014.
I believe Ms Oden will need counselling to assist her to address social stressors in her life from social relationship issues and to monitor her mood to ensure that she does not develop a depressive illness.
There has been a focus on “trauma related diagnosis” in this case. I think it prudent to have a diagnostic review of the mental state phenomena in this case, including trauma related and non-trauma related phenomena [especially congenital neurodevelopmental issues].
The prognosis will be improved if over the next five years Ms Oden can embrace a life in which the following do not recur:-
•Unplanned pregnancy
•Abusive personal relationships marked by domestic violence
•Loss due to suicide
•Suicide attempts
•Further charges and forensic issues
•Physical assault/rape/sodomy
These issues should be reviewed at six monthly intervals.
(As per original)
By the time he gave evidence in the Court some 18 months after first interviewing the mother, he had been provided with additional information by the ICL, which he identified. It is fair to say that the Court expert, Dr B, said that the more recent evidence confirmed his concern that the mother has a difficulty in regulating her behaviour and has demonstrated anti-social personality traits.
He said in questioning by Counsel for the maternal grandmother that, in view of his earlier statements as to prognosis and the more recent examples of anti-social and difficult, aggressive behaviour, he would “restart again for a further five years” as a cautionary period that he opined in his report before he will be comfortable with unsupervised time occurring. Said another way, his opinion was that he would feel comfortable that the mother’s risk had reached a level where she would not potentially be a risk to the child after five years of behaviour not similar to recent events. He indicated the mother’s treatment needs to be “education based”. He was concerned about the mother’s stress responses put to him by Counsel, including those in Court, and said that these responses highlight that, under stress, the mother appears to have an urge to flee. He says, while he cannot underestimate the very difficult and troubled history the mother has had to endure, his concerns remain as to her functioning and the risk this poses for X.
The mother had a focus in her cross-examination of Dr B on what she says were the actions of the maternal grandmother and Dr B indicated, of course, that he was not a fact finder and could not possibly make a statement about whether the maternal grandmother had been honest with Dr C. He, under questioning, repeated that the repetitive nature of the mother’s severe conflicts were a concern about the mother’s capacity to regulate her emotion and her general functioning. He did not deny it was a significant possibility that the rape/sodomisation incident would have exacerbated the mother’s underlying condition at the time.
When confronted by the mother’s statement that she was still having to deal with the trauma from her own mother from when she was a child, Dr B sought to sympathetically respond by indicating that a healing or therapeutic alliance over a sufficient period is what the mother would require and that it may take some years to gain the benefits that she would hope to obtain from that treatment.
The mother, in her case, in response to the evidence of Dr B, relied upon the evidence of her treating psychiatrist, a qualified psychiatric registrar, Dr M. There was no doubt that Dr M is qualified and is, she says, and I accept, likely to be admitted as a psychiatrist in January 2021. She has had a number of consultations with the mother since February 2020. From her understanding of the facts, she regarded the mother as being able to regulate her behaviour quite well. It does seem, however, as her cross-examination proceeded, that she had not been given all the history by the mother. Somewhat, in my view, defensively, Dr M made it clear that as a therapist it was not her role to “challenge” the patient. She accepts the patient’s statements as accurate. She certainly expressed concern about the impact on the mother’s mental state if she does not retain custody, opining that it is likely she would become more depressed. She opined that the mother’s behaviour should be seen within the context of her “losing her child” meaning X – which is a significant stressor. Her overall opinion was that the mother is coping well.
When cross-examined by Counsel for the maternal grandmother, Dr M indicated that although she had been offered a copy of Dr B’s report, she chose not to read it. She justified her position as a treating psychiatrist by explaining that she is not undertaking a forensic role. When it was put to her the number of other incidents that have occurred, of which she was clearly unaware, including the recent incidents of 1 May 2020 and 30 September 2020, she indicated that that was a concern but she was not prepared to change her professional opinion, that her assessment in August 2020, that the mother was coping with normal stressors of life, was accurate.
I find it difficult to afford the weight to Dr M’s opinions that the mother would ask that I do, in circumstances where I find she has clearly not been fully briefed. She chose, despite Court Orders making reports available to her, to adopt the professional position, as she was perfectly entitled to do in her role, not to read them. She lost the opportunity to inform herself of background factors which, in my view, were highly relevant and may well have helped the treatment options and therapy she was undertaking with her patient.
Similar concerns are expressed by the Court in relation to the evidence of the mother’s recent counsellor, Ms T, whose notes are before me at Exhibit 8 and which demonstrate a surprising lack of candour to her therapist by the mother about the nature of her relationship that she had formed with “V”. There was initially an apparent disguise of the relationship’s violent nature to her therapist (as the mother ultimately conceded was the nature of their relationship) and the controlling features of it at the hands of “V”. Again the point needs to be made that the therapist was provided only part of the story and in fact a highly inaccurate part, in my view, and could hardly be blamed for forming opinions, which may be different had the whole story been known and fully ventilated in therapy sessions.
Again, it is difficult to afford any significant weight at all to the evidence of Ms T. In making the comments about the mother’s chosen therapist, of course, one would not want to unduly damage the therapeutic relationship which the mother has formed with her chosen therapists. I accept that professionally, each of the therapists explained why they were not likely to be assisted by another health professional’s observations or opinions. Nothing in these Reasons is meant to suggest that they are, any more than the Court is, bound by the opinion of another expert like Dr B.
Nonetheless, it is disappointing for the mother, in my view, that her therapists did not have the full gambit of the facts from her and/or from material available to the Court, including Dr C’s report, which may have assisted them in treating her. I am not satisfied that her current health professionals would necessarily afford the Reasons delivered to support the Orders the Court makes, any weight at all. Nonetheless, the Court will direct that these Reasons be made available by the ICL to the mother’s health professionals in the hope that they may read them and might find something in the Reasons that could assist the mother in her therapy with them.
FAMILY REPORT
Dr C, a psychologist of significant experience, has published two reports in these proceedings. The most recent updated report is the most relevant, in my view, and builds on the earlier report. These Reasons incorporate a number of opinions expressed by the report writer in her evaluation as follows:
[11.01]At interview, X Oden presented as a lively and content nine-year-old girl.
11.02 She was engaging and responsive throughout the interview by telephone.
11.03The content of X’s conversation was age and stage (of development) appropriate, with fantasy games and creatures and school-based topics the major focus.
11.04She spoke of her grandparents easily and positively, and was forthcoming with information about her home life, indicative of a transparent relationship with her grandparents and a home environment that was comfortable and supportive.
11.05Her daily routines and lifestyle including supportive schooling and extra-curricular activities, appear to have supported X to thrive.
11.06At interview, she spoke of her mother briefly, when asked guided by questions. She did not offer any additional information about her relationship with her mother.
11.07The only suggestions she made to her lifestyle were that she did not want the telephone sessions with her mother to be long, and did not like flying in planes.
11.08According to the school principal, and Mrs. Henry, (and X’s psychologist) X has improved on measures of emotional, physical and intellectual development.
11.09On her arrival to reside with her maternal grandparents, in September 2019, according to Mrs. Henry and the school staff, X’s intellectual and emotional development showed obvious signs of developmental delays.
11.10It was observed X was anxious, particularly when separated from Mrs. Henry. She was picky with her food, hoarded food in her room, was shy at school, dependent upon adults to assist her with all tasks, reluctant to engage with other children and had few social skills.
11.11Mr. Q mentions X’s behaviour as being initially, control seeking, and lacking in collaboration and reciprocity. He described her attachment as anxious/disorganised as demonstrated by a pattern of anxiousness then collapse.
11.12However, with professional and family support, X’s development has continued to improve while living in Western Australia under the care of her maternal grandmother.
11.13For the past eight months, X has engaged with a psychologist to assist her with building her resilience, understanding her emotions and developing soothing strategies. According to Mr. Q, she is more inclined to be aware of other characters and their emotions in play therapy and is more likely to show reciprocity and generosity of spirit. In addition, she has been well-supported at her school and received extra tuition and support at home.
11.14According to the school principal, Ms. U, X’s academic prowess has improved and she is now performing appropriately on all measures of her academic ability with her teachers reporting she will cope well with moving into year five in 2021.
11.15She has grown emotionally, developing her self-confidence and self-competence, and is experiencing less anxiety and distress as observed by her school teachers, her grandparents, and her psychologist.
11.16X can complete most self-care tasks, engages with household chores and has friends and regular playmates. She is interested in different foods and can sit at the table and enjoy a meal with others.
11.17Unfortunately, due to distance and then to internet problems the writer was unable to see X while talking, however the school principal later commented to the writer details about X’s demeanour whilst engaging in the interview, and it was reported that she appeared to conduct herself confidently and in a relaxed and chatty manner.
11.18Her engagement, speech and ability to converse were very different to the shy, reluctant and wary eight-year-old girl that the writer met previously in Brisbane.
11.19Since living in WA, X has also had contact with her mother. Contact between herself and her mother has been limited, yet generally satisfactory since September 2019.
11.20The January 2020 contact in person at W Centre appears to have been conducted successfully. X did display some signs of anxiety and uncertainty when visiting Brisbane. This includes the soiling incident, and the reluctance to leave her grandmothers side and visit other family.
11.21The W Centre report indicated that the contact between the mother and child went well, with the mother being attentive and child focussed. Ms. Henry was noted to be irritable at times and in a hurry to leave.
11.22Contact on the phone, between mother and child, is reported by Mrs. Henry as being generally smooth, although the one negative incident that occurred in July created further problems for X, and according to Mrs. Henry and Mr. Q, led to emotional turmoil and behavioural regression.
11.23Both Ms. Oden and Mrs. Henry spoke to the writer about this incident and reported similar events. Ms. Oden also expressed shame and remorse to the writer, with her own behaviour.
11.24It is this incident that is particularly helpful in determining X’s ability to cope with her mother's emotional behaviour.
11.25While X had been continuing on an upward trajectory in WA, in terms of her emotional well-being and intellectual and developmental growth, this one incident by phone/Skype, where her mother was angry and persistent, caused considerable emotional pain for X, and triggered increasing anxiety about her mother that lasted several days.
11.26In the immediate time after the incident, Mrs. Henry reported that X regressed considerably in terms of her ability to be independent and act autonomously, and her engagement in her school work and household chores and tasks. She reported that X seemed emotionally overwhelmed.
11.27The delayed response from Ms. Oden to X’s email caused further issue for X and is another indicator of how X copes with the anxiety that occurs when Ms. Oden is/was emotional and less predictable. These observations by Mrs. Henry of X’s reactions and behaviours after the event, provided a glimpse of how X managed the complex emotions surrounding the event and her consequential distress.
11.28According to Mrs. Henry, X’s thinking and conversation was focused on her mother, and consisted mostly of worries about her mother’s behaviour and emotions for days after the event.
11.29X’s concerns interrupted her ability to engage with people appropriately, her ability to complete tasks, and her general mood and well-being.
11.30This is of particular concern to the writer.
11.31Ms Oden advised at interview that she believed she was, with the help of professionals, improving her emotional regulation and her general well-being and mental health. This does indicate that Ms. Oden has developed some awareness of the impact her behaviour has on her daughter.
11.32Her aims were to stabilise her emotional well-being and prepare for both the transition of her daughter back into her care, and the possibility of her daughter remaining in the care of Mrs. Henry.
11.33In January, Ms Oden spent two hours on three days in supervised contact with her daughter in Brisbane.
11.34She reported that she believed this contact was successful. Ms Oden reported to the writer the activities that she and her daughter engaged in together, and her own sadness at the end of the sessions.
11.35Of interest she did not provide details at interview of how her daughter looked, had grown, seemed emotionally, or observations about X in general. She did provide information about the activities they pursued together. The information provided was person centric to Ms. Oden and her feelings at the time, such as her distress at farewelling her daughter on the first day together.
11.36Ms. Oden was for a period of time, engaged on a regular basis with registrar psychiatrist Dr M, and psychologist Ms J. Engagement with both professionals seems to have ceased from the end of March 2020.
11.37Ms Oden has engaged with psychologist Ms T since March 2020 approximately and advised that she has completed up to 13 sessions since this time.
11.38She has also completed some parenting education including the Circle of Security Course and Magic 1,2,3.
11.39All of these engagements with professionals and courses of education show that Ms Oden has made a considerable effort at self-development, improving her emotional well-being and learning about parenting behaviours.
11.40From her reports, she has suffered enormous adversity throughout her life. Managing the impact of this adversity will require a long-term commitment by Ms. Oden to self-development, in order that the negative consequences are minimised for a sustained period of time, and that she is in a position where she can consistently demonstrate an understanding of her emotions and her behaviours, and the impact they can have on herself and others. This ability to sustain regulated emotional behaviour, is particularly important when parenting a child.
11.41Children are emotionally vulnerable and their childhood experiences of conflict and trauma can have long lasting consequences that an abundance of research has shown can affect their emotional, intellectual and physical development (for summary see Wolchik, Amato 2010 and 2012). These consequences also affect their child-parent relationship and can continue to negatively impact their relationship with their parents as they grow into adults, and as they live their adult lives.
11.42Ms Oden has expressed a desire to not only parent her daughter, X Oden, but also to protect her relationship with her daughter, so that she can have a long lasting positive and healthy relationship with her daughter well into X’s adulthood. It is this long-term relationship that the writer is most interested in protecting, for X’s well-being.
11.43In the interest of protecting the longer-term positive mother daughter relationship, the writer believes it would be premature to consider moving X from her stable home in Western Australia at this time of writing.
11.44By all reports X was emotionally and intellectually struggling (for her age and stage of development) when she was first placed with Mrs. Henry, her maternal grandmother in late 2019. She displayed an anxious or disorganised attachment to her mother and to a lesser extent toward other significant family members. From the information provided to the writer, X has only continued to show improvement and gains in all aspects of her development during the time that she has resided with Mrs. Henry. Significantly she presents to her teachers, psychologist and family members as being emotionally attached in a more positive manner with her maternal grandmother and Mr. Henry, and is demonstrating healthier patterns of attachment with peers and school staff.
11.45Importantly, X’s progress is considered new and rather fragile, and typically will require further time and attention in order that these positive changes be considered established and be embedded in her developmental growth.
11.46Therefore, it is the writer’s conclusion that disrupting X’s progress with a residential move to Queensland and making changes to her care and her care routines would only serve to disrupt her emotionally and developmentally, and possibly lead to regression or delays in her emotional, social and intellectual development.
11.47Such a move can also interfere with her recently established healthier attachments to her maternal grandmother and friends and family, as well as interfere with the progress she has made with her anxious attachment previously demonstrated in regard to her mother.
11.48It is also the writer’s conclusion that the mother daughter relationship can be best protected by allowing Ms Oden to continue with her self-development and mental health management while simultaneously facilitating regular positive contact. By doing so, Ms Oden affords herself the best opportunity to build a healthy positive relationship with X and minimises the opportunity for X to be negatively affected by behaviours that she Ms. Oden currently learning to change and regulate.
11.49Ideally, X would benefit from a combination of the safe, stable and emotionally supportive environment provided by her grandparents in Western Australia, with regular positive contact with her mother. This combination would continue to develop their relationship and improve attachment. Distance does not allow this to occur in a physically close manner.
Regular, short, positive interactions, in which X feels heard and emotionally supported by her mother, and where Ms. Oden responds empathetically and positively, will assist X to develop a healthier attachment with her mother. It is the development of this healthy attachment system that in turn will assist Ms Oden to protect her long-term relationship with her daughter.
11.50The relatively healthy attachment X has to her maternal grandmother, (and to other significant figures in her family circle and friends) requires protection and an opportunity to thrive as these relationships are significant currently and long term for X. However the protection and nurturing of these relationships can not be achieved by X moving her residence and primary care to her mother in Queensland at this stage. Risks to the sustainability of the grandmother child relationship include distance (Ms. Oden stated that she could not afford to assist X to travel to Western Australia) and also Ms Oden’s ambivalence in regard to her relationship with Mrs. Henry. X’s relationship with her grandmother would be reliant on Ms. Oden's ability to facilitate this relationship, financially, physically, and emotionally. Historically, Ms. Oden has found this facilitation challenging.
11.50In contrast, while Mrs Henry acknowledges difficulty with sustaining the mother child contact, she has consistently facilitated regular telephone and Facetime discussions between X and her mother and has transported X to Queensland.

As a result of those opinions, Dr C recommended that X continue to reside with the maternal grandmother and that X’s time with the mother be supervised.
A number of recommendations for treatment of the parties were made by Dr C and are set out as follows:
12.09It is recommended that Ms. Oden continue to maintain her engagement with her therapeutic professionals, and in particular a treating psychiatrist, and that she follows all recommendations made by these professionals.
12.10It is recommended that Ms. Oden continue to seek assistance with developing behaviours that promote a healthy mother daughter attachment, with her aim of developing a long lasting and positive relationship with her daughter. That she also seeks support for repairing her relationship with her mother, Mrs. Henry, and for managing historical psychological issues.
12.11It is recommended that if Ms. Oden continues to engage with her psychiatrist on a regular basis, and her engagement with X is consistently positive, a move from supervised time with X to unsupervised time with X be pursued only after consultation with the treating psychiatrist, and psychologist (who will have read the family reports).
12.12It is recommended that Mrs. Henry continue to seek psychological support for herself and for finding strategies for coping with X’s emotional development and strategies for managing her relationship with Ms. Oden.
12.13It is recommended that Mrs. Henry make every effort that she only speaks in neutral or positive terms about Ms. Oden when in X’s company and that she continues to make every effort to facilitate a positive parent child relationship between the mother and the daughter.
12.14It is recommended that Mr. and Mrs. Henry and Ms. Oden communicate regularly, briefly, in a structured format, about X’s well-being and development, and that this be seen as an opportunity for respectful information sharing and for the demonstration of friendly and courteous behaviour at all times.
12.15It is recommended that this report is not released to Ms Oden, as reading the report may be detrimental to her mental health. I recommend that Ms Oden access this report through her treating GP or psychiatrist.
Dr C was the subject of cross-examination as the last witness. She had also been provided some additional material by the ICL. Dr C was clear in her opinion, that the mother is a significant person in X’s life and that spending no time with her mother (as her mother had indicated was her position if she was limited to only supervised time) is likely to be problematic for the child in the long term and contrary to her best interests.
When cross-examined by the mother, Dr C readily conceded that more contact time would be ideal, but that distances were a problem. Nothing in her cross-examination caused her to deviate from her strong view that the child ought live with the maternal grandmother. She pointed to the fact that the data available to her and her own assessment is that X needs a stable environment for as long as possible, and that there has been an improvement in the child’s behaviour and development whilst living with the maternal grandmother based on the school reports and a note from the school (see Exhibits 1 and 20). Dr C identified that she regards the mother as a risk to the emotional development of the child at the moment because of the inability that the mother has demonstrated of remaining calm and stable. If the mother is able to maintain stability, then this would be good for the child’s relationship with the mother.
Again, a theme of Dr C’s opinion was that the child’s development since moving to Western Australia, the consequence of the earlier interim Orders, has shown that the child has coped well with the move, and whilst no doubt greatly missing her mother as she expressed to Dr C, there was no justification for moving the child now, and in fact there are some risks associated with such action. Dr C readily accepted that the mother had suffered great adversity, although she was unable to make a comment factually about the conflict as to the mother’s own parenting as a child by the maternal grandmother. She sought to explain to the mother how X could feel abandoned if the mother effectively did not continue to maintain some contact with the child even if it was electronic and also supervised personal contact. She accepted that it would be very hard for the mother to be a parent when she felt she was being controlled by another person, like her mother, for whom she has little respect, trust or empathy.
Even though Dr C was concerned about a possibility, as the mother put it to her, of spending no time, that was not sufficient to encourage Dr C to deviate from her position that supervised time, at this stage, was in the child’s best interests. During cross-examination of Dr C, being the last witness in the case, the mother became increasingly despondent and despairing, and after three days of hearing, her sense of hopelessness was apparent to the bench. It was appropriate to end the trial rather than take submissions as a result, at the end of the evidence.
It has long been the position in this Court that a Judge is not bound by the evidence of a family report writer. However, the foundation for the opinions as specified by Dr C (and as set out in these Reasons and her Reports) are well-established, and I give her opinions significant weight.
SECTION 60CC(2) – PRIMARY CONSIDERATIONS
I find that it is of benefit to X that she has a meaningful relationship with her mother. She has no relationship with her father at this stage.
However, the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect, or family violence is, as defined in s 60CC(2)(b), a factor that needs to be given greater weight. In this regard, the risk to the child of being in the primary care of the mother as set out in these Reasons is real, and in my view not overcome by the evidence of the mother that:
(a)she is now in more stable accommodation;
(b)she is not seeking to pursue any new relationship;
(c)she has a good relationship with her neighbours (although no evidence of any neighbours was offered to the Court); and
(d)that when the child returns to her care, she will cope much better than she demonstrates at the moment because of the enormous stress that she feels with the child being away from her.
There are risks to the child in the household of the maternal grandmother and they arise from her attitude to her daughter and the possibility that she will not always be able to protect the child, X, from the hurt she feels as a mother arising from the estranged relationship she has with her daughter. It was, in my view, an example of the conflict in the maternal family, that when cross-examined, the maternal grandfather, Mr S Henry, explained that the mother had effectively “burnt her bridges”, which I took to be a reflection on the difficult and numerous conflicts that the mother has engaged in with her family. I do find that her maternal family may have also engaged in conflict with the mother. The mother feels isolated from them and unsupported, but does not see any way forward; neither do they.
There was a palpable reflection of this sad situation in the testimony of Mr S Henry when he had to concede that he really wanted nothing to do with his daughter at all. The fact that he, at times together with his wife (known as Grandma L) speak as often as they can with X in Western Australia, whilst at one level is comforting in terms of X’s understanding of her heritage, nonetheless, if he cannot contain his feelings about his daughter, this has the prospect of diminishing the mother in the eyes of the child. This mother holds this very real fear and points to what she says is evidence of the child not calling her “mum” but by her Christian name.
I do not ignore that there are some risks in the maternal grandmother’s home arising from these negative views and, at times, I find the difficulty she would have under stress and under attack from her daughter (as has been the case in the past) to disguise or protect the child from those views. The maternal grandmother will benefit from individual counselling to help her do so as Dr C opines. However, those risks in the maternal grandmother’s home are significantly less, in my view, than the risks in the mother’s home arising from her functioning, her inability to control her emotions and the poor choices she makes about relationships and has continued to make for almost, it seems, the entirety of her adult life.
SECTION 60CC(3) – ADDITIONAL CONSIDERATIONS
The best independent evidence of the child’s views are those as set out in the report of Dr C, which I repeat now in these Reasons:
6.01X Oden was located in the office of the principal of her school for her interview.
6.02She seemed relaxed and chatty for most of the conversation, and was easy to talk with and volunteering of information.
6.03Her principal, Ms. U, advised that X had been prepared for this interview and was presenting as positive and ready, emotionally and physically. X spoke easily and volunteered lots of information about her life, although was hesitant when conversation included her family.
6.04X volunteered that she had been reading books and that her favourite books currently were about a unicorn and a kitten.
6.05 She was also very keen to read the “How to train a Dragon” series.
6.06She advised that she was attending D School and was nine years of age and in year four.
6.07Her favourite subjects were religion, literacy, maths, science and art, and on further reflection she thought her most favourite subjects were science and art.
6.08Both these subjects were “doing” subjects where she got to do things.
6.09X advised the writer that she resided in a house with her Nanna and Pop, and her dog.
6.10She stated that her Poppy works for the council and that her Nanny works at a shop.
6.11On a daily basis she stated that her Nan or her aunt take her to school and pick her up in the afternoon.
6.12When she arrives home, she typically likes to draw and read or do her homework.
6.13Her favourite meal is lasagne and her Poppy and her Nan are both good cooks.
6.14On the weekends she likes to draw, play with animals and collect and look at rocks.
6.15She has friends, and she likes playing with her friend Y the most.
6.16They play make believe games like Fantastic Beasts (the movie) and they both make up fantasy animals with special powers and abilities.
6.17X went into great detail about a fantasy animal that she was creating and all the abilities and powers that this creature would have.
6.18She likes to play and go to the beach when she can, and enjoys spending time with her aunt who has moved into Perth.
6.19She also likes to engage in sport, and she has to date played hockey, soccer, archery and swimming lessons.
6.20X advised that she talks to her mother every Monday and Tuesday and that sometimes it’s a long time talking. She offered that she thought her mother worked.
6.21When asked about their conversations, X was unable to provide information.
6.22She did state that she had been on a plane to Queensland to see her mother, and that she had not enjoyed the plane trip.
6.23When asked about flying she stated that she didn’t like going in planes, and that she didn’t want to travel to Queensland again.
6.24When given the chance to tell the writer anything more, X volunteered that she would prefer to see her mother in Western Australia as then she would not have to fly in a plane.
6.25The writer asked X what activities she would do with her mother if she came to Western Australia, and X thought they might go to the beach.
6.26She did not provide additional information or chat about her mother or her family.
6.27When asked if there was anything she needed in order for her life to be more comfortable or fun, she suggested not travelling to Queensland in a plane.
This child at this age is highly conflicted. She loves her mother; knows her mother loves her and misses her. The amount of time she has spent with the mother has been limited, and by the time of the second report, there had not been any physical contact for nearly nine months, which is a long time for a child of this age. Nonetheless, she does not appear to be unhappy in the care of the grandmother and that level of happiness is reflected upon by Dr C at paragraphs 11.01 and 11.02 of her evaluation, which described X as presenting “as a lively and content nine-year-old girl” who was “engaging and responsive”.
I am satisfied that the child has formed and continues to develop an important relationship with the mother and the maternal grandmother. No benefit arises from trying to rate which is stronger. It seems on the evidence, merely through the disruptive parenting arrangements that the child has had to endure from when she was first taken into care in 2018, that her relationship with her mother has not had the benefit of the frequency and time that would be ideal.
In respect of the extent to which the parties have participated in making decisions, clearly, in reality, for much of the child’s period of recent care, decisions were made by the Department and only since the Orders were made in September 2019 was the maternal grandmother given some authority to make decisions. I see no lack of willingness by the mother to seek to spend time with the child and communicate with the child and she would also like to be involved in decision-making.
The mother does not have the funds necessary to make any payments to the maternal grandmother for the child’s maintenance and support, which is a factor under s 60CC(3)(ca) but this should not be seen as a criticism of the mother in her circumstances as a student. She does, of course, as she indicated in her evidence, and I accept, provide gifts to the child. Most of them are prepared by the mother, including beautifully sewn clothing and the like, for which the mother has a talent and which the child, I accept, enjoys. I will deal with the likely effect of any changes to the child’s circumstances when I deal with my conclusions in this Judgment.
There are obviously some very difficult practical issues and expenses associated with the child spending time with the mother if the child lives in Western Australia or with the grandmother if the child lives with the mother in Queensland. The COVID-19 restrictions, hopefully, will not be a long-term feature of the Australian travel environment, but nonetheless, the mother has made it clear that she does not have the funds and cannot envisage having the funds to travel to Western Australia. The maternal grandmother, although working part-time, but meeting the full needs of the child financially, can only afford and can only offer one trip a year to Queensland with X if the child lives with her.
The mother made it clear that she does not wish to live other than in Queensland. She has her study at university to complete. She said she has a number of friends here and her medical and mental health support are all in this State. There is no basis upon which she could coercively be required to move to Western Australia and she does not wish to do so.
I rely upon the earlier findings as to the capacity and attitude to parenting of each of the parties. The child is not of Aboriginal or Torres Strait Islander descent and there are no family violence orders in existence between the parties.
Although the mother has been involved in family violence events with other partners, there does not seem to have been any orders between the mother and her family. It is, of course, preferable to make orders which are least likely to lead to further proceedings. The mother, on more than one occasion, made it clear, as is her right, that if the child is not returned to her she intends to appeal. I accept her right to do so and in respect of her daughter, something which no doubt she would be distressed about if the child is not returned to her.
In forming the Orders which appear at the commencement of these Reasons, the Court has given particular attention to seeking to make Orders that would restrict the capacity for these parties to feel the need to come back to the Court without some change in a material fact or circumstance. In that regard, in final submissions, Mr Moon for the Applicant maternal grandmother proposed an order that the mother be restricted without leave of the Court from bringing any new parenting application for a period of two years. I understand his submission. This is based on the prospect of giving the child some calm waters in which to develop without further conflict and litigation between the mother and the maternal grandmother, but also to give the mother the opportunity to reflect on the Reasons and to continue to obtain therapeutic intervention and better insight into her behaviour.
Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the Court thinks is relevant. In this case, I do not ignore the fact that the mother is the biological mother of the child. On more than one occasion, the mother made the point that she is the only “parent”, as if to say that that factor alone should persuade the Court to find the child’s best interests are served by the child returning to her care. I do not ignore the fact or reality of who gave birth to this little girl.
However, as the Reasons hopefully seek to demonstrate, there are many factors that go into determining as the ultimate issue in cases like this, what is in the best interests of a child and giving birth to the child is but one factor.
CONCLUSIONS
The presumption of equal shared parental responsibility applies unless a principled reason is demonstrated on the evidence to depart – as the Act permits (also see Vallans & Vallans (2019) 60 Fam LR 193).
In my view, it is contrary to the best interests of X for the presumption to apply. I accept that as the child will be living with the maternal grandmother in Western Australia and where the communication is so ineffective with the mother, the granting to the maternal grandmother of sole parental responsibility for major long term decisions is appropriate. The maternal grandmother will be ordered to consult with the mother in the way proposed by the ICL.
The best interests of X compel that she continue to live with the maternal grandmother in Western Australia. At this stage of the child’s life, the mother’s functioning and inability to maintain emotional control (particularly under pressure) presents too much of a risk to X to place the child into the mother’s primary care.
The evidence does not corroborate the mother’s statements that she has support here in Queensland. Neighbours change. If the mother commits to completing her desired tertiary qualifications and then secures the type of employment her intellect would permit, all those factors are capable of providing the mother with a level of both stability; financial security and self-worth.
If the mother is able to properly engage in therapeutic support – based on an actual honest understanding of her past behaviour – this could also allow her to distance herself from the events of the past which seem to guide and shape to a large degree her behaviour now.
If she can do so, I would not discount that the mother would be a much stronger option for both unsupervised time and even primary care, than she presents on the evidence now. Much will depend on how the mother, with some time to reflect and hopefully with further focused therapy as both Court experts recommend, reacts to the Orders pronounced today.

Even though the mother says she will not spend time with X supervised, it is in X’s best interests to do so. I intend to so order, including communication electronically, however the maternal grandmother should not be required to meet the costs of X travelling to Queensland (accompanied by an adult), if the mother refuses to attend supervised visits. The mother will be required to give written notice by 31 March each year of her intention to spend supervised time with X in Queensland.
Whilst I accept the mother’s evidence that she has no desire to live in Western Australia, I do not so easily accept that the mother would be unable in time (if she was motivated to do so) to spend supervised time in Western Australia with X.
The mother’s deep love for X and the hope that in time she can overcome the hurdles which the recent history have created for her sustainably, is the only motivation the mother needs. However, if the mother’s stated position on her evidence and submissions does not change, the real loss with be suffered by X.
The other variations to the proposals of the ICL and the maternal grandmother which the Orders at the commencement of these Reasons reflect are based on the following findings:
(a)I believe prescribed electronic communication two times a week and on special occasions, as proposed by the maternal grandmother, is less intrusive and no less beneficial than three times a week. It will occur, unless otherwise agreed, each Wednesday and Sunday;
(b)The maternal grandmother’s proposal that facilitates X coming to Queensland at her expense during the mid-year end of term two Western Australia school holidays for five daily supervised visits over a period is fair. I propose to so order;
(c)If the mother gives notice of her intention to spend supervised time with the child in Perth, then it can occur during the end of term one, three and four Western Australia school holidays;
(d)I do not propose to compel the mother, by Court Order, to engage in any psychiatric, psychological or other therapeutic support or counselling. It is my hope that after proper reflection by the mother she will gather some genuine insight into the benefits likely to flow to her – and ultimately her long term relationship with X;
(e)I see no basis, on the current evidence, to restrict the mother as both the ICL and maternal grandmother contend, from making enquiries about the progress of X at school or her health and development. I cannot be confident that the relationship between the mother and maternal grandmother allows the flow of this information. Accordingly, the Orders provide for the mother to have authority to obtain information and for the maternal grandmother to keep the mother informed of serious health issues or accidents to X. If, in time, there is some compelling evidence that the mother (as the maternal grandmother apparently fears) makes inappropriate or damaging contact with third parties that support and assist X, then a Court (including the Family Court of Western Australia) could be moved to impose some restraints. I am not persuaded I should do so, on the evidence, at this time;
(f)Personal protection orders, by way of s 68B of the Act, are likely to be less effective and more difficult to enforce, as compared to orders for protection under State legislation. Despite the ongoing conflict between the parties, there is no evidence (in either Queensland or Western Australia) that applications by either party against the other party have been made in the past. No orders, as a result, exist. I do not seek to further inflame the tensions which, to a large extent, are reduced by the distance the mother and maternal grandmother live apart. As I indicated in final submissions, I had a preliminary concern about making some of the orders (clauses 21 and 24) and, after further consideration, elect not to make those orders;
(g)I have given considerable thought to the obligation, identified by previously mentioned authority, to consider the concerns that arise from long term supervisory orders. In this context, I also have considered the submission of Counsel for the maternal grandmother, that the mother not be entitled to bring any application for variation of the order pronounced today, for a period of two years.
My concern about imposing any “time limit” – either to review the current Orders and/or the mother’s hopefully improved functioning – is that so much remains uncertain. Principally, the mother’s stated position of not spending any supervised time with X means if that remains her position, the adverse effect on X and her possible sense of abandonment, is impossible to assess now.
If a serious health issue affects the maternal grandmother for example, that could properly be the trigger for a fresh application.
I am satisfied that the Reasons now delivered do provide a foundation for a future judicial officer to be in a position to assess whether new evidence meets the threshold for a significant and material change, as would justify revisiting the care arrangements in a substantial way. Authority makes it clear that “tweaking” of orders might not require the threshold to be overcome to the same extent as, for example, moving to unsupervised time or a change of residence.
The child is still young, and the mother has over the next few years, a chance to take account of her previous life experience and choices, and to be able to demonstrate a sustained course of behaviour so different to most of the last three years, that some confidence of an enduring change in her has occurred.
In this regard, I think on balance, adopting a five year span (as opined by Dr B) may be too long.
Rather than provide a set time, I will provide in the Orders some parameters that the mother might be able to use as a guide to the type of changes and evidence that should be presented into the future. I do so by way of notation, rather than to seek to impermissibly restrict or fetter the exercise of an independent judicial discretion based on new evidence at another time.
For the reasons which I now publish, the Orders at the commencement of these Reasons are in the best interests of X at this time.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.
Associate:
Dated:       22 December 2020
APPENDIX ONE
1.   That all previous parenting orders are discharged.
LIVES WITH
2.   X ODEN born … 2011 (“the child”) shall live with the Applicant maternal grandmother MS HENRY in Western Australia.
PARENTAL RESPONSIBILITY
3.   That the maternal grandmother has sole parental responsibility for making decisions regarding major long-term issues for the child, subject to:
a.The maternal grandmother in exercising her parental responsibility shall consult with relevant medical, Allied Health and Educational professionals and shall invite, evidenced in writing, comment and suggestion from the Mother the maternal grandmother will then consider the mother’s input before making any final decision regarding the child.
b.The grandmother will advise the mother in writing of the decision that has been made.
c.Except as these orders provide or as maybe practically necessary to implement the orders the maternal grandmother shall not seek nor consider advice from any family member other than the Mother.

COMMUNICATION WITH THE CHILD
4. That the mother shall be permitted to communicate with the child by telephone or any electronic means such as skype as might be agreed but failing any agreement as follows:
a.Each Tuesday evening commencing at 7:30pm (WA time) for a duration of up to 30 minutes;
b.Thursday evening commencing at 7:30pm (WA time) for a duration of up to 30 minutes;
c.Sunday morning commencing at 10:00am for a duration of up to 2 hours;
d.The child’s birthday each year at 7:30pm (WA time) for a duration of up to 30 minutes, providing that if X wishes to speak her mother longer, she may do so;
e.The mother’s birthday each year at 7:30pm (WA time) for a duration of up to 30 minutes;
f.Good Friday at 7.30 p.m. (WA time) for a duration of up to 30 minutes;
g.Easter Sunday after X attends Mass, for a duration of up to 30 minutes;
h.Christmas Day after X attends Mass for a duration of up to 30 minutes, providing that if X wishes to speak her mother longer, she may do so;
i.Boxing Day at 7.30 a.m. (WA time) for a duration of up to 30 minutes;
j.If X is too tired or is ill or does not wish to speak to her mother, the mother and maternal grandmother will ensure that X speaks to her mother at another time, as soon as possible afterwards.

5. That the maternal grandmother shall initiate the telephone or skype (or similar platform) call at the nominated time to the mobile phone or other device of the mother and shall ensure that:
a.the mobile phone or device being used has sufficient power, data and credit;
b.the child is placed in a quiet room free from distractions; and
c.the child prior to the communication is encouraged to speak with the mother.

6.   The child’s communications with her mother must not be recorded.
7.   That the child shall spend supervised time with the mother as agreed in writing by the maternal grandmother and the mother, but failing agreement as provided for by this Order.
THE CHILD’S SUPERVISED TIME WITH HER MOTHER
8.   That the child will spend supervised time with the mother as agreed between the mother and maternal grandmother, and failing agreement as follows:
In Western Australia
a.The child will spend supervised time with her mother in Western Australia during the Western Australian School holidays periods falling within the months of February, March, April September November and December in each year and the following shall apply
i.The child shall remain in Western Australia.
i.The Mother when traveling to Western Australian and intending to see the child to shall notify the maternal grandmother of her intended arrival date in Perth, no less than 60 days prior to her arrive date, upon which notification the maternal grandmother nominate a contact centre in Perth and notify the mother no less than 30 days before the commencement of the holiday period of the details of the contact centre;
ii.The mother will travel at her own expense to Western Australia;
iii.The maternal grandmother and the Mother must comply with the induction requirements of the nominated contact centre, including paying any induction fee;
iv.The mother is to spend up to every second day with the child at the contact centre for up to a total of five (5) occasions during the nominated school holiday period;
v.The parties are to equally bear the costs of the supervision.

In Queensland
b.The child will spend supervised time with her mother in Queensland during the child’s school holidays periods falling within the months of May, June, July, August October and January in each year the following shall apply:
i.the maternal grandmother and the child shall travel to Queensland for a period of no less than seven (7) days
ii.No less than 30 days before the commencement of the holiday period in question, the maternal grandmother shall notify the mother of the details of the contact centre in Brisbane where the contact is to occur;
iii.Both parties are to comply with the induction requirements of the nominated contact centre, including paying any induction fee
iv.The child shall spend supervised time with her mother on up to every second day during the visit to Queensland, such time to be at the contact centre nominated by the maternal grandmother.
v.The parties are to equally bear the costs of the supervision.

THE CHILD’S UNSUPERVISED TIME SPENT WITH HER MOTHER
9. That the child spend unsupervised time with her mother contact only after consultation with and in strict accordance with the recommendations of Dr B and Dr C family report writer.
10. If Dr B Forensic Psychiatrist and / or Dr C Family Consultant are not available, then the mother will provide the maternal grandmother with a panel of three other Forensic Psychiatrists and Family Consultants and the maternal grandmother will, within seven days nominate one of the said Forensic Psychiatrists and / or one of the Family consultants, failing which, the mother will nominate the Forensic psychiatrist and / or family consultant.
11. The consultant psychiatrist and / or family consultant shall be provided with
a.a copy of the other reports as might be available and relevant to their report writing role.
b.Any available report from such psychiatrist, counsellor, social worker, or hospital or organization which may be or may have been providing treatment and / or counselling to the mother
c.All information provided to by Forensic Psychiatrists and Family Report wittier shall remain confidential to their prepared report.

12. This order shall act as authority for information as requested by the engaged Forensic Psychiatrists and Family Report wittier for the release to them of information requested.
13. The costs of reports obtained shall be shared as between the Mother and the maternal grand mother
Educational and Health Needs of the Child
14. The maternal grandmother will ensure that the child continues to engage with the child psychologist, Mr. Q, or if Mr Q is unavailable, with another suitably qualified psychologist as referred by the child’s General Practitioner, and the child shall continue to engage with a child psychologist for as long as Mr Q or the other suitably qualified psychologist considerers the sessions as helpful and beneficial for the child.
15. The maternal grandmother will pursue all recommendations for extra tuition and education for the child that staff at the child’s school may instruct and / or recommend.
THERAPEUTIC ASSISTANCE FOR THE MOTHER
16. The mother shall continue to engage with a Psychiatrist and such additional psychological and counselling as accord with the recommendations of Dr B and Dr C and such other issues as, but not limited to the following
a.developing behaviours that promote a long-term healthy mother daughter attachment
b.developing behaviours relevant to communication with the maternal grandmother and Mrs. Henry.
c.strategies for coping with X’s emotional development

17. The mother is to follow all recommendations made by her treating health and allied health care providers with respect to her mental and physical health.
18. The parties be at liberty to provide to the health and allied health professionals who are working with them and with the child, the report of Dr B dated the 30 May 2019 and the two reports of Dr C, the first as attached to the Affidavit of Dr C dated the 5 of June 2019 and sealed the 13 June 2019 and the second dated the 30 May 2019, together with a copy of this Order..
CONTACT BY MOTHER WITH HEALTH, ALLIED HEALTH AND EDUCATIONAL PROVIDERS FOR THE CHILD
19. A school, medical professional, allied health professional, hospital or any organization with respect to whom the child is or has been a student or patient may at their sole discretion contact the Mother.
20. The mother shall not directly or indirectly contact or attend the school, at which the child is enrolled nor shall the mother contact or attend upon any medical professional, allied health professional, hospital or any organization with respect to whom the child is or has been a student or patient ,UNLESS contact by the mother is expressly consented to by the maternal Grandmother. The decision as to consent will be exercised within the sole discretion of the MGM in accordance with the following protocol and considerations:
a.The mother will first write to the maternal grandmother requesting direct contact.
b.The written request will detail with whom direct contact is required and the nature and purpose of the contact by the mother.
c.The maternal grandmother will within 7 days of receiving the request from the mother attend to the following:
i.In writing, contact school, medical professional, allied health professional, hospital or organization to whom the written request made by the mother relates, providing to them a copy of the request by the mother and seeking their view as to being directly contacted by the mother
ii.The maternal grandmother will ensure a response from the school, medical professional, allied health professional, hospital or organization is forthcoming withing a reasonable time and is in writing.

d.The maternal grandmother will in exercising her sole discretion as to consent will consider the following:
i.The view as expressed in writing by the of school, medical professional, allied health professional, hospital or organization;
ii.Consider if the request made by the Mother can be answered by the maternal grandmother from information provided to the maternal grandmother by school, health and or allied health practitioner or organization.
iii.Consent by the maternal grandmother is to not to be unreasonably withheld

e.the maternal grandmother will provide a written response to the mother advising of her decision to provide consent or withhold consent, and should consent be withheld then the written response by the maternal grandmother shall provide:
i.answers to any questions posed by the mother in her request for contact with school, medical professional, allied health professional, hospital or organization
ii.attach all correspondence as between the maternal; grandmother and the relevant school, health and or allied health practitioner or organization which relate to the mother’s request for contact with school, medical professional, allied health professional, hospital or organization

CONTACT BY MOTHER WITH MATERNAL GRANDMOTHER
21. The mother shall not directly or indirectly contact approach or attend upon the maternal grandmother except as might be required to give effect to these Orders.
22. The maternal grandmother shall advise the mother as soon as practicable by text and / or email in the event that the child is involved in a medical emergency or suffers a medical condition or accident.
23. The maternal grandmother and the mother shall only communicate in relation to the child by way of SMS text message or email in matters of a developing or unexpectedly arising nature.
24. The Mother is restrained by injunction from approaching the home or workplace of the maternal grandmother.
25. The maternal grandmother shall provide to the mother on a monthly basis by way of email an update regarding the health, wellbeing and educational progress and development of the child, including providing copies of any school reports, medical reports, assessments and referrals.
DAY TO DAY MATTERS
26. Neither party shall discuss these proceedings with the child.
27. The mother and maternal grandmother shall keep each other informed of their current email address, mobile phone number (for SMS text message purposes) and advise of any change within 24 hours of such change.
NON-DENIGRATION
28. That when with the child or communicating with the child, neither party shall denigrate, criticise or speak ill of the other party or about X’s family members, and both parties shall do all things necessary, including removing X from the presence of a third party, or discontinuing the telephone or skype (or similar platform) call to ensure that no third party denigrates, criticizes or speaks ill of the other party or about X’s family members.
29. The parties will make every effort to speak in neutral or positive terms about the other party when the child is with them, or communicating with them.

30. The maternal grandmother will continue to make every effort to facilitate a positive parent child relationship between the mother and the child.
FAMILY DISPUTE RESOLUTION TO SETTLE FUTURE DISPUTE:
31. The process to be used for resolving disputes about the terms of operation of these Orders be as follows:-
a.The parents shall consult with a registered Family Dispute Resolution Practitioner (FDRP);
b.The FDRP will assist the parents to resolve any dispute or reaching agreement about changes to be made;
c.The party not seeking a change to the orders shall nominate three (3) Family Dispute Practitioners and advise the other parent in writing of the fees, experience and availability of the FDRPs.
d.The party seeking a change shall choose one of the listed practitioners within three (3) business days of receipt of the list;
e.If the party seeking to change the orders fails to choose, then the party not seeking the change may choose, and
f.The Parent who is seeking to vary the orders will be liable for the costs of the family dispute resolution practitioner and the venue hire of the first 3 hours of Family dispute resolution.

32. The Independent Children’s Lawyer be discharged upon the provision of the reports to Dr Sarah Angel pursuant to order 21(d).
33. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(As per the original)
APPENDIX TWO
OPTION A
That in the event it is determined that the child, X ODEN born … 2011 (“the child”) live with the Applicant maternal grandmother MS HENRY in Western Australia, that the following Orders be made.
1. That all previous parenting orders are discharged.
2. That the maternal grandmother have sole parental responsibility for the child.
3.That the mother be permitted to spend supervised time with the child during the Western Australia school holidays, with the following to apply

For the First and Third School Holiday Periods Each Year
(a)For the first and third school holiday periods each year, the mother shall travel to Western Australia at her expense to spend time with the child in Perth, with the mother to notify the maternal grandmother no less than 60 days beforehand of her intended arrival and departure dates, with the following to apply:
(i)Upon being notified by the mother of her intended arrival and departure dates, the maternal grandmother shall nominate a contact centre in Perth and notify the mother no less than 30 days before the commencement of the holiday period of the details of the contact centre;
(ii)Both parties are to comply with the induction requirements of the nominated contact centre, including paying any induction fee;
(iii)The mother is to spend up to every second day with the child at the contact centre for up to a total of five (5) occasions during the nominated school holiday period;

(iv) The parties are to equally bear the costs of the supervision.

For the Second School Holiday Period Each Year
(b)In the second school holiday period each year, the maternal grandmother and the child shall travel to Queensland for a period of no less than seven (7) days and the following shall apply:
(i)No less than 30 days before the commencement of the holiday period in question, the maternal grandmother shall notify the mother of the details of the contact centre in Brisbane where the contact is to occur;

(ii) Both parties are to comply with the induction requirements of the nominated contact centre, including paying any induction fee;
(iii) The mother is to spend up to every second day with the child at the contact centre for up to a total of five (5) occasions during the nominated school holiday period;
(iv)The parties are to equally bear the costs of the supervision.

4.That the mother shall be permitted to communicate with the child by telephone/Skype/Facetime each Wednesday and Sunday, between 6.30 pm and 7.00 pm (Western Australia time) and the parties note that given the age of the child the call duration may be less than thirty (30) minutes, with all calls to be recorded.
5.That the mother shall be further permitted to communicate with the child by telephone/Skype/Facetime on each of the following occasions if they do not otherwise fall on a Wednesday or Sunday, between 6.30 pm and 7.00 pm (Western Australia time) and the parties note that given the age of the child the call duration may be less than thirty (30) minutes, with all calls to be recorded:
(a)       The child’s birthday;
(b)       The mother’s birthday;
(c)       Easter Sunday;
(d)      Mother’s Day;
(e)       Christmas Day.
6.For the purposes of paragraphs 4 and 5, the maternal grandmother shall initiate the telephone call at the nominated time to the mobile phone of the mother and shall ensure that:
(a)       the mobile phone being used has sufficient power, data and credit;
(b)       the child is placed in a quiet room free from distractions; and
(c)       the child is encouraged to speak with the mother.
7.That the mother shall be further permitted to send a present to the chid via the maternal grandmother for the following occasions with the maternal grandmother having discretion to view the present upon receipt and determine whether it is provided to the child or not:
(a)       The child’s birthday;
(b)       Easter; and
(c)       Christmas Day.
8.That the child continue to spend time with the child psychologist, Mr Q, for as long as he sees the sessions as being helpful and beneficial.

9. That the child attend D School, Town E, Western Australia.
10.That the maternal grandmother pursue all recommendations for extra tuition and education for the child, as per the school staff instructions and recommendations.
11.That the child continue to be enrolled in extra-curricular activities as available in the Town E area and/or through D School.

12.      That the mother be restrained and an injunction issue prohibiting the mother from:
(a)       attending or contacting the school the child is enrolled in;
(b)       contacting the maternal grandmother except as provided for in these Orders;
(c)       approaching the home or workplace of the maternal grandmother;
(d)      contacting the employer of the maternal grandmother;
(e)contacting any third party health or education provider including any doctors that the child might be referred to or be required to attend upon.

13. That no party discuss these proceedings with the child.
14.That the maternal grandmother shall advise the mother as soon as practicable by email in the event that the child is involved in a medical emergency or suffers a serious medical condition or accident.
15.That the maternal grandmother and the mother only communicate in relation to the child by way of email only in matters of an emergent nature.
16.That the maternal grandmother shall provide to the mother on a monthly basis by way of email an update regarding the health, wellbeing and educational progress and development of the child, including providing copies of any medical reports, assessments and referrals.
17.That the mother and maternal grandmother shall keep each other informed of their current email address, mobile phone number and advise of any change immediately upon such change.

18. That the Independent Children’s Lawyer be discharged.

File number(s):	BRC 2450 of 2018
Judgment of:	BAUMANN J
Date of judgment:	22 December 2020
Catchwords:	FAMILY LAW – CHILDREN – Contested residence – Consideration of risk factors – Orders made for the child to live with the maternal grandmother and spend supervised time with the mother
Legislation:	Family Law Act 1975 (Cth), ss 60CC, 68B, 61DA, 65DAA
Cases cited:	Carpenter & Lunn [2008] FamCAFC 128 Champness & Hanson [2009] FamCAFC 96 Goode & Goode (2006) FLC 93-286 Henry & Oden and Ors [2019] FamCA 744 Slater & Light [2013] FamCAFC 4 Vallans & Vallans (2019) 60 Fam LR 193
Number of paragraphs:	99
Date of hearing:	27, 28 & 29 October 2020 and 3 December 2020
Place:	Brisbane
Counsel for the Applicant:	Mr S Moon
First Respondent:	Self-represented
Second Respondent:	No appearance
Counsel for the Independent Children’s Lawyer:	Mr G Kalimnios

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	22 DECEMBER 2020