Insley & Maidment

FEDERAL CIRCUIT COURT OF AUSTRALIA
Insley & Maidment [2021] FCCA 1399

File number(s): DGC 2380 of 2017

Judgment of: JUDGE BENDER

Date of judgment: 22 June 2021

Catchwords:
FAMILY LAW – Parenting – the parties’ applications in relation to parenting arrangements for their 5 year old daughter – where the Mother alleges the Father poses a risk to the child because of his lack of insight into the child’s medical issues – both parties seek an order for sole parental responsibility in relation to medical decisions –the Mother makes numerous allegations that the Father provides substandard care for the child – both parties’ proposals are for the child to spend substantial and significant time with the Father – the Mother proposes an 11/3 arrangement – the Father proposes a 5/9 arrangement.

HELD – Father found not to pose a risk to the child – orders made for the parties to have equal shared parental responsibility for the child including in relation to medical decisions – orders made for the child to live with the Mother and spend time with the Father gradually increasing over 2 years such that by July 2023 the chid spends 5 nights a fortnight and half school holidays with the Father.

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

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

U & U (2002) 211 CLR 238

Number of paragraphs: 303

Date of last submission/s: 30 April 2021

Date of hearing: 28-30 April 2021

Place: Melbourne

Counsel for the Applicant: Ms Smallwood S.C.

Solicitor for the Applicant: Fair Family Law

Counsel for the Respondent: Mr Wilson

Solicitor for the Respondent: KHQ Lawyers
ORDERS

DGC 2380 of 2017

BETWEEN:
MR INSLEY

Applicant

AND:
MS MAIDMENT

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged save for injunctive orders numbered 3 and 4 of the orders made on 14 November 2019 which remain in full force and effect.
2.The parties have equal shared parental responsibility for the child X born in 2016 (“X”).
3.X live with the Mother.
4.X spend time and communicate with the Father as follows:
During ELC/school terms
(a)commencing from the date of these orders in a two week cycle:
(i)in the first week from after ELC/school Friday (or 3.30pm on a non-ELC/school day) to 4.30pm Sunday and each alternate week thereafter; and
(ii)in the second week from after ELC/school Thursday (or 3.30pm on a non-ELC/school day) to 6.30pm and each alternate week thereafter and the Father shall ensure X has been given her dinner during X’s time with him.

(b)commencing 1 December 2021 in a two week cycle:
(i)in the first week from after ELC/school Friday(or 3.30pm on a non-ELC/school day) to 4.30pm Sunday and each alternate week thereafter; and
(ii)in the second week from after ELC/school Thursday (or 3.30pm on a non-ELC/school day) to before ELC/school Friday (or 9.00am on a non-ELC/school day) and each alternate week thereafter.

(c)from the commencement of third term in 2022 in a two week cycle:
(i)in the first week from after school Friday (or 3.30pm on a non-school day) to before school Monday (or 4.30pm on a non-school day) and each alternate week thereafter; and
(ii)in the second week from after school Thursday (or 3.30pm on a non-school day) to before school Friday (or 9.00am on a non-school day) and each alternate week thereafter.

(d)from the commencement of third term in 2023 in a two week cycle:
(i)in the first week from after school Thursday (or 3.30pm on a non-school day) to before school Monday (or 4.30pm on a non-school day) and each alternate week thereafter; and
(ii)in the second week from after school Thursday (or 3.30pm on a non-school day) to before school Friday (or 9.00am on a non-school day) and each alternate week thereafter.

During the school holidays
(e)in the first term holidays in 2022 X’s time with the Father pursuant to order 4(b)(i) herein be extended to 4.30pm Monday;
(f)in the third term holidays in 2022 X’s time with the Father pursuant to order 4(b)(i) herein be extended to 4.30pm Monday;
(g)in the 2022/2023 long summer vacation X’s time with the Father pursuant to order 4(b)(i) herein be extended on 2 occasions to 4.30pm Tuesday on such weekend as agreed between the parties in writing no less than 28 days prior to the commencement of the holidays and failing agreement on the weekends nominated by the Father in writing no less than 14 days prior to the commencement of the holidays;
(h)in the first term holidays 2023 X’s time with the Father pursuant to order 4(c)(i) herein be extended to 4.30pm Wednesday;
(i)in the third term holidays 2023 X spend time with the Father for a block period of 6 nights as agreed between the parties in writing from 9.00am on the morning of the first day to 4.30pm on the afternoon of the seventh day and failing agreement X’s time with the Father pursuant to order 4(d)(i) herein be extended to 4.30pm Thursday;
(j)in the 2023/2024 and the 2024/2025 long summer vacation for two separate one week periods as agreed between the parties in writing no less than 28 days prior to the commencement of the holidays and failing agreement as nominated by the Father in writing no less than 14 days prior to the commencement of the holidays;
(k)commencing in 2024 for half of the first and third term holidays as agreed between the parties in writing and failing agreement for the first half from after school on the last Friday of term to 4.30pm on the middle Saturday of the holidays;
(l)commencing in the 2025/2026 long summer vacation and each long summer vacation thereafter for a 2 week block as agreed between the parties in writing no less than 28 days prior to the commencement of the holidays and failing agreement as nominated in writing by the Father no less than 14 days prior to the commencement of the holidays;

Special occasions
(m)from 4.00pm the Saturday prior to Father’s Day to 4.30pm Father’s Day;
(n)for not less than 2 hours on X’s birthday and the Father’s birthday if the birthdays fall on a school day as agreed between the parties and failing agreement from the conclusion of school to 6.00pm and if the birthday falls on a non-school day for a period of not less than 4 hours as agreed between the parties and failing agreement from 12.00noon to 4.00pm;
(o)from 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2021 and each alternate year thereafter and from 3.00pm on Christmas Eve to 3.00pm on Christmas Day in 2022 and each alternate year thereafter; and
(p)as otherwise agreed between the parties in writing.

5.X’s time with the Father pursuant to order 4 herein shall be suspended and X spend time with the Mother as follows:
(a)from 4.00pm the Saturday prior to Mother’s Day to 4.30pm Mother’s Day;
(b)for not less than 2 hours on X’s birthday and the Mother’s birthday if the birthday falls on a school day as agreed between the parties and failing agreement from the conclusion of school to 6.00pm and if the birthday falls on a non-school day for a period of not less than 4 hours as agreed between the parties and failing agreement from 12.00noon to 4.00pm;
(c)from 3.00pm on Christmas Eve to 3.00pm on Christmas Day in 2021 and each alternate year thereafter and from 3.00pm on Christmas Day to 3.00pm on Boxing Day in 2022 and each alternate year thereafter;
(d)upon the Mother giving the Father not less than 28 days’ written notice, for the Mother’s family’s annual camping trip in or around February each year for no longer than 4 consecutive nights;
(e)commencing in 2022, for the term two school holidays; and
(f)as otherwise agreed between the parties in writing.

6.Commencing in third term in 2023, X’s school term time with the Father pursuant to order 4 herein shall be suspended during the school holidays and resume as if the holidays had not intervened
7.For the purpose of these orders, all changeovers that do not take place at X’s ELC/school shall take place outside Suburb B Police Station for the remainder of 2021. In 2022 and thereafter if not at X’s school the Father shall collect X from the Mother at Coles Supermarket Suburb B at the commencement of his time and the Mother shall collect X from the Father at Coles Supermarket Suburb C at the conclusion of his time unless otherwise agreed in writing. Both parties may have an agent known to X attend changeover in their stead and shall give the other party notice in writing of who will be attending changeover in the event they are not doing so.
8.Each party will facilitate X telephoning or communicating with the other parent:
(a)on no less than one occasion when X is in their care for up to 4 nights and on no less than 2 occasions in each week when X is in their care for more than 4 nights; and
(b)at any reasonable time as X may request.

9.Each of the parties will follow all reasonable directions and recommendations of X’s treating medical practitioners and save in the event of an emergency only take X to her agreed treaters and each party shall advise the other of any appointments made for X to attend upon her agreed treaters and each party be at liberty to communicate with X’s treaters.
10.For the purposes of order 8 herein X’s current agreed medical practitioners are:
(a)paediatric immunologist Dr D of the F Hospital;
(b)paediatric haematologist Dr E;
(c)paediatrician Dr G;
(d)general practitioners Dr H and Dr J;
(e)Dr K (eczema specialist);
(f)Dr L (dentist) of Region M Dental Clinic; and
(g)such other medical practitioners as agreed between the parties in writing.

11.Each of the parties are permitted to attend all of X’s ELC/school activities, functions and events and all extra-curricular activities normally attended by parents.
12.Each of the parties give all necessary consents and authorities to the other party to obtain information concerning X’s education, health care and extra-curricular activities.
13.The parties communicate via the Our Family Wizard app save for medical or other emergencies affecting X which shall be communicated immediately by telephone call or SMS text message.
14.The Mother and Father shall each immediately inform the other of any serious illness or injury sustained by X when in their care and further provide particulars of any treatment received by her together with the name, address and contact number of the treatment provider and the location at which X is a patient and authorise the treatment provider to speak to the other parent.
15.Each party shall notify the other, not less than 24 hours prior to any change to their residential address and/or mobile telephone number and/or email address.
16.Each party shall notify the other of the address or location and the telephone number (if any) of the place(s) where X will be staying during any weekend trip or holiday spent away from their residence no less than 14 days prior to the commencement of any weekend trip or holiday including any proposed interstate holiday.
17.The parties be permitted to travel overseas with X at times agreed between the parties subject to the travelling parent:
(a)ensuring that appropriate travel insurance is in place in respect of X; and
(b)providing to the other parent:
(i)not less than 42 days prior to departure written notice to the other parent of their intention to travel with X;
(ii)not less than 30 days prior to departure:
A.a copy of the proposed itinerary/ies showing dates of departure and return, including a copy of the ticket/s purchased, carrier details, flight numbers and like information;
B.accommodation details; and
C.contact details as to where the other parent may contact X while they are away.

18.X’s passport be held by the Mother.
19.The Mother make X’s passport available to the Father for the purpose of overseas travel no later than 7 days prior to the date for departure and the Father return X’s passport to the Mother within 7 days of their return to Australia.
20.In the event X is invited to a social function (including a friend’s birthday party) a copy of the invitation shall be provided to the parent who has the care of X pursuant to these orders when the function is being held, to respond to that invitation.
21.The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and from permitting any other person from doing so.
22.Each of the parties are authorised to provide a copy of these orders and the orders made on 14 November 2019 to the principal of X’s school and to X’s agreed treaters and any medical practitioner X attends in the case of an emergency.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Insley & Maidment is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER
INTRODUCTION

This is a parenting matter relating to what parenting orders are in the best interests of the parties’ five year old daughter X born in 2016 (“X”).
Pursuant to interim orders made by Judge Middleton on 24 July 2019, X currently lives with her Mother and spends time with her Father each alternate weekend from 10.00am Saturday until 5.00pm Sunday, each Wednesday evening from 3.00pm to 5.00pm, on Father’s Day, on X’s and the Father’s birthdays and at Christmas. By agreement between the parties, X’s Wednesday evening time with her Father has extended to overnight time on approximately 20 occasions in the last 12 months.
X has been diagnosed with chronic neutropenia. This means she has a compromised immune system that leaves her susceptible to infections and illness and can cause her to become more fatigued compared to other children her age.
X’s medical issues, her treatment including whether she be vaccinated and how that impacts her day to day care is a matter of dispute between the parties.
The interim orders made on 24 July 2019 after an interim hearing before Judge Middleton are very detailed and directive in relation to X’s care. The Mother is seeking that many of those orders remain in place on a final basis. Because of this, those orders are annexure “A” to this judgment.
The issue of X being vaccinated was resolved by consent orders made on 14 November 2019. Orders 3 and 4 and Notation A of those orders provide:
3. The Father be and is hereby restrained by injunction from facilitating the attendance of the child X born in 2016 (“X”) upon any medical practitioner for the purposes of administration of any immunisation.
4.The parties be restrained from initiating any court application seeking orders in relation to the immunisation of X until 16 February 2026, and thereafter there shall be liberty to apply provided that:
(a)the parties have first jointly consulted with X’s treating medical practitioners in relation to this issue (including but not limited to any paediatrician, immunologist and general practitioner); and
(b)before issuing further proceedings on this discrete issue, there is in existence a medical report from a jointly appointed medical practitioner for a review of X’s immunisation risk profile and for the purposes of this order neither of the parties shall unreasonably resist consultation with X’s treating medical practitioners referred to in this order; and
(c)the parties have attempted joint mediation/dispute resolution with such mediator as may be agreed to attempt to resolve this issue; and the production of a Section 60I Certificate.
…
AND THE COURT NOTES THAT:
A.The parties intend that these Orders shall finally determine the issue of the child’s immunisation(s) and to avoid future proceedings between them on this discrete issue.
The Father is seeking orders that the parties have equal shared parental responsibility for X, save that if there is an issue in relation to X’s medical needs he be the parent with sole responsibility for those decisions.
In relation to X’s living arrangements, the Father seeks that all previous parenting orders be discharged save for the orders made on 14 November 2019 relating to the resolution of the immunisation issue. He proposes orders be made for X to live with the Mother and that her time with him be increased incrementally over the next two years such that by June 2023 (when X will be halfway through Grade 1) X is spending five nights a fortnight with him. He also seeks that X spend half of school holidays with him as well as special occasions. The Father proposes that holiday time with him be built up in an age appropriate manner.
The orders sought by the Mother are very detailed and lengthy. They are set out in their entirety in the following paragraph as it is impossible to properly summarise them. Suffice it to say the Mother seeks a continuation of the order that she have sole parental responsibility for X’s medical decisions, that X live with her and spend time with the Father initially two nights a fortnight and by second term 2022 for three nights each fortnight, limited school holiday time and special occasions. The Mother also seeks many of the directions and restraints contained in the previous final and interim orders continue.
The Mother’s proposed orders are:
Parenting Orders to Continue
1.        That the following orders shall remain in full force and effect:
a. Orders 3, 5, 7, 8, 9, 10, 11, 12, 14 and 16 of the Minute of Consent Orders made 27 October 2017;
b. Orders 4, 5, 6b, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 20, 21, 22, 23, 24, 25, and 27 of the Orders made 24 July 2019; and
c. Orders 3 and 4 of the Consent Orders made 14 November 2019.
Education
2. That the child attend N School for her primary and secondary school education unless otherwise agreed between the parties in writing.
Spend Time
3. That the child X born in 2016 (“X”), spend time with the Father, as follows:
a. Commencing immediately, in a two-week cycle as follows:
i.In the first week from 10:00am on Saturday until 5:00pm on Sunday and in each alternate week thereafter;
ii.In the second week, from conclusion of the ELC/school (or 3:00pm if a non-ELC/school day) on Wednesday until the commencement of the ELC/school (or 9:00am if a non- ELC/school day) on Thursday and in each alternate week thereafter;
b. As from the commencement of school Term 2 in 2022 and during school terms in a two-week cycle as follows:
i. In the first week from 4.30pm on Friday until 4.30pm on Sunday and in each alternate week thereafter;
ii. In the second week from the conclusion of school on the Wednesday until the commencement of school on the Thursday and in each alternate week thereafter;
c. During school holiday periods at such times as may be agreed in writing, and in default of agreement, as follows:
i.         Commencing in Preparatory Grade in 2022 as follows:
1. During term 1 and 3 holidays for a total of 6 nights, to be taken in two separate blocks of three nights, at times to be agreed, and in default of agreement, as follows:
a. In the first week of the school holidays, from the first Sunday at 10am until 10am on Wednesday;
b. In the second week of the school holidays from 10am on Tuesday until 10am on Friday;
2. That the mother shall be permitted to take the child on holiday for the term 2 holiday period each year, (to include interstate travel);
3. During the long summer holidays 2022-3 for block periods of 3 consecutive nights each alternate week, to be taken at times to be as agreed and failing agreement from 10am on Thursday to 10am on Sunday, in each alternate week, on the basis that the Mother’s holiday time with X shall include the weekend prior to the commencement of school to facilitate X’s routine returning to school.
ii.        Commencing in Grade 1 in 2023 as follows:
1. During term 1 and 3 holidays for a total of 6 nights, to be taken in two separate blocks of three nights, at times to be agreed, and in default of agreement, as follows:
a. In the first week of the school holidays, from the first Sunday at 10am until 10am on Wednesday;
b. In the second week of the school holidays from 10am on Tuesday until 10am on Friday;
2. That the mother shall be permitted to take the child on holiday for the term 2 holiday period each year, (to include interstate travel);
3. During the long summer holidays 2023-4 for block periods of 4 consecutive nights each alternate week, to be taken at times to be as agreed and failing agreement from 10am on Thursday to 10am on Monday, in each alternate week, on the basis that the Mother’s holiday time with X shall include the weekend prior to the commencement of school to facilitate X’s routine returning to school.
iii.       Commencing in Grade 2 in 2024, and thereafter, as follows:
1. During school term 1 and 3 holidays for a total of 4 consecutive nights at times to be agreed, and in default of agreement, as follows commencing from 10am Saturday following the conclusion of school (to be taken in one block period).
2. That the mother shall be permitted to take the child on holiday for the term 2 holiday period each year, with the option of this being interstate;
3. During the long summer holidays for block periods of 5 consecutive nights each alternate week, to be taken at times to be as agreed and failing agreement from 10am on Thursday to 10am on Tuesday, in each alternate week, on the basis that the Mother’s holiday time with X shall include the weekend prior to the commencement of school to facilitate X’s routine returning to school.
iv. At such further and other times as may be agreed between the parties in writing.
4.        For the purpose of defining school holidays:
a. School holidays shall commence at 10:00am on the day following the conclusion of term;
b. School holidays shall conclude at 4.30pm on the day preceding the commencement of term whether or not that day is a pupil free day;
c. After the conclusion of the school holiday period, the parent who spent time with X during the first half of the school holidays will spend time with X on the first weekend following the conclusion of school holidays.
d. Term time is otherwise suspended during school holiday periods.
Special occasions
5. The Mother’s time shall be suspended pursuant to these Orders to enable the Father to spend time with X for special occasions as follows:
a. From 11.00am to 4:00pm on Father’s Day;
b. For not less than 2 hours on X’s birthday and the Father’s birthday at such time as is agreed between the parties or in default of agreement between 3.00pm and 6:00pm;
c. From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in even numbered years and from 3:00pm on Christmas Day until 3:00pm on Boxing Day in odd numbered years; and
d. At other times as agreed between the parties in writing.
6. The Father's time shall be suspended pursuant to these Orders to enable the Mother to spend time with X for special occasions as follows:
a. From 11.00am to 4:00pm on Mother’s Day;
b. For not less than 2 hours on X’s birthday and the Mother’s birthday at such time as is agreed between the parties or in default of agreement between 3.00pm and 6:00pm;
c. From 3:00pm on Christmas Eve to 3:00pm on Christmas Day in odd numbered years and from 3:00pm on Christmas Day until 3:00pm Boxing Day in even numbered years;
d. To enable X to travel with the Mother to Town O for an annual camping trip in or around February of each year for no longer than four consecutive nights; and
e. At other times as agreed between the parties in writing.
7. That for the purposes of these Orders, all changeovers shall take place at the N School pre-school/school X attends where appropriate and otherwise outside Suburb B Police Station, unless otherwise agreed in writing.
8. That for the purpose of the child spending time with the Father, the Father shall be in substantial attendance, and in the event that he cannot be in substantial attendance, the child shall be returned to the care of the Mother.
9. In the event that the child is sufficiently unwell (such that the child is unable to attend ELC/ school/ or partake in usual daily activities) the child shall remain in, or return to the care of the Mother until such time as she has recovered (to be supported by the provision of a medical certificate by the Mother).
10. The Father shall facilitate regular communication between the child and the Mother (via telephone or other electronic means as agreed between the parties) when the child is in his care, and when the child requests communication with the Mother:
a. On at least one occasion each week at times to be agreed;
b. During school holiday periods; each second day at times as maybe agreed;
c. At any time as may be requested by X or either of the parties from time to time;
d. As may be otherwise agreed.
11. For the purposes of order 9 of the Interim Orders dated 24 July 2019, the child’s existing treating medical practitioners include:
a. Dr K (eczema specialist);
b. Dr P (homeopath); and
c. Dr L (dentist) of Suburb B Dental Clinic.
12. The parties shall each facilitate the child’s attendance at important family events of both parties (such as weddings or milestone birthdays of immediate family members), where reasonable notice is provided in relation to same.
13. The parties shall each facilitate the child’s attendance at important school functions and events.
14. That in the event that X is invited to a social function (including a friend’s birthday party), a copy of such invitation shall be provided to the parent who has the care of X pursuant to these orders, to respond to that invitation.
15.      That in relation to travel with the child:
a. The Father shall be restrained from taking the child to a location without mobile service for any extended period exceeding 2 hours;
b. The parties shall each be and are hereby restrained from removing the child from the Commonwealth of Australia, without the written consent of the other party;
c. That the parties shall each be and are hereby restrained from removing the child from the State of Victoria, without the written consent of the other party, other than in accordance with these orders; other than in the event that the Mother travels with the child in the term 3 holidays.
BACKGROUND

The Father was born in 1987 and is 34 years of age. He owns and runs his own business which is based in Suburb Q. He has re-partnered with Ms R and they live together in rental accommodation in Suburb C. Ms R works in the Father’s business.
The Mother was born in 1977 and is 43 years of age. She is a trained public servant but is currently engaged in home duties. The Mother has not re-partnered.
The Mother had what she describes as a “life threatening vaccine injury” in 1999 triggered by “a Measles, Mumps and Rubella Vaccine (MMR) and Hepatitis B Vaccine.” It is her evidence that she was then diagnosed with Acute Disseminated Encephalomyelitis (ADEM), a rare autoimmune disease marked by a sudden widespread inflammation of the brain and spinal cord. The Mother suffered motor and sensory issues to her right hand and the left side of her face.
Tendered into evidence was a copy of correspondence from Dr S addressed to the Mother dated 10 December 2018 which enclosed sections of a letter sent to the Mother’s doctor on 5 October 2018. In part it states:-
“…I met her (the Mother) in 1999 when she presented with the recent onset of right hand clumsiness and sensory symptoms. Her imaging showed an unusual appearance in the left cerebral cortex in an area that would explain right hand symptoms. There was some enhancement and oedema and it was not clear initially whether this was a tumour or an area of inflammatory demyelination.
In due course she responded to a course of steroids and the lesion was clearly inflammatory. There was then some concern as to whether this was a single one-off inflammatory disorder such as ADEM or the first sign of multiple sclerosis.
Ovr (sic) the years there have been no further episodes and I think it is true that the way things have developed is more supportive of a diagnosis of ADEM than MS.”
The Mother deposes in paragraph 31 of her trial affidavit that:
“31.Following my acute life threatening reaction to vaccines, I was advised by my then treating medical practitioners not to receive any future vaccinations, and not to have any future children vaccinated due to my acute reaction and the existing genetic risks and predisposition, and risk of recurrence in them.”
The parties commenced co-habitation in 2013 and married in 2014. X was born in 2016.
In 2016 the Mother and X left the former matrimonial home and moved in with the Mother’s family. The Mother’s evidence is this was because of safety concerns for herself and X arising from the Father’s anger management issues and concerns relating to the Father’s care of X including leaving X in the bath unattended, leaving keys in the front door for days and leaving appliances on.
The Father denies he had anger management issues, that he inappropriately cared for X or was careless with the household appliances. It is his evidence that the Mother was diagnosed with depression in April 2016 and moved to her parent’s home in mid 2016 because she was struggling with X’s care. The parties’ marriage ended at this time.
In 2016 the Mother was admitted to T Hospital because of depression and anxiety.
Initially after separation the Mother only allowed the Father to spend time with X if it was supervised by either the Father’s mother or sister.
In August 2017 the Father initiated parenting proceedings in the Federal Circuit Court of Australia at Dandenong. His application resolved by final consent orders on 27 October 2017. Because the Mother seeks many of those orders remain in place they are Annexure “B” to this judgment. The provide inter alia for X to spend time with the Father on either Saturday or Sunday each week for a period of four hours at times to be agreed between the parties, having regard to X’s morning and afternoon sleeps and breastfeeding.
In early September 2018 the Father invited the Mother to partake in mediation to discuss X spending increased and more certain time with him.
In mid-September 2018 the Mother made a Notification to the Department of Health and Human Services (as it was then known) (“the Department”) raising her concerns about X being at risk in the Father’s care. In interviews with the Department, the Mother told them that:
• the Father possesses inadequate parenting skills;
• the Father feeds X inappropriate foods which exacerbates her eczema;
• the Father winded X too vigorously as a baby;
• the Father has never physically hurt her;
• the Father displays obvious behaviours of Oppositional Defiant Disorder (ODD) and Attention-Deficit/Hyperactivity Disorder (ADHD) and she has concerns as to his mental health; and
• she and X had stayed at U Centre on 18 October 2018 for two nights because of concerns for her safety but left because “the accommodation was more frightening as there was a lot of swearing, yelling, people with tattoos drinking and stunk of cigarettes.”
The Department investigated the notification and interviewed both parents as well as the professionals linked with X. The case was closed with the Department finding it had no concern for X in the Father’s care. Child Protection were supportive of the Father continuing to have unsupervised time with X. They did advise him to follow the Mother’s advice as to X’s dietary requirements.
On 8 November 2018 the Father initiated the current proceedings seeking orders for a specified increase in X’s time with him. The Father also sought an order that “X be assessed by a paediatric immunologist to assess her suitability to undergo usual childhood immunisations.” The Mother was served with the Father’s Initiating Application on 20 November 2018. The Father’s Initiating Application had a first return date of 29 January 2019.
On 20 November 2018 the F Hospital issued an immunisation exemption in relation to X.
On 28 November 2018 the Mother made application for and obtained an urgent interim intervention order against the Father for the protection of herself and X from the Suburb V Magistrates’ Court on an ex parte basis. The Mother’s allegations included:-
• the Father has access to guns and would store a gun under the bed we slept in;
• when we were in a relationship he would threaten to hit me, grab me aggressively and control me;
• the Father has anger issues;
• our daughter is petrified of him;
• the Father would get angry at our daughter and aggressively pat her back;
• the Father has made threats to harm both me and my daughter;
• the Father has nearly punched me many times;
• the Father has threatened to vaccinate our daughter when I don’t do what he demands knowing it could kill her or do serious harm; and
• I fear for the safety of both my life as well as my daughter’s life.
After obtaining the urgent interim intervention order the Mother ceased time between X and the Father.
The Mother filed her Response and supporting affidavit in these proceedings on 25 January 2019.
On 29 January 2019 interim consent orders were made which provided inter alia:
• the Father spend time with X each Sunday from 9.30am to 1.30pm on four occasions and thereafter each Sunday from 9.30am to 4.30pm;
• changeover be at Suburb V Police Station;
• the parties use Our Family Wizard to communicate in relation to X;
• the Father be restrained from taking X to any medical practitioner for the purpose of medical assessment or immunisation without the written consent of the Mother or order of the Court;
• the parties attend upon Ms W for a privately funded Family Report;
• X spend unsupervised time with the Father each Sunday for four hours on four occasions and thereafter for seven hours from 9:30am to 4:30pm.
On 7 February 2019 the Mother filed further and better particulars in her intervention order proceedings. This document was 25 pages long with 35 pages of annexures. Of the multitude of allegations made by the Mother, the more serious were:
• on repeated occasions, sometimes weekly after X’s birth…the Father physically hit her with an open hand; and
• between 2014 and 2016 the Father drank four to six beers daily followed by two to four cans of double/triple Bourbon, followed by straight Whiskey on ice.
On 3 June 2019 Ms W’s report was released. Ms W’s report and vive voce evidence will be discussed further in this judgment.
As set out previously in this judgment, an interim defended hearing was heard before Judge Middleton on 23 July 2019. The detailed orders made by his Honour contained in Annexure “A” to this judgment.
In the ex tempore judgment delivered by Judge Middleton on 24 July 2019 his Honour makes the following observations in relation to the parties’ relationship and communications at paragraphs 10 and 11 as follows:
“10.The co-parenting relationship is highly dysfunctional. The father did not agree with the mother regarding the child’s immunisation and, indeed, he stated that he sought orders for the child to be vaccinated in his affidavit filed 8 November 2018, although no such order was sought in the initiating application.
11.Communication between the parents is poor, and they use a communication app as a result. Ms W opined that “Communication is fraught” and “It appears there is little consultation around parenting issues, and little by way of shared or co-parenting”. (Paragraph 60 of her report dated 3 June 2019).”
In relation to X’s relationship with the Father his Honour states at paragraphs 26 to 31:
“26.Ms W observed that X relates in a “Familiar, comfortable, and easy manner with each parent” and that “her interactions with her father suggest she is comfortable and secure with him. She loves him and is happy and playful with him. She related effortlessly and without apprehension with him”. That is at paragraph 47 of her report.
27.Whilst I acknowledge that Ms W’s evidence has not been tested at this stage, I am of the view that as she is an independent expert. I can place weight on her evidence when relying upon my intuition.
28.The mother says that the child is reluctant to spend time with her father and is unsettled and distressed upon her return from him.
29. The father says the child is happy in his care, and there is no reluctance. Intuitively, the observations of Ms W support the notion that the child is comfortable and secure with the father.
30.Furthermore, Ms W says that “There is a depth to their relationship evidenced by, amongst other things, the close physical proximity X seeks with her father, the affection she displays towards him, the level of comfort and the ease of their interaction” (Paragraph 48 of the report).
31.The mother is the child’s primary attachment, and it is clear that the child has a secure, loving and supported relationship with her. In light of that evidence, I am satisfied that this child will benefit from a meaningful relationship with both of her parents.”
When discussing the question of the Mother’s allegations of the Father’s family violence and harsh parenting his Honour found at paragraphs 37 to 40:
“37.In the mother’s affidavit of 16 April 2019 at paragraph 33, the mother says that the father continues to behave in an intimidating manner towards her at changeovers and that, as a result, the parents agreed to conduct changeovers at Suburb V Police Station. The allegation of family violence otherwise relate to a time when the parties were in a relationship, and shortly after the relationship ended.
38.The observations of the family report writer support a finding that the child does not appear to be frightened, or have her relationship with her father compromised, either due to exposure to family violence or the alleged harsh parenting.
39.I note that the parents both seek orders for overnight time to commence, although I also note the mother’s submissions through counsel that she reluctantly does so.
40.In weighing the competing claims in relation to family violence together with the assessment of Ms W’s report, I am not satisfied that the child’s time with her father should be limited due to any impact upon her as a result of the alleged family violence and harsh parenting neglect.”
His Honour quite properly notes at paragraph 41 of his judgment that X’s health issues are central to this case. In paragraphs 42 to 46 his Honour states:
“42.The mother is concerned that the father will not respond to the child’s health needs, either in a timely fashion, or appropriately. As Ms W points out at paragraph 52 of her report, either the veracity of the mother’s claims point to the father as a careless, reckless and negligent father, placing the child at high risk, or it may point to an overprotective, histrionic or anxious mother or, indeed, there may be an element of both dichotomies.
43.The father has attended a parenting program and undertaken counselling to address behavioural and personal issues. Ms W says there is no evidence of mental health impacting his parenting, and that his presentation did not suggest cognitive dysfunction, although I do note that no formal assessment was carried out in relation to cognitive function.
44.The DHHS investigation did not proceed to any intervention and, importantly, there is no evidence before me that could satisfy me that the child has been hurt or placed at risk since separation, and there is certainly no evidence of physical abuse.
45.The father’s reluctance to accept the child’s diagnosis, and the need to not immunise, as a result, may go more towards the lack of trust between the parents and the father’s belief that the mother is attempting to minimise the child’s time with him, more than the father’s inability to appropriately respond to the child’s health needs.
46.It is the view of Ms W that it was reasonable and appropriate for the father to seek the opinion of a paediatric immunologist. Furthermore, Ms W opines that the fact that the father readily accepted the advice of the F Hospital and acted upon it, suggests a capacity to make informed decisions (see page 47 of Ms W’s affidavit).”
At paragraph 48 his Honour states:
“48.Weighing all of that untested evidence, I am satisfied that there is no need to protect the child from neglect in the father’s home.”
Finally, his Honour addressed the question of interim parental responsibility. In paragraphs 73 to 74 his Honour sets out his reasons for making interim orders for the Mother to have sole parental responsibility in relation to medical issues as follows:
“73.It is important to note that this child has a significant health concern and requires urgent treatment at times. It would not be in her best interest to delay treatment in the event of a disagreement between her parents. It is early days with regards to the co-parenting relationship between these parents. At the moment, their relationship is dysfunctional in this regard, and to assist them, they are about to embark on therapeutic counselling to, hopefully, achieve a time when they can effectively co-parent. They have a trial date of 25 March 2020, some eight months away. They have that time to strengthen the co-parenting relationship for their child.
74.However, until there is some evidence that they can co-parent and reach agreements in a timely fashion regarding their child’s medical needs, I am satisfied that one of the parents should have the final say, so as to avoid the possibility of this child being harmed as a result of a disputed medical need. In other words, it is as a result of the child’s medical needs that I consider it not be appropriate for the presumption to apply in relation to medical issues.”
Orders 5 to 6 of the interim orders made 24 July 2019 required the parties to attend upon Sandy Hirschfield for therapeutic counselling. Further orders were made by consent in Chambers on 3 September 2019 which provided that such counselling be on a privileged basis.
The parties’ counselling with Ms X ceased in early 2020. It is the Father’s evidence that Ms Y was not prepared to continue the counselling because of threats made to the Father by the Mother in the course of the therapy. It is the Mother’s evidence the therapy ceased because the Father withdrew from counselling. Whilst the Father was prepared to waive privilege in order for Ms Y’s notes to be made available to the Court, the Mother was not prepared to waive that privilege.
On 13 November 2019 the Mother withdrew her intervention order application and the Father provided an undertaking not to commit family violence.
The consent orders made on 14 November 2019 in Chambers resolving the issue of X’s immunisation is set out in paragraph 6 of this judgment.
Because of COVID-19 the final hearing set down for 1 April 2020 was unable to proceed. The parties were ordered to instead attend mediation in an endeavour to resolve the matter but this was unsuccessful. The matter was finally heard in April 2021.
THE EVIDENCE
The Father
The Father relies on his trial affidavit sworn on 26 February 2020 and updating affidavit sworn on 24 March 2021. The Father sought leave to rely on the affidavit of his partner Ms R affirmed on 23 April 2021. The Mother consented to leave being granted for the Father to rely on Ms R’s affidavit. The Father also gave vive voce evidence at the final hearing.
It is the Father’s evidence that he and X have a close and loving relationship. He acknowledges that X is primarily attached to her Mother and believes that he is also a source of comfort and security to her.
The Father is seeking orders for a graduated increase in the time that X spends with him so that they can have a genuine father-daughter relationship and she knows and is part of his larger close-knit family group.
In his Outline of Case document the Father sought orders that the parties have equal shared parental responsibility for X including for decisions relation to X’s health. At the conclusion of the evidence, Counsel for the Father advised the Court that the Father is now seeking order for equal shared parental responsibility save that he have sole responsibility for medical decisions for X.
It is the Father’s evidence that the orders proposed by him will enable him to be actively involved in all aspects of X’s life including school, extra-curricular activities and all her other day to day life experiences.
The Father adamantly denies that his parenting of X places her at any risk of harm. He denies the myriad of allegations made against him by the Mother in relation to his care of X and his alleged violence to the Mother both during the relationship and subsequently.
The Father denies the Mother’s allegation that he regularly returns X to her care in an exhausted state.
In cross-examination the Father explained X’s weekend routine with him. His evidence is that he collects X at 10.00am and they go to their local café where she has a babyccino whilst he has a coffee. They then return to his home where they do things together until she has lunch somewhere between 12.00pm and 1.00pm. She usually has a lunchbox with her that her Mother makes and sends with her. The Father describes X as a grazer and that he ensures that she has healthy snacks that she can access at any time of the day.
The Father’s evidence is that X does not want to have a nap in the afternoon, particularly now as she is older. If she is tired then she has quiet time during which craft work is done and she takes a rest.
Dinner is between 5.30pm and 6.30pm after which it is bath time, story time and then she is in bed between 7.00pm and 7.30pm.
On Sunday X wakes early but is not allowed into the Father and Ms R’s room until between 6.30am and 7.30am. They have porridge or toast for breakfast and, subject to the weather, they might go to the pool for a swim. They return home and do things together such as play in the yard or they might go for a bike ride. In the morning they also walk the Father’s dog Z.
Lunch is between 12.00pm and 1.00pm and if X is tired she has some quiet time and does some craft work or there might be a little bit of ABC Kids TV. They leave home at 4.30pm in time to drop X off to her Mother at 5.00pm.

On a Wednesday if X is only spending time with the Father for two hours, it is his evidence that because of the limited time the activities they can undertake are limited. In summer, if the weather is sufficiently warm he and X will go to the pool for a swim after which she will have a shower, get dressed, he will give her a snack and then take her back to her Mother.
It is the Father’s evidence that on these occasions there is insufficient time for him to give X a meal and he will advise the Mother accordingly so that she can give X her dinner as soon as they get home. He notes the Mother only lives some five minutes from where changeover takes place.
On Wednesdays when it is not the weather for a swim, the Father’s evidence is he may take X back to his home or quite often they will have fish and chips on the beach as this is one of X’s favourite meals.
On the 20 or so occasions that X has spent Wednesday night with the Father, the Father sets out their routine in paragraph 5 of his affidavit sworn 24 March 2021. He deposes that they often go to Suburb V Leisure Centre for a swim before going home where X feeds the pets before having a home-cooked dinner. He deposes that as X goes to bed early, there is not much time to do anything after dinner other than bath time and bed time. He deposes he always reads a book to her at bedtime and that she always asks for another. He puts on her bear animal light and sits with her until she falls asleep. In the morning she jumps into bed for a short while with the Father and Ms R before they get up to start the day. They walk the dog Z in the park, X may have a play on the swings and then it is home for breakfast and off to ELC.
In relation to the myriad of complaints made about his parenting by the Mother, the allegation and the Father’s response to same are set out as follows:

Complaint Response

(a)   The allegations made by the Mother in her application for intervention order and subsequently filed further and better particulars are set out in paragraphs 27 and 31 of this judgment.

(a)   In paragraph 65 of the Father’s trial affidavit sworn 26 February 2020 the Father sets out that the subpoenaed material from the Department reveals that the Department spoke to the maternal health nurse who advised that the Mother at no time made complaint of family violence in her relationship with the Father. The Department also spoke to the police to inform them that the reported concerns were a health issue and not a police issue.

The Father denies the allegation that he ever hit the Mother and notes that when the Mother spoke to the child protection worker on 21 September 2018 she told her that the Father had never physically hurt her. The Father also highlights that on the face of the intervention order application, the Mother states that the Father nearly punched her many times.

In relation to the Mother’s allegations that the Father had anger issues and would often yell at her and X as a newborn, the Father denies these allegations. He agrees that he and the Mother were not happy in their relationship and would often argue but denies that he was ever aggressive or violent as alleged.

In relation to the Mother’s allegations that the Father had or has access to firearms and would leave them lying around the house, it is the Father’s evidence that he did own firearms for which he held the appropriate licences. There was one occasion only when he left a gun under a bed. He explains this was an oversight as it had been planned that he would go hunting and that did not take place. It is the Father’s evidence that the gun had neither its firing mechanism nor ammunition and that this was a one-off occasion.

It is his evidence that all his firearms were otherwise always appropriately stored in a proper gun safe and that there were two occasions where the police inspected the manner in which he stored his firearms and had no issue as to how this was being done. It is his evidence that he has not owned firearms for some considerable time.

(b)   The Father threatened to have X immunised if the Mother did not agree to him having more time with her.

(b)   The Father adamantly denies that he has ever threatened to have X immunised without the Mother’s consent. The Father notes that when the Mother spoke to the child protection worker on 21 September 2018, only five days after this threat was alleged to have been made, she did not raise this issue with the worker. Her complaint to the Department was the Father did not follow X’s dietary requirements which was exacerbating X’s eczema.

In his Initiating Application filed on 8 November 2018 the Father sought an order that X see a specialist paediatric immunologist for the purpose of assessing X’s suitability to undergo all usual childhood immunisations. In his affidavit in support of his application he deposed “I want X to be seen by a specialist paediatric immunologist and the recommendations of that specialist acted upon.”

The Father notes that the Mother took X to see paediatrician Dr D on 20 November 2018 and that the first time Dr D’s report was made available to him was when it was annexed to the Mother’s answering affidavit which was only filed on 25 January 2019. He observes that the appropriate restraints in relation to immunisation were negotiated and made by consent on the first return date some four days later after he had seen the report from Dr D.

The Father also emphasises that this issue has now been resolved by way of the orders made by consent on 14 November 2019.

(c)   The Mother deposes in paragraph 64 of her trial affidavit sworn 13 April 2021 that X has complained to her on numerous occasions that the Father force feeds her bacon by making her close her eyes, saying words to the effect of “trust me” and putting bacon into her mouth. It is noted that pork products are not eaten or approved of in the Mother’s home. The Mother quotes X as saying words to the effect “Daddy fed me bacon Mummy. He said close your eyes X, trust me, and made me eat it. He made me eat piggies Mummy.”

(c)   It is the Father’s evidence that X does eat bacon in his household because she really likes it. It is his evidence that when he cooks bacon, it is put on X’s plate and she knows that she has a choice of whether she eats it or not and that she chooses to eat it.

(d)   X wet her bed at the Father’s place, was yelled at for doing so, was made to sleep on the lounge room floor all night and the Father’s large wire-haired (rescue) hunting dog was walking around her in the dark and she was too frightened to go to sleep in case she wet the bed again and her Father got angry at her.
(d)   It is the Father’s evidence that X has only wet the bed once whilst having a sleepover at his home. When this happened she was comforted on the couch whilst her sheets were changed. He and Ms R reassured her that it was only an accident and that it happens to everyone. She then went back to her bed and happily slept the night through.

The Father has a rescue dog which named Z. Z sleeps in the laundry at night and is not allowed to walk through the house. X loves playing with Z but is never allowed to do so unsupervised.

(e)   The Mother alleges that X is frequently sent to her room and screamed at whilst in the Father’s home.
(e)   It is the Father’s evidence that X is never screamed at in his home. On the very very few occasions that X misbehaves, she has been asked to have some quiet time in her room. The door is always open and she comes out within a few minutes.

(f)    X returns dehydrated from her time with her Father who prevents her from having her drink bottle.

(f)    It is the Father’s evidence that X’s drink bottle is always available to her at all times including in the car.

(g)   The Father has been aggressive and antagonistic at changeover including allegations that he has said “hello Ms Maidment” “sarcastically” and that he waved at her “aggressively”.
(g)   It is the Father’s evidence that he always greets the Mother politely. He made the observation that he only knows how to wave one way and it certainly isn’t aggressively.

(h)   The Father doesn’t have a full and proper understanding of X’s health needs and does not follow the Mother’s clear directions in relation to her care which is evidenced by him returning her to the Mother in an exhausted and distressed state.
(h)   It is the Father’s evidence that he has a full understanding of X’s health needs in relation to both her diagnosis of neutropenia as well as her eczema. It is his evidence that he understands that because of X’s neutropenia she is susceptible to getting sick easily and is more susceptible to infection. He is aware that because of this, she can deteriorate quickly. If this happens she is to be taken to the emergency department for immediate attention.

It is the Father’s evidence that he is also aware that X can become fatigued more easily and therefore requires quiet/down time to ensure she does not become too fatigued.

In relation to X’s eczema, the Father is aware that she requires a healthy nutritious diet. It is his evidence he follows the Mother’s directions in relation to the soaps, sunscreens and other medications that are suitable for X’s use.

The Father agrees that he and the Mother do not communicate well. They use a parenting app for communication purposes but do not even speak to each other on the phone. It would appear they do not use the phone even in the event of emergency or to clarify parenting arrangements.
The Father notes the Mother sends very lengthy, detailed and frequent communications to him in relation to her “directions” for X’s care. It is his evidence that he tends to read these prior to X spending time with him to clarify whether there are any relevant issues of which he needs to be aware. He concedes that his communications back to the Mother are much briefer with nowhere near the detail the Mother includes.
It is the Father’s evidence that he and his family love to go camping and that this is something that X really enjoys as well. On the occasions that he has taken X camping he always ensures that they are within range of a hospital in the event there should be the need to urgently take X for medical care. It is his evidence that in the event they ever go camping in an area that does not have mobile phone range, he will hire a satellite phone to ensure that he is able to communicate with the outside world in the event of an emergency.
It is the Father’s evidence that when he first started spending time with X pursuant to court orders, he and Ms R were living in Suburb Q near his business premises. In order to be closer to where X resides, he and Ms R moved to Suburb AA and have since moved to Suburb C in order to be in reasonable proximity to X’s school.
In relation to his being available to care for X in the event orders are made in the terms sought by him, it is the Father’s evidence that as he runs his own business he is able to adjust his hours of work to accommodate his care of X. It is his evidence that whilst he would normally leave for work at 5.30am and return home around 5.30pm to 6.00pm, when X is in his care he goes to work once he has dropped X at day-care and he leaves work in plenty of time to be able to pick her up at the designated time. It is the Father’s evidence that he has put in place the necessary structures within his business that will enable him to continue to do this for all times that X is in his care.
Ms R
Ms R is the Father’s de-facto wife. Ms R swore an affidavit in these proceedings on 23 April 2021 and also gave vive voce evidence at the final hearing.
Ms R was an impressive witness. She presented as an intelligent, calm and even-handed witness and there is no doubt as to the veracity of her evidence.
In Ms R’s affidavit sworn 23 April 2021 she responded to those allegations of the Mother in relation to the Father and herself about which she has knowledge as follows:
•X has wet her bed whilst staying with her and the Father on only one occasion since she has been out of nappies. Ms R deposes that the Father changed the bed, X was snuggled and went back to bed and to sleep. Ms R also states that Z does not sleep indoors, he is kept in a different part of the house and cannot wander.
•In relation to the Mother’s criticism of the food provided for X, Ms R notes she is vegan and also avoids gluten and that she will make gluten-free buckwheat pancakes, fry up or barbeque lots of fresh organic vegetables, that whilst she does not eat bacon the Father does and he will put that on X’s plate if she wants it and if not she asks to have a hash brown. X always has a water bottle which is kept full that X can access whenever she wants.
•X is not frequently sent to her room or screamed at. Ms R deposes that she has never known the Father to raise his voice with X and her observations of the interactions between the Father and X are of a gentle loving Father and a daughter who is content and happy to be in her Father’s care.
•In relation to the Mother’s allegation that Ms R is too busy in her bedroom to play with X and that otherwise only plays with her when she is teaching X how to use her exercise equipment (which I understand to be a form of dancing apparatus), Ms R deposes that sometimes when she is allegedly busy in her room, it is because she is working from home and once her work is done, she comes out to socialise and play with the Father and X. In relation to the “exercise equipment”, Ms R deposes that she is an allied health worker with Employer CC. Ms R notes it to be a fun and challenging way of keeping fit and that X loves to use the hoop and that these activities are supervised.
•In relation to the Mother’s allegations that the Father is angry, threatening, aggressive and unable to control his temper, it is Ms R’s evidence that she has never experienced the Father to behave in this manner nor has she ever seen the Father treat X in this way.
•In relation to the Mother’s allegations that the Father drinks excessively and on a daily basis, Ms R deposes that the Father drinks less than a six-pack of beer a week and when socialising on a weekend he might have a couple of glasses of sparkling wine. She notes that the Father looks after himself, maintains a high level of physical fitness and as recently as the weekend before she swore her affidavit he competed in a marathon finishing fifth out of 50 in his age group.
Ms R reports that she and X have a lovely relationship and enjoy each other’s company.
It is Ms R’s evidence that it is the Father who is primarily responsible for X. The Father does the majority of pick-ups, drop-offs and her day to day care. Ms R indicated however that she is available to assist the Father in X’s care and that she joins with him in seeking orders that would see X spend more time with her and the Father in their home.
The Mother
The Mother relies on her trial affidavit sworn on 13 March 2020 and her updating affidavit sworn 13 April 2021. The Mother also gave vive voce evidence at the final hearing.
The Mother also sought leave to rely on affidavits sworn by her father Mr BB on 13 April 2021, her sister Ms DD sworn 13 April 2021, her friend Ms EE sworn 13 April 2021 and psychologist Ms FF sworn 13 April 2021. Counsel for the Father objected to the Mother being given leave to rely upon those affidavits as they were filed out of time, they were not relevant and mostly contained hearsay and opinion evidence.
Having heard submissions as to whether the Mother should be given leave to rely on those affidavits, the affidavits of Ms EE and Ms FF were not allowed as they contained predominantly hearsay and/or opinion and did not assist the Court.
In relation to the affidavit of the Mother’s father Mr BB, paragraphs 15 and 17 to 20 only were allowed as they contain information of relevance to the issues before the Court and were Mr BB’s direct observations of recent behaviour by X.
In relation to the affidavit of the Mother’s sister Ms DD, paragraphs 14 to 21 only were allowed as they too contain information of relevance to the issues before the Court as they were Ms DD’s observations of X’s behaviour.
Both Mr BB and Ms DD gave brief vive voce evidence at the final hearing.
The Mother’s trial affidavit is 270 pages long and her supplementary affidavit is 37 pages long. It is fair to say that her affidavits are replete with criticisms of the Father, both as a person and as a parent. The Mother lists with specificity what appears to be every perceived transgression of the Father both personally and in his care of X.
The Mother alleges the Father was an angry, violent, irresponsible man with alcohol and mental health issues during their relationship.
It is the Mother’s evidence that at the time that she made application for an intervention order against the Father in November 2018 she was genuinely fearful of him and believed that he was capable of seriously harming both herself and X and that she and X were at risk of him so doing. The Mother denies exaggerating or embellishing her allegations against the Father or that there was any link to her making an application for an intervention order and being served with the Father’s Initiating Application filed in this Court.
In her vive voce evidence the Mother indicated that she no longer holds any concerns in relation to her and X’s personal safety nor does she believe the Father would intentionally harm either herself or X. The Mother however maintains that the Father could unintentionally harm X as a result of his substandard parenting of X and because he fails to fully comprehend the seriousness of X’s health issues and their necessary management.
In relation to the Mother’s allegations of incidences that she claims happen in the Father’s home, such as the Father forcing X to eat bacon, making X sleep on the floor in the lounge room after she wet the bed, the Father yelling at X and making her stay in her room, not letting X have her drink bottle and only giving X ice cream for dinner, it is the Mother’s evidence that she believes that these things happened because that is what X has reported and that X is not a little girl who tells lies. She is of the belief that the Father would parent X in this fashion and she rejects both the evidence of the Father and Ms R that these incidences have not occurred and that this is not how X is cared for when she is with them.
It is the Mother’s evidence that when X returns from spending time with her Father she is exhausted, can be defiant, she acts out and then becomes very clingy and won’t let the Mother out of her sight. It is the Mother’s evidence that it can take one to two days for X to return to her usual happy and contented self.
It is the Mother’s evidence that she has exhibited a sensitivity to mainstream medication since childhood.
As set out previously in this judgment, when the Mother was 22 she had a serious reaction to the MMR and Hepatitis B vaccines. The Mother sets out this episode in her life in paragraphs 24 to 27 of her trial affidavit:
“24.I was diagnosed with ADEM at the age of 22 following a life-threatening vaccine injury. ADEM is a rare autoimmune disease marked by a sudden widespread attack of inflammation of the brain and spinal cord. As well as causing the brain and spinal cord to become inflamed, ADEM also attacks the nerves of the central nervous system and attacks their myelin insulation which as a result destroys the white matter. In my case, the ADEM attack was triggered by a Measles Mumps and Rubella vaccine (MMR) and Hepatitis B vaccine, I took for my general health. I received the entire MMR vaccine, and only had one of three Hepatitis B shots.
25.My physical reaction to the vaccine was within days, and I initially had numbness in my thumb which progressively moved to all of the fingers on my right hand. I went to the doctor, who ordered subsequent tests, including nerve tests and a CAT scan. Upon receiving the results of the CAT scan my doctor requested that I attend upon his rooms immediately, and I was referred to a neurologist, Dr S. My injuries and adverse side effects at the time included motor and sensory issues with my right hand, then the dropping of the left side of my face, and a loss of vocabulary. Given my rapid deterioration, the progression, and uncertainty surrounding my symptoms, I was placed on various medications, including Dilantin, which I had an acute reaction to, in a short period of time, which resulted in my presentation at emergency and subsequent hospitalisation in the GG Hospital for approximately 3- 4 days, and also my inability to drive for some time.
26.At the time I was advised by my treating practitioners that if the lesions and side effects continued at the rate that they were attacking my central nervous system, I would likely only have weeks to live. They subsequently treated me with high dosages of intravenous cortisone in an attempt to treat and reverse my symptoms from the vaccines, to treat the inflammation/lesions on my brain, impairments and injuries, which assisted in most part, and the symptoms largely abated. This incident resulted in my having permanent paralysis in the fingers of my right hand, which still affects my mobility and which is exacerbated by stress, fatigue and cooler weather, which affects my health and wellbeing continually.
27.For the first 18 months I was also prescribed a drug known as Beta Interferon, which I had to inject every second day, and which I had a severe reaction to. One of the potential side effects, of this drug was, suicidal tendencies, anxiety and depression. I did suffer from some of these side effects for some time, which slowly abated after I ceased the medication. I then had subsequent reactions to medications they put me on, to deal with these side effects.”

The Mother’s highly emotive language and dramatic description of what occurred is in distinct contrast to the language of the Mother’s treating specialist Dr S contained in his letter of 10 December 2018 which is set out in paragraph 14 of this judgment.
Whilst in no way suggesting that the Mother’s reaction to the vaccine in 1999 was anything other than very serious and would have been incredibly frightening for her, the language used by the Mother in her affidavit as set out above and when giving her oral evidence shows she has a propensity to catastrophise her medical experiences and reactions.
The Mother was cross-examined at some length about her stay at T Hospital in 2016. The Mother describes her stay in the hospital as an “horrendous experience” and that she came out “in a worse state than she entered.” It is the Mother’s evidence that she had extreme reactions to all the drugs that were prescribed at the hospital and that every time she was medicated she vomited violently. It is the Mother’s evidence that she had a shocking reaction to Lexipro in particular and that because of her extreme reactions to medication she was prescribed very low doses of Diazepam of only 0.5mg to 1mg instead of the usual 5mg.
Tendered into evidence were the subpoenaed records from T Hospital covering much of the period of the Mother’s stay. Perusal of those documents reveal no record of the Mother vomiting in response to medication of any type. The notes record the Lexipro doses were “likely to be increased” and that the Diazepam would be continued to be used for sleep though not Temazepam.
The outcome note from 30 August 2016 notes the Mother to be sleeping well but feeling slightly dizzy following Lexipro 20mg that morning. The outcome note from 31 August 2016 notes the Mother to have no headache or nausea and that the Diazepam was helping her.
The medication level of the Diazepam on 1 September 2016 was 7.5mg not the 0.5mg to 1mg which was the Mother’s evidence she was being prescribed.
The outcome note from 1 September 2016 record the Mother saying that she felt things had improved for her but X definitely went backwards whilst they were in the hospital.
In summary, the patient records paint a completely different picture of the Mother’s stay in T Hospital to the one that was described by the Mother.
Also contained in the patient notes from T Hospital was a record of the Mother being reluctant to accept the in-home care that was being offered and recommended by the hospital upon her release. The notes record the Mother telling the hospital that the letter prepared by the hospital recommending the Mother be provided with in-home care and setting out the hospitals assessment of “the degree of risk” that warranted such assistance, might be used against her in future separation with the Husband. This letter was subsequently destroyed by the hospital at the Mother’s request as she was “100% against the plan for in-home care” as she was “not putting those lies into the universe”.
When the Mother was questioned about this aspect of her hospital stay, she could not recall being offered in-home care or directing the destruction of any correspondence that raised the possibility that such assistance was needed by her at that time to care for X.
The Mother has been a long-term patient of Dr P, Homeopath and Naturopath. Dr P is a long-term proponent of homeopathic immunisation. Dr P has been treating the Mother and X for several years. In paragraph 40 of the Mother’s trial affidavit, she deposes as follows:
“40.Mr Insley was aware of Dr P's homeopathic treatment of X, and raised no objections to it, save for during these proceedings. I been provided research of the effectiveness of this homeopathic vaccine schedule and understand that it has effectiveness of appropriately 90%, with no chance of toxic damage, and that may otherwise have superior protection to conventional vaccines. Research shows that this schedule is used by governments internationally in tens of millions of people around the world, and was first used in 1798. It was first used in Australia in 1985. The main treatment schedule is designed to protect against Petussis (Whooping Cough), Tetanus, Pneumococcal Disease, Haemophilus Influenza type B, and Meningococcal Disease. Further, the supplementary program further protects against Polio, Measles, Hepatitis B, Influenza, Rota Virus and Tetanus Wounds.”
In the Mother’s affidavit sworn 25 January 2019, the Mother annexes the immunisation exemption provided by Dr D, paediatrician in the immunisation department at the F Hospital dated 20 November 2018. In the document provided by Dr D, he states the following:
“I also requested the family attend the hospital if she (X) doeshas (sic) a tetanus prone wound as immunoglobulin +/- vaccine will be required.”
The Mother was asked by the Father’s Counsel whether, given her strenuous opposition to X receiving any form of vaccine, she would take X for a tetanus injection in the event she were to suffer a tetanus-prone wound. After a slight hesitation, the Mother indicated she would take X to see Dr H or Dr J (X’s treating general practitioners) and if they recommended a tetanus injection then she would follow their advice. She did however note that tetanus was part of the homeopathic immunisation coverage provided by Dr P.
The Mother, her father and her sister all depose at some length to an incident that occurred on Sunday 7 February 2021 at a family dinner at their local restaurant Restaurant HH. It is the Mother’s evidence that when she collected X from the Father at 5.00pm on that day X was completely exhausted and behaved very aggressively. She describes X as being hoarse and struggling to speak, of not being able to keep her eyes open and falling asleep on the maternal grandmother’s lap, of biting both the maternal grandmother and the Mother’s sister, of hiding under the table and refusing to engage with the family or the staff and of her sister having to carry X to the toilet because she was so exhausted.
It is the Father’s evidence that X was not exhausted when he dropped her to the Mother and that there was nothing out of the ordinary that they did over that weekend which would explain the behaviour described by the maternal family.
The Mother was not open to any other possible explanation for X’s behaviour on this occasion other than the Father had exhausted her whilst she was in his care.
It was put to the Mother in cross-examination that there was not one example in her affidavits where she said anything nice about the Father. In response the Mother said that she has limited understanding of what X does with the Father. When pressed further for anything positive the Mother could say in relation to the Father’s parenting of X she responded:
•The Father is good around the house doing handyman things;
•The Father takes X to JJ Play Centre;
•The Father exposes X to other children;
•X appears to enjoy her time with the Father;
•The Father appears to care for X;
•The Father takes X swimming which is helpful for her;
•X loves the Father’s cat very much;
•X has a bike at the Father’s house and they go to the park; and
•X’s a nature girl and the Father loves nature as well which is also a positive aspect.
The Mother was asked whether she would consider the Father’s proposal if the Court decided the Father does not pose a risk to X and that he does in fact look after her well. The Mother replied that she would not as she does not believe the Father’s proposal to be in X’s best interests. She explained this is because of her observations of X after she spends time with the Father under the current regime, and in particular that X is not thriving, she is exhausted, she is emotionally distressed and is displaying behaviours very uncharacteristic of her. It is the Mother’s evidence that she believes the extended time proposed by the Father is not in X’s best interests.
It is the Mother’s belief that X would not cope with five days in the Father’s care in each fortnight. She also questioned how the Father would manage X’s care for that length of time.
When discussing the Father’s proposal of X having half of the school holidays with each of her parents, the Mother responded that she “had no idea of the state X would come home in after seven nights in the Father’s care.”
It was suggested to the Mother that there could be other explanations for X’s behaviour when she comes back to her after spending time with her Father, for example, she is missing the Father, the time with the Father has been too rushed, she wants to spend more time with her Father, not less, or that X is saying things to the Mother that she thinks the Mother wants to hear. The Mother rejected such possibilities out of hand. It is her evidence that the behaviours that she says X exhibits upon return from her Father is all about how the Father manages X’s time with him and there is nothing else she can relate it to.
It was suggested to the Mother that because of her own health issues, she is perhaps over-protective of X and struggles to accept that anyone other than herself can properly manage X’s own health issues. The Mother rejected the suggestion that she is over-protective of X and describes herself as being a conscientious and caring mother whose care of X means that she is thriving and her health conditions are well-managed.
It is the Mother’s evidence that X has a meaningful relationship with the Father and that her proposal of three nights in each fortnight will ensure the continuation of that relationship. It will also ensure that X is properly cared for and all her needs, particularly her health needs, are met.
It is the Mother’s evidence that she and the Father struggle to communicate. It is her evidence that whilst she provides the Father with all important and relevant information in relation to X’s care and activities, he does not reciprocate. She is critical of the Father for the tardiness with which he responds to her questions and when he does for the paucity of the information that he provides in relation to his care of X when she is with him.
It is the Mother’s evidence that she believes that orders should be made for her to continue to have sole parental responsibility for X’s medical issues because of she and the Father’s inability to communicate or agree and the risk this would pose to X if there were urgent medical decisions that had to be made.
It is the Mother’s further evidence that it is she who has fully engaged with X’s treaters and because of this she is the parent who has complete knowledge of X’s medical needs. It is the Mother’s evidence that the Father has failed to engage with X’s treaters. She cites the example of the Father agitating for X to have a blood test after the report was received from X’s kindergarten that she wasn’t ready to start primary school because of a number of factors including that she still got very tired, and then after the blood test was done, failing to make an appointment to speak with the doctor to personally receive the results and feedback from him.
The Mother also seeks a continuation of the very proscriptive and restrictive orders made in October 2017 and by Judge Middleton and in July 2019. The Mother’s evidence is that she believes absent such prescriptive orders the Father will not feel bound to put in place the arrangements that are necessary for X’s ongoing care.
Mr BB
Mr BB is the maternal grandfather. He swore an affidavit on 13 April 2021 and gave vive voce evidence at the final hearing. As noted in this judgment, only portions of Mr BB’s affidavit were admitted into evidence.
In paragraph 15 of his affidavit, Mr BB deposes that X whispered into his ear “Please don’t tell Mummy Nonno, but Daddy made me eat bacon… I told him I don’t eat bacon or piggies, but he made me close my eyes and made me eat it… please don’t tell Mummy Nonno”.
When Mr BB was asked whether he believed that the Father would force X to eat bacon, Mr BB responded that he did. He stated X is a very advanced, intelligent child and would not lie. Mr BB also made the observation that it is a “personal choice” of X not to eat bacon.
In paragraphs 17-19 of his affidavit, Mr BB deposes to the events of 7 February 2021. It is his evidence X was completely exhausted, her voice weak to the point where she was finding it difficult to communicate or even hold her head up. In his vive voce evidence he said that X was walking with difficulty.
It is Mr BB’s evidence that X told him that she was tired because she hadn’t slept, she had wet her bed and her Daddy had become angry and yelled at her and made her sleep in the lounge/living room, that she was too scared to go to sleep in case she did wees and because the dog was walking around in the house.
Again when asked whether he believed X when she told him this, Mr BB indicated that he did.
Mr BB was asked why X was not taken to hospital if she was presenting in such a poor and concerning state on 7 February 2021. Mr BB responded she wasn’t sick, she wasn’t unwell, she was exhibiting no fever, she was just exhausted.
Mr BB was asked why on 7 February 2021 the family didn’t cancel dinner and take X straight home given her exhaustion and concerning behaviours. He responded that they were only at the restaurant for 45 minutes to an hour and that they and X had to eat.
Mr BB agreed that he and the Father had a good relationship when the parties were together but he doesn’t think much of the Father now.
Ms DD
Ms DD is the Mother’s sister. She swore an affidavit on 13 April 2021 and gave brief vive voce evidence at the final hearing.
Ms DD describes the evening of 7 February 2021 in her affidavit. It is her evidence that when she joined the family for dinner at about 5.15pm, X was very tired and irritable, her voice was harsh and she was struggling to get words out. She observed her to be more exhausted than usual and to have a severe tantrum.
It is Ms DD’s evidence that after going to the bathroom X continued to be disobedient and after being asked to behave X bit her on the arm and then later bit the maternal grandmother on the back.
Ms DD deposes that after she had bitten her and her grandmother, X hid under the table until she was persuaded to come out and eat some dinner after which time she was better behaved. It is Ms DD’s evidence that X told her she was sleeping in the lounge room at Daddy’s and the dog and cat were walking around.
It is Ms DD’s evidence that X has told her that she is “not allowed to talk about what happens at Daddy’s”.
When Ms DD was asked whether she believes that the Father would have force fed bacon to X and made her sleep in the lounge room on the floor, Ms DD replied “yes”.
Ms W
Ms W is a psychologist jointly engaged by the parties to prepare a family report in this matter in 2019.
Ms W’s report dated 3 June 2019 is annexed to her affidavit sworn 18 July 2019. Ms W, who gave vive voce evidence at the final hearing, adopted her report.
In her family report, Ms W describes the Father and Ms R in paragraphs 12 and 13 as follows:
“12. Mr Insley presents as a reserved man with a solemn and unsmiling demeanour possibly due to the serious nature of the conversation around the allegations which he strenuously denies. He was straightforward in interview, giving a cohesive account of events leading to the current proceedings, consistent with the information provided in his affidavits. He did not present as being motivated by anger or malice.
13. Ms R, his partner, accompanied Mr Insley to the interview and the interview was conducted with her in the room. She participated as required but otherwise, the interview was essentially with Mr Insley. They impressed as a close-knit couple who share a supportive and loving relationship. Ms R spoke lovingly and warmly of X and the relationship they share.”
In relation to the Mother’s allegations against him, Ms W notes the Father’s response to those in paragraph 17 of her report in the following terms:
“17.Mr Insley denies the Mother’s allegations and has itemised and responded to her claims in his affidavits. He denies being forceful with X or neglecting her needs. He insists he has never threatened or insisted to vaccinate X and notes he has insisted only on obtaining a medical opinion from a suitably qualified medical expert, a paediatric immunologist to guide and advise on X’s care. He claims has not been able to access medical information and Ms Maidment gives him little information and if so, it is usually ‘after the event’. He says Ms Maidment dismisses his concerns. He has not accepted the Mother’s reports about X’s medical needs as the opinions have not come from suitably qualified professionals. He has asked that X be examined by paediatric immunologist, which he reports occurred in November 2018, after his initiating application, with Dr D.”
Ms W reports the Father told her that X is happy when spending time with him, that he described X as a very active and happy child though acknowledging she doesn’t sleep easily at his house and that he gives her “quiet time” instead.
When discussing the Mother, Ms W describes her as a friendly woman, at times with some affectation, and affable.
Ms W confirms the Mother presented a narrative of family violence perpetrated by the Father upon her and of inappropriate and neglectful parenting.
In paragraph 31 of her report, Ms W sets out the Mother’s claims in relation to X’s relationship with her Father as follows:
“31.Ms DD claims X expresses reluctance to spend time with her Father; she tells her she is frightened of her Father, and ‘she says she’s kicking him’. X return home ‘aggressive and exhausted’. Notwithstanding her concerns about the Father’s care of the child, she says is not opposed to gradually increasing X’s time with her Father. She opposes overnight time however, and refers to Dr KK’s reported view that, as there is risk to the child, no overnight time should occur.”
Ms W describes X as a happy, playful and energetic child who seems to be meeting all of her developmental milestones.
She notes X to be a strong-willed little girl, persistent and assertive, who presents as confident, socially adept and bright.
Ms W describes X’s interactions with her Mother as unremarkable in a positive sense, noting she was comfortable and relaxed with her Mother and her Mother to be attentive and responsive and relating to X in a warm and loving manner.
Ms W sets out X’s interactions with her Father and Ms R in some detail in paragraphs 38 to 44 of her report as follows:
“38. When X was told she would be seeing her Father, she smiled happily and immediately readied to see him. She did not display any anxiety or resistance to seeing him separating easily and readily from her Mother. She complied with a request for a kiss from her Mother as Ms Maidment exited the room. X keenly asked the writer to bring her Father to the room and she came to the door seeking him. She sighted her Father in the waiting room and went directly to him exchanging a warm hug and kiss with him in front of her Mother.
39. Mr Insley carried her to the playroom and they again exchanged a hug and kiss. She offered her Father a mint and firmly persisted he take it. Mr Insley noticed some eczema on her face gently advising ‘you have to try not to touch it’. Mr Insley allowed X to dictate play and he followed her lead.
40. Mr Insley was observed to relate to X in a gentle, warm and playful manner; he was observed to be patient as she attempted to build a tower. He guided her play encouraging her to attempt tasks herself and gain competency; he praised her for her efforts while taking opportunities to teach her. When X mentioned her maternal grandparents he responded, ’aren’t you lucky’. Similarly, when she showed him her new shoes, ‘Mummy bought them’ he replied in positive tones, ‘that’s nice’.
41. Mr Insley was observed to be attentive and responsive; he noted X needed and gave her a nose wipe; he gently rubbed her back when she coughed; he offered her water but didn’t persist; she said, ‘I’m alright’. He uses terms of endearment when refers to her.
42. X was observed to be relaxed and comfortable with her Father; there was a strong sense of familiarity in their engagement. X sought her Father and engaged him in play; for example, asking him to fix a toy. There were spontaneous and mutual displays of affection. She was observed to voluntarily caress her Father and seek close physical proximity to him. She was polite with him.
43. X was asked if Ms R could join them in play and she enthusiastically replied, ‘sure’. She voluntarily offered Ms R a warm hug, moved closer to her and continued to play. Ms R engaged in a playful and warm manner also allowing X to place toys on her head. There were several moments of laughter and joviality.
44. As X noticed it was time for her Father to leave, she asked him ‘where are you going?’. She gave an audible moan of disappointment when told it was time to leave. Mr Insley tenderly explained he’d see her again. X attempted to prolong play. They farewelled each other with a hug and kiss. X returned to give her Father and Ms R a chocolate then turning to blow her Father more kisses. She separated easily and went happily to her Mother and Aunt.”

The Mother seeks orders that X spend the whole of the second term holidays with her so that she can take X on an extended holiday. This does not seem an unreasonable request.
In relation to school holiday time orders will be made that X spends time with her Father, slowly building up so that she has one week in each of the first and third term holidays and two one week periods in the long summer vacation. The orders will provide that when X is nine years of age the Father can nominate a two-week block in the long summer vacation so that he too can take X on an extended holiday.
Orders will also be made in relation to special occasions so that X has the opportunity to spend time with each of her parents for Christmas, Mother’s and Father’s Days, her birthday and the parties’ birthdays.
The final issue for determination is what, if any, additional orders other than the orders in relation to immunisations should be retained from the very detailed orders currently in place.
Whilst the very prescriptive and restrictive orders that were made in 2017 and again in 2019 were appropriate at the time they were made given X’s young age, the unresolved immunisation issue and that the Father has not cared for X overnight, I am of the view that such orders are no longer necessary and are not in X’s best interests as they have a real potential to be the cause of ongoing dispute and conflict between the parties and undermine X’s relationship with the Father.
There are some orders however that I think should be retained in order to provide clarity for the parties and reduce potential conflict between them. They are those relating to the parties following all reasonable directions and recommendations of X’s treating medical practitioners, a list of agreed medical practitioners the parties are to consult in relation to X’s health, the requirement for the parties to notify the other of any medical emergency suffered by X when in their care, that communication be via the Our Family Wizard app save in the event of an emergency where they are to call or text each other, each party notifying the other of the address and telephone number where X will be staying when on holidays or away for the weekend, X’s attendance at agreed extra-curricular activities, orders in relation to both parties being able to attend school events and extra-curricular activities normally attended by parents and a non-denigration provision for the parties and their agents.
It is not in X’s best interests that the Mother’s family are so critical and demeaning of the Father and of his parenting. As noted, X is an intelligent and sensitive girl and will be aware that her maternal family do not like her Father which will upset and confuse her. It will be vitally important that the parties and their extended families do not expose X to any negative views that they might hold in relation to her other parent.
As set out in this judgment, Ms W suggests that these parties would benefit from some brief counselling to assist them to set up a “road map” or develop “guidelines” about their future communication as well as a pathway for decision-making that is child focussed, and is about X and not their adult interpersonal difficulties.
Counselling is only of assistance if the parties recognise the necessity for that counselling and if both parties accept that there is a need for them to change. For that reason there won’t be an order made that the parties attend such counselling. Rather it is the Court’s genuine hope that the parties voluntarily undertake this counselling, each having recognised that they have a responsibility as X’s parents to embrace this intervention as being in X’s best interests. Their failure to do so will have long-term negative implications for X’s emotional wellbeing and future development.

I certify that the preceding three-hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.
Associate:
Dated:       24 June 2021
Annexure A
Orders of 24 July 2019
1.Orders 1, 5 and 11 of the Minute of Orders made 29 January 2019 remain in force.
2.Orders 3, 7, 8, 9, 10, 11, 12, 14 and 19 of the Minute of the Orders made 27 October 2017 remain in force.
3.The child be known as X and the mother shall be at liberty to approach the Registrar of Births, Deaths and Marriages in the state of Victoria to have such change of name recorded on the child’s birth certificate.
4.Until further order the parties have equal shared parental responsibility for the child X born in 2016 (“the child”), save that in relation to medical decisions, if the parties cannot reach agreement via consultation and reasonable attempts, then the mother shall be authorised to make medical decisions for the child.
5.Until further order, pursuant to section 13C(1)(a) of the Family Law Act 1975, the parties attend family therapy to attempt to deal with their issues relating to the care of the child and any relevant personal and interpersonal issues, and that such therapy be provided by Ms Y (“the therapist”) or such other therapist as may be agreed and/or their nominee.
6.The parties attend upon the therapist at such times as requested by the therapist, and as follows:
a.   On no less than 6 occasions on a fortnightly basis to facilitate the child’s overnight time with the father; and
b.   As otherwise reasonably requested by either party to address parenting issues generally.

7.The parties share the cost of the family therapy equally.
8.Each of the mother and father will follow all reasonable directions and recommendations of the child’s treating medical practitioners, in view of her medical condition (which includes chronic neutropenia, her immunisation risk profile and immunisation exception from the F Hospital) including but not limited to her need for rest, good nutrition, dietary requirements, emotional wellbeing, and to avoid exposure to illness and stress, and be at liberty to communicate with the child’s treating medical practitioners as required.
9.The child’s treating medical practitioners are:
a.   The child’s paediatric immunologist Dr D from the F Hospital;
b.   The paediatric haematologist Dr E;
c.   The paediatrician Dr G; and
d.   The child’s general practitioner Dr H at MM Clinic
(“the child’s treating medical practitioners”)

10.In the event of a medical emergency for the child, whilst she is in the care of the father:
a.   The father shall immediately notify the mother of the incident and facilitate her attendance at the treatment facility;
b.   The father shall do all things necessary to ensure that the child receives prompt medical treatment, that does not include vaccinations;
c.   The father shall ensure that the treating practitioners are aware of the child’s medical condition, including her diagnosis of chronic neutropenia, her immunisation risk profile (including the mother’s acute disseminated encephalomyelitis (ADEM) diagnosis following adverse and life threatening reactions to vaccinations and her acute hyper sensitivity to most all medications, and the likelihood of genetic predisposition in relation to the child because of this) and the immunisation exemption from the F Hospital.

11.The mother shall provide to the father the names, addresses and telephone numbers of all medical professionals who may treat the child and authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the father and authorise them to discuss any aspect of the child’s health with the father.
12.The father be restrained from administering medication or allowing any third party other than a registered medical practitioner referred to above to administer medication to the child other than Panadol without the prior consent of the mother.
13.The parties shall:
a.   Each keep the other informed of the child’s health and any health issues which may arise during their respective time with the child;
b.   The mother shall keep the father informed of any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency;
c.   In the event of emergency, the party in whose care the child is at the relevant time shall inform the other party immediately of the child’s condition and location of any treatment facility; and
d.   The father keep the mother informed of the status of the child’s private health insurance and blood storage centre payments and specifics and authorise the mother to obtain such information from any third-party service providers directly from time to time.

14.Each party shall notify the other, immediately and in any event, of any injury or significant medical illness suffered by the child while with that party.
15.The father shall spend time with the child from the date of these Orders at such times as may be agreed and in default of agreement:
a.   Commencing on the first weekend after the parties second consultation with the therapist the father spend time with the child as follows:
i.Each weekend from 10:00am Saturday to 10:00am Sunday for 6 visits;
ii.After 6 visits:
1.   Each alternate weekend from 10:00am Saturday to 5:00pm Sunday; and
2.   Each Wednesday evening from 3:00pm to 5:00pm.

with changeover to take place inside the foyer of the Suburb B Police Station.

b. At such further and other times as the parties may agree in writing.

16.The child may communicate with each parent at such times as the child so wishes and the other party shall facilitate and encourage such communication by telephone or FaceTime, for comfort and well-being of the child given her medical condition.
17.The father shall use his best endeavours to facilitate a similar routine for the child during his allocated time with her, as is enjoyed by the child whilst in the mother’s care, with the mother to regularly communicate any significant changes to the child’s routine for ease of the child’s commencement and ongoing overnight time with the father, including but not limited to her food and nutritional requirements, eating and sleeping times.
18.The father shall spend time with the child for special occasions as follows:
a.   From 11:00am to 4:00pm on Father’s Day;
b.   For not less than 2 hours on the child’s birthday and the father’s birthday at such time as agreed between the parties or in default of agreement between 3:00pm and 6:00pm;
c.   From 3:00pm Christmas Day to 3:00pm Boxing Day in 2019; and
d.   At other times as agreed between the parties in writing.

19.The father’s time shall be suspended pursuant to these Orders to enable the mother to spend time with the child for special occasions as follows:
a.   From 11:00am to 4:00pm on Mother’s Day;
b.   For not less than 2 hours on the child’s birthday and the mother’s birthday at such time as agreed between the parties or in default of agreement between 3:00pm and 6:00pm;
c.   From 3:00pm Christmas Eve to 3:00pm Christmas Day in 2019;
d.   At other times as agreed between the parties in writing.

20.The parties communicate via the “Our Family Wizard” electronic application in which the parties will record relevant information in connection with the welfare of the child save for medical emergencies affecting the child which shall be communicated immediately, by telephone call and SMS text message.
21.In the event that either the mother or father is not available to attend or facilitate time pursuant to these Orders they will provide the other party with no less than 3 days’ notice in writing.
22.Each party shall notify the other, not more than 24 hours prior to any change to their address and/or landline and/or mobile telephone numbers and/or their email address.
23.Each party shall notify the other of the address and telephone number/s of the place/s where the child will be staying during weekends and holidays spent away from their residence, not later than 48 hours prior to the commencement of any holiday period.
24.The parties shall use their best endeavours to ensure the child’s attendance at agreed extracurricular activities during their allocated time with her pursuant to these Orders, including but not limited to the child’s close friend’s birthday parties or relatives and any significant family events.
25.Each party be restrained from:
a.   Degrading the other party or any member of the other party’s family in the presence or hearing of the child or allowing a third party to do so;
b.   Discussing these proceedings with or in the presence of, or within the hearing of the child or allowing a third party to do so; and
c.   Disciplining the child using physical punishment or extreme verbal punishment.

26.The mother forthwith authorise any childcare centre, pre-school or school the child may attend to provide the father copies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of the child, or if none have been made available in writing, then the mother shall provide written particulars, including by email, of such reports and/or activities to the father within 5 days of such documents or particulars being received by the mother from the school, and the mother shall authorise staff members at any childcare centre, pre-school and the childcare centre, pre-school or school the child may attend to discuss the child’s progress with the father.
27.The father shall not leave the child in the care of any third party who is not known to the child and to the mother (such as a babysitter) without the consent in writing of the mother.
28.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The child was diagnosed with chronic neutropenia in 2018 and is under the care of the F Hospital. Because of this condition the current recommendations of the child’s treating medical doctors is that breast milk is supported to provide for and support the child’s compromised immune system. Adequate sleep and rest, good nutrition and emotional wellbeing are essential, alongside ensuring that the child avoids people who may be unwell at the time to reduce her exposure and risk to contacting any illness or virus. If the child has a fever of over 38 degrees, she is required to be present at a hospital for monitoring and each party shall notify the other immediately in such event.
B.The child also has an immunisation risk profile in addition to her chronic neutropenia and has been granted an immunisation exemption and is under the care of Dr D, immunisation specialist and paediatrician at the F Hospital.
C.The child suffers from eczema which is triggered by stress and her diet and accordingly, she must avoid sugars or processed foods alongside excessively stressful situations.
D.The child’s current routine which is agreed that both parties will follow is as follows:
a.The child usually wakes between 6:00am and 7:00am and has a nutritional breakfast shortly thereafter;
b. The child typically has dinner between 5:00pm and 5:15pm, has a bath between 5:45pm to 6:15pm, followed by several books and is in bed by 7:00pm;
c.The child frequently wakes during the night and to be settled by breastfeeding or due to eczema;
d. The parties agree that it is important for the child, given her medical condition, that she has the stability of a similar routine in both households.

E.Given the current intervention order, the parties will each make their own separate appointments with the child’s treating medical practitioners to obtain information. The orders provide for the mother to be responsible for medical decisions and treatment for the child in the event no agreement is reached through consultation. The orders provide for the mother to be responsible for the child’s medical appointments, with the father to have access to all information as required;
F.The mother will endeavour to provide the father with expressed breast milk. In the event she cannot, the mother will provide the father with goat’s milk.

Annexure “B”
BY CONSENT IT IS ORDERED:
1.The parties have equal shared parental responsibility in relation to the child X (X) born in 2016.
2.The parties do all acts and things necessary to have X baptised or christened within six months.
3.That X live with the Respondent Mother.
4.That X spend time and communicate with the Father as follows:
(a)Commencing November 2017 and concluding three months later for a period of three hours on either a Saturday or Sunday each week at times to be agreed between the parties having regard to her morning and afternoon sleeps and breastfeeding.
(b)Commencing January 2018 on either a Saturday or Sunday each week for a period of four hours at times to be agreed between the parties having regard to the morning and afternoon sleeps and breastfeeding.
(c)For a period of 4 hours on Father’s Day.
(d)For a period of 4 hours on the Applicant Father’s birthday.
(e)At times to be agreed on Christmas Day.
(f)At such further and other times as our agreed between the parties including by attendance at playgroup and early learning education classes.

5.The Applicant Father will give the Respondent Mother no less than three days’ notice should be not be able to spend time with X. The requirement to give at least three days’ notice does not apply if circumstances prevent the giving of no less than three days’ notice in which case as much notice as possible shall be given.
6.Unless otherwise agreed:
(a)The Applicant Father will collect X to from the Respondent Mother’s home on all occasions that X spends time with him.
(b)The Applicant Father will return X to the Respondent Mother’s home on each alternate occasion and on the other occasions changeovers shall occur at an agreed location in Suburb V.

7.The Respondent Mother will inform the Applicant Father of X’s routine and any eating and nutritional requirements and any changes thereto which the Applicant Father will adhere to.
8.The Applicant Father will refrain from any engaging in dangerous or unsafe activities with X.
9.The Applicant Father will ensure that there are no small objects such as screws, plastic objects, coins, knives, bottle tops and the like with them X’s reach when in his care or home.
10.The Applicant Father will all times ensure that windows and doors are secured in his premises whilst X is in his care thereat.
11.The Applicant father will not consume intoxicating liquor whilst X is in his care.
12.The Applicant Father will ensure that X is not left unattended while in his care.
13.The communication book, which already exists, shall move with X at changeovers and in which the parties will record relevant information in connection with the welfare of X.
14.Both parties advise the other of any changes to their addresses, telephone numbers, or email addresses within 24 hours of any alteration.
15.Both parties by themselves, their servants or agents are restrained from making any derogatory comments about the other in the presence or hearing of X or from permitting any other person to do so;
16.Both parties by themselves, their servants or agents are restrained from discussing or referring to any communications between the parties in connection with X or allowing any other person to do so in the presence or hearing of X.

17.The parties keep each other informed as soon as practicable, by telephone or text message, of any significant injury or medical condition suffered by X while she is in his or her care and the parties. Only in the case of emergency is X to undergo treatment without the Respondent Mother’s consent.
18.That the Respondent Mother at all times keep the Applicant Father informed of the medical practitioners that X receives treatment from.
19.The Applicant Father continue to make the required payments to finalise the cost of X’s blood storage centre.
20.Within 7 days the Applicant Father pay to the Respondent Mother the sum of $4000 and then the further sum of $1000 by 31 December 2017.
21.Upon X attaining the age of three the time spent arrangements referred to herein will be reviewed by the parties with the assistance if necessary at mediation of a family dispute resolution practitioner.
22.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

THE COURT NOTES

With respect to paragraph 7 of this order the mother advises that X suffers from eczema which sugar and processed foods can cause to flare-up. She is also has been tested as intolerant to bananas, strawberries, pineapple, eggs, milk, pork and these must be avoided.

[2021] FCCA 1399

22 June 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Procedural Fairness

Remedies

Reliance

Costs

File number(s):	DGC 2380 of 2017
Judgment of:	JUDGE BENDER
Date of judgment:	22 June 2021
Catchwords:	FAMILY LAW – Parenting – the parties’ applications in relation to parenting arrangements for their 5 year old daughter – where the Mother alleges the Father poses a risk to the child because of his lack of insight into the child’s medical issues – both parties seek an order for sole parental responsibility in relation to medical decisions –the Mother makes numerous allegations that the Father provides substandard care for the child – both parties’ proposals are for the child to spend substantial and significant time with the Father – the Mother proposes an 11/3 arrangement – the Father proposes a 5/9 arrangement. HELD – Father found not to pose a risk to the child – orders made for the parties to have equal shared parental responsibility for the child including in relation to medical decisions – orders made for the child to live with the Mother and spend time with the Father gradually increasing over 2 years such that by July 2023 the chid spends 5 nights a fortnight and half school holidays with the Father.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:	AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238
Number of paragraphs:	303
Date of last submission/s:	30 April 2021
Date of hearing:	28-30 April 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Smallwood S.C.
Solicitor for the Applicant:	Fair Family Law
Counsel for the Respondent:	Mr Wilson
Solicitor for the Respondent:	KHQ Lawyers

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	22 JUNE 2021

Complaint	Response
(a) The allegations made by the Mother in her application for intervention order and subsequently filed further and better particulars are set out in paragraphs 27 and 31 of this judgment.	(a) In paragraph 65 of the Father’s trial affidavit sworn 26 February 2020 the Father sets out that the subpoenaed material from the Department reveals that the Department spoke to the maternal health nurse who advised that the Mother at no time made complaint of family violence in her relationship with the Father. The Department also spoke to the police to inform them that the reported concerns were a health issue and not a police issue. The Father denies the allegation that he ever hit the Mother and notes that when the Mother spoke to the child protection worker on 21 September 2018 she told her that the Father had never physically hurt her. The Father also highlights that on the face of the intervention order application, the Mother states that the Father nearly punched her many times. In relation to the Mother’s allegations that the Father had anger issues and would often yell at her and X as a newborn, the Father denies these allegations. He agrees that he and the Mother were not happy in their relationship and would often argue but denies that he was ever aggressive or violent as alleged. In relation to the Mother’s allegations that the Father had or has access to firearms and would leave them lying around the house, it is the Father’s evidence that he did own firearms for which he held the appropriate licences. There was one occasion only when he left a gun under a bed. He explains this was an oversight as it had been planned that he would go hunting and that did not take place. It is the Father’s evidence that the gun had neither its firing mechanism nor ammunition and that this was a one-off occasion. It is his evidence that all his firearms were otherwise always appropriately stored in a proper gun safe and that there were two occasions where the police inspected the manner in which he stored his firearms and had no issue as to how this was being done. It is his evidence that he has not owned firearms for some considerable time.
(b) The Father threatened to have X immunised if the Mother did not agree to him having more time with her.	(b) The Father adamantly denies that he has ever threatened to have X immunised without the Mother’s consent. The Father notes that when the Mother spoke to the child protection worker on 21 September 2018, only five days after this threat was alleged to have been made, she did not raise this issue with the worker. Her complaint to the Department was the Father did not follow X’s dietary requirements which was exacerbating X’s eczema. In his Initiating Application filed on 8 November 2018 the Father sought an order that X see a specialist paediatric immunologist for the purpose of assessing X’s suitability to undergo all usual childhood immunisations. In his affidavit in support of his application he deposed “I want X to be seen by a specialist paediatric immunologist and the recommendations of that specialist acted upon.” The Father notes that the Mother took X to see paediatrician Dr D on 20 November 2018 and that the first time Dr D’s report was made available to him was when it was annexed to the Mother’s answering affidavit which was only filed on 25 January 2019. He observes that the appropriate restraints in relation to immunisation were negotiated and made by consent on the first return date some four days later after he had seen the report from Dr D. The Father also emphasises that this issue has now been resolved by way of the orders made by consent on 14 November 2019.
(c) The Mother deposes in paragraph 64 of her trial affidavit sworn 13 April 2021 that X has complained to her on numerous occasions that the Father force feeds her bacon by making her close her eyes, saying words to the effect of “trust me” and putting bacon into her mouth. It is noted that pork products are not eaten or approved of in the Mother’s home. The Mother quotes X as saying words to the effect “Daddy fed me bacon Mummy. He said close your eyes X, trust me, and made me eat it. He made me eat piggies Mummy.”	(c) It is the Father’s evidence that X does eat bacon in his household because she really likes it. It is his evidence that when he cooks bacon, it is put on X’s plate and she knows that she has a choice of whether she eats it or not and that she chooses to eat it.
(d) X wet her bed at the Father’s place, was yelled at for doing so, was made to sleep on the lounge room floor all night and the Father’s large wire-haired (rescue) hunting dog was walking around her in the dark and she was too frightened to go to sleep in case she wet the bed again and her Father got angry at her.	(d) It is the Father’s evidence that X has only wet the bed once whilst having a sleepover at his home. When this happened she was comforted on the couch whilst her sheets were changed. He and Ms R reassured her that it was only an accident and that it happens to everyone. She then went back to her bed and happily slept the night through. The Father has a rescue dog which named Z. Z sleeps in the laundry at night and is not allowed to walk through the house. X loves playing with Z but is never allowed to do so unsupervised.
(e) The Mother alleges that X is frequently sent to her room and screamed at whilst in the Father’s home.	(e) It is the Father’s evidence that X is never screamed at in his home. On the very very few occasions that X misbehaves, she has been asked to have some quiet time in her room. The door is always open and she comes out within a few minutes.
(f) X returns dehydrated from her time with her Father who prevents her from having her drink bottle.	(f) It is the Father’s evidence that X’s drink bottle is always available to her at all times including in the car.
(g) The Father has been aggressive and antagonistic at changeover including allegations that he has said “hello Ms Maidment” “sarcastically” and that he waved at her “aggressively”.	(g) It is the Father’s evidence that he always greets the Mother politely. He made the observation that he only knows how to wave one way and it certainly isn’t aggressively.
(h) The Father doesn’t have a full and proper understanding of X’s health needs and does not follow the Mother’s clear directions in relation to her care which is evidenced by him returning her to the Mother in an exhausted and distressed state.	(h) It is the Father’s evidence that he has a full understanding of X’s health needs in relation to both her diagnosis of neutropenia as well as her eczema. It is his evidence that he understands that because of X’s neutropenia she is susceptible to getting sick easily and is more susceptible to infection. He is aware that because of this, she can deteriorate quickly. If this happens she is to be taken to the emergency department for immediate attention. It is the Father’s evidence that he is also aware that X can become fatigued more easily and therefore requires quiet/down time to ensure she does not become too fatigued. In relation to X’s eczema, the Father is aware that she requires a healthy nutritious diet. It is his evidence he follows the Mother’s directions in relation to the soaps, sunscreens and other medications that are suitable for X’s use.