Kala and Kamdar

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALA & KAMDAR

[2017] FCCA 3274

Catchwords:
FAMILY LAW – Parenting – best interests of the child – least worst result – entrenched parental conflict – exposure of the child to serious and significant parental conflict – inability of the parties to communicate – parental alignment – where each parent seeks primary residence of the child.

Legislation:

Family Law Act 1975, ss.11F, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3)

Applicant:

MR KALA

Respondent:

MS KAMDAR

File Number:

MLC 1457 of 2011

Judgment of:

Judge Stewart

Hearing dates:

31 July 2017 and 1, 2, 3, 4 & 9 August 2017

Date of Last Submission:

9 August 2017

Delivered at:

Melbourne

Delivered on:

29 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Laidlaw

Solicitors for the Applicant:

Julie Andritsos

Counsel for the Respondent:

Ms Bonney

Solicitors for the Respondent:

Clark Family Lawyers

Counsel for the Independent Children's Lawyer:

Dr Parker

Solicitors for the Independent Children's Lawyer:

Nicholes Family Law

ORDERS

Orders 3 and 4 of the orders made on 22 February 2011 be discharged (being the order that places the child X born (omitted) 2009 on the Airport Watch List indefinitely).
Each of MS KAMDAR and MR KALA and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2009, male, from the Commonwealth of Australia.
IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two (2) years.
Upon expiration of the period referred to in Order 3 hereof and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
Notwithstanding the existence of an Airport Watch List order or otherwise, each of the parties be and are hereby restrained from removing the child X born (omitted) 2009 (“X”) from the Commonwealth of Australia without the prior written consent of the other party or further order of this Court.
The parties shall not communicate with each other, other than by way of text message or phone call, except as follows:-
(a)in the event of a serious medical injury or illness to X requiring hospitalisation or for the purpose of communicating requirements for X’s medical care;
(b)for the purpose of dispute resolution;
(c)for the purpose of counselling and/or therapeutic intervention pursuant to these orders;
(d)for the purpose of consulting with medical practitioners in relation to X; and
(e)as may otherwise be agreed between the parties in writing.
Save as may be agreed between the parties in writing, and/or for the purpose of dispute resolution, counselling and/or therapeutic intervention pursuant to these orders and/or for the purpose of consulting with medical practitioners in relation to X, the parties shall not communicate with each other, other than by way of text message or phone call, in the event of a serious medical injury or illness to X requiring hospitalisation or for the purpose of communicating requirements for X’s medical care.
In the event that there has been an agreement between the parties in writing to communicate by text message pursuant to order 6 hereof, each of the parties be at liberty to withdraw their agreement to such communication by providing notice in writing of that fact to the other party.
Save as may be otherwise agreed between the parties in writing:-
(a)each of the parties be entitled to attend parent teacher interviews and conferences for X, PROVIDED ALWAYS THAT such conferences are attended individually by the parties and not jointly, and if practicable, each party’s attendance is not at the same time or within an hour of the other party’s attendance;
(b)each of the parties be entitled to attend any school concert in which X is involved;
(c)each of the parties be entitled to attend any school sporting carnival in which X is involved PROVIDED ALWAYS THAT this is a carnival at which parents would normally be in attendance; and
(d)otherwise, each of the parties shall not attend X’s school, unless collecting X pursuant to these orders or on a day when X is scheduled to be in their care.
The Mother advise the Father and keep him advised as to any medical practices, medical practitioners and like health professionals upon which X may attend from time to time.
The Independent Children’s Lawyer forward a sealed copy of these orders to X’s school.
Until the Independent Children’s Lawyer is discharged, she be at liberty to liaise with X’s medical professionals and teachers from time to time and any therapist, psychologist or like health professionals appointed pursuant to these orders.
Each of the parties be and is hereby restrained from electronically recording the other party without their express consent, regardless of whether X is in attendance.
Final orders are made in accordance with the Minute of Order dated 31 August 2017, marked with the letter “A” and annexed hereto.
The Independent Children’s Lawyer email a clean typed copy of the Minute in Word format to [email protected] within 7 days.
The appointment of the Independent Children’s Lawyer is hereby discharged as and from 1 March 2018.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

“A”

FINAL MINUTE OF ORDER

All previous parenting orders in relation to the child X born (omitted) 2009 (“the child”) be discharged.
The Mother have sole parental responsibility for the child.
Save in the case of emergency, the Mother:-
(a)provide the Father with no less than 28 days’ written notice of any proposed decision in relation to a major long-term issue and invite his views;
(b)take any views expressed by the Father into account; and
(c)advise the Father forthwith of the decision made.
The child live with the Mother.
The child spend time with the Father as follows:-
(a)during school terms, each alternate week from the conclusion of school on Thursday until the commencement of school on Monday (to extent to Tuesday if the Monday is a non-school day), recommencing on the first Thursday following the commencement of each school term;
(b)for half of each school holiday period as follows:-
(i)from the conclusion of school on the final day of term until the middle day of the school holiday period, or if the school holiday period runs for an even number of days, midday on the first day after the mid-point of the school holiday period, in 2017 and each alternate year thereafter; and
(ii)from the middle day of the school holiday period, or if the school holiday period runs for an even number of days, midday on the first day after the mid-point of the school holiday period to the commencement of school on the first day of term in 2018 and each alternate year thereafter;
(c)from 5.00pm on 24 December until 10.00am on 25 December in 2018 and each alternate year thereafter;
(d)from 10.00am until 5.00pm on 25 December in 2017 and each alternate year thereafter;
(e)from the conclusion of school (or 5.00pm if a non-school day) on the day prior to Good Friday until 5.00pm on Easter Saturday in 2018 and each alternate year thereafter;
(f)from 5.00pm on Easter Saturday until the commencement of school (or 10.00am if a non-school day) on the day following Easter Monday in 2019 and each alternate year thereafter;
(g)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2018 and each alternate year thereafter;
(h)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2017 and each alternate year thereafter;
(i)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2018 and each alternate year thereafter;
(j)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2019 and each alternate year thereafter;
(k)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2018 and each alternate year thereafter;
(l)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2017 and each alternate year thereafter;
(m)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2018 and each alternate year thereafter;
(n)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2019 and each alternate year thereafter;
(o)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2018 and each alternate year thereafter;
(p)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2019 and each alternate year thereafter;
(q)from the conclusion of school on the Friday prior to Father’s Day until the commencement of school on the day following Father’s Day each year;
(r)from the conclusion of school (or 2.00pm if a non-school day) until 6.00pm on the child’s birthday, if the child would not ordinarily be in his care;
(s)from the conclusion of school (or 3.30pm if a non-school day) until the commencement of school (or 3.30pm if non-school day) the following day on the birthday of any sibling of X’s in the Father’s household; and
(t)as may otherwise be agreed in writing from time to time.
The Father’s time with the child be suspended and the child instead remain in the care of the Mother as follows:-
(a)for half of each school holiday period as follows:-
(i)from the middle day of the school holiday period, or if the school holiday period runs for an even number of days, midday on the first day after the mid-point of the school holiday period to the commencement of school on the first day of term in 2017 and each alternate year thereafter; and
(ii)from the conclusion of school on the final day of term until the middle day of the school holiday period, or if the school holiday period runs for an even number of days, midday on the first day after the mid-point of the school holiday period, in 2018 and each alternate year thereafter;
(b)from 5.00pm on 24 December until 10.00am on 25 December in 2017 and each alternate year thereafter;
(c)from 10.00am until 5.00pm on 25 December in 2018 and each alternate year thereafter;
(d)from the conclusion of school (or 5.00pm if a non-school day) on the day prior to Good Friday until 5.00pm on Easter Saturday in 2019 and each alternate year thereafter;
(e)from 5.00pm on Easter Saturday until the commencement of school (or 10.00am if a non-school day) on the day following Easter Monday in 2018 and each alternate year thereafter;
(f)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2017 and each alternate year thereafter;
(g)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2018 and each alternate year thereafter;
(h)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2019 and each alternate year thereafter;
(i)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2018 and each alternate year thereafter;
(j)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2017 and each alternate year thereafter;
(k)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2018 and each alternate year thereafter;
(l)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2019 and each alternate year thereafter;
(m)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2018 and each alternate year thereafter;
(n)from the conclusion of school (or 3.30pm if a non-school day) on the day prior to (omitted) until the commencement of school (or 3.30pm if a non-school day) on the day of (omitted) in 2019 and each alternate year thereafter;
(o)from the conclusion of school (or 3.30pm if a non-school day) on the day of (omitted) until the commencement of school (or 3.30pm if a non-school day) the following day in 2018 and each alternate year thereafter;
(p)from the conclusion of school on the Friday prior to Mother’s Day until the commencement of school on the day following Mother’s Day each year; and
(q)from the conclusion of school (or 2.00pm if a non-school day) until 6.00pm on the child’s birthday, if the child would not ordinarily be in her care;
(r)from the conclusion of school (or 3.30pm if a non-school day) until the commencement of school (or 3.30pm on a school day) the following day on the birthday of any sibling of X’s in the Mother’s household; and
(s)as may otherwise be agreed in writing from time to time.
Changeovers occur as follows:-
(a)at the child’s school if occurring on a school day;
(b)at (omitted) Contact Centre, (omitted) on non-school days;
(c)in the event that (omitted) Contact Centre is unable to facilitate a scheduled changeover, outside (omitted) Police Station with a third party to facilitate the changeover so that the parties do not come into contact with one another; and
(d)in the event that (omitted) Police Station is closed, outside (omitted) Police Station, with a third party to facilitate the changeover so that the parties do not come into contact with one another.
If the Father is late to collect the child for his scheduled time by 45 minutes or more, the time shall be suspended for that scheduled occasion and make up time shall not occur.
The child communicate by telephone with the parent with whom he is not spending time each Wednesday for a period of not less than 10 minutes between 6.30pm and 7.00pm, with the parent with the care of the child to facilitate the phone call and to be restrained from interfering with the call.
Should the child be unwell when scheduled to spend time with the Father, then upon written advice being obtained from a medical practitioner to the effect that he should not attend school or changeover in a public place, the child shall remain in the care of the Mother and his scheduled time with the Father shall take place at the same times during the following week.
The parties each redo the parenting orders program offered by CatholicCare.
The parties each be restrained from causing or encouraging the child to refer to the Mother as any name other than “mum” or “mumma” and the Father by any name other than “dad” and in particular the parties shall not permit or encourage the child to refer to his parents by their given names or his parents or extended family members by derogatory terms.
The parties each be at liberty to obtain separate copies of all school notices, reports photographs and all other items ordinarily made available to parents directly from the child’s school at that party’s expense.
Both parties ensure that all items necessary for the child to attend school including but not limited to school uniforms, school bag, lunch box, drink bottle, ipad, books, school satchel for readers, and school shoes are provided with the child at each changeover and the child is delivered to the school each day in correct uniform.
The parties each be restrained from denigrating, belittling or criticising the other or any member of the other’s household or family in the presence or hearing of the child and from exposing the child to or involving him in any dispute between them.
The child attend upon a single general medical practice nominated by the Mother for all non-urgent medical care, and each party be at liberty to attend upon or liaise with the staff of that practice in relation to the child’s medical treatment and care, and any other medical practitioner involved in the child’s care, including having access to the (omitted) Hospital portal, and each party do all acts and things required to give effect to this order.
The parties each advise the other of any medical appointments made for the child no later than 48 hours prior to such appointment and authorise all medical and allied professionals involved with the child to discuss the child’s health and treatment with the other parent.
The parties each keep the other informed of their address and contact telephone number.
The Mother undertake ongoing psychotherapy with a psychotherapist nominated by the Independent Children’s Lawyer at the Mother’s expense and follow all reasonable recommendations of the psychotherapist as to treatment and attendance.
The parties engage a psychologist nominated by the Independent Children’s Lawyer at their joint expense for assistance with improving their co-parenting relationship, reducing conflict between them and implementing these orders, and follow all reasonable recommendations of the psychologist, including all recommendations as to attendance.
The appointment of the Independent Children’s Lawyer is hereby discharged as and from 1 March 2018.
The reasons for judgment delivered on 29 August 2017 be transcribed and a copy be provided to the experts engaged pursuant to orders 19 and 20 hereof.
In the event that there are any further proceedings between the parties in relation to X, such applications, to the extent that it is reasonably practicable, be listed before Judge Stewart at first instance.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)It is intended that the parties shall engage in parallel parenting and shall not interact with each other or interfere in the day to day parenting in the other’s household.

IT IS NOTED that publication of this judgment under the pseudonym Kala & Kamdar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1457 of 2011

MR KALA

Applicant

And

MS KAMDAR

Respondent

REASONS FOR JUDGMENT

These are proceedings in relation to the parties’ child X born (omitted) 2009 (“X”). X is now eight years old. X’s family, in particular his parents, are plagued by chronic conflict. This is a case where the Court is required to determine the least worst alternative for X, rather than an alternative likely to enhance or advance X’s welfare. I am somewhat surprised, given what X has endured since separation, that he still remains a remarkable and absolutely delightful little boy (as he is described by various people who have met him throughout these proceedings).
The personality of each of the parents in this case is such that the prognosis for X is less than ideal, regardless of whether I accede to the Mother or the Father’s respective applications for X to live primarily with them. There is no doubt in my mind that the Mother has indulged in terrible behaviour with respect to X and has engaged him in the dispute between the adults in a way which is damaging. This behaviour also has a significant capacity to alienate X from the Father’s affections, a situation which X himself has said to the Family Report Writer, Ms S (“Ms S”) that he does not want.
Likewise, but differently from the Mother, the Father’s insight and behaviour with respect to X is also poor. He, for example, engages in excessive blaming behaviours with respect to the Mother, whilst abrogating his own responsibilities for the issues in this case.

Background to the proceedings

The Mother was born on (omitted) 1977 and the Father on (omitted) 1979, making them almost 40 and almost 38 years old respectively.
The parties married in (omitted) 2008 after meeting in India in 2007. Their relationship continued when the Father went to the (country omitted) and the Mother came to Australia. It was agreed that after marriage the Father would join the Mother in Australia, where she had obtained permanent residency.
Following a marriage ceremony in India the parties returned to Australia in (omitted) 2009 and X was born in (omitted) of that year. Their relationship was tumultuous from the outset and was troubled by issues such as control, permanent residency, allegations of family violence and what seems to be not just a possible but probable unsuitability of the parties to be in a relationship with each other.
The Department of Health and Human Services (“the Department”) became involved with the family when X was less than a month old. This is demonstrative of the terrible troubles that have plagued these people. The Department became involved with the family after allegations of family violence perpetrated by the Father, which resulted in the Mother and X being sent to a mother and baby unit for assessment by the Department. This incident of family violence, even at this early stage, resulted in the Department making a protection application. The matter came before the Children’s Court in January 2010, when X was placed in his Mother’s care on an interim accommodation order and placed in a special program for at-risk children. Quite clearly, the future was not bright for this young child in terms of his family unit. At that stage, it was at least thought, if not found, by the Department that family violence had been inflicted on the Mother by the Father.
The parties separated in February 2011 after volatile interactions between them, resulting in each of the parties alleging family violence against the other. The family violence alleged by the Mother was that the Father was physically, verbally and sexually abusive, as well as coercive and controlling. The family violence alleged by the Father was that the Mother was physically and verbally abusive and aggressive. At the time of separation, notwithstanding X’s young age and that I find it probable that the Mother was the primary carer for this young child, the Father left the family home with X. This resulted in the Mother issuing an application for a Recovery Order and the Family Court of Australia ordered X return to her care in February 2011.
At that time, the parties were so distrustful of each other that they each had concerns that the other would remove X from the Commonwealth of Australia and not return him. Therefore, an Airport Watch List order was made.
Importantly, following the transfer of the proceedings to the Federal Circuit Court of Australia final orders were made by consent on 19 April 2012. The parties agreed that the Mother would have sole parental responsibility for X, who would live with her and spend time with the Father each alternate weekend, together with three afternoons per fortnight which were not overnight time.
I pause here to observe that, although the Father has continued to engage in a litany of complaints against the Mother it was he who agreed to those orders. It is difficult to assimilate his position now with respect to what happened then, with his decision to not only leave X in the Mother’s care but also to agree that she should have sole parental responsibility for him. I do not accept his assertions that he did not realise what he was doing in circumstances where he had legal representatives acting for him.
Between April 2012 and September 2014, and although in a somewhat volatile way, the time between the Father and X continued without the intervention of the Courts. The matter returned to Court before me on 23 September 2014 when the Mother filed an application to travel to India with X to see her father who was dying.
That application was not granted and the Mother travelled to India alone for approximately 10 days, at which time X remained in the care of his Father.
I pause here to observe that the Mother’s actions in leaving X in the care of the Father, admittedly in the strong emotional circumstances of wishing to see her father before he passed away, would tend to indicate that the Father was at least good enough to care for X for that period of time.
Following a Child Inclusive Conference and memorandum pursuant to section 11F of the Family Law Act 1975 (“the Act”) that occurred on 28 November 2014, orders were made on 1 December 2014 for X to spend time with the Father from the conclusion of school on Friday until the commencement of school on Monday in one week and from the conclusion of school on Monday until the commencement of school on Tuesday in the other week. In other words, X commenced spending time with each of his parents in a shared care arrangement, but not an equal shared care arrangement (spending time in any given fortnight with the Father for four nights and the Mother for ten nights).
The shared care arrangement for X continued until the date of the hearing, although the number of nights X spends with either parent has been altered over the course of the last two and a half years. By orders of 23 April 2015, X has been spending five nights per fortnight with the Father and half of the school term holiday periods, and otherwise has remained in the care of his Mother.
I find on the balance of probabilities that X has since birth been in the primary care of his Mother, despite dispute as to that fact prior to separation. This becomes important when I consider the comments and conclusions of both the Family Report Writer Ms S, and Ms L (“Ms L”), who undertook reportable family therapy between the parties between July and October 2016.
The matter was initially listed for a final hearing in February 2016, but was adjourned when it became apparent that the final hearing would be lengthy. On 4 February 2016 orders were made for X to spend time with his Father in a block of five nights. The parties were to engage in the Parenting Enhancement Programme offered by Ms L. Those orders for parenting enhancement therapy were made following an initial Family Report of Ms S in December 2015.
On 27 February 2016 the Court ordered that the parties undertake psychiatric assessments with Dr D (“Dr D”), and as a result of those orders a psychiatric report with regard to each of the Mother and Father was prepared in early May 2017 and released to the parties on 20 June 2017.
X suffers from some health issues. He suffers from hypothyroidism and is treated at the (omitted) Hospital and he also has a minor hearing issue in one ear. He has also suffered with constant issues which are featured in this case, such as stomach pain and nose bleeds. There is some indication that the stomach pains are stress related.
X lives primarily with his Mother and no other person. He is in grade two at the (omitted) Primary School and is progressing reasonably well, although historically there have been some bullying issues at school.
Until June 2017, X had two infant sisters in his Father’s home, aged 15 months and three months. However, sadly and tragically, X’s younger sister passed away on (omitted) 2017 shortly after the Father swore his affidavit. No doubt there is still residual and continuing grief within the Father’s home as a result of his infant daughter’s death.
The Father works outside of the home. He is employed in his parents’ business as a (occupation omitted), and purports to have an income of $16,000 per annum. He resides in a three bedroom home with his parents, his wife Ms A and his young daughter. For five nights each fortnight X also resides in the home.
Although the Father says that he pays child support as assessed the reality is that he has not been assessed to pay child support to the Mother as his income is such that it results in a nil assessment. He says in his affidavit material that he has paid some school fees. Indeed he says, and I am prepared to accept, that he has offered to pay the Mother further sums towards school and like expenses, but she has rejected those offers. That rejection would seem to be symptomatic of the conflictual relationship between the parties which seems to pervade every aspect of their interactions with one other.
The Mother is not in a relationship and does not have any family support within any reasonable proximity. She works as a (occupation omitted) at the (employer omitted) on a part time basis, and has arranged her working hours to make herself available to take X to and from school every day. Thus, X’s experience to date has been that his Mother has always been available to him and she has devoted herself to his care. This is important as it is from X’s point of view that I need to assess what his reactions or responses would be to any change of residence at this stage.
I should pause at this juncture to stipulate that when I refer to the parties in these proceedings, if I refer to them generically, I am referring to the Mother and the Father. If I am referring to the parties in the sense that it involves the Independent Children's Lawyer then I will say so.

The applications of the parties

The Father’s position is that he should have sole parental responsibility for X, although he should actively engage the Mother in any long term decision making. He also seeks that there be a change of residence and X be placed into his primary care. Because there was a shift in terms of discussion with respect to applications, the Father contends that after a period of some limited supervised time between the Mother and X that X should spend time with the Mother during school terms for three nights in each alternate week (from Friday to Monday and for one half of school holidays). In the event that the Father is not successful in achieving a change of residence for X he did suggest that his own time should be more expansive than the three nights suggested by him for the Mother and that there should not be a significant reduction of the time that he has with his son at the moment.
The Father relied on the evidence of the following witnesses:-
a)his own evidence;
b)the evidence of his wife Ms A;
c)his mother Ms K (the paternal grandmother);
d)the parties’ former landlord, Ms H;
e)the owner and director of (omitted) Childcare Centre where X attended from 10 August 2012 until 11 March 2013, Mr C;
f)the parties’ former housemate, Mr A; and
g)the Father’s psychologist, Ms N.
It is the Mother’s position that X should continue to live with her and spend three nights per fortnight with the Father. It is also her position that the Father should spend half, if not more, of the school holidays with X, having regard to comments that were made by me during the course of the proceeding. She seeks to retain sole parental responsibility, which she has at present. The Mother herself was the only witness that she called in her case.
The Independent Children's Lawyer had no position in relation to where X should live at the commencement of the proceedings. In the circumstances of this case, this is quite understandable. At the conclusion of the proceedings, the Independent Children's Lawyer indicated through Counsel that in her view both of the parties had exposed X to a high level of conflict and, further, that both parties had demonstrated a lack of insight as to his needs. It was the Independent Children's Lawyer’s view that if each of the parties adopted and continued to adopt the blaming behaviours towards the other party, and if each of them were unable to accept responsibility for the way that they had participated in the conflictual interactions with the other, there was a poor prognosis for X and his development. I concur, but sadly I have reached the view that the prospect of the parties to cease and desist from the behaviour that they have indulged in to date is unlikely.
Ultimately, and in the complex and concerning circumstances of this case, the Independent Children's Lawyer was also of the view that there was little possibility of changing the fundamental personality traits of each of the parties. This is even in the face of what Counsel for the Independent Children's Lawyer described as heartfelt pleas by X to his parents to desist from the conflictual behaviour that the parties have engaged in over a long period of time. It is on that basis that the Independent Children's Lawyer concluded, and I concur, that neither party are likely to change their behaviour.
The Independent Children's Lawyer acknowledged that this was a finely balanced case. Again, I agree. It involves a nuanced assessment of what would, in reality, be the ‘least worst’ result for X rather than what would be optimal for him. The Independent Children's Lawyer refers to the stress that X feels which not only manifests itself in his emotional and psychological presentation, but also in physical symptoms which he has endured over a long period of time. Each of the parties have spent a considerable period of time obtaining medical attention for these physical complaints, and these symptoms and the corresponding medical appointments have caused X to miss significant periods of school. It is important to note that X’s stomach complaints appear to have little or no physical origin and are instead stress induced.
Ultimately, at the conclusion of a finely balanced case it was the Independent Children's Lawyer’s view that X should commence living with his Father and spending alternate weekends with the Mother from after school on Friday until the commencement of school on Monday. At first, the Independent Children's Lawyer sought a dual or divided order with respect to parental responsibility. However, sensibly, their final position was that sole parental responsibility should rest with the parent with whom X lives. There was no serious opposition to that proposal by either of the parties.
To the extent that the Independent Children's Lawyer does rely on evidence, the Independent Children’s Lawyer relied upon the two family reports by Ms S (dated 21 December 2015 and 5 May 2017 respectively), the affidavit of the therapeutic counsellor Ms L filed 26 May 2017 and the psychiatric reports with respect to each of the parties prepared by Dr D and annexed to an affidavit sworn and filed 10 July 2017.
In addition, there was reference made to the Child Inclusive Conference which took place on 28 November 2014 with Family Consultant Ms D (“Ms D”), who also prepared a memorandum. For the sake of completeness, and although no party including the Independent Children's Lawyer relied on this report, I note that there was a previous family report dated 2 February 2012 in the initial proceedings, prior to the making of the final consent orders in April 2012.
During the proceedings various documents were tendered. I have listened to the evidence of the parties and I have read their affidavit material. I have read the family reports and listened to the evidence of the Ms S. I have listened carefully to the evidence of the witnesses who came to Court and gave evidence. Given the way that the evidence has been presented it is not practicable for me to refer to each and every issue raised in the proceedings, nor is it necessary in these reasons to do so. These reasons do not serve as a transcript of the proceedings and if a transcript is required it can be obtained.
If I have not referred to a particular fact or matter in these reasons it does not follow that I have not had regard to it. I have considered everything as it has been presented to me. In these reasons, unless it is obvious from the context in which it appears, a statement of fact is a finding of fact. Again, and perhaps to reiterate, I wish to record that I am delivering these reasons on a viva voce basis and as such to read each and every aspect of these reasons into the transcript would take many hours and would be untenable in the circumstances.
I shall deliver and refer to my basic reasons for decision. Clearly and obviously these reasons will be transcribed, because I will require them to be provided to a number of experts whom I propose the parties engage with in order to try and assist X through what will not doubt be a difficult process for him, given the chronic conflict which has been manifested in his life to date. I do not propose to summarise all of the evidence of every witness but I will do so upon the provision of written reasons in order to complete the summary of what evidence has been put before the Court.
I note that by virtue of the orders that I made on the last occasion that the matter was before the Court, and recognising that at the conclusion of the evidence and final addresses I had still not determined what the appropriate outcome for X was to be in this case, X is presently in the childminding centre of the Court awaiting one of his parents to collect him.

The professional evidence

Before turning to the lay evidence I propose at first to speak to the expert evidence, being the evidence of Ms S and Ms D, and also the evidence of Ms L.

The Child Inclusive Conference

The first contact that the parties had with a Family Consultant in this round of proceedings was with Ms D. The memorandum produced as a result of the Child Inclusive Conference on 28 November 2014 identified the risk factors for X as follows:-
a)that his emotional and psychological wellbeing may be negatively impacted as a result of his inclusion and recruitment by the Mother in the parenting dispute;
b)that he was at risk of exposure to parental denigration and family violence as a result of the increasing parental conflict; and
c)that his relationship with the Father was at risk of deterioration should the Mother’s behaviour continue.

As I have heard often throughout these proceedings, the description given of X (then aged 5) was that he presented as a bright, engaging, bubbly and endearing young boy. He was observed to interact positively with children in the playroom. When he first met with Ms D he said that he “had to” to tell her that he wanted to live with the Mother. At this early interview, Ms D observed that his experiences with the Father and his stepmother were incongruent with the statements that he had been asked to make. There was also a concerning disclosure made by X at that time that he was asked by the Mother to “spit at” and “kick” the Father.
The Father, described X as being challenging and disrespectful in his care, particularly as he becomes increasingly “negative and physically abusive”. X also explained to Ms D that he had been asked by the Mother to refer to the Father as “Mr Kala” and not “Dad”. X acknowledged that his parents were “not friends” and had also told Ms D that at one stage the Father had told him that he did not like the Mother.

The Family Reports

Ms S first saw the parties on 10 December 2015 for the preparation of a Family Report in these proceedings (“the first Family Report”). She noted at that stage that the versions of events between the parties were diametrically opposed and that there was a high level of conflict between the parents which was impacting on X.
She also observed that there was a significant discord between what X said at interview and how he was observed to behave. She observed that there were questions over each of the parties’ capacity to support a relationship between X and the other parent. Again, during the interviews for this Family Report the Father spoke of X as being inconsistent in his behaviour whereby he would sometimes be very loving and demonstrative with him, but at other times would spit at him and call him a dog. He said he believed that the Mother encouraged X to behave in this way.
The Father also said that X indulged in rude behaviour, and even at this early stage expressed concern that this would continue if X remained in the Mother’s care. However, much like Ms D’s encounter, Ms S’s impression of X was that he presented in a lovely fashion as an “outgoing and friendly child who endeared himself to others quickly and easily in the play room facility”. He was described as being confident and articulate and was keen to provide information to Ms S “quickly before he forgot it”.
When asked about his relationship with the Mother X spoke positively and effusively about all the things that they do together, and he told Ms S that he could not think of anything that he did not like about her. However, what was troubling at this early appointment was that X, when asked about the Father, only made negative statements. This suggests that even as early as the first Family Report an alignment was developing with the Mother which meant that X felt that he could only say negative things in relation to the Father. For instance, at paragraph 50 of the first Family Report, Ms S said:-
As soon as X was asked about his father he made only negative statements. This occurred despite him being asked about the positive things in his relationship with his Father. He said that he didn’t like his father saying nasty things about his mother. He said “he calls her a bitch and he said I didn’t come out of mum’s tummy, but I came out of his wife’s”. X was asked what other bad things his father said about his mother, and he said “I forgot what bad things he says, but I think he’ll say bad things and I will tell mum”. He then went on to comment that he had been trying to remember all the bad things all morning but he kept on forgetting them. He followed this statement up by saying that his mother never said bad things about his father but his father often said bad things about his mother (despite him not being able to give specific examples). X said he couldn’t’ think of anything positive about his father but could give many positives about his mother.
Again, X reported that his parents did not like each other and that he did not believe that they would ever be able to be nice to each other, but would like it if they could. I pause here to note that the parties were provided with a copy of the first Family Report at a very early stage (being December 2015) and yet the conflict continued, and perhaps even escalated, throughout 2016 and into 2017.
Also noted in the first Family Report was that X was asked about his relationship with his stepmother. He said that she “says bad things about mum too”, but could not give specific examples. What was abundantly clear from the observations of X at this first Family Report is that he was overly involved in parental conflict and overly exposed to adult issues that simply should not be a part of his domain.
Nevertheless, at this first interview X’s remarks did not accord with the observations between X and his Father, where they engaged in a very warm style of play. This included X being responsive to the Father and the Father being quite relaxed and attentive with him. He also appeared at that time to have an appropriate relationship with his stepmother, and X appeared to enjoy the interactions in the observation session. When that session came to a close X spontaneously hugged the Father, left him and went back twice more for a hug and said to the Father “bye dad, I’ll miss you”.
X was described as having an equally positive relationship or perhaps better than equally positive relationship with his Mother. Ms S concluded that X had made friends with other children and had great fun in the play room, so much so that he did not want to go at the end. In terms of Ms S’s first Family Report, she concluded that each of the parents have poor practices which have contributed to the dispute and that each of them have versions of events that are diametrically opposed.
I pause here to observe that much of this case was devoted to trying to convince me to make a decision as to which parent was better, which parent was telling the truth, or which parent might be more culpable in the dispute than the other. As part of an assessment of what might be the best result for X these issues are informative but are not determinative of the dispute.
Ms S described X’s presentation at interview as concerning as many of his comments sounded rehearsed and he was attempting to get information out as quickly as possible. At paragraph 62 of the first Family Report she raised a concern that there were signs of “some coaching in preparation for the assessment”, as he was trying to get as much information as possible out before he “forgot” what he was meant to say.
In summary, Ms S noted that his verbal interview was markedly different to his observed behaviour with the Father, and that his statement of disdain did not match the observed joy at spending time with the Father. She observed that both parents had been seen to engage in destructive behaviours. Ultimately, I find that both parents have indulged in destructive behaviours with regard to X. Throughout the proceedings each of the parents also accused the other of trying to coerce X into rejecting the other. I find that each of them, perhaps assisted by agents, have also adopted that behaviour.
It is almost as though each of the parties view X as a prize in this ongoing warfare between them, and that he who wins achieves the prize. During the First Family Report Ms S observed that the parties are so consumed with blaming the other that they are “blinded by their own part” in the dispute. At the conclusion of the proceedings, and having had the opportunity to observe each of the parties give evidence and read the voluminous material that has been filed in this dispute, I make the observation that in terms of each of the parties maintaining the rage, so to speak, nothing has abated.
The first Family Report also made observation that it was “unknown and untested” as to whether the Father would be any better at promoting a positive relationship between the Mother and X. This is a matter which plays very heavily on my assessment of the appropriate outcome for X in this case. If X were to live with the Father it is unknown whether he would be in any better position to protect X from conflict or to promote the relationship between X and the Mother.
There are some deeply concerning matters in the first Family Report, such as the Father’s comments that X had told him that the Mother had told X that his stepmother was going to kill both him and the Mother. This sort of information would be deeply concerning and distressing for a young child. That information must be viewed in light of the more recent evidence, where the Mother conceded that she had gone to X’s doctor, and regardless of whether it was in X’s presence or otherwise, told that doctor that she was concerned and had received information on the Indian community’s grapevine, if you like, that the stepmother was going to poison X and possibly others.
Ultimately, and acknowledging her situation of her being unable to determine facts, Ms S in the first Family Report was able to be definitive, as I am, that this is a high conflict family at the highest level, and that X was being impacted on significantly. She also made the observation, which I accept, that the Mother appears to use the sole parental responsibility order obtained in 2012 in a punitive way, to engage in parental gatekeeping and further restricting X’s access to the paternal family in an inappropriate way. Nevertheless, at the conclusion of the first Family Report, the recommendations were that X continue to live with the Mother. There was a recommendation that parental responsibility be shared.
Between the first Family Report and the Family Report completed in May 2017 (“the second Family Report”), the parties engaged Ms L for reportable counselling between July and October of 2016. I will turn to the report of Ms L in a moment. Ms S acknowledged in the second Family Report that the parents had engaged in a further Parenting Orders Program, the second time that each of them had undertaken such a course. It was apparent that in the 15 months or so that had passed between the two Family Reports, the high level of conflict had continued unabated.
Again, in the second Family Report Ms S noted that both parties contributed to the conflictual dynamic, that the conflict was entrenched and that the parents were polarised in their views with X caught entirely in the middle. One of the many issues in this case identified by Ms S was whether the Mother was actively encouraging X to reject the Father or whether X’s sensitivity to the perceived high level of criticism towards his Mother was resulting in realistic estrangement. She further identified, as she had identified in her earlier report, the issue of whether each or either of the parents were capable of meaningful change. The blaming tendencies of each of the parties were also identified again as a significant issue for X.
In what appears to be almost a miracle, X presented again as a “very polite and engaging child who was eager to please those around him”. Ms S noted that it was obvious in his behaviour that many people respond positively to X and that he interacts well with others. He was observed in the children’s room to be “naturally exuberant and inclusive of other children and engaging with staff”. Ms S noted that X was a child who was most likely used to having the undivided attention of the Mother, and he responded positively to interest or attention directed towards him.
X’s behaviour was noted to change from the first assessment to the second, particularly when he was observed with the Father. When X came to the interview he understood that he was at Court to talk about the Father which, of course, is not correct. He spontaneously offered that the Father was “behaving bad” with him and that the Father referred to him as the “son of a dog”, and also commented that the Father was “rude and disrespectful”. However, when asked to provide an example of this, X struggled to provide a response. This is of concern, as that particular stance by a child is sometimes characteristic of a child being co-opted into the parental dispute and coached in terms of what to say.
Ms S observed X on this occasion, he spoke as a child who had certainly aligned to the view of the Mother. He spoke in wholly negative terms about the Father and wholly positive terms about the Mother. He tended to comment that the Father was mean about the Mother and that he did not like it. He commented that his Mother is nice and when something goes wrong “it’s never mum’s fault”. Again, I pause to observe that this sometimes symptomatic of realistic estrangement as much of his narrative was wholly in support of the Mother.
X also commented that he was frequently unwell when in the care of the Father and was only healthy again in care of the Mother. Ms S said at paragraph 33:-
He further commented that in his father’s care he was likely to become ill as he always got sick when with his father and could only become healthy when returned to his mother. He further commented that his father did not feed him properly or enough food while his mother did. He commented that he usually “needed to go to the doctor” after he had spent time with his father.
I am particularly concerned about these comments because the issues with respect to X’s alignment and presentation not only have not abated since the first Family Report, but he has become progressively more aligned with the Mother’s view of the world.
It would suggest to me, that whatever the reason, the parents have been so unable to shield X from such a chronic level of conflict, that he feels either coached or compelled to side with the Mother. I am also concerned that this issue has accelerated, if you like, to the point where even X is concerned that some of his health issues are clearly associated with the time that he spends with the Father. During interview, X commented on a number of occasions that the Mother was a “good person” and he saw her as the person who he could go to solve his problems. He said further that he had no confidence that the Father would be able to help him if he had similar problems in the Father’s care that the Mother had helped to resolve.
X gave what Ms S referred to as “mixed reviews” about his stepmother, his little sisters and the paternal grandparents. He said that he liked to spend time with them, but that they spoke poorly of the Mother which he did not like. By contrast, and in a fairly childish manner, X also told Ms S that he wanted his parents to get back together. His naivety was such that he suggested that they could all go out for lunch together. X has not lost his sense of optimism about the future in this case. However, the observations between X and the Father were concerning in that they did not seem to be as wholly positive as they were during the first Family Report.
When spending time with the Father and the wider paternal family, X was observed to have a more aggressive style of play than the observations in the first Family Report. The Family Consultant says at paragraph 38:-
When Mr Kala entered the play space X engaged with him enthusiastically. It was interesting to note however that as the play got underway, X’s [sic] tone of voice changed to a higher pitch and he became demanding and rough in his play. His father tried a number of ways of engaging him such as putting his hands up for X to practice his boxing moves, but while X initially punched his father’s hands, he made more aggressive punching actions to his stomach. Mr Kala was able to divert him, only to have a similar sort of event occur soon after.
X also outwardly rejected all offers of food and drink from the Father and the paternal family, who had brought along food for him to eat. He told them that it was because they had brought the wrong sort of food. This has become a theme in this case, and echoes a concern that the Mother had raised with me during the course of these proceedings. When X was observed in his Mother’s care he was observed to be much calmer and more consistent in his behaviour.
In evaluation, Ms S continued to observe that whilst the Father presents as more passive than the Mother, they nonetheless both engage in the parental conflict that neither parent appears to be able to change their behaviour. Ms S identifies concerns at paragraph 41:-
Any shared care arrangements are contra indicated as there is a proven track record of the parent’s inability to accommodate X’s [sic] needs. What is evidence is that both parents contribute to this dynamic, both fail to understand the impact on X and both appear motivated to remain engaged in high conflict without regard for X’s [sic] needs that he be removed from it. Given the parents are unable to manage this themselves; the Court will need to provide the framework that limits X’s exposure to the chronicity of the conflict. Due to this high conflict, and the lack of capacity by either parent to make any meaningful change, there is merit in considering a scenario where X lives with one parent with that parent having sole parental responsibility.
The passive but nonetheless provocative nature of the Father juxtaposed with the reactive nature of the Mother was thought by Ms S to be problematic and unhelpful in the resolution of conflict. In succinctly summarising the very real concerns in this case and the terrible choice presented to this Court in terms of X’s ongoing care, Ms S concluded that the level of hostility towards his Father suggests that he has been involved in inappropriate conversations with the Mother about the Father. Ms S also expressed a concern that it is likely X will continue to reject the Father, despite the fact that his spoken words and physical actions continued to be incongruent. However, it was also reported that X was exposed to disparaging or negative comments about the Mother when in the care of the paternal family and he found this distressing in the circumstances. Ms S considered that he could be “acting out of a need to defend his mother in the face of perceived paternal criticism”.
The Family Report Writer identified X as possibly being raised as an indulgent and entitled boy in the sole care of the Mother. I do not mean this in a critical way, but merely to point out that it would be unlikely that any of his physical needs would be ignored. However, he may also be raised with the burden of being the Mother’s most significant other, which may cause some discomfort as he moves forward developmentally and begins to express his own individuality and independence. Conversely, Ms S observed that in the Father’s care X may struggle to gain the level of attention that he has enjoyed with the Mother and that this circumstance, in terms of a move into the Father’s primary care, could present as a problem to him in that he would be competing for the Father’s attention against three adults and a sibling in the Father’s home, which may present difficulties in terms of managing change.
Ultimately, Ms S assessed that it was difficult to weigh the benefits to X in either parents’ care, and I face the same difficulty. I also observed that the cross-examination of Ms S, although lengthy, did not do much to assist in this case. It would seem that the issues in this case are so finely balanced that neither Ms S, nor Ms L were able to reach a concluded position. The cross-examination of Ms S, and to a large extent Ms L, did nothing more than serve as a demonstration that this is an exceedingly problematic cases that is difficult to assess.
I wish to stress that I am not in the least bit critical of Ms S in putting her proposals in alternatives in the circumstances of this case. To some extent it is symptomatic of the way the parties have presented their case, and also their personalities generally.

Ms L’s report

As I have set out, Ms L is the family therapist who was engaged to provide reportable family therapy known as the ‘Parenting Enhancement Program’ between July and October 2016. She also described X in glowing terms as a confident and eager to engage in play activity, and as a “small built boy, with a very large character”. It is easy to imagine this character when she describes him demonstrating his dance moves with great joy, and imitating various action figures and movie characters.
X was described as being “outgoing and gregarious” and did not display any hesitation to interact with Ms L. She said that he consistently presented as being negative to spending extended periods of time with the Father, however she felt that “overwhelmingly this is a young boy who wants to love and to feel loved and wanted by both parents”. In that very statement, Ms L identifies what is the exquisite consideration in this case. Section 60CC(2)(a) of the Act dictates that as one of the primary considerations I need to have regard to X’s right to have a meaningful relationship with both of his parents.
X has consistently said throughout this case that a relationship with each of his parents is what he wants. There is clearly value to him in having a meaningful relationship with both parents. However, if this chronic conflict between the parties continues, I predict that X will not have a meaningful relationship with one of his parents. I regard that as an absolute disgrace that the two most significant adults in his life have been unable to provide him with not only what he truly wants, but what is ultimately his right. Whatever has happened between the parties in the past it is not X’s fault that one or other of his parents has been an unsuccessful spouse, or have engaged in behaviours that are unsavoury.
Similarly, it is not X’s fault that the Mother demonstrates particular personality traits which cause her to be, in my view, somewhat histrionic and prone to emotional outbursts, sometimes at a severe level. It is also not his fault that the Father cannot develop sufficient insight to put his own needs and his squabbles with the Mother to one side in order to assess what might be in his best interests. On that basis alone, I propose to order that the parties engage with an experienced psychologist who has the benefit of these reasons to try and assist the parties in working through the extensive issues between them.
There is still much parenting of X to take place after the conclusion of these proceedings. In that sense, the parties collectively still have a lot of work to do. Whilst I am absolutely sure that each of them are effective, functioning human beings out of the arena of this parental conflict, I find that ultimately they each have significant deficits. On the Mother’s part this is a propensity to indulge in rejecting behaviours so that X rejects the Father. From the Father’s position his most significant deficit is what I regard as continual denigration of the Mother in the paternal household by both words and by actions. In that regard, I turn particularly to issues of changeover, for example, where X has to have his clothes removed because the parents are so fundamentally in conflict that they cannot even agree that he should have a set of clothes that can transfer between his two parents.
It would be as simple as going to a department store like Kmart or Big W and buying a set of clothes for X that he can take from one home to the other. However, the conflict between the parties is so significant that they cannot even manage such a small and insignificant task that would have made such a difference to this little boy. If both parents could learn to provide X with a childhood devoid of the chronic conflict that has afflicted their relationship to date, I would regard that as the optimal outcome for this child.
Ms L noted that she believed X was “pained by loyalty conflicts” as he may perceive that he will have to choose between his parents. X said to Ms L that the Father had told him that if X was to make negative statements about the Father, that the Father would go to jail. I accept that the Father said this because it has a level of sophistication that I do not believe X could have been coached into saying. This is particularly in circumstances where the comments came during ongoing family therapy and Ms L had the opportunity to continually engage with X. I accept that these comments occurred on the balance of probabilities.
X described his Father as a liar who regularly talked badly about the Mother and said that he used “super rude words”. He also identified that the paternal grandmother expressed disapproval with regard to the Mother and also suggested that it was the paternal grandmother who mostly cared for him in the Father’s home. X stated that the Father was often absent from the home as he “lies about going to the gym”. He felt also that the paternal grandmother would not permit X to call his Mother when he wanted to and was perceived by him at times to be angry.
X’s difficulty in coping with the more expanded relationships in the Father’s household was clear when he told Ms L that they make him angry when he asks for what he wants but they would not give it to him. Ms L reported that “X told the writer, that his father would say ‘he loves me in front of you’, but that he ‘can see he is not telling the truth’.”
X further explained that he felt that the Father was “harsh” to his feelings and the Mother’s feelings, and identified that an improvement in his parents’ relationship was what he wanted and then “it would be perfect”. He repeatedly reported that the Father had been saying bad things about the Mother for a “really long time”, but “if it stopped, it would be perfect”. X further reported to Ms L that the Mother spoke of the Father favourably and that “she says nice things in a smooth voice”.
Quite sadly, X said that he prayed to God asking him to “please stop this fighting with my mum and dad”. Ms L also reported that despite his negative comments X valued the relationship with the Father and had told her that he would feel sad if he was never able to see the Father again. Whilst it would seem that some of the statements made by X are exaggerated, it seems to me that his descriptions of what occurs in the Father’s home are objectively likely to be correct in terms of the denigration alleged to occur. I also take into account that X feels subjectively that the Mother is disparaged in the Father’s home by both the Father and the wider paternal family.
Ms L observed X with the Father and noted that he appeared comfortable and confident, with no change in his demeanour. However, Ms L at paragraph 8 also observed as follows:-
…however, their conversation related to the activity rather than any personal exchange. The writer was unable to gain any sense of closeness between them, or any reliance on his father as the main carer when in his household.
When coupled with X’s description of the paternal grandmother as the main person that he spends time with within the Father’s home, it is difficult to accept the Father’s assurances in evidence that he will be significantly involved in caring for X in the event that he was to live in the paternal home.
This of course needs to be considered in light of Ms S’s evidence that it would be imperative that the Father be available to X to assume the role of primary carer in the event that his living arrangements changed. Ms S said under cross-examination:-
I think one of the things that would be helpful, and it’s a bit unknown by myself in the Father’s home, is the sense of a primary person providing a majority of the care. I think there are a number of caregivers in that home and X would benefit, if he was making such a move as that, to be able to be really relying on…his father’s care, ideally, as the primary caregiver figure.
I am not satisfied that the Father has presented sufficient evidence to convince me that he will be available to X in that primary caregiver way in either a physical, emotional or psychological sense. That fact has weighed fairly heavily in my assessment of this case.
Furthermore, X identified to Ms L that he became “really stressed out” when the Father detained him unilaterally and took him to the zoo, rather than sending him to school or returning him to the Mother’s care. In terms of the Father’s case, this incident has to be a low point. In another attempt to explain to Ms L the damaging behaviour of the Father, X claimed that the Father had instructed him to “please, please tell lies in court” and “tell the court, you want to stay with dad and your little sister more”.
The nuanced sophistication and detail of these statements by X lead me to the conclusion that it is likely that the Father has attempted to coerce X into agreeing with his view of the world, just as the Mother has attempted to coerce X into adopting her view. This is more of the tit-for-tat that appears to have been identified by various professionals very early in X’s young life and has become a strong theme throughout the course of these proceedings.
In observing X with the Mother, he was seen to be “affectionate and warm” in his interactions with her and when he complained of an upset stomach she assisted him appropriately in providing him with some medication. Ms L discussed the process she engaged X in, relating to his attitudes regarding his wider family unit. Ms L reported at paragraph 12:-
The writer supported X to complete numerous activities that explored his feelings and experiences when with his family, with the repeated theme of identifying a wish to spend more time with his mother and less time with his father, stating he often feels sad when spending time in his father’s household. When exploring his experience of his parents conflict, X’s presentation changed, his head went down, he became withdrawn, and began to cry as he stated, ‘you are making me feel sad now’, explaining, ‘that you say that to me’, regarding his parents display no friendship or support for each other, as maintaining a relationship with both parents is untenable for this very young boy.
[sic]
Ms L observed that throughout the course of the ongoing therapy she became increasingly concerned for the presentation of X. She says at paragraph 13:-
The writer became increasingly concerned for the presentation of this young boy, who appears highly stressed and conflicted, as he becomes increasingly angry and mistrustful of adults, complaining of regular stomach pains, with heightened anxiety surrounding time he is required to spend with his Father. Undoubtedly his experience of his family involves unacceptable long-standing hatred, anger and hostility that are clearly unpleasant and confusing for X.
From a subjective point of view, X did report to Ms L that he believed that the Mother had made more of an effort to be friendlier towards the Father without positive response from him.
As I have set out, Ms L observed X to express resistance to spending time with the Father. She says:-
Of concern he continued to display considerable signs of residual trauma and anxieties, including reports of stomach pains and symptoms of eating disorders. The writer is concerned that any experience of time with the father is only compounding feelings of fear and anxiety relating to a previously traumatic and unpredictable relationship with the father. The writer holds grave fears and is deeply concerned for the long lasting difficulties in the child’s emotional development and interpersonal relationships in the future...
Ms L also experienced the Father as making exaggerated claims about his own capabilities as a calm parent. In a comprehensive report spanning numerous interactions and opportunities to assess the presentation of X and the parents, she said in summary:-
This assessment provides initial expert advice to the family and to the Court about the issues involved in this matter and the children's needs. In summary;
27. One of the most concerning features of this matter relates to the vulnerability of X, but also his potential. This young boy presented as delightful and caring, but there is no doubt that his exposure to the parental dispute will impact on his own emotional wellbeing, as he will have the profound dilemma of making sense out of vastly contradictory views and experiences. The parents report numerous counter allegations of high degrees of hostility and discord, well beyond the expectable time for them to settle their differences. The fear for this child, is that this unremitting animosity can shadow many of his growing up years, which will undoubtedly lead to him being highly affected by the ongoing parental conflict.
28. The concern for X, who may experience this situation over a prolonged period of time, is he can become most susceptible to becoming alienated as taking sides in the ‘war’ reduces their anxiety, even at the cost of a healthy relationship with the other parent. It is the writer’s impression that the child is not free from the unspoken, negative sentiments that he mother and father feel for each other, that this is likely to impinge very substantially on his psychological functioning. The dynamic is very likely to contribute to the risk of serious problems developing in their personality functioning, already evidence, and consequently at heightened risk of employing the splitting off of one side of the family as a way of managing intolerable triangulation. This risk of an alienation dynamic developing in the future is obvious, as this child is especially restrained by both parents messages, as they continue to blame the other parent and rid any responsibility that they may be contributing to the parental discord.
29. Both the parents report differing accounts of their historical relationship, as the writer found the extent of their self-focus as relatively unusual. The writer questions if the mother and father have experienced a pattern of a tendency to be hurt in interpersonal relationships as they both presented with high levels of emotionality, suspicion, the need for considerable emotional support and a tendency towards emotional cut-off. There may be unresolved feelings or issues that may be impacting on the post separation relationship, and how this may now be affecting their ability to support a relationship between the child and the other parent. Child adjustment is more a function of each parent, their attitude towards the other parent, the level of conflict between them, their respective psychological health and well-being and above all their ability to place the needs of their child, ahead of their own, not evident with these parents. The writer suspects that any anxiety and distress displayed by the child, is more reflective of the parent’s lack of confidence and cooperation with each other, as evident by a number of reports of difficulties in the current arrangements, including the time the father failed to collect the child for Father’s Day weekend, resulting in a failed changeover in (omitted) Police Station.
30. Despite the mother’s experience and reports of the difficulties and hostility she has experienced with Mr Kala, she has continued to provide the child for time with the father including the opportunity to support changeover for Father’s Day weekend despite Mr Kala failing to collect him on the Friday PM. It was the father who did not proceed with time as he explained, ‘I asked the child if he wanted to come and he said no’, and despite considerable time to travel to (omitted), he left. Further, the writer was not satisfied that there was a clear or valid explanation for his decision to withhold the child, that further provided the child with a fragmented family experience.
31. Certainly Ms Kamdar continues to seek support to have herself acknowledged as the parent who has provided and protected the child in the past, whilst denying any exposure to the child of her negative views of the father. Ms Kamdar expressed feeling vulnerable to further false allegations from the father, as she remained sceptical for any progress in the co-parenting relationship as she continues to view the father as controlling and abusive. The parents both agree, given the presentation of entrenched conflict and extreme mistrust and hatred between them, that they both seek direction from the court to support sole parental responsibility, as they both seek to prove that the other parent is totally inadequate, irresponsible and dangerous.
32. The question of the child’s disclosures and the father’s denial is clearly the role of the Court to determine, however, the writer questions the child’s safety in any shared care arrangement, with regard to how this continues to impact on his own emotional wellbeing, as he may have the profound dilemma of making sense out of vastly contradictory views and experiences communicated through feelings of fear and distrust. All things considered, it is not surprising that this child presents with sophisticated and complicated degrees of trauma and stress, as so intrinsically described by the child and observed by the writer and other professionals.
33. The writer believes that to support such recovery for this child, he may need to continue to benefit from the primary relationship, that appears to be with the mother, as a primary carer who can provide him with consistent, calm and predictable responses. The writer is uncertain if in the father’s household, who would be the primary carer. Any arrangements for the child with the father needs to not interfere or jeopardize the child’s need to redefine a safe environment with the mother within which h can create a sense of security and safety, to ensure the experience of the use of a reliable attachment figure as a base for exploring his world and experiences. Given X is openly expressing distress spending time with his father, there is an urgent need to validate the child’s experience and allow him to be heard. The writer believes that this is best achieved with any arrangements that support the mother to continue to make day-to-day decisions as the primary carer, whilst allowing for opportunities of sufficient time with the father without the need for any co-parenting relationship. Certainly the writer believes that there will need to be clear Orders for the child’s time with the father.
The Father responded to Ms L’s report in his affidavit. The Father has been represented by a solicitor throughout these proceedings and has been assisted by legal practitioners in the presentation of his case. He says in relation to Ms L’s report at paragraph 56 of his trial affidavit as follows:-
I respectfully say that Ms L was hampered in her attempts to provide family therapy due to the mother seeking to recruit Ms L.
It seems extraordinary to me that the Father, rather than taking the comments of Ms L on board, seeks to take an offensive approach and blame the Mother for the observations that Ms L made regarding his own presentation. He goes on at paragraphs 57:-
I respectfully suggest that Ms L was misdirected by the mother.
The Father continues at paragraph 58:-
As Ms L did not seem to appreciate that the mother was the aggressor and that I was unable to deal effectively with that aggression, Ms L’s insights are of limited value.
In my view these statements give a true insight into the personality of the Father and his inability to accept any sort of culpability for his involvement in the conflict to which X is exposed. In his trial affidavit (which I note was affirmed on 13 June 2017) he says at paragraph 60:-
In coming to my assessment of Ms L’s report, I have reflected on a few of the paragraphs in Ms L’s report below. I reserve the right to have my counsel cross examine Ms L and put to her matters of which she may not have been aware when she wrote her report.
I do not propose to include all of his statements into these reasons, however, I note that his comments as arrogant and high handed as they traverse many pages and show what I consider to be the blaming behaviours I have referred to earlier in these reasons, directed this time towards Ms L and her impression of the Mother. He says, perhaps at the zenith of his comments, at paragraph 81:-
If professionals are not roped into the mother’s agenda, that will make my life a lot easier. I believe that Ms L has been “recruited” actively by the mother to take the mother’s position and to some extent Ms L has endorsed the mother’s world view.

I am well satisfied that the Mother needs to undergo some intensive psychotherapy in order to address these issue, regardless of whether X remains in her care or not. I am also equally convinced that whatever the Father’s faults might be in indulging in passive behaviour and demonstrating a lack of insight, the Mother engages in outwardly conflictual behaviour which adds fire to the flame. The Mother was histrionic when giving evidence and became visibly distressed and more uncontained as her evidence progressed.
The evidence given by the Mother suggests that she has actively and deliberately attempted to turn X against his Father, and there appears to be some considerable support for that proposition. The Mother has a clear history of aggressive and confrontational dealings with other people, and her ability to see things objectively and sensibly is impaired. For instance, in relation the dog bite incident, whilst I can understand her concerns she engaged in a course of conduct which, in my view, was unreasonable and unnecessarily incessant. Equally however, the Father refused to send a photograph of the injury to the Mother, thus inflaming her anxieties and concerns as to the severity of the injury. The Mother refused to concede that the doctor’s records were correct, although I find that they are.
The Mother only conceded conflictual behaviours between herself and the Father at changeover when confronted with the two pieces of video evidence. Whilst her statements are made in (language omitted), they would have nevertheless been understood by X. Calling the Father things such as a “son of a dog”, spitting at the Father (in a more of a cultural sense rather than a projectile sense) and engaging in taunting behaviour was wholly inappropriate, noting particularly that X was present on both of these occasions.
The Mother’s assertions that she was merely conveying what she was being told by a relative by telephone in India are ludicrous and I do not accept them. It is preposterous to accept that she did not know that she was engaging in taunting and provocative behaviour towards the Father and that X would be exposed to parental conflict. I do not accept that she has developed any insight in relation to these issues, save and except for the understanding that she is engaged in a serious form of litigation which has the potential to have X removed from her care. I have difficulties even accepting that the Mother sees the past as being objectively correct and this of course impacts on her capacity to change in the future.

Conclusion

It is a common truth that in order to effect change, one must come to the realisation that there is something wrong in the first place. If this was a case about the Mother’s capacity to effect change, X would be placed in the Father’s care immediately. However, the case has a number of significant issues that require my consideration and my view it centres on the capacity of X to make a successful move into the Father’s care, in a way that will not expose him to significant risk of psychological and emotional harm in leaving his Mother’s primary care, particularly given his past reluctance.
When I couple this with the Father’s incapacity to hold any sort of level of insight, alongside his maturity and the physical environment that he is able to offer X in his home, I cannot be convinced that X’s circumstances will be any better improved in his Father’s care. When I consider on the balance of probabilities that there has been significant disparaging and denigrating behaviour of the Mother in the Father’s home, I have ultimately decided that X should remain in his Mother’s primary care. However, this will come with significant constraints and with no confidence that it will be successful and will not have to change in the future.
This is a chance for the Mother to improve her position. If her behaviour continues into the future and this matter comes back before the Court, I will have no hesitation in removing X from her care. I expect the Mother to engage in psychotherapy and I also expect both she and the Father to engage positively with a counsellor who is to be nominated by the Independent Children's Lawyer. I note that there was suggestion made by the Independent Children’s Lawyer that perhaps Dr N could be the person who engages in that. This will be at some significant cost, however, this is urgent and important as X needs to be alleviated of the responsibility of negotiating his way between his parents and their conflict.
I cannot be satisfied that these will be the last proceedings with respect to X, notwithstanding that these will be final orders. I do propose to make an order that, if practicable, that any future proceedings come before me as I am now intimately seized of the issues in dispute between the parties. This is of course subject to any application that might be made by either of the parties with respect to my continued involvement.
I cannot help but to again observe that the Father’s recent affidavit material is so negative about the Mother that it leads me to a conclusion that things may not be any better for X in the Father’s home. There would be nothing worse for X to go through the stress, trauma and grief in changing households. I temper these comments with an acknowledgment that Ms A has very recently gone through the worst sort of bereavement that anybody can go through. However, her presentation in Court struck me as being quite odd and somewhat devoid of any of the sort of emotion that I would expect to see in the midst of proceedings. Of course, I do not have any psychiatric evidence in relation to that witness, but I did have concerns. However, on the basis that I certainly propose that X spend time in the Father’s household, I think that she will be a valuable person who will be a significant and ongoing presence in relation to his care. I note this in relation to the observations I made of Ms A in Court.
The Mother should cease and desist from trying to disparage the stepmother. I state for the record that I have no concerns regarding X’s physical care in the Father’s household, including and in particular any concerns that Ms A is somehow poisoning X’s food to affect him. I was very concerned about the report that the Mother made to the doctor as it strikes me that there are some aspects of the Mother’s presentation that are almost delusional or just too willing to accept that there is a significant problem in the Father’s home.
Furthermore, in terms of the lay witnesses, I also find that the paternal grandparents are a significant enhancement to X’s life and the Mother should embrace that concept as well. As I have set out, there are numerous issues in respect of the conflict between the parties that have been traversed throughout the course of these proceedings. There was the broomstick incident, the dog bite incident and, perhaps notably, the spitting incident. It is abundantly clear that the Mother quite disgustingly engaged in spitting at the Father, and she was charged for that offence. This occurred on 24 November 2014 at a changeover at the McDonald’s restaurant. I have been concerned that the Mother presented her case in complete denial of the spitting incident having ever occurred and only later conceded that she pleaded guilty after an initial not guilty plea. She was sentenced on 17 November 2015.
Again, very much to the detriment of the Mother’s case, I am concerned about her level of empathy. This was demonstrated very recently when that she opportunistically sought to improve her position and used X’s attendance at his little sister’s funeral as somewhat of a bargaining chip so she could secure increased time with X on his birthday. I simply cannot understand that at a time like this the Mother was so completely devoid of any empathy towards the Father and his family. Although I am in this decision very tentatively proposing to give the Mother a chance to improve her behaviour, I find this incident particularly concerning.
That being said, there is the fact that the Father has found it difficult to comply with orders, such as the incident over Father’s Day in (omitted) and the over-holding and subsequent trip to the zoo by the Father. He too has not conducted himself in an appropriate manner with respect to X. Ultimately, I am persuaded by the primary nature of the relationship between X and the Mother. I am of the view that X would experience transitioning from his Mother’s primary care to the primary care of the Father as being exceedingly difficult, distressing and likely to involve psychological and emotional harm.
It is also likely that had the change been made that X would only experience his Mother in a very histrionic and emotional way. The only way through this would be to deprive him of her company except for the most structured of supervised contact for a significant period of time. That is not to say that I did not consider it, particularly given the Mother’s presentation is hardly ideal. Nevertheless, the grief for both X and the Mother as a result of a change in his primary living arrangements would be almost insurmountable for X. It is not warranted in circumstances where I cannot be assured that the position in the Father’s household would be any better.
Particularly, I am not satisfied that the Father’s availability to care for X at most times can be guaranteed in this case, given that this was deemed imperative by Ms S. I do note that it was put by Counsel for the Independent Children’s Lawyer that this evidence from Ms S came fairly late in the proceedings and thus the Father was not given an appropriate opportunity to address it. I do not accept this as a proposition. As I have said, the Father has been assisted by legal practitioners in this case. Rather than spending reams of material in his affidavit blaming the Mother for all the parental conflict that X has been exposed to, he could have spent some time dealing with what was an obvious issue in the practicalities of how a transition could occur.
I am also concerned that the Father’s presentation was one of complete naivety, in thinking that he could simply take X to visit with the Mother when he was feeling like he missed her and that this would somehow solve a problem that is so much more complex and nuanced than the Father may realise. In one respect, and in fairness, perhaps the Father simply does not realise what would confront X and the wider family unit if there was to be a change in X’s primary care.
The relationship between the Mother and X is somewhat of a double-edged sword. I accept that X enjoys and in fact seems to have thrived in his Mother’s care in every aspect except for his relationship with the Father and the symptomatic nature of his anxieties. To the extent that X has experienced difficulties they are significantly contributed to by the parental attitudes and conflict. It is of concern, and raised by the Independent Children’s Lawyer, that the Mother has such a skewed view of the world that it in fact may result in X rejecting his Mother in the future when he starts to become more independent. This was also identified as a possible future concern by Ms S.
I am also concerned that the Mother’s view of the world may impact on X’s capacity to view the world in an objective and realistic way. It is for that reason that I also think that psychotherapy for the Mother is warranted, and perhaps necessary, to assist her encouragement of X to move through life positively and to be able to reap the benefits of his undoubtedly lovely personality at present.
Neither of the parents possesses any capacity whatsoever to communicate with one another. However, I do find that in recent times the Mother’s attitude towards the Father is slightly more positive than the Father’s towards her. This was demonstrated to me by the way X describes his Mother to Ms L, and further in the negative way that the Father has chosen to present his case.
One curious factor in this case is that the Mother generally adheres to Court orders. She has facilitated changeover with X and facilitated at least a physical relationship between X and his Father when she is required to do so, and that matter weighs in her favour. From recollection, there was only one occasion when she did not facilitate time and there seemed to be reasonable circumstances why that did not occur.
Indeed, the conflict which occurred at the (omitted) Police Station took place in circumstances where the Father was demanding and harassing of the Mother in circumstances where it was he who had misinterpreted the orders. In my view, the Mother went out of her way to facilitate time between X and his Father when she might have been within her rights to simply say that it was all too hard. Ultimately, time on this occasion did not take place. This is clearly symptomatic of this ludicrous scenario where the parties at changeover insist on changing X’s clothes. Both of the parties seem to be complicit in that.
I have significant concerns about the Father’s capacity to meet X’s needs in an emotional and psychological sense. He has made some very poor decisions, as I have set out, and done so in ways that cannot be justified. I do not have concerns as to the Father’s capacity to physically provide for X, notwithstanding that I am dubious as to his stated income position of $16,000 per annum. I am however of the view that the Father will struggle with X’s physical needs in terms of providing one-on-one attention for X and, on any view, X would move from a fairly calm one-on-one home to a home that is busy and somewhat cramped. Nevertheless, this fact would not have weighed significantly in my assessment of this case.
As I have said, it is this potential change of circumstances, combined with my lack of faith in the Father, that there can be any guarantee that things will be better for X in the Father’s care. Therefore I have been swayed to make the decision that I have set out.

The legislative pathway

The best interest of X is the paramount consideration.

The primary considerations

In assessing what is in X’s best interests I have regard to section 60CC(2) of the Act which sets out the primary considerations to take into account. Namely, these are the right of X to have a meaningful relationship with both of his parents, and the need to protect X from physical or psychological harm resulting from exposure to abuse, neglect or family violence.
Abuse and neglect are not significant features of this case. There is, of course, an issue with respect to family violence, and regrettably, I have no confidence that X will not be exposed to family violence in the future. Indeed, the parental conflict in this case is so high that in my view it is tantamount to an exposure to family violence in the way that the facts in this case have played out.
I propose to make stringent orders with respect to changeover to occur at school where practicable. Further, with respect to trying to keep the parties separated, I also propose to make fairly stringent orders with respect to how the parties might deal with issues when the Father is late for changeover. Essentially, in the event that the Father is more than 45 minutes late for a changeover that time is to be suspended for that particular weekend and there is to be no makeup time ordered. In that way, I would hope that the parties are alleviated of the responsibility of trying to negotiate with each other to spend time or live with X. In that sense, there is an element of parallel or autonomous parenting in terms of the dispute.
I propose to make a sole parental responsibility in favour of the Mother, with the additional provisions as to how the Mother is to consider the Father’s position with respect to particular issues.
I am to give greater weight to the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence pursuant to section 60CC(2)(b) of the Act. I propose to do that by styling the orders in the way that I propose rather than a complete change of residence.

Additional considerations pursuant to section 60CC(3)

In consideration of the matters set out in section 60CC(3) of the Act, commonly referred to as the legislative pathway, I note as follows. I propose to do this in summary on the basis that the significant matters I have already dealt with.

Any views expressed by X and any factors (such as his maturity or level of understanding) that are deemed relevant to the weight that should be given to his views

Very little weight can be given to X’s views in the circumstances of this case and the parental conflict.

The nature of X’s relationship with each of his parents and other persons

I have considered the nature of the relationship between X and in particular his relationship with his Mother, his Father and the extended members of the Father’s family. These orders will, at a fairly limited level, permit him to maintain his relationships with the paternal family. I do not discount in the future that in the event that X is unburdened from his exposure to parental conflict that the Father’s position, in terms of spending more time with X, may improve. I have also not eliminated entirely from my consideration the fact that Mother may simply be unable to promote a meaningful relationship between X and the Father. If that occurs, that is also likely to be the basis for further change.

The extent to which X’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the X, and to spend time and communicate with him

Neither party has failed to participate in decisions with respect to X in any significant way.

The extent to which each of X’s parents have fulfilled or failed to fulfil their obligations to maintain X

I am entirely dubious as to the Father’s adherence to financial support of this child. I do not accept that he is earning $16,000 per year, however, it is beyond the scope of these reasons for me to make any further findings with respect to this. I pause here to observe that if he really truly is earning that amount of money, then one wonders why he is not working for someone who would pay him an appropriate salary rather than working for his parents. These issues of child support and financial support, in my view, inflame the issues between the parties.
For instance, the Mother told me that part of the reason why she wants to change X’s clothes at every changeover is because she spends her money on trying to adequately clothe him and she is concerned that those items will not be returned. She asserts that she does not have the finances to replace them. The lack of insight into how it would feel for X to be forced to change in the middle of a police station and how that might impact on X is astounding.
The Mother has very adequately fulfilled her obligations to maintain X in a physical sense and that weighs in her favour.

The likely effect of any change in X’s circumstances, including the likely effect of any separation from either parents or any other child or person

I have dealt in detail with the likely detriment to X in the event of a change in his circumstances. In the ultimate, I have concluded that the effect on him in separating from his Mother is not in his best interests.

The practical difficulty and expense of X spending time and communicating with a parent and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis

There is no real practical difficulty to X in spending time with each of his parents, save for the obvious difficulty in the level of high parental conflict and the consequential need for the parents to be kept apart. This distance applies in both a physical sense (although curiously there does not appear to be, at least recently, ongoing physical violence between the parties) and also in a conflictual sense. The capacity for the parties to indulge in conflictual behaviour in their own particular ways is likely to be exacerbated if they are required to come into contact with each other or to even attempt to negotiate change in the orders. This seems to be beyond each of their respective capacities.

The capacity of each of the parents or any other person to provide for X’s needs, including his emotional and intellectual needs

I have covered this matter extensively throughout the course of these reasons and I do not propose to elaborate any further.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and either of his parents, and any other characteristics of X that the Court thinks relevant

X is a child with an Indian cultural background and each of his parents are able to provide that for him. Orders shall also be made with respect to Indian cultural festivals. I do note in relation to cultural issues that there was some suggestion of differing adherence to religious and cultural norms between each of the parties. X should be able to enjoy traditional festivities and cultural occasions in the way that the parent with whom he is residing at any particular time enjoys those particular festivities. It shall not be up to the absent parent to dictate how religious festivals should ensue in the other parent’s household.

Whether the child is an Aboriginal child or a Torres Strait Islander child

Aboriginality does not factor into these considerations.

The attitudes to the child, and to the responsibilities of parenthood demonstrated by each of X’s parents

I have set out how the parties are wholly deficient in respect of their attitude to X and the responsibilities of parenthood.

Any family violence involving X or a member of X’s family

Some of the violence alleged in this case is serious. For the sake of completion I make a finding that on the balance of probabilities the Father has not engaged in sexual assault of the Mother, nor engaged in the level of violence as is alleged by her. I do find on the balance of probabilities that each of the parties have engaged in moderate family violence towards the other and probably continue to engage in coercive and controlling behaviour towards the other in the way that their individual personalities dictate.

Whether it would be preferable to make orders least likely to lead to the institution of further proceedings in relation to X

I am not confident that these orders will not lead to further proceedings. However, it is preferable in the unique circumstances of this case that I make the orders as I have set out. I also consider the fact that there might be a change of circumstances for X which may necessitate further consideration as to his living arrangements. It was put by the Independent Children’s Lawyer, and I accept, that there is a risk that this might be the last chance for there to be a serious consideration of X’s welfare. However, he is only eight years of age and in the circumstances, and perhaps in having more optimism than the Independent Children’s Lawyer, I am of the view that each of the parties need to be given this final opportunity for change. I note that the Independent Children’s Lawyer conceded that this case was exquisitely difficult and I am not in the slightest bit critical of the Independent Children’s Lawyer for their views, I simply happen to have a difference of opinion in the circumstances of this case.
I have also given consideration in this case as to whether I should make interim orders given the significant concerns that I have about the issues in this case. However, I propose to make an order that the proceedings return before me if practicable, subject to any applications that may be made.
In any event children’s cases are never final. Circumstances may change and arrangements may need to change as a result. I can even envisage a situation where circumstances will improve so much that there can be a return to some sort of shared care regime between the Mother and the Father. Ultimately however, the issue of whether or not there has been a significant change of circumstances needs to be considered at that time an application arises.

Any other fact or circumstance

The professional witnesses in this case suggested that the spend time with arrangements for X in the Father’s care should be from Friday to Monday each alternate weekend. The Father’s application was for further time in the event that he was unsuccessful in his residence application. Each of the parties conceded that sole parental responsibility should vest in the party with whom X lives and, on that basis, it will be with the Mother. In that sense, I am not necessarily required to consider whether there should be substantial and significant time as it is set out in the Act. However, it does seem to me that, in the circumstances of X’s life and in the more recent circumstances where he has been spending five nights a fortnight in the care of the Father, that to reduce his time to Friday to Monday might be an unnecessary reduction in the circumstances.
In the circumstances, which the parties can regard as a leap of faith on my part in relation to their capacities, I propose to order that during school terms X spend each alternate weekend with the Father from after school Thursday until the commencement of school on Monday (to extend to Tuesday if the Monday is a non-school day). To avoid all doubt, that time will recommence on the first Thursday following the commencement of each school term. X will also spend half of the school holidays with the Father.
During the course of the proceedings I raised whether or not X should spend more extensive time with the Father during the school holidays. I was persuaded by the evidence of Ms L that this might be stressful for X in the circumstances and that it is much better for the arrangements between X and the Father to simply work, rather than trying to impose some extension due to adult concepts of fairness and the like. I doubt very much that making an order that he spend an extra couple of days with his Father will enhance the meaningfulness of the relationship. I am satisfied that the orders that I propose to make will promote a meaningful relationship between X and his Father, albeit not with the same length of time as it is at the moment.
In summary, I accept that there are significant risks and downsides associated with X remaining in his Mother’s care. In my view, that much is beyond doubt. I do acknowledge the submissions of Counsel for the Father and Counsel for the Independent Children’s Lawyer that the Mother has been given ample opportunity to prove herself. However, I do propose to give her one last chance. I note that this case is not about the Mother. It is about X, and I propose to give X, via his parents, one last opportunity to be shielded from the sort of grief of having to change from the primary care of the Mother to that of the Father.
I will make an order that the Mother have psychotherapy. I would like the Independent Children’s Lawyer to identify who might be an appropriate person to conduct that therapy. I would also like the parties to engage with another person who might be able to assist them with their fractured relationship. I do not regard Ms L as appropriate to do so, particularly as the Father has put into print the level of disdain with which he holds Ms L’s opinion.
I had also considered making an injunction with respect to changing clothes at changeover. However, given that the majority of changeovers shall occur at X’s school, I simply expect that he will be returned to school in the same clothes that he was delivered in. I make it clear, whilst I will not make an injunction as I think that that is demeaning to both of the parties, that X is not to be stuck in the middle like a doll whose clothes need to be changed. I accept that slightly limiting X’s time with the Father might alleviate some of the stress and conflict associated with the rough and tumble of the school week.
I have barely scratched the surface of what was contained in the case. It was a difficult case and the parties were ably assisted by Counsel in the presentation of their respective cases. In respect of the Father, there will be a natural disappointment as to the outcome of this case. However, I want to observe that every single thing that could have been said on his behalf was said. Indeed, Counsel for the Father, and perhaps to a lesser extent the Independent Children’s Lawyer, approached the matter in a way that very starkly illustrated what the difficulties for the Father have been in terms of dealing with the fairly complex personality vulnerabilities of the Mother. In my view these vulnerabilities have had an impact on the level of parental conflict, even though I do not believe that the Father has been exculpated entirely from his involvement with that.
I hope that these reasons will serve as some sort of blueprint for the future and I do hope that that they will provide the various professions that involved in this case some sort of explanation as to what the issues are.
From my point of view, in order to achieve anything even approximating a good result for X, the Mother needs to make significant changes with the benefit of professional help. Further, the Father needs to accept that the way he engages with the Mother also “maintains the rage” and the rules of engagement between the parties.
It is for the forgoing reasons that I will make orders.

I certify that the preceding three hundred and sixty-three (363) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 9 January 2018

[2017] FCCA 3274

29 August 2017

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