Hollis & Anwar - [2024] FedCFamC1F 248

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hollis & Anwar [2024] FedCFamC1F 248

File number: MLC 8548 of 2022

Judgment of: CARTER J

Date of judgment: 17 April 2024

Catchwords: FAMILY LAW – PARENTING – Where the child experienced significant emotional dysregulation which settled following interim orders for a change of residence into his father’s primary care – Where the father seeks a continuation of the interim orders on a final basis – Where the mother seeks an increase of the child’s time in her care – Where the mother has engaged in intensive personal therapy – Allocation of parental responsibility – Application for a change of the child’s surname.

Legislation:
Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 67ZC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bielen & Kozma (2022) 66 Fam LR 59

Godfrey v Sanders [2007] FamCA 102

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

Oberlin & Infeld (2021) 63 Fam LR 88

Division: Division 1 First Instance

Number of paragraphs: 198

Date of hearing: 4 – 8, 12 March 2024

Place: Melbourne

Counsel for the Applicant: Mr Werner

Solicitor for the Applicant: Hope Earle Lawyers

Counsel for the Respondent: Mr Strong

Solicitor for the Respondent: Eastern Community Legal Centre

Counsel for the Independent Children's Lawyer: Ms Hutchings

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 8548 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HOLLIS

Applicant

AND:
MS ANWAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

17 APRIL 2024

THE COURT ORDERS THAT:
Change of surname
1.The parents forthwith do all acts and things and sign all documents necessary to cause a change of the surname of the child X born 2016 from ANWAR to ANWAR‑HOLLIS, and to otherwise do all things to ensure the child uses that new name both formally and informally.

Parental responsibility
2.The father have sole parental responsibility for decisions regarding the child’s health and medical matters. Prior to making any decision in the exercise of that responsibility:
(a)the father advise the mother in writing of his proposal;
(b)the mother has seven days to provide a response to the father in writing; and
(c)the father thereafter promptly inform the mother as to the decision he has made.

3.The parties otherwise have equal shared parental responsibility for the child.

Living arrangements
4.The child live with father.
5.Unless otherwise agreed by the parents in writing the child spend time with the mother as follows:
(a)each alternate weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) to the commencement of school on Monday and in the event that Monday is a public holiday or a non–school day time is to conclude at the commencement of school (or 9.00 am if a non-school day) on Tuesday.
(b)during each school term holiday, time pursuant to Order 5(a) is extended as follows:
(i)if the alternate weekend falls on the first and third weekends of the holidays, time on the first weekend be extended to conclude at 4.00 pm Tuesday and time on the third weekend be extended to commence at 4.00 pm Thursday (being eight nights in total over the whole term holiday);
(ii)if the alternate weekend falls on the middle weekend of the holidays, time shall commence at 4.00 pm on the Thursday and conclude at 4.00 pm on the Monday, and there be a further three-night block at times agreed, and failing agreement from 4.00 pm on the last Thursday of the holidays to 4.00 pm on the last Sunday of the holidays (being seven nights in total over the whole term holiday).

(c)during the long summer holidays at times agreed and failing agreement:
(i)in 2024/2025 the time pursuant to Order 5(a) be extended to commence at 4.00 pm on the Thursday and to conclude at 4.00 pm on the Tuesday each alternate weekend (being blocks of five nights); and
(ii)in 2025/2026 and each year thereafter, time occur on a week about basis, with changeovers to occur at 4.00 pm each Friday;

(d)at such other or further times as is agreed in writing.

Special occasions
6.Notwithstanding any other order, the child spend time during special occasions with each of his parents as agreed and failing agreement:
(a)with the father from 10.00 am on Father’s Day until commencement of school the following Monday (or 9:00 am if a non-school day);
(b)with the mother from 10.00 am on Mother’s Day until commencement of school the following Monday (or 9:00am if a non-school day);
(c)on his birthday with the parent who would otherwise not be entitled to spend time with him pursuant to these orders:
(i)from the conclusion of school until 7.30 pm if a school day; and
(ii)from 10.00 am to 2.00 pm if a non-school day;

(d)on the birthdays of his siblings, B and C, if he is not otherwise in the mother’s care, with the mother:
(i)from the conclusion of school until 7.30 pm if a school day; and
(ii)from 10.00 am to 2.00 pm if a non-school day;

(e)for Easter:
(i)in odd numbered years from 10.00 am on Good Friday until 10.00 am on Easter Sunday with the mother and from 10.00 am Easter Sunday until 10.00 am on the Tuesday, following Easter Monday, with the father; and
(ii)in even numbered years, from 10.00 am on Good Friday until 10.00 am on Easter Sunday with the father and from 10.00 am Easter Sunday until 10.00 am on the Tuesday, following Easter Monday, with the mother.

(f)For Christmas:
(i)in each even numbered year (commencing 2024) with the father from 3.00 pm Christmas Eve until 3:00 pm Christmas Day and with the mother from 3:00 pm Christmas Day until 3:00 pm Boxing Day.
(ii)in each odd numbered year (commencing 2025) with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day and with the father from 3.00 pm Christmas Day until 3.00 pm Boxing Day.

Communication
7.The child communicate with the non-resident parent by video call or phone, every second day for a period of not less than 15 minutes at times as agreed between the parents, and in default of agreement, between 6.00 pm and 7.00 pm, with the parent who has the child in his or her care to initiate the call.
8.Each parent facilitate the child contacting the other parent at all reasonable times at the child’s request.
9.All communication between the parents is to be in writing via a parenting app, or in the event of technical issues or an emergency, via text message. The mother nominate the parenting app within 14 days of these orders.
10.The parents forthwith inform and keep the other informed at all times of their respective email address, mobile telephone number and residential address, and provide the other parent with not less than 48 hours written notice of any proposed changes to such contact details.

Medical
11.Each parent is at liberty to administer any over the counter and prescription medication to the child, provided such administration is strictly in accordance with the directions on the medication or as advised by the child’s treating medical practitioner.
12.In the event the child needs to be seen by a general practitioner, each parent arrange for the child to attend upon D Medical Centre, unless this is not practicable.
13.The father inform and keep the mother informed as to the child’s health, including providing her with the full names and contact details of any medical and/or allied health professionals, including specialists and counsellors upon whom the child attends.
14.The mother is at liberty to liaise with all medical and allied health professionals upon whom the child attends.
15.Each parent is at liberty to obtain medical assistance for the child if urgently required and shall forthwith inform the other parent as soon as practicable of:
(a)any illness or injury suffered by the child whilst in his or her care; and
(b)the name and contact details of any medical and allied health professionals upon whom the child attended.

16.Each parent is at liberty to provide a copy of these orders to the child’s treating health and allied health practitioners.

Changeover
17.During the school term, changeovers on all school days occur at the child’s school.
18.During holiday periods, non-school days, and weekends (if applicable), changeover is to occur in the car park of Hungry Jacks at E Shopping Centre unless otherwise agreed in writing.

School
19.Unless otherwise agreed between the parties, the child remain at F School to complete his primary education,.
20.Each parent is hereby authorised:
(a)to obtain from the child’s school at their own expense all notices, letters, photographs, school reports, invitations and like communications; and
(b)to attend parent/teacher interviews, school concerts, sports days, assemblies or other activities to which parents are invited to attend from time to time.

21.In the event any school notice is provided in hard copy, the parent receiving such notice upon collection of the child from school will forthwith provide the other parent with an electronic copy to ensure the other parent has sufficient time to comply with any requests made by the school.
22.Each parent is to do all acts and things and sign all such documents and provide all necessary authorities to ensure that both parents have access to the child’s school portal.
23.The parents are at liberty to provide a copy of these orders to the child’s school.

Extracurricular activities
24.Subject to Order 25, both parents are at liberty to enrol the child in any extracurricular activities that fall during the time the child is in his or her care.
25.In the event the child’s attendance at any activity is mandatory during the time the child is scheduled to be in the care of the non-enrolling parent, the consent of the non‑enrolling parent is required prior to the child being enrolled in that activity.
26.Each parent inform the other as to any extracurricular activity in which the child is enrolled, and provide the non-enrolling parent with full details of training, games, activities, open days, and the like.
27.Both parents and members of their extended family (save as set out in Order 29 herein) are at liberty to attend all extracurricular activities to which parents or family members are normally invited regardless of whose care the child is in on that particular day.

Injunctions
28.The parties, their servants and agents be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, criticising or otherwise denigrating the other parent or members of that parent's family to, or in the presence or hearing of the child or permitting the child to remain in the presence or hearing of anyone else engaging in such behaviour;
(b)discussing these proceedings, the documents filed herein or the reports prepared with or in the presence or hearing of the child or allowing the child to remain in the presence or hearing of anyone else engaging in such behaviour; and
(c)attending at the other parent’s home unless agreed between the parties in writing.

29.The mother be restrained from allowing the child to come into contact with her brother, Mr G, or the maternal grandmother without the father’s prior consent.

Procedural
30.All extant applications are otherwise dismissed and the matter is removed from the list of active cases.
31.The Independent Children's Lawyer be discharged.

AND THE COURT NOTES THAT:
A.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
ISSUES TO BE DETERMINED

The parties in this matter are the parents of seven year old X. As will become evident from these reasons, X was exposed to considerable instability whilst in the primary care of the mother, which culminated in him experiencing a period of extreme emotional and behavioural dysregulation. This necessitated in him being hospitalised in late 2022, and thereafter treated by the Child and Youth Mental Health Service (CYMHS) for a number of months. At that time, X was six years old and in prep at H School. He was described as expressing suicidal ideation, and displayed violent outbursts towards the mother, her two younger children (B now aged four and C now aged two), and towards teachers at school.
Orders were made on 15 December 2022 which provided, inter alia, for X to live with his father, and spend three nights a fortnight with the mother. Those interim orders also provided for the father to have sole parental responsibility for X’s health and education.
It is common ground that X’s behavioural and emotional dysregulation has substantially settled following the making of those orders. X is now progressing well both educationally and socially, is well settled at school, and flourishing in the stable and predictable routine the interim orders implemented. He is currently attending F School, where he is in Grade 2, having completed Grade 1 at that school last year.
Very much to the mother’s credit, since March 2023 she has engaged in intensive therapy with Ms J, clinical psychologist. In addition, she has completed parenting courses and taken all steps she can to improve her parenting skills, her personal functioning and her insight. Her ability to manage X’s behaviours particularly at school drop off has significantly improved, and he now transitions into and out of her care more smoothly. On the occasions he does struggle, the mother is better able to soothe and calm him. The mother says it is now in X’s best interests for his time in her household – and with his siblings – to increase.
Prior to the trial commencing, the mother’s position had been for X to return to her primary care. That would have necessitated a change in X’s schooling. The mother’s trial material was completed on the basis of that position, and included considerable material outlining various risks the mother asserted X was exposed to in his father’s care. However, on the morning of the first day of trial the mother provided a Minute of Orders that proposed X remain living with the father, but his time with her increase to five nights a fortnight and half of the holidays, with time to further progress to an equal shared care arrangement if the mother moved closer to F School. The mother also conceded this was not a matter in which the father presented any unacceptable risk to X. Nor did she seek the Court make a determination as to her allegations of family violence. In addition, she proposed the parties have equal shared parental responsibility for X.
The father opposed any increase in X’s time with his mother during school terms. At the conclusion of the hearing, the father did not oppose that there be some small increase in X’s time with the mother over holidays. He otherwise said the interim orders should be made on a final basis, to preserve the significant improvements X has experienced, and to ensure that the stable, predictable, and consistent caregiving is maintained, so that he can continue to develop. The father said he should also retain sole parental responsibility for X’s health and education, to ensure that decisions are made in a timely manner, without the need to return to court.
The Independent Children’s Lawyer strongly supported the father’s proposals.
Accordingly, the major issues I must now determine are as follows:
(a)how should parental responsibility be allocated?;
(b)what arrangements for X’s day to day care are in his best interests?; and
(c)what arrangements for special occasions and communication are in X’s best interests?
In addition, the following matters need to be determined:
(a)whether either parent should be permitted to travel overseas with X, and if so, on what terms and conditions;
(b)the location of changeovers that do not occur at school;
(c)what information should be exchanged between the parents;
(d)the method of communication between the parents; and
(e)the injunctions that should be made including whether there should be a restraint on the mother bringing X into contact with the maternal grandmother.
Lastly, the parties agreed X’s surname (currently Anwar) should be hyphenated to include the father’s surname. However, the parties did not agree as to the order in which the parties’ two names should be included.
There were other disputes between the parties’ competing proposals of a less significant nature. I will deal with those issues later in these reasons.
THE EVIDENCE
The mother relied on:
(a)her trial affidavit filed on 9 February 2024;
(b)the affidavit of Ms K, friend, filed on 9 February 2024. She was not required for cross‑examination;
(c)the affidavit of Ms J, the mother’s psychologist, filed on 13 February 2024.
The father relied on:
(a)his Further Amended Initiating Application filed on 31 July 2023;
(b)his trial affidavit filed on 22 January 2024;
(c)the affidavit of Ms L, the paternal grandmother, filed on 22 January 2024. She was not required for cross-examination; and
(d)his affidavit-in-reply filed on 23 February 2024.
In light of the mother’s proposed orders articulated at the commencement of the trial, much of the parties’ affidavit material was of marginal relevance. Indeed, the father’s trial affidavit in particular was unnecessarily lengthy and contained much unhelpful material, including quoting extensively from various reports and correspondence. It also contained arguments, opinions, and submissions, and was repetitive. The mother’s trial affidavit included quotes from subpoenaed records.
Both parties’ trial affidavits were approximately 150 pages long without exhibits. The father’s affidavit in particular would have been far shorter – and of more use – had it been confined, as affidavits are meant to be, to incidents that the witness has directly experienced themselves which are actually relevant to an issue in dispute.
Similarly the affidavits included a large number of exhibits. The father’s trial affidavit attached 400 pages of exhibits including reasons for judgment from an interim hearing and a copy of the pre-action procedures (being an attachment to a letter that was exhibited). Counsel were reminded at the outset of the hearing of rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Very few of the exhibits were actually tendered in Court and admitted into evidence. This strongly suggested their inclusion in the parties’ trial material was unnecessary.

The Court’s focus must be on X’s best interests, and how to meet those moving forward. A detailed dissection of significantly historical incidents between the parties in this particular matter would provide little assistance in determining the orders that now should be made. No doubt the preparation of such lengthy trial material would have attracted significant legal fees.
Both parties endeavoured to give their evidence in a straightforward manner. However the father took multiple opportunities to criticise the mother, and required redirecting to answer the question at times. The mother was an impressive witness in terms of her responsiveness, and her open and honest answers. Ms J was also an impressive witness. She made it plain that the mother has deeply engaged in intensive personal therapy and remains committed to doing so.
However, despite having clearly made considerable gains in her personal functioning and parenting skills with the assistance of Ms J, the mother’s oral evidence revealed that her level of insight into how her behaviours, responses and choices impact X remained somewhat limited.
I also had the benefit of the following expert reports:
(a)the psychological evaluation report prepared by Dr M dated 2 March 2023. Dr M was not required for cross-examination; and
(b)the Family Report prepared by Dr N dated 31 October 2022. Although it was dated 31 October 2022 it was clearly written after that date, as the report included references to additional documents being provided to Dr N on 22 and 24 November 2022 regarding X’s hospital admissions in late 2022 and the Department of Families, Fairness and Housing response dated 30 November 2022.
Dr M’s report provided a ‘snapshot’ of the mother’s presentation and functioning as at the date of assessment in February 2023. Dr M outlined that the mother presented with:
37.… personality vulnerabilities including a complex trauma history and anxiety. There is a significant childhood history of abuse, instability, and disrupted attachment. It is highly likely that these factors have impacted her parenting and her ability to manage [X].
Whilst Dr M identified the mother’s overall parenting risk as in the moderate range, Dr M further noted that the mother’s risk was moderated by factors including her employment and willingness to engage in treatment. That report is of limited relevance given the mother’s subsequent extensive and intensive work with Ms J.
Dr N’s report is some 15 months old. He has not reinterviewed the parties or X since he saw the family when X was in crisis in late 2022. Prior to giving his evidence Dr N, was provided with the parties’ trial material, and appraised of X’s considerable progress since the interim orders were made.
Although the Family Report had contemplated an increase of one night a fortnight in the mother’s care if various matters improved, in his oral evidence Dr N opined that any changes to X’s care arrangements during school term at this point would be premature, and carried a real risk of compromising X’s sense of stability, security and safety. In the circumstances, Dr N strongly, and unwaveringly, recommended that a cautious approach be adopted, and no significant changes be made to X’s care arrangements during school terms.
The Court is under no obligation to accept the recommendations of a Family Report writer. However, I found Dr N’s evidence to be well reasoned, considered and compelling. The concerns he outlined about the potential compromises to X if significant changes were made to his care arrangements at this juncture mirrored the concerns I also formed during the hearing.
Having heard all the evidence, and for the reasons which I will now set out in this judgment, I am satisfied it is in X’s best interests for him to remain substantially in the care of his father, and for limited changes only to be made to his time with his mother. I am also of the view that the father should have sole parental responsibility for X’s health, but that otherwise, the parties should have equal shared parental responsibility for X, including for his education.
I understand the mother will likely be distressed by the orders I am making. I wish to emphasise that the mother should be strongly commended for the work she has done and has committed to continuing to do with Ms J. Her personal development and the improvements she can continue to make to her parenting skills will only be to the benefit of X and her other children. But my focus cannot be adult–centric and must be on what is in X’s best interests.
HOW ARE THE CHILD’S BEST INTERESTS ASSESSED?
Section 60CA of the Family Law Act1975 (Cth) prescribes that when deciding whether to make a particular parenting order in relation to children, the best interests of the child must be the court’s paramount consideration. In Bielen & Kozma (2022) 66 Fam LR 59 at [28] the Full Court observed that this means:
…the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
Accordingly, I must consider the short and longer term impacts of the parties’ proposed orders “upon the [children’s] physical, emotional and psychological safety, security and wellbeing”: Bielen at [30].
The objects of Part VII of the Family Law Act inform how I must exercise my discretion. They include ensuring a child has the benefit of both of their parents being meaningfully involved in their lives to the maximum extent consistent with the child’s best interests [s 60B(1)(a)]. The legislation further provides that unless it is contrary to a child’s best interests, children have a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
There are a range of considerations set out in s 60CC that I must take into account in determining what is in the child’s best interests. Section 60CC(2) of the Act sets out the primary considerations which require me to consider:
(a)the benefit to the child of having a meaningful relationship with both of their parents; and
(b)the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect children from harm.
Section 60CC(3) of the Family Law Act sets out a raft of additional considerations that I must also take into account. The Full Court in Bielen at [35] conveniently grouped those as follows:
·Issues relating to the child – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
I must also consider whether an order for equal time is both in X’s best interests and reasonably practicable. If not, I must then consider whether an order for substantial and significant time with his non–resident parent is both in his best interests and reasonably practicable. If the answer to either of those questions is no, I must then otherwise determine what orders are in X’s best interests.
THE PRIMARY CONSIDERATIONS
The two primary consideration are set out in section 60CC(2) of the Family Law Act as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect a child from harm.
It is not in contention in this matter that X will benefit from having a meaningful relationship with his parents. It is the mother’s case that it is difficult for X to develop and maintain a meaningful relationship with her in circumstances where he spends three nights a fortnight in her care.
The father and the Independent Children's Lawyer disagree. They said the current arrangements do enable to enjoy a meaningful relationship with his mother. They said further that if face to face time was increased, that could expose X to psychological harm, by impacting his routine and affecting his sense of security and stability.
The Family Law Act does not define the word “meaningful”. In the case of McCall v Clark (2009) FLC 93-405, the Full Court of the Family Court agreed with the remarks made by Brown J in the decision of Mazorski v Albright (2007) 37 Fam LR 518, that the term is synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour also observed that “meaningful” is a qualitative and not a strictly quantitative adjective. It is also noted that the legislation does not require a child’s relationship with a parent be optimal; per Kay J in Godfrey v Sanders [2007] FamCA 102 and endorsed by the Full Court in McCall.
I am satisfied that time between the mother and X does not need to increase in order to ensure X’s relationship with his mother is one of significance to him. It is clear he loves his mother, and his relationship with her is evidently important to him even on the basis of the time he currently spends in her care. However, I am of the view that it is important for X to be able to spend some extended holiday time with his mother, as well as to share special occasions, and to continue to regularly communicate with her to continue to deepen and strengthen their bond.
Additional considerations
Issues relating to the child – including his views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
X is seven years old. I do not have current, independent evidence as to his views. He was interviewed by Dr N in November 2022.
X has also been interviewed on a number of occasions by Child Protection and the Sexual Offences and Child-abuse Investigation Team (SOCIT). In addition, he has engaged with medical and allied health professionals at O Hospital, P Hospital and then through CYMHS, until mid-2023.
It is necessary to set out a brief chronology of events to understand what led up to X’s hospitalisations in late 2022.
The parties were only briefly in a relationship. They separated prior to X’s birth. The mother facilitated time between X and the father, including at her home, with such time increasing over a number of months, building up eventually to X spending five nights a fortnight in the father's care.
The mother formed two intimate relationships after separating from the father. Her relationship with Mr Q produced one child, B, who was born in 2020. The mother said her relationship with Mr Q ended when she fell pregnant and Mr Q has elected to play no role in B’s care. The mother said she did not live with Mr Q, but he did regularly attend at her home, together with his daughter, during their relationship.
In late 2020, X was first referred to CYMHS. The mother felt he needed assistance to manage his emotional responses, as he was behaving aggressively and expressing suicidal ideation at times.
The mother then formed a relationship with Mr R. She and Mr R met in 2019 through church, and were friends before becoming housemates in 2021 and then intimate partners. Mr R has two children, now aged six and eight who stayed at the home on alternate weekends.
The mother’s relationship with Mr R ended abruptly in mid-2021. She acknowledged she had become fearful for her safety whilst living with Mr R, and she left the house, taking only a suitcase and handful of the children’s belongings. She, X and B then stayed with a friend of the mother for a few nights and then at a motel with the assistance of S Services until more permanent accommodation was secured in late 2021.
At the time the mother moved into the motel, she was approximately three months pregnant with Mr R’s son, C. C was born in 2022. Mr R currently has time with C, supervised by his parents. The mother said she was at times fearful of Mr R and obtained an Intervention Order against him after they separated. That order has since expired.
The Department of Families Fairness and Housing have been involved with the family on a number of occasions. The notifications have included that the mother repeatedly presented X unnecessarily to O Hospital in 2017; X was allegedly punched by the father in early 2021 (which resulted in X’s time with his father being suspended for approximately two weeks whilst the Department conducted their investigation); an allegation that X returned from the father’s care with bruising in May 2021; and that Mr R physically disciplined the children in mid-2021. It is important to note that the mother did inform Child Protection at interview that she did not believe that the father had assaulted X.
During their involvement in 2021 the Department of Families, Fairness and Housing reported that they did not find any significant concerns for X in his father’s care.
In early 2022 the mother said she was experiencing difficulties in getting X to attend school. She described X as being extremely anxious, throwing up, running out of school and becoming extremely distressed when required to separate from her. She also said he was aggressive towards her at home.
C was born in 2022. Shortly thereafter, X’s time with the father was increased.
In April/May 2022 Child Protection received notifications suggesting the potential of sexual abuse of X. X’s time with the father was again suspended briefly whilst that investigation was conducted. The report was closed with no findings made against the father.
In around mid-2022, the mother said it became necessary for her to obtain an Intervention Order against the father as she believed he had become aware of where she was living. The mother said she was fearful for her safety, in circumstances where it was her evidence that she had been subjected to coercive control by the father. The mother then substantially ceased X’s attendance at school, as she said she was worried the father may attend school and remove X. The mother and children moved temporarily into a motel with the assistance of S Services, as the mother did not feel safe remaining at her home. She said X at that time was scared that the father was going to come to their home “and hurt him”.
The mother withheld X from seeing the father from about 12 July 2022.
The father commenced these proceedings in August 2022. By that time, the mother said X’s behaviour had significantly deteriorated at home and at school.
The Department of Families, Fairness and Housing received a further notification in August 2022, regarding the mother’s mental health. During the course of their involvement, a further report was received suggesting X may have been at risk of sexual abuse in the father’s care.
By the end of August 2022 the Department of Families, Fairness and Housing completed their investigations. They assessed there was no immediate risk of harm for X in the care of either parent.
On 2 September 2022 orders were made to immediately reinstate X’s time with the father. On that day a further notification was made to Child Protection in relation to X’s safety and wellbeing in his father’s care.
In late 2022 the mother called the S Services help line. According to their notes, she described X as having had a meltdown the night before and that he attempted to suffocate B by holding a pillow over his face and said he wanted to kill B. In her oral evidence the mother denied that X had genuinely tried to suffocate B.
The mother was interviewed by Child Protection around one week later. She advised she had historical concerns about X returned home with bruising, cuts, and sexualised behaviour. She also spoke about X experiencing emotional dysregulation and engaging in aggressive behaviours often directed towards his younger siblings. Child Protection noted the allegations had been previously raised and investigated. They described the mother as being loving and affectionate to all three of her children but struggling to divide her attention amongst the boys. They further noted the mother’s home environment was:
… messy and cluttered, with miscellaneous items and toys scattered around the floor causing trip and choking hazards…
There was also drawing on the walls, which the mother said was done by X when he became dysregulated.
Child Protection interviewed the father at home the following month. The father’s home was descried as “newly renovated, clean, tidy and [with] age-appropriate toys for [X]”.
X was then interviewed twice at school. He made no disclosures of concern and identified feeling safe with both of his parents.
On 24 October 2022, the parties and X were interviewed by Dr N for the purposes of the preparation of a Family Report.
X’s emotional dysregulation continued to significantly increase when he was in the mother’s care. The mother presented X at the P Hospital Emergency Department in late 2022 and then again the next day. The mother told the father she was taking X to O Hospital, but took him to P Hospital instead. She said she was fearful that the father would attend at the hospital and remove X from her care.
The P Hospital notes dated late 2022 recorded the after-hours psychiatric registrar’s review as follows:
… 6yo boy
living with single mother, 2 half younger siblings to 2 different fathers ([…] baby and [2] yo). No contact with these fathers ongoing parental discord between mum and [Mr Hollis] ([X’s] dad) after seperation
recent child custody hearing 9days / 5 days split
CPS involvement due to alleged assault perpetrated by dad
has only recently returned to spending time with dad, after the court case
long standing suicidal ideation since age 3yo, also possible undiagnosed ASD
known to […] CYMHS since 2021
Dysregulated last 24 hours after phone call with dad and disclosing mothers home address
screaming he is going to kill dad, he is going to kill himself
jumping onto objects to try and hurt himself
discharged from ED earlier today
pretty tired as he only had 4 hours sleep last night
had eastern CYMHS appointment at 3pm - did not attend
[X] asked for a bath, then right after bath, started to be verbally and physically aggressive towards himself and mother
attempted to choke himself with his own hands
mother comes back to ED, requesting […] admission …
(As per the original)
X was observed to misbehave at the hospital, threaten to kick his parents, say that he hated his mother, that he did not want his father to attend the hospital and that he hated everyone in the world. He was provided with medication. He remained in hospital for two more nights before he was discharged into the mother’s care.
A few days later X’s behaviour escalated when the mother arrived to collect him from school. He punched a teacher, bit the principal, and threatened to kill himself. The school principal called emergency services, and X was taken to P Hospital Emergency where he remained for one night before being released into the mother’s care. It is notable that at the hospital X said he did not want to see his father. However, when his father attended, X was described as “calm and hugged his father”.
In late 2022 Child Protection conducted a second home visit to the father’s home, whilst X was in his care. The workers said X was calm and relaxed, and the father was observed to be “affectionate, attentive, and appropriate” with him.
Child Protection conducted a further home visit with the mother the next day, following her recent move into a new home. Child Protection observed the new residence was;
… chaotic, with toys, dishes, clothing, and other miscellaneous items scattered around the home and on the floor, creating potential trip and choking hazards.

On the following day X’s behaviour at school was intolerable, with him physically and verbally lashing out at the teaching aid. X was suspended from school. The school informed Child Protection that X’s emotional dysregulation and difficulties were mainly following school drop off with the mother.
The following month, X was suspended for a second time, for aggressive and violent behaviour at school.
The significant changes X had by that time endured included:
(a)the mother had moved into and out of around seven different houses. The length of time X remained at each new home varied between a little over a year, to as little as four months;
(b)the mother had formed, and then ended an intimate relationship with Mr Q;
(c)the mother had formed, and then ended an intimate relationship with Mr R;
(d)the birth of two siblings;
(e)the loss of contact with the children of Mr Q and Mr R;
(f)three periods where time between X and his father had been suspended, most recently for about seven weeks with time then resuming in September 2022;
(g)two periods of living in temporary accommodation at a motel; and
(h)significant interruption to his schooling, with the mother withholding him from attending for a number of weeks in mid-2022, being his first year of formal schooling.
In his Family Report, Dr N raised significant concerns about the mother’s parenting skills and her vulnerabilities as a parent. When he interviewed the family in October 2022, Dr N observed of the relationship between X and the mother that it appeared:
55…the parent-child goodness of fit to be poor, and there being a disturbed and unstable attachment, with likely ambivalent/anxious attachment to the mother…
Dr N also noted that X presented as a child who had not had sufficient boundaries. X described himself as being angry at his mother’s home, and happy at his father’s. Dr N recorded X also:
114…reported some anxious attachment in relation to his mother, indicating that he is worried about leaving his mother and is concerned that she may die. He reported not being worried about his father. He also described that he wants his parents to be together but appears to understand that they are not and will not be.
115Overall, [X] presented as initially somewhat anxious and initially appeared somewhat unhappy and possibly angry. As indicated, he was not compliant and he needed very clear boundaries, but responded very well to firm limits. He presented as a very active child who requires boundaries and a calm approach but also a confident approach in terms of dealing with him, in part due to his anxiety but in part due to his tendency to push limits. He has likely been exposed to unstructured and overly permissive parenting.
116The evaluation also pointed to some ambivalent and anxious attachment in relation to the mother.
Notably, Dr N described the different way X interacted with his parents:
117… With his father he presented as calm and with his father more clearly in control without [X] being aware of this factor. With the mother [X] was less emotionally regulated and presented as less settled and appeared to be reactive to the mother allocating time to [C].
In November 2022 Dr N was provided with additional information, including information from CYMHS, the Department of Families, Fairness and Housing, O Hospital and P Hospital.
After reviewing this additional information Dr N concluded in his report that “parental risk is lower with the father than with the mother”, and that:
343[X] shows a disturbed attachment, with an anxious attachment to the mother, probably due to disrupted attachment to multiple caregivers, which is translated into aggression. The mother has struggled to cope with the child’s behaviour, has not set standard boundaries, particularly in the context of caring for the other children.
344The relations between the father and [X] has not been typified by such problems, and attachment presented as stable and established.
345The mother has struggled to manage [X’s] behaviours and divide her attention between the three children. The father is able to provide a more contained home environment where he can provide [X] his focused attention.
Dr N strongly recommended that X move to live primarily with his father, for his functioning to become stabilised.
As already set out, orders were made on 15 December 2022 for X to live with his father and to spend three nights a fortnight with the mother.
X commenced Grade 1 at F School in 2023. He was also engaged at CYMHS for play therapy with Mr T. He commenced with Ms U, occupational therapist, focussing on his writing skills as well as his gross motor strength, balance and coordination.
It is not in dispute that X loves both of his parents, and that he has a loving bond with each of them, although the father said X’s attachment issues may not have completely resolved. It is also not in dispute that X has developed increased confidence in his academic abilities, that he is engaged well at school, and that he is progressing well socially and academically.
It is not in dispute that X has largely settled into the current routine of living primarily with his father and spending each alternate weekend for three nights with his mother. The father is assisted by his mother as necessary, and X has developed a close and loving relationship with his paternal grandmother, as well. The father and X live about a five-minute walk from X’s school.
However, there are a number of matters that suggest X continues to experience some difficulties in moving between his parents’ homes and separating from his mother.
It is the mother’s evidence that X repeatedly asks her if he can spend more time in her care. She also deposed that X can be teary for the first hour or so when he transitions into her care, and that until the end of 2023 he continued to wet himself each Monday shortly before leaving her home to take him to school. She deposed that X remained upset and reluctant to leave her care, had continued to complain to her about the father’s treatment of him at times, and that X could become very anxious. In the outline of case filed on behalf of the mother it was asserted that X experienced “persistent distress at leaving the mother’s care” and continued to express fear and anxiety when returning into the father’s care.
Notably, the mother also deposed that X has not exhibited any angry or aggressive behaviours in her care either to her or his brothers since the change of residence.
The Department of Families, Fairness and Housing became involved again in mid-2023 in relation to allegations X was displaying harmful sexualised behaviours. SOCIT interviewed X at school in mid-2023, with Child Protection present.
There were some further significant issues in mid-2023. At that time, X became significantly dysregulated when the mother delivered him to school. He was said to have made comments suggesting that his father had touched his penis and hurt him. X was again interviewed by Child Protection and SOCIT in mid-2023. I understand the comments about his father touching his penis were explained by X as occurring in the context of him having had a medical issue, some two years earlier.
In mid-2023 a further report was made to the Department of Families, Fairness and Housing regarding a bruise over X’s eye. A few days later X was interviewed again by Child Protection at school.
Ultimately, Child Protection determined they had no protective concerns for X whilst in the care of either parent.
Both the father and his mother deposed that X continues to be unsettled for a day or so when returning from his mother’s care.
In his oral evidence, the father acknowledged there have been a few incidents when X has become upset when his father has delivered him to school. He deposed to there being a period in late 2023 when X experienced some difficulties leaving him in the morning to go into his classroom. I note that X’s teachers identified to Child Protection in the course of the mid-2023 investigation that X’s significantly dysregulated behaviours occurred only after he had been in the care of the mother, and did not occur when X was with his father.
X still takes transition toys from home to school with him. The mother gave evidence about other strategies that she employs before school, and strategies implemented by his teacher upon arrival to assist with his transitions.
These matters suggest that notwithstanding the significant advances made by X, he continues to experience some difficulties in transitioning between his parents’ home, and from his mother’s care, and that there are moments at which he continues to require additional support. Such transitions remain – at times – an uncomfortable experience for him. I am concerned that changing the current arrangements in circumstances where X has not yet completely settled into the routine could cause him further discomfort and impact his sense of security and safety.
There was little evidence at trial regarding X’s relationships with his brothers. The mother said the limited time in her household does make it difficult for X to develop and strengthen the sibling bond. I accept that sibling relationships are very important, and X’s relationships with his brothers should be nurtured and supported.
Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
No doubt both of the parents love X and want what is best for him. However, I have some concerns about each of the parents.
The mother
The mother is 29 years old. She works in childcare. She is the primary carer for B and C. B has no time with his biological father who has opted out of playing a role in B’s upbringing. C spends some limited time with his father, supervised by his paternal grandparents.
The mother experienced a traumatic and abusive childhood. Her reports of her experience in her family of origin and then in foster care are deeply saddening. The mother’s history has had an enduring impact on her, on her functioning and on her parenting. Dr N referred to the mother’s lifestyle now continuing to be somewhat chaotic, with that chaos likely transmitting to her parenting.
Whilst the mother has generally supported X’s time with his father, in mid–2022 she withheld X from spending time with his father. She demonstrated somewhat limited insight into the impact on X of doing so or how confusing it would have been for him to suddenly stop seeing his father. X also missed out on a considerable amount of schooling at that time. The mother did not seem to contemplate that it may have been her actions and responses that impacted on X and his behaviour.
Since separation the mother has moved homes frequently – having lived with X in seven rental homes and spending some periods in motels provided to her as emergency accommodation. I accept that at times the changes in residence were the result of factors outside the mother’s control. She is renting, and accordingly, when a lease ends, if it is not renewed, she must find alternate accommodation. However, on more than one occasion the mother said she moved from accommodation as she was fearful that the father knew where she was living – not because the lease ended and was not renewed. At times the mother and X left accommodation in a rush, with just a suitcase of clothes, leaving behind X’s bedroom, bed, toys, and personal items. Even when the move was planned, X has had to adjust to living in many houses and sleeping in different bedrooms. The impact on X and on his sense of stability and safety must have been profound.
I note in the Department of Families, Fairness and Housing response the mother’s house was described in late 2022 as being messy, cluttered, and chaotic. Child Protection also reported at that time the mother repeatedly expressed she had felt overwhelmed and struggled to respond to X’s behaviours at times whilst also meeting the needs of her other children. Child Protection did observe the mother to be loving and appropriate, and engaging well with supports and service.
Ms J
Ms J is a clinical psychologist. She provided a written report dated 30 January 2024. She has been treating the mother since March 2023. Ms J said the mother engaged well, had shown commitment to the therapeutic process and had made good progress. At the time of writing her report, Ms J said the only symptom of significance was the mother’s anxiety primarily about this Court case.
Ms J said the mother thoughtfully considered what had been raised about her functioning in the Court proceedings, and;
… generally demonstrated a capacity for thoughtful reflection, a willingness to consider different perspectives put to her by the writer, and commitment to addressing any issues or concerns that arose.
Similarly, I note in Dr M’s report the mother was described as having researched anxious‑ambivalent attachment after having received Dr N’s report. To Dr M the mother agreed that accurately reflected her relationship with X, and she:
31… presented as motivated to seek assistance and improve the relationship, noting she wants to develop a more secure attachment with him and learn to manage his behaviours…
Ms J said her sessions with the mother had included a focus on her developmental history and trauma experiences with the intention to process those experiences and understand how the mother’s past may impact her current reactions and relationships. Another focus was the mother’s own experiences of sexual abuse, and how she could better manage and respond to comments made by X that could potentially be consistent with disclosures of abuse. Much of the work done with Ms J has been to assist the mother in differentiating her own experiences and feelings from those of her children.
Ms J said she and the mother have also explored the impact on X of being caught up in his parent’s conflict, and appropriate ways to respond to statements by X that could indicate “splitting or aligning”.
In her report Ms J identified the mother’s strengths as being able to differentiate her feelings from others, her capacity to seek assistance and advice, her willingness to consider different perspectives and to work on her own behaviours and skills, and the commitment she had demonstrating by engaging in therapy.
Ms J remained very positive about the mother’s participation in the therapeutic process under cross-examination. She described the mother as candid, open, highly responsive, prepared to engage with issues and very willing to build insight. Ms J confirmed their work has included exploring the mother’s parenting capacity, her upbringing, her anxiety, and her understanding around attachments – her own, and her children’s attachment to her. Ms J confirmed further that she and the mother have discussed various parenting strategies that could be implemented to assist with X’s anxieties. Ms J said the therapeutic journey was well underway and that the mother had “built a lot of insight”.
Ms J said they are yet to work on the mother’s interactions with intimate partners.
I accept the mother has developed better strategies for parenting and is learning how to manage her anxiety and other emotional responses to the trauma to which she was subjected to in her childhood. In her oral evidence the mother was able to identify that whilst X may make complaints about his father or express a reluctance to return home at times, she is able to reassure him. She said she understood X’s complaints did not necessarily reflect reality. Overall, I formed the impression that the mother is now far better placed to manage X’s anxiety and periods of emotional dysregulation – which has no doubt contributed to X’s growing sense of stability.
It is also to the mother’s credit that she was readily able to acknowledge positives about the father, acknowledging he had done an excellent job caring for X after the interim orders in December 2022, and that he is a capable father. She acknowledged X was safe in his father’s care, and not at risk of being harmed. I am satisfied that she understands the importance to X of his relationship with his father, and she supports that relationship, including by having photographs of X and his father on display in X’s bedroom at her home, and giving X a personalised superhero teddy bear, with his father’s face. Ms K in her unchallenged affidavit deposed that the mother had gone to great lengths to encourage a positive relationship between X and his father.
I have much sympathy for the mother, and I accept she is doing the very best that she can to provide for all her children. It is very much to her credit that she now accepts X’s best interests do not require him to return to her full-time care. In her oral evidence she was also able to concede that the move to the father’s care at the end of 2022 provided X with a “break that was helpful for him” and that X’s distress in 2022 was attributable at least in part to the mother having ceased time. These matters suggest the mother is developing insight, and better able to place X’s interests above her own.
It is also very much to the mother’s credit that she has taken significant steps to improve her parenting. This includes completing a PPP parenting program, the Tuning into Kids program, and a program for victims of domestic violence. The mother is also linked in with various support and services. In addition, as set out, she has engaged with Ms J quite intensively, making considerable financial sacrifices to do so.
Notwithstanding the mother’s progress, I have some concerns that she still has some way to go in the development of insight. For instance, she was not really able to reflect on how her actions or behaviours contributed to X’s crisis in late 2022. It also appeared that she may have involved X in the dispute. X was described by his psychologist on 7 June 2023 as using quite adult language, announcing that he did not like living with his father, and telling Mr T that he needed to tell X’s lawyers “that I want to spend 14 days with my mum”. Mr T noted similar comments by X on 28 June 2023, in which he said “I need to tell you that Dad is mean to me… So I need to spend more time with Mum”. The paternal grandmother deposed that after returning from his mother’s home X has said that he hates living with his father, that he wants to live with his mother, and that his mother has told him he can make up his own mind when he is 12 years old.
It will be deeply confusing and destabilising for X if his mother is sharing her views about where X should be living.
The father
The father is 35 years old. He is a professional. He said his work hours are flexible and he is largely able to care for X at all times outside school hours. He is single. He lives with his mother Ms L in Suburb V. Ms L works part time as a healthcare professional and is otherwise available to assist in X’s care on the occasions the father is not available.
I have some concerns about the father’s attitude towards the mother.
It appeared to me that when X was young, the father made somewhat excessive demands on the mother for information about the child. The mother produced a number of text messages in which she provided information about X’s day, and photographs of him, often several times each day, but which the father regarded as insufficient. His tone on occasion was demanding and insistent accusing the mother of ‘playing games’ when she did not provide him with what he regarded as sufficient details of X’s daily activities or did not respond quickly enough for him. The repeated demands for information continued notwithstanding the mother’s requests that he not require updates multiple times each day. At trial the father struggled to acknowledge that the frequency of his demands for photographs and updates was at times excessive, and somewhat controlling.

I also have some concerns regarding the father’s behaviour after interim orders were made for him to have sole parental responsibility for X, in December 2022. In particular, I am not satisfied the father made significant efforts to keep the mother informed as to X’s mental health or attendances upon professionals at CYMHS. He said he thought CYMHS would provide the mother with updates and did not accordingly communicate with the mother about this at all. When it was put to him that he would be upset if she had not kept him informed, he responded saying that the mother did not inform him when X was in her care, and that “she did it to me”, suggesting the father felt justified in now refusing to provide the mother with information. This was not child focussed.
The father also did not keep the mother informed about X’s attendances upon Ms U. He said he did tell the mother about the referral but did not provide the mother with any other information about X’s progress other than supplying Ms U’s details. Ms U, however, did liaise with each parent, and accordingly both parents were informed about X’s progress and recommendations for future intervention.
I also note the text exchange between the parties on 15 June 2023. At that time, X’s psychologist at CYMHS had contacted the mother and asked that she speak with him. In light of the injunctions that were then in place as a result of the interim orders, the mother sent a text message to the father and requested permission to speak with the psychologist. Rather than providing a clear consent, the father responded:
As long as you aren’t breaching the court orders that is fine
(As per the original)
When the mother asked if the father could be more specific, he responded by reminding the mother that she had “no medical authority and an injunction in place”. The mother said she understood that and accordingly needed him to indicate what he might and might not regard as appropriate for the mother to discuss. Remarkably, the father responded:
You can ask your lawyers
(As per the original)
This was an entirely unhelpful response. It was not child focussed. It was clearly in X’s best interests that anyone treating him could speak with the mother, and the father made that difficult.
Unlike the mother, the father has not engaged with a PPP parenting program as suggested by Dr N. Nor had he completed a Tuning into Kids program as suggested. He was unable to explain his failure to engage with these programs.
Also unlike the mother, the father has little in his home to remind X of his mother or his brothers. He has no photographs of the mother or X’s siblings in X’s room, despite the mother having provided printed photographs to him. He also reported that X does not tell him much about his brothers. The father also hesitated when asked if the mother loves X, and questioned how a parent who loves a child could behave as the mother did in 2022. He struggled to identify positives about the mother as a parent. He was somewhat dismissive about the mother’s engagement with her psychologist, suggesting that notwithstanding the mother’s demonstrated commitment to engage in treatment, that “future bookings can be cancelled”. He denied noticing any positive or discernible changes in the mother’s behaviour and only reluctantly accepted that X’s behaviour at changeovers had improved, and that the mother was managing the changeovers more calmly, faster and with less acrimony.
I note also Ms K’s unchallenged evidence that the father’s behaviour to the mother at changeovers can be cold, negative and dismissive.
The father must ensure X feels able to talk about his experiences in his mother’s household. He must also shield X from the conflict between his parents. If he does not, X’s ability to have a meaningful relationship with his parents, and to move comfortably between their homes, is likely to continue to be compromised.
Notwithstanding these criticisms, it is plain that the father has provided a calm home for X with clear structure and appropriate boundaries. This was very much what X needed and continues to need. To his credit, the father has structured his work commitments to ensure he is substantially available to care for X outside school hours. He has established a predictable daily routine for X and engaged him in a range of activities including various sports, playing games, reading and social time with members of the paternal family. I accept the father’s evidence that he has embraced his role as a parent with pride and that he is doing all he can to ensure that X is happy and well adjusted.
Issues of family violence: ss 60CC(3)(j) and (k);
The mother made a number of allegations in her trial affidavit that the father had subjected her to physical and sexual abuse and coercive control. The father strongly denied all such allegations. Given the ambit of the dispute, there is no utility in making findings regarding the alleged assaults beyond acknowledging that at times I accept the mother felt quite uncomfortable, and confused about the nature of the parties’ sexual engagement.
As already observed, in mid-2022 the mother obtained an interim, ex parte Intervention Order against the father. It is her case that she was concerned for her safety, and that of X at that time when she became aware that the father knew of her residential address.
The mother ultimately withdrew the application. The father never attended at the mother’s house. It appears there was little reasonable basis, if any, for the mother having sought the Intervention Order at that time. The mother acknowledged she has not required or sought an Intervention Order since that time. There was also no evidence that the father had breached or attempted to breach the Intervention Order at any time.
The Department of Families, Fairness and Housing have been involved with the family on a number of occasions, much of which has already been outlined. That included their involvement in 2021 in regard to X allegedly complaining that his father kicked, smacked and hit him. The father denied using physical chastisement or abusing X in any way. Notably, the mother did inform Child Protection that she did not think that the father had actually hurt X. The Department of Families, Fairness and Housing investigations have concluded that X is not at risk in his father’s care.
The mother also acknowledged at trial that the father had not acted in a violent manner towards her for a long time, and she did not assert he had ever been abusive towards X.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
I have already referred to Dr N’s report in some detail, as well as to his oral evidence.
In his report, Dr N had indicated that if the mother engaged appropriately in intervention, made progress, and the coparenting relationship improved, it might be appropriate to increase X’s time with the mother to four nights each fortnight by the end of 2023, or mid-2024. Further, as already indicated, at trial Dr N revised that recommendation and stressed that in his opinion it was premature – and adult centric – to consider increasing X’s mid-week time with the mother at this stage.
At trial, Dr N opined that a child’s anxious attachment can be repaired over time if the parent becomes more stable. He said for X, at seven, part of that his sense of stability would be linked to living in a particular area and attending school in that same area. He said children with attachment issues can struggle if they must travel out of their area of familiarity, as that can cause a sense of dislocation. Ideally, he said the parents should live in very close proximity to each other and to the child’s school, so that X could feel a sense of continued connection to his community at all times regardless of which parent he was with. The parents currently live about a 45-minute drive apart. Ordinarily, that would not be regarded as being insurmountable. However, Dr N was concerned that even that distance would not provide X with the comfort and security he would more likely feel if his parents lived closer together.
In his oral evidence Dr N urged the Court to take a cautious approach to X’s time with his mother. He described X as a vulnerable child and said any significant change of arrangements – such as moving to a 5/9 arrangement – had the potential of destabilising him. Given the potential risk that X’s progress to date could be disrupted, Dr N questioned the benefit of an arrangement of adding even one additional night a fortnight – in circumstances where X was previously not functioning well at all, and is now experiencing some psychological stability.
Whilst Dr N acknowledged the mother has apparently made significant strides forward in her mental health, he said that is only one of the many factors that are in play. He said the focus could not be entirely on whether the mother has changed or improved her parenting – but rather on the significant disruptions X has experienced, and the imperative that the gains he has now made are not undone. He opined that X is an “acutely vulnerable” child because of his early life experiences, and it would be unrealistic to expect those issues to have resolved entirely for X since the making of the interim orders changing residence.
I note again the evidence to which I have already referred that at times X continues to experience discomfort and distress transitioning between his parents or leaving his mother’s care.
The mother’s frequent house moves also troubled Dr N. He said a stable and secure home is often an essential ingredient of how safe and secure a child feels. He said the mother’s inability to establish stable and secure accommodation would have raised significant issues for X, who, has had to adapt to a new environment, new location, and new circumstances. Of course, a parent can move homes. However, frequent relocations, particularly in the context of X’s vulnerabilities, he felt was problematic.
Conversely, the father remains living with his mother, and has no real plans to move. That has provided X with a stable and predictable home base.
Dr N was further concerned that the parents’ communication was not sufficiently established to ensure that if time was increased, the parents would be unable to effectively discuss X’s behaviour if he experienced any distress or regression. He said in the absence of parental trust and responsive communications, he could not support any arrangement that increased X’s time with his mother. The risk of such a change negatively impacting X – and the parents’ inability to openly communicate with each other and to then work together to manage and minimise that impact – was too great.
Dr N anticipated X would tolerate spending additional times with his mother over school holidays. He said that would have far less potential of disrupting X and his routines, although he urged a cautious approach should be adopted in this regard as well, to preserve the considerable gains X has made. In his view, a lengthy period of stability for both mother and X – to ensure that progress and improvements were maintained – would be necessary before significant changes could be safely made to X’s school week routine.
As already noted, I found Dr N’s evidence insightful and of assistance.
Practical difficulty of implementation: s 60CC(3)(e);
The parties live a 45 minute drive from each other. That distance would make it difficult for X to spend more time in his mother’s care on school days.
Avoiding further proceedings: s 60CC(3)(l);
It is in X’s best interests to bring these proceedings to an end, and to avoid further proceedings if possible. If X continues to thrive, and if the mother moves closer to X’s school, at some point in the future it may be appropriate for X’s time in the mother’s home to increase. It is not possible to predict when that might be, and it would be premature to make orders to that effect now. It is hoped the parties will be able to work cooperatively to make appropriate parenting decisions between them as X grows and matures.
ORDERS TO BE MADE
How should parental responsibility be allocated?
The father and the Independent Children's Lawyer proposed the father have sole parental responsibility for X’s health and education.
The father said he sought an order for sole parental responsibility for education to avoid conflict in the future, as the mother can ‘dig her heels in’. He said he did not know how the parties could communicate. However, he acknowledged that the mother should participate in X’s education and attend parent/teacher interviews and the like.
I am not satisfied it is in X’s best interests that the father have sole responsibility for X’s education. The parties have agreed he should remain at F School, and I will make an order to that effect. The parties will need to reach an agreement regarding secondary schooling, and any other educational matters that need to be determined. As he is doing well at school, it seems unlikely many decisions about his long-term education will need to be made, other than the choice of secondary school.
Both have much to offer X, and both are quite clearly motivated by his best interests. I have some concern that if the father has sole responsibility for education the mother will be marginalised and excluded from this aspect of X’s development. That would not be in X’s best interests. Whilst the co-parenting relationship is currently poor, it is hoped that the ending of this litigation will result in a settling of the parents’ mistrust and apprehensions regarding the other. It is also a few years before a decision as to secondary schooling is to be made. Having had the opportunity to hear extensively from each party over the duration of the final hearing I anticipate the parties will be able to liaise with each other sufficiently at that time to reach an agreement as to X’s schooling.
Conversely, I am of the view that it is in X’s best interests for the father to have sole parental responsibility for matters regarding X’s health. The parties have disagreed on a number of occasions regarding medical issues.
There was evidence that historically the mother had unnecessarily sought medical assistance for X, although that appears to no longer be an issue. However, the mother set out at length in her affidavit her concerns that the father did not take X’s health concerns and developmental needs sufficiently seriously. I note that X was engaged with CYMHS (which ceased in mid‑2023) and with an occupational therapist (which ceased in late 2023). It was not suggested that either CYMHS or Ms U had raised a concern about the father’s attitude towards X’s health and wellbeing.
Whilst X is now a healthy little boy, I am concerned that if he needed non-urgent medical attention, the parties may struggle to come to an agreement as to the way to approach or manage those issues. Decisions would need to be made in a timely fashion, and the best way to ensure that could occur would be to place the decision making with the father, as he will retain primary care for X.
The father has generally exercised sole responsibility in relation to X’s health in an appropriate manner. However, I do have some concerns the father may exclude the mother from this aspect of X’s development. To that end I note the father’s failure to keep the mother informed about X’s progress and treatment as already referred to. I also note his obstinate attitude towards the mother in June 2023 when she requested his agreement that she speak to X’s psychologist at CYMHS at the request of the psychologist. The father should make every effort to ensure the mother is provided with all the information regarding X’s treatment by and attendances upon medical and allied health professionals, and that the mother be able to liaise with those professionals and engage with X’s treatment. That way, if X does face any additional issues, or hurdles, both parents will be fully informed as to what is occurring for their child, thereby placing them – and X’s treaters – in the best position to assist their son. Additionally, I will make orders that require the father provide the mother with the opportunity to provide her views before he makes any medical decision for X.
Of course, if there are medical emergencies, the mother is at liberty to seek medical attention for X. The parties will need to use their common sense to ascertain what is a medical emergency. Whenever practicable, X should be seen by the one general practitioner, to ensure continuity of treatment.
Arrangements for X’s care
I am satisfied X’s best interests are met by continuing the current arrangements, with some additional nights during school holidays in the mother’s care. That arrangement is likely to both promote X’s stability, as well as allowing some periods of extended time on holidays, as envisaged by Dr N. Adding in any additional weeknight time during school terms carries too great a risk of destabilising X or compromising his sense of stability and security. Accordingly, an arrangement of equal time, or any arrangement beyond the alternate three-night weekend arrangement during school terms cannot currently be in X’s best interests.
I note the mother sought, ultimately, orders for equal time, should she move closer to X’s school. Given the need to ensure X’s stability, that arrangement could not be in his best interests. In my view, it is likely that increasing X’s time away from his primary home will be confusing for him and could rekindle the emotional dysregulation he exhibited in late 2022, even if that time was gradually ‘stepped up’. For similar reasons, time that exceeds the current arrangements during school terms could not be in X’s best interests.
Dr N’s view was that additional times during school holidays was less likely to impact X’s progress. He still advocated a reasonably conservative approach be adopted – and that working towards the sharing of holidays could be built up over several years.
The orders I am making will extend the holiday time X spends with his mother from three‑night blocks, to four-night blocks on most weekends he is with his mother during the term holidays. In my view this is a modest change that I expect X to manage well. In the long summer holidays, the time will be taken in five-night blocks at the end of this year, and increase to alternating weeks the following long summer holidays. That will ensure X has the benefit of enjoying extended holiday time with each parent, without altering arrangements too quickly and potentially jeopardising X’s development.
Arrangements for special occasions
The parties substantially agreed that X should spend Father’s Day with the father and Mother’s Day with the mother. They also substantially agreed regarding X’s birthday and Easter. There were some differences as to how precisely those special occasions should be shared. I have done my best to make orders that provide appropriate and practical arrangements that will enable X to spend time with both sides of his family on the relevant occasions.
I do not agree with the submissions made by counsel for the father that there is little merit in X spending time in the mother’s care to celebrate the birthdays of his siblings. The parties do not live so far apart that X would be overly burdened by travel (notwithstanding the birthdays are only days apart), and these are important and significant family events.
I have not, however, made orders for X to spend time with his parents on each of their birthdays. Those events can be celebrated the next time X is with that parent.
In relation to Christmas, I am of the view that it is appropriate for X to be able to experience that celebration with each of his parents, and with his siblings in the mother’s household. I understand the father says his family celebrates on Christmas lunch – as many families do – and he proposed the mother have X overnight every Christmas Eve, and that X be returned to the father’s care in time for Christmas lunch every year. However, in my view, X should have the opportunity to have alternate Christmas lunches with his mother and his brothers. Accordingly, I am making the orders the mother proposes to alternate Christmas Eve and Christmas lunch for X.
Extracurricular activities

The father advised X has enjoyed playing sport and wishes to enrol him to play. That would require X’s attendance at training after school and at games on weekends. Given that the mother lives some distance from the father, it may not be practicable for the mother to facilitate X’s attendance at games when he is spending the weekend with her. The father sensibly conceded that whilst it might be good if X attended games on each weekend, he could not expect the mother to ensure X’s attendance at any activity near the father’s home.
Accordingly, should either parent wish to enrol X in extracurricular activities during the time he is in their care, they are free to do so provided X is not required to attend each event when he is in the care of the non-enrolling parent. If X’s attendance is mandatory, the enrolling parent will need to have the consent of the other parent prior to committing X to that activity. Each parent must also inform the other as to what the commitments are of the activity, including details of games or displays or awards nights and the like, and both parties are at liberty to attend all events at which parents are welcome.
Injunctions
The parties agreed in relation to injunctions preventing the parents from denigrating the other to X or discussing these proceedings with him. It was also agreed the mother would not bring X into contact with her brother.
The father further sought the mother be injuncted from bringing X into contact with his maternal grandmother. That was opposed by the mother. There was little exploration of this issue at trial.
It does not appear to be in dispute that the maternal grandmother has significant mental health issues, substance abuse issues, and engaged in extensive criminal behaviours. She has also attempted serious self-harm. She was previously cared for at the W Mental Health Centre and now resides in a Continuing Care Unit in Suburb Y. It is unclear how often the mother visits her mother. At most, she sees her about every fortnight. I understand visits do not occur at the unit, but in public venues, such as McDonalds.
The father also set out that the mother had disclosed to him her abusive childhood in her mother’s care, and complaints the mother had made about the maternal grandmother’s verbal and physical abuse in 2015 and 2018.
The mother said it any relationship she had with her mother was likely to be minimal, and she would be able to ensure X was protected from harm. She proposed if X did spend time with her mother, she would always be present, and it would occur in public and in a child-appropriate venue. She also proposed she would inform the father.
In all the circumstances, I am satisfied it is not in X’s best interests to be brought into contact with his maternal grandmother without the father’s knowledge and consent. It could be confronting for X to spend time with his maternal grandmother if her behaviour deteriorated. I am also mindful that X has endured the introduction to and removal from a number of people over the course of his short life, and he has not seen his maternal grandmother for some time.
The mother also proposed an injunction restraining the father from denigrating neurodiverse people in X’s presence. I do not regard the evidence as demonstrating any necessity for that order.
The mother sought an order restraining the parties from recording the other parent’s facetime interactions with X. There was no evidence at trial about this matter, and I am not making an order to that effect. However, I do impress upon the parents that it would be inappropriate to record such exchanges.
The father sought an order restraining the mother from engaging X in any non-urgent medical or specialist appointments without the father’s prior consent. It would be inappropriate in my view to prevent the mother from engaging with medical or specialist appointments, and it will only assist his treaters to be able to liaise with both of his parents. However, the mother should not initiate any non-urgent appointments, as the father will, pursuant to my orders, have sole parental responsibility for matters pertaining to X’s health.
Provision of information
The mother’s proposals envisaged she not be required to disclose her residential address to the father. In my view it is entirely appropriate that each parent has the address of the other. They need to know where X is. Moreover, as X becomes older, it will become increasingly uncomfortable for him to feel there are ‘secrets’ he must keep from his father, such as where he spends his weekends when with the mother. That is a burden he need not bear. I am comforted by the evidence that whilst the father has known the mother’s whereabouts at times, there is no suggestion that he has attended at the mother’s home or otherwise misused the information he had as to her home address.
Making an order that each provide the other with their address does not mean that either parent can attend uninvited to the home of the other parent. As noted, the father has not attended at the mother’s home throughout the course of these proceedings. However, I accept the mother has some anxiety about this issue, and I am prepared to include a mutual order restraining the parties from attending at the home of the other parent, to provide some reassurance to the mother. If no order is made to that effect, the mother will likely be quite anxious, which could impact on X.
The parties also must keep either other informed about illness or injuries suffered by X.
Changeover
The mother sought changeovers that do not occur at school take place at Hungry Jacks at E Shopping Centre. That was opposed by the father who sought that changeovers remain at a different store at the Shopping Centre.
The father said he wanted time to remain at the other store as there are CCTV cameras there. However, he did not depose to any significant issues at changeovers that would necessitate it taking place where there are CCTV cameras on site.
The mother said it was far easier for her to manage changeovers at Hungry Jacks as she has her other, younger children with her. She said she has to take the children out of the car and walk across a road to get to the other store, which can be difficult. She said the father has agreed to effect changeovers at Hungry Jacks on occasions when it has been raining, or if one of the mother’s children is sick or asleep, but he otherwise insists on the other store.
There is no evidence that on the occasions the parties have used Hungry Jacks that this has caused any difficulties. I am concerned that changeovers should be effected as smoothly and with as little fuss as possible – which is problematic if the changeovers are practically difficult for the mother to undertake. Accordingly, I am satisfied that the Hungry Jacks nominated by the mother shall be used for changeovers that do not take place at school.
Parties’ communication
The parties are to communicate using a parenting application. The mother is to nominate her preferred app. The father said in his oral evidence he had no real issue with using an application for communication. The clear advantage is that a parenting application can provide a self‑contained platform for all parental communications – including a diary for events and appointments, options for photographs to be posted, the ability to inform the other parent about issues and the capacity to upload invitations and other documents.
X’s communication with each parent
The father proposed X communicate with his parents every second day. This continues the arrangement set out in the interim orders. The mother proposed communication occur weekly, on the basis that X – on her proposals – would be spending increased time in her care.
There was little raised about communication at trial. There was little evidence that the current arrangement of communication on alternate days was cumbersome or intrusive. Again, noting that X is thriving under the current arrangements, I do not intend to alter the communication regime. I have included an order that the parent who has X in his or her care is to initiate the call.
Overseas travel
I am not making any orders for overseas or interstate travel at this time. Neither party had any specific plans to travel and this issue was not explored at trial. I have no evidence as to the likely impact on X if he travelled with one parent, and his time with the other was accordingly interrupted. The parents are of course at liberty to reach agreements about travel. I anticipate at this stage, their focus will continue to be providing X was stability, predictability, consistency and routine, so that he can continue to build on the progress he has made to date in all spheres.
Name change
I am satisfied that X’s surname should be changed to Anwar-Hollis. I agree with the mother’s position that X has been known at X Anwar throughout his life, and by adding Hollis to his name – without changing the order – preserves some sense of continuity for him.
Parenting Co–Ordinator
The mother suggested the parties engage a parenting co-ordinator, at the father’s expense. I am not making an order for this as it is expensive and given that I am allocating sole parental responsibility for X’s health to the father, it is not in my view a necessary expense to impose on this family.
Attendance upon psychologist
The mother proposed an order that she continue to engage with Ms J. I am not satisfied it is appropriate for me to make that order.
An order to that effect would either need to be tethered to a parenting order, or made pursuant to s 67ZC of the Family Law Act.
Justice Gaudron in AMS v AIF (1999) 199 CLR 160 observed at paragraphs [85]-[87], that the power of the Court to exercise its welfare power and place limits on a parent’s conduct is not a supervisory power, and is restricted only to what is necessary for the welfare of the child.
Similar observations regarding the limit of the power pursuant to s 67ZC were made by the Full Court in Oberlin & Infeld (2021) 63 Fam LR 88. In that matter, the Full Court stated that orders directing a party to engage in therapeutic treatment will not usually be able to be made under that section.
Whether the mother does continue with Ms J is a matter for the mother. She has engaged to date without the necessity of an order that she do so. Her evidence – and that of Ms J – was that she is committed to the therapeutic process and will continue to engage.
In circumstances where I am not significantly increasing X’s time in his mother’s care, and where the mother’s functioning is such that the current arrangements are working well for X, I cannot be satisfied that the mother’s attendance at therapy needs to be a condition of X’s time with her.
Nor can I be satisfied that it is necessary for X’s welfare that she continue to attend. As already observed, however, I do encourage the mother to continue with Ms J, as the insight she will no doubt continue to build as a result will be of significant benefit to the mother, and to all of her children.
I am also not prepared to make an order as sought by the mother that the father undertake various parenting courses. Again, that is a matter for him. I have no doubt that he would learn from undertaking those courses, but it does not seem to me to be necessary for X’s welfare to make an order that he do.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 17 April 2024

File number:	MLC 8548 of 2022
Judgment of:	CARTER J
Date of judgment:	17 April 2024
Catchwords:	FAMILY LAW – PARENTING – Where the child experienced significant emotional dysregulation which settled following interim orders for a change of residence into his father’s primary care – Where the father seeks a continuation of the interim orders on a final basis – Where the mother seeks an increase of the child’s time in her care – Where the mother has engaged in intensive personal therapy – Allocation of parental responsibility – Application for a change of the child’s surname.
Legislation:	Family Law Act1975 (Cth) ss 60B, 60CA, 60CC, 67ZC Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bielen & Kozma (2022) 66 Fam LR 59 Godfrey v Sanders [2007] FamCA 102 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) FLC 93-405 Oberlin & Infeld (2021) 63 Fam LR 88
Division:	Division 1 First Instance
Number of paragraphs:	198
Date of hearing:	4 – 8, 12 March 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Werner
Solicitor for the Applicant:	Hope Earle Lawyers
Counsel for the Respondent:	Mr Strong
Solicitor for the Respondent:	Eastern Community Legal Centre
Counsel for the Independent Children's Lawyer:	Ms Hutchings
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 8548 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HOLLIS Applicant
AND:	MS ANWAR Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CARTER J
DATE OF ORDER:	17 APRIL 2024