Kellett and Kellett

[2015] FCCA 1649

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLETT & KELLETT [2015] FCCA 1649

Catchwords:
FAMILY LAW – Parenting – mother’s application to relocate to Queensland from Victoria – application opposed by the father – in best interests of the child to allow relocation.

Legislation:
Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61C, 61DA, 62B, 65DAA

Cases cited:
Taylor & Barker [2007] FamCA 1246
Morgan & Miles [2007] FamCA 1230
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Adams & Randall [2011] FamCAFC 204
Heaton & Heaton [2012] FamCAFC 139
Sayer & Radcliffe & Anor [2012] FamCAFC 209
Goode & Goode [2006] FamCA 819
MRR v GR [2010] HCA 4
Macneil & Dane [2015] FamCA 424
Banks & Banks[2015] FamCAFC 36
Malcolm & Monroe & Anor[2011] FamCAFC 16
U v U[2002] HCA 36
M & S[2006] FamCA 6
Sawant v Karanth [2014] FamCAFC 235
Hall & Hall [1979] FLC 90-713
Friscioni & Friscioni [2010] FamCAFC 108
McCall & Clark [2009] FamCAFC 92
Mallahan & Mallahan [2010] FamCA 631
Hepburn & Noble [2010] FamCAFC 111
Moose & Moose [2008] FamCAFC 108
Cowley & Mendoza [2010] FamCA 597
Arman & Arman [2008] FamCA 923
D & P [2006] FamCA 170
Gaffney & Gaffney [2012] FamCAFC 140
Gelbvieh & Senepol [2007] FamCA 476
Andrew & Delaine [2009] FamCAFC 182
Hanningan & Sorraw [2010] FamCAFC 257
Kennedy & Kennedy [2010] FamCAFC 195
Malak & Mairie [2010] FamCAFC 170
Salvati & Donato [2010] FamCAFC 263
Lindsay & Baker [2012] FamCAFC 189
Muldoon & Carlyle (2012) FLC 93-513
Yates & Yates [2012] FamCAFC 138
Heath v Hemming (No 2) [2011] FamCA 749

Applicant: MS KELLETT

Respondent: MR KELLETT

File Number: DGC 3110 of 2011

Judgment of: Judge O’Sullivan

Hearing dates: 12, 13 & 14 November 2014
13, 14 & 15 April 2015

Date of Last Submission: 16 June 2015

Delivered at: Melbourne

Delivered on: 6 August 2015

REPRESENTATION

Counsel for the Applicant: Mr R. Hoult

Solicitors for the Applicant: Ruffin Lawyers

Counsel for the Respondent: Mr T. Hutchings

Solicitors for the Respondent: Trapski Family Law

Counsel for the Independent Children’s Lawyer: Ms M. Sevdalis

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting orders be and are hereby discharged.

2. The mother have sole parental responsibility for X born (omitted) 2008 (“the child”).

3. That for the purposes of all long term decisions in relation to the child, before making any such decisions for the child, the mother shall consult the father in writing (or by email) advising him in advance of any decisions on long term issues proposed by her in respect of the child and that the mother consider any response before making a decision.

4. The child live with the mother.

5. The mother be at liberty to relocate residence of the child to Queensland from 1 December 2015.

6. The child spend time and communicate with the father as follows:

   (a)At all times regardless of location of the child’s residence:

   (i)by telephone and or Skype each Monday, Wednesday and Saturday between 5.30pm and 7.00pm with the father to initiate the communication and the mother to facilitate the child’s participation.

   (b)Whilst the child resides in Victoria:

   (i)to commence immediately, each alternate Saturday from 10am to 6pm and each Sunday from 10am to 6pm and to conclude at the commencement of term 4 being 5 October 2015.

   (ii)thereafter each Wednesday from conclusion of school until the commencement of school on Thursday and one weekend per month to be on days and times to be agreed but in default of agreement the last Friday of the month from the conclusion of school until 4.00pm Sunday;

   (iii)for three consecutive nights in the term three school holidays in 2015 in line with the father’s roster and in default of agreement the first Tuesday of the holiday period from 12 noon until Thursday 12 noon.

   (iv)at all other times as agreed between the parents in writing including text.

   (v)for the purpose of changeover, save as provided for in these orders at school wherein the father is to collect and return the child to school, changeover is to occur at the (omitted) Library.

   (c)Upon the child’s residence being relocated to Queensland:

   (i)one weekend per month to be on days and times to be agreed but in default of agreement the last Friday of the month from the conclusion of school until 4.00pm Sunday;

   (ii)commencing 2015 long summer school holidays for three consecutive nights in line with the father’s roster and in default of agreement the first Tuesday of the holiday period from 12 noon until the following Friday at 12 noon.

   (iii)commencing 2016 long vacation for two occasions for a seven night period of the long vacation by agreement and in default of agreement the first and fifth week of the Queensland School Holidays from Saturday 12 noon to the following Saturday 12 noon

   (iv)commencing first term of the Queensland holidays in 2016 half of all holidays.

   (v)for a period of four hours on 25 December and 2 January by agreement and in default of agreement from 2pm to 6pm;

   (vi)such other and further times as agreed between the parents in writing including SMS text message;

   (vii)for the purpose of changeover, the father shall collect and return the child to her school when applicable otherwise the parents are to meet at the local library closest to the mother’s residence.

   (viii)from 1 January 2017 the time in paragraph 6(c)(i) is to be suspended during school holiday periods.

   (ix)the father gives the mother no less than four weeks’ notice of his intention to spend time with the child in either (omitted) or Melbourne.

7. Further to time pursuant to 6(c) herein:

   (a)the father gives the mother no less than four weeks’ notice of his intention to spend time with the child in either (omitted) or Melbourne.

   (b)the father be at liberty to exercise time spent with the child in Victoria subject to the provision of the following details:

   (i)the father provide the mother with copies of return airline tickets for the child no later than fourteen days prior to the departure date

   (ii)the father provide the mother with details about where the child will be staying in Victoria together with a contact telephone number and provide regular telephone contact with the child.

   (c)for the purpose of facilitating any trips by the father and the child to Victoria, the mother deliver the child to the father at the (omitted) Airport at such reasonable time as may be nominated by the father.

   (d)the father and mother share equally the total costs associated with return flights between the (omitted) and Melbourne for the child on 4 occasions per year commencing 2016 provided the father provides no less than four weeks’ notice of the prospective holiday time with the child.

   (e)for the purpose of facilitating the time spent by the child with the father, the child shall fly unaccompanied and upon such airlines as may be nominated by the parent funding the flights at any particular time.

8. In the event that the mother fails to deliver the child pursuant to paragraph 7, the mother shall reimburse the father any of his costs wasted or thrown away.

9. In the event that the mother cancels any scheduled holiday visit with the child at a time when the father is otherwise scheduled to fly with the child to another destination, the mother will reimburse him any costs wasted or thrown away.

10. Should the parents be unable to agree to the costs wasted or thrown away the subject of paragraphs 9 and 10 hereof, such costs are to be based on the current rate for full price economy class airfares for the father and/or the child.

11. Upon the mother’s relocation to the (omitted) with the child, the mother ensure that she has a skype/webcam and email facility set up within 7 days of the child taking up residence with the parents to bear their own costs associated with setting up and maintaining skype/webcam/email facilities.

12. Both parents are restrained from criticising the other in the presence or hearing of the child and must not allow anyone else to do so.

13. The father shall attend upon Dr O for regular reviews of his condition as directed by Dr O.

14. The father is to sign an irrevocable authority permitting Dr O to notify the father’s General Practitioner and the mother should the father be non-compliant with treatment recommendations or attendance requirements without reasonable excuse.

15. The child is to continue to attend (omitted) Primary School, Victoria until the conclusion of November in Term 4 of the 2015 school year.

16. The mother provide an authority to any educational institution the child may attend from time to time in Queensland to provide directly to the father at his expense information about the child including but not limited to reports, attendances and school photos.

17. Within 48 hours of the relocation the mother notify the father in writing of her residential address and telephone numbers in Queensland or within 7 days of the final Orders which ever event occurs first.

18. Within seven days from the date of these orders, the mother is to nominate the local primary school in Queensland which the child will attend and notify the father of the nomination.

19. Within fourteen days from the date of these orders the mother is to provide proof of the child’s enrolment at the nominated primary school as well as proof that the father is listed as an emergency contact with that school and any subsequent school the child attends and the father be able to obtain at his expense copies of all school notices, information, newsletters, photo order forms and school reports and other documents normally provided to parents.

20. That both parties, their servants and agents be and are hereby restrained from denigrating the other party in the presence of hearing of the child or from permitting any other person from doing so.

21. That both parties, their servants and agents be and are hereby restrained from discussing these proceedings in the presence of hearing of the child or from permitting any other person from doing so, or showing or reading to the child any court documents in these proceedings.

22. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these order.

23. All extant applications for parenting orders be otherwise dismissed.

24. The property proceedings be adjourned to 20 August 2015 and each of the parties serve the relevant trustee in bankruptcy with a copy of the orders they seek and notice of the adjourned date.

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

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

DGC 3110 of 2011

MS KELLETT

Applicant

And

MR KELLETT

Respondent

REASONS FOR JUDGMENT

Introduction

1. In July 2010 the parents of X born (omitted) 2008 (“the child”) separated. These reasons concern a dispute between the child’s parents over parenting orders under the Family Law Act 1975 (Cth) (“the Act”) for the child.

2. Ms Kellett (“the mother”) is 41 years of age and Mr Kellett (“the father”) is 37 years of age. The dispute between the mother and the father, the subject of these reasons, centres on the mother’s proposal to be allowed to relocate the child’s residence to Queensland. The father opposes the relocation.

3. It is trite to observe that relocation disputes are unlikely to lead to perfect solutions. However, this is such a case.

4. The parties have known each other since they were teenagers. The mother has been married previously. After that relationship ended, the mother had been working as a (occupation omitted) and the father as a (occupation omitted), they commenced a relationship. They began cohabitation in Queensland and relocated to Victoria in 2007.

5. Before the parties married in (omitted) 2007, the paternal grandfather was involved in a farm accident. After the parties married he died.

6. In 2008, after the child was born, the father commenced treatment for a major depressive disorder. In 2009 the father was admitted to a psychiatric ward at a regional private hospital.

7. The parties separated in July 2010. The mother and the child moved into other accommodation in (omitted) and the father remained in the former matrimonial home.

8. The father had been involved in another relationship which ended, and there continued to be issues between the parties over his mental health.

9. Whilst it would appear that following separation, and before these proceedings were commenced, the child spent time with the father by agreement, it was limited.

10. The mother commenced these proceedings in late 2011 and the father filed a response in February 2012.

11. Since then and sadly given the protracted nature of these proceedings, the palpable mistrust and hostility between the parents, and despite numerous court events and processes, the child’s time with the father has been disrupted, irregular, and she has not spent overnight time with him.

12. Regrettably there have been a number of adjournments of the hearing.[1] This necessitated the parties being recalled to give evidence. These adjournments were by consent and/or were due to, inter alia, the parties agreeing to vacate the hearing, the involvement of both parties in family violence proceedings in the Victorian State Courts and attempts (which were ultimately fruitless) to refinance debt with creditors to avoid bankruptcy. In turn those adjournments required further updated material and reports from experts. The other adjournment in November 2014 was to accommodate the inability of the parties to contain the evidence within the allocated time and to have the experts available for cross examination.

    [1] See for example orders of 8 May 2013, 22 July 2013, 30 August 2013, 18 March 2014 and 8 July 2014.

13. The proceedings also involved a dispute between the mother and father over division of property. In 2014 Counsel agreed the property part of the proceedings couldn’t continue because of impending bankruptcy or other proceedings against their clients. Both of the child’s parents are now bankrupt. At the end of the hearing in April 2015 directions were made for the filing of submissions on appropriate parenting orders for the child and the Court reserved its decision on that issue. For reasons to which I will return the dispute over division of property was adjourned to a date to be fixed.

14. These reasons seek to explain why in the Court’s view it is in the best interests of the child that the mother be permitted to relocate her residence to Queensland.

Agreed background

1. The conflict between the mother and the father since separation appears to have robbed them both of any sense of proportion. They have lived their lives overshadowed by this litigation for many years. The resultant ruinous financial consequences now leave them both bankrupt. The following agreed background facts provide necessary context to this dispute over parenting orders for the child:

   a)the mother resides with the child in premises owned by her brother in (omitted) and is not in employment. The mother does not receive child support and has wanted to relocate to Queensland with the child since 2011;

   b)the child has always lived with the mother and the issue of her continuing to do so is not in dispute;

   c)the father is a (occupation omitted) with (employer omitted) and has not worked since September 2014. After separation the father remained in the former matrimonial home in (omitted) and intends to continue to reside in (omitted);

   d)since separation the father has had little time (and no overnight time) with the child and believes the mother is responsible for this but he has not always chosen to spend what time was available with the child;

   e)after separation the mother obtained an intervention order (“IVO”) in her favour which named the father as the respondent. The mother has made a number of complaints to the Victoria Police about, inter alia, breaches of the IVO;

   f)the father was charged in 2013 with breach of the IVO, stalking and use of an offensive word. He subsequently pleaded guilty to breach of the IVO and use of an offensive word (“slut”). The father was ordered to pay $2,000.00 in fines and placed on a good behaviour bond for 12 months;

   g)before separation the father had access to a firearm and contemplated suicide. The father was admitted to a private psychiatric hospital and subsequently released. The mother has before, and after separation, raised numerous concerns about the father’s mental health;

   h)the father has seen and continues to see a psychiatrist, he told a psychiatrist that he has experienced suicidal thoughts and had an alcohol problem;

   i)the father has had numerous interruptions to active (employment omitted) duties due to periods of paid and unpaid leave and the certification and health requirements of his employer for such duties; and

   j)the father has and continues to oppose the mother’s application to relocate.

Approach to relocation dispute

1. The principles to be applied in relocation matters are well known and don’t need repeating (see Taylor & Barker [2007] FamCA 1246; Morgan & Miles [2007] FamCA 1230; Sealey & Archer [2008] FamCAFC 142; Starr & Duggan [2009] FamCAFC 115; Adams & Randall [2011] FamCAFC 204; Heaton & Heaton [2012] FamCAFC 139).

2. Relocation cases are not a separate category within the Act to be determined by their own principles and rules. As the Full Court said in Sayer & Radcliffe & Anor [2012] FamCAFC 209 at [47] and [48]:

   “It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders…the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.”

3. In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J said as follows at [31]:

   “A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.

   A relocation case falls to be determined like any other parenting case.”

4. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   “1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

1. Section 60CA of the Act provides that:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

2. Section 60CC of the Act sets out specific criteria that the Court must consider in determining what is in a child’s best interests.

3. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.

4. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. Section 61DA(2) of the Act provides in effect that the presumption does not apply as there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or another child member of the parent’s family or family violence.

6. Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

7. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. This is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child, or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

8. If parental responsibility for a child is allocated in some other way then the Court’s discretion is at large in the determination of the parenting orders, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

9. These principles have been examined in numerous authorities including the decision of the Full Court in Goode & Goode [2006] FLC 93-286 and the High Court in MRR v GR [2010] 240 CLR.

10. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 made changes to the Act. However, the amending legislation provided that, broadly speaking, the provisions of the Act as in force on 6 June 2012 continue to apply to proceedings under Part VII of the Act (such as these) pending on 6 June 2012 and continuing thereafter.

11. Finally, and relevantly in the context of a relocation dispute, in Macneil & Dane [2015] FamCA 424 it was noted:

    “29.In U v U[2002] HCA 36; (2002) 211 CLR 238 the High Court, by majority, distilled a number of important principles for application to cases in which the proposed relocation of a child’s residence would be liable to impinge upon the child’s relationship with the non-residential parent.

    30.First, the High Court confirmed (at 256-260) it is for the Court and not the parties to define the issues in parenting cases. Once the parties are unable to reach a compromise and the matter is litigated before the Court, the best interests of the child is the paramount consideration in the determination of appropriate parenting orders, irrespective of the competing proposals of the parties. The Court is not bound to select one of the polarised options submitted by the parties (at 284-285). The making of orders that do not reflect the orders devised by either party does not vitiate the judgment or orders (at 263), which is why procedural fairness justifies the parties’ interrogation about their alternate positions (at 246-248), though their primary proposals must be identified and evaluated (see Banks v Banks [2015] FamCAFC 36 at [25]- [26]).

    31.Secondly, the High Court noted (at 261) that the parent wishing to relocate with the child bears no onus of proving the existence of compelling reasons for the relocation. Nor does the parent who desires no change of residential location bear any onus of proving the existence of compelling reasons for that decision (see Malcolm v Monroe[2011] FamCAFC 16; (2011) FLC 93-460 at [83]). However, the parties’ reasons for their proposed relocation and immobility should be explored in evidence and appraised, which process will inform the inquiry about whether the relocation is a proper exercise of parental responsibility (see U v U at 285-286; Malcolm v Monroe at [81], [83]).

    32.Thirdly, the High Court stated it should not be assumed the non-residential parent cannot, or should not, contemplate moving so as to be nearer to the relocating residential parent and child. The reasons for maintenance of the place of residence of the non-residential parent should be explored at hearing just as the reasons for the proposed relocation of the residential parent are explored (at 285). The residential parent need not subordinate his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing (at 286).

    33.Fourthly, the High Court observed (at 262-263) that it is unlikely relocation disputes will admit of perfect solutions. Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ. Findings about the child’s short, mid, and long term interests permissibly fall within a wide range of discretion.”

Competing proposals

1. Appendix One to these reasons is the full text of the mother’s final proposal. In summary, the mother sought orders for sole parental responsibility, that she be permitted to relocate the child’s residence to Queensland and the father spend time with the child, initially supervised but moving to extended overnight time including each alternate week, during school holidays and other special occasions subject to certain restraints.

2. Appendix Two to these reasons is the full text of the father’s final proposal. In summary, the father sought an order for equal shared parental responsibility, the child to live with the wife and to spend time with him for extended overnights each alternate weekend, overnight time in the other week, in blocks during school holidays and on other special occasions.

3. Appendix Three to these reasons is the full text of the Independent Children’s Lawyer’s final proposal. The position of the Independent Children’s Lawyer was for the mother to have sole parental responsibility, for the child to live with the mother, and she be permitted to relocate the child’s residence to Queensland from the start of Term 4 in October 2015. Until that time the Independent Children’s Lawyer sought orders that initially provided for extended day time between the child and the father each weekend then increasing to extended overnights. On relocation the Independent Children’s Lawyer sought overnight time each month and extended time during school holidays, including in Victoria.

4. In relation to the issues of the parties’ competing proposals the Full Court in Sawant v Karanth [2014] FamCAFC 235 said:

   “8.    Orders that contemplate one parent and the child living in a place geographically remote from the other parent immediately bring the Objects and Principles of Part VII of Family Law Act 1975 (Cth) (“the Act”) into sharp focus. The Objects of the Part “are to ensure that the best interests of children are met by” them having, among other things, “the benefit of both of their parents having a meaningful involvement in their lives ...”. (s 60B(1)). The Principles underlying those Objects include the child’s right to “... spend time on a regular basis with ... both their parents ...” (s 60B(2)).

   9.Yet, neither that right vested in the child, nor those consequential roles of the child’s parents, is absolute; when parents are unable to agree upon co-parenting arrangements, that right and those roles is each qualified by the Court’s determination as to what orders best meet the particular child’s best interests. That is neither more nor less so when a proposed significant geographical separation renders acute those Objects and Principles and the Considerations which mandatorily dictate the manner in which the child’s best interests are determined. While “relocation case” is a convenient descriptor for cases of this type, no specific statutory principles govern cases which meet that description. (See, for example, M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J; Taylor v Barker [2007] Fam CA 1236; (2007) 37 Fam LR 461).

   10.The parties’ proposals are important because they mark each parent’s own assessment of the nature and extent of their role; that is, what each sees as their “meaningful involvement” in the life of their child consistent with the child’s best interests. For that reason alone those proposals must be carefully considered albeit that, because the court is charged independently with arriving at a decision as to the child’s best interests, it is not bound by those proposals (see U v U [2002] HCA 36; (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing).”

Evidence

1. The Court has had the opportunity to hear the mother and the father give oral evidence and be cross examined. Sadly, it seems to me that from separation the level of conflict between and criticism of each parent towards the other escalated and this is manifest in the affidavits filed. All the evidence contained in the affidavits on which the parties relied has been considered and taken into account in light of all the evidence before the Court, including the exhibits tendered during the course of the hearing and the parties written submissions.[2]

   [2] See affidavits referred to in the mother’s, father’s and Independent Children’s Lawyers Outlines of Case. See also exhibits A1-A8; R1-R8 and ICL1- ICL6 and mother’s, father’s and Independent Children’s Lawyers written submissions filed on 9 June 2015, 25 May 2015 and 1 May 2015 respectively.

2. Both the mother and the father filed submissions which purported to address “the evidence” of the parties.

3. The mother’s submissions on this were:

   “6. CROSS EXAMINATION OF THE WIFE

   39.    The wife was cross-examined on a number of issues.

   40.In relation to the wife’s allegations of domestic violence these are set out more particularly in the wife’s affidavit filed 26^th April 2013 at paragraphs 10, 12, 14, 15, 23, and 25.

   41.The wife’s version of events contradicts the husband’s and it is submitted that the wife’s version be preferred.

   42.The wife’s version of events should be read in context with the concessions made by the Husband to Dr D and referred to in Dr D’s report.[3]

   [3] See Dr D’s report supra.

   43.The wife’s version needs to be also read in context with the husband’s affidavit filed 26^th April 2013 and in particular paragraphs 90, 93, 95, 96, 98 and 101.

   44.Careful reading of the husband’s affidavit suggests that the husband has a precise recollection of what (if he is to be believed) are otherwise unmemorable and innocuous events.

   45.The husband could offer no explanation as to why the wife would fabricate these events.

   46.Dr D assessed the wife on the 16^th December 2013 and 13^th January 2014 and in his report dated the 15^th March 2014[4] Dr D said at page 8 paragraph 12 that he “did not have any specific recommendations in regards to Ms. Kellett’s mental health and parenting capacity”.

   [4] Such report being annexed to the affidavit of Dr D filed 11^th November 2014.

   47.The wife was cross-examined about her inability to allow the husband to spend time and communicate with X. Such cross examination must be read in light of the husband’s sworn evidence deposed to in an affidavit filed on the 10^th November 2014 that said:

   “X did not spend time with me from the 23^rd February 2014 to the 18^th June 2014…. I agree it was my choice but only to the extent that I did not want to jeopardise my future and longstanding time with X due to concerns of the wife making false allegations against me, and I certainly did not want to be in custody”. [5]

   [5] See paragraph 13 of the affidavit of the husband filed 10^th November 2014.

   48.It is submitted that in the context of this case when the husband accuses the wife of disrupting the time spent between X and the father such evidence is extraordinary. It should also be recalled that the husband’s refused to see X at (omitted).[6]

   [6] See paragraph 40 of the husband’s affidavit sworn 24^th April 2013 and filed 26^th April 2013.

   49.The wife was cross-examined on a limited basis about her capacity to find work in (omitted). This cross examination is in the context of the husband earning between $130,000 and $160,000 per annum yet not paying the mortgage on the home or providing financial support for the wife.

   50.The cross examination of the mother on financial matters occurred at a time when the husband (unbeknownst to his counsel) was not working and had no definitive plan to return to work, was facing bankruptcy and was not paying child support.

   51.The wife was not cross-examined about her capacity to work in Queensland or the financial and emotional resources available to her in Queensland.

   …

   59.The husband has been dishonest to the wife about his employment, his employment status and roster and his mental health issues (such to be referred to in detail later).

   …

   96.Both Dr O and Dr D conceded in their evidence that their respective reports are based on the history relayed by the husband and the level of associated honesty.

   97.In this regard the reports of both psychiatrists should be read accordingly.

   E. THE HUSBAND’S EMPLOYMENT AND HONESTY

   98.    The husband swore an affidavit on the 9^th November 2014.

   99.At the time of swearing the affidavit and the giving of oral evidence the husband was not working and not receiving an income. At no stage did the husband indicate to the court that he had not been (employment omitted) since he was stood down in September 2014.

   100.The husband  mislead the court directly when providing a pay slip as annexed to his affidavit dated the 10^th November 2014 (annexure K6) which was incomplete and deceptive.

   101.The husband maintained his application that he would provide the wife with a roster as to his work commitments but did not advise the wife or the court that he did not have an effective roster, as he was not in employment.

   102.The husband made reference in his oral evidence to his work commitments and roster without advising the court that he did not have a roster.

   103.The husband did not tell the court that he would not be paying child support.

   104.The husband did not tell the court when and if he would be employed as a (occupation omitted) again.

   105.The façade regarding the husband’s employment and roster continued (see annexures 20-23 of the wife’s affidavit filed 30^th March 2015).

   106.In July 2012 the husband wrote an email to his employer saying inter alia that he was unable to work, as X was unwell and that the Wife was bedridden.[7]

   [7] See exhibit A6

   107.The husband adopted exhibit A6 and conceded that in fact he had made a statutory declaration perpetuating his lie, commenting, “it is a legal document and states clearly the reason for my absence from work”.

   108.The husband could not offer an explanation as to why he lied or why he was not at work.

   109.On the 2^nd September 2012 the husband sent a further email to his employer. On this occasion the husband made reference to X being unwell and said that he needed time off work such “to enable my ex wife to attend to her work commitments and exams I have been the only option for my daughter’s care as we no (sic) family near by”.

   110.The husband gave no reason for these lies and no explanation as to why he needed time off work.

   111.The explanation or lack thereof for such strange behavior was bizarre.

   112.The husband contacted his employer on the 19^th July 2102 seeking time off work suggesting that someone was calling him and that when he answered the phone there was heavy breathing and laughing for about 10 seconds. He said in his evidence that this continued every 10 minutes into the evening and recommenced at 6.47 am the next morning.

   113.The husband said that he would speak to the police but did not give evidence that he did this.

   114.The husband suggested it was some unknown person from the “(employer omitted) team” in Sydney.

   115.The court is invited to determine this incident and the explanation as bizarre and without a satisfactory or plausible explanation.

   116.The entire evidence from the husband in regard to the emails to his employer lack credibility and explanation.

   117.It is submitted that the Court should be left in some doubt as to the husband’s emotional and mental state.

   118.The evidence was not forthcoming from the husband. He did not swear to this material despite filing numerous affidavits and nor did he give evidence in chief about this when the opportunity was given to him on the 13th April 2015. The material was drawn from subpoenaed material and cross-examination.

   119.Apart from being a matter of concern for the Court the Court should infer that these are matters of concern for the wife. In a case where both parties raise issues of trust and the wife raises issues of the husband’s honesty and mental health this evidence is compelling.

   120.The husband swore an affidavit on the 9th November 2014 and did not depose to his being stood down from his employment.

   121.On the 15^th March 2015 the husband gave an explanation as to an incident in (country omitted).[8]

   122.Apart from the husband not wishing to name “M” the husband’s scenario was implausible and not corroborated. The Court is referred particularly to paragraph 26 of the said affidavit.

   123.The Court is also referred to paragraph 30 of that affidavit that is purported to relate to why the husband hasn’t sat another simulator test.

   124.These matters were put to Dr D and Ms. D. Neither could comment although the Court will recall that Ms. D was quite plussed about these matters.

   125.The husband’s entire evidence about his employment history and status is peculiar and incredible.

   126.The Court is invited to consider this evidence in light of the husband’s history of mental illness and dishonesty.

   127.The husband’s evidence in November 2014 about his employment is a lie, the husband conceded that he lied to his employer and was prepared to prepare a statutory declaration as to same. The husband conceded he lied to his employer. The husband lied in the witness box about a letter from his solicitor[9].

   128.The husband lied about his current work status is reflected in the letter sent by his solicitor to the Independent Children’s lawyer on the 19^th December 2014.[10]The Court is urged to read this annexure.

   129.The husband’s dishonesty is perpetuated with an incredible explanation to the roster and breaks in the roster. The husband made it quite clear that he would not provide a roster as it was being used by the wife as a means to check up on the husband. The reality was that there wasn’t a realistic roster in existence.  The husband used his lie to criticize the wife.

   130.It is not suggested that the husband’s solicitor knew the truth of the husband’s position; indeed the opposite is suggested.

   [8] Paragraphs 14-27.

   [9] See exhibit A8

   [10] See annexure K 21 to the wife’s affidavit filed 30^th March 2015.

   131.It is submitted that the Court must conclude that the husband is a liar.

   132.In light of this the wife’s evidence on all issues should be preferred to the husband.”

1. The father’s submissions were: 

   “15. The evidence of the parties. The Mother has demonstrated a clear desire to frustrate X’s relationship with her father.  The Mother has given inconsistent and unreliable evidence to further her cause on many issues as follows:

   - at the time of the filing of her Initiating Application, the Mother sought orders contrary to what she was prepared to offer.  In particular, she sought to exclude the Father from attending extra-curricular activities (transcript 7/5/2013; pp21-25) and from being involved in X’s enrolment at school, and her first day at school (pp29-30);

   -   her evidence regarding being struck on the head with a beer bottle was not recorded in the police notes (indeed recorded as ‘nil concerns for welfare and safety of all parties’), or ever put to the Father as having occurred (transcript 7/5/13; pp 39-42);

   - her evidence regarding her teeth being damaged by a blow struck by the Father was not reported to police.  This was despite her evidence that the Father’s psychiatrist had told her to report incidents to police, and the allegation was never put to the Father.  No doctor or dentist was visited by her for some time, there was no bruising, and her story about calling Ms G instead of the police was simply unbelievable (transcript 7/5/2013; p 44);

   - her evidence relating to the failure to provide time when Ms G was a supervisor was unbelievable and strongly representative of her efforts to frustrate X’s relationship with her father (transcript 7/5/2013; pp 32-38)

   - the Mother’s repeated suspensions of time on any occasion she was of the view that the Father was not (employment omitted), indeed often in the face of clear psychiatric evidence as to good mental health;

   - her evidence relating to the Father having made threats to kill her which were withdrawn by the police and not put to the Father in this hearing.  The Mother’s evidence as to these incidents was wholly unbelievable.  She did not report the first alleged threat (outside the child’s school) to police or anyone else until after the second incident.  In relation to the second incident, her failure to report the incident for many hours, in light of her asserted fear and the Father’s ownership of firearms, simply cannot be believed.  It must be remembered that the Mother gave earlier evidence in these proceedings that she had been advised to contact police immediately if she was worried about her safety. 

   - The Father admits to having called the Mother a ‘slut’.  Although incredibly distasteful, this falls well short of the allegations the Mother made and pursued at trial, namely that the Father made threats to kill her on two occasions.  It is not believable that the Father made threats to kill the Mother on two occasions (or at all) in circumstances where the Mother failed to contact police immediately notwithstanding the advice she had previously received.  It is more likely, and indeed believable, that the Father called the Mother a ‘slut’, and the Mother contacted police some hours later and grossly exaggerated her interaction with the Father in an effort to bolster her position in this case.

   - the Mother complains about the SMS’s (multiple) the Father sent her, forming a breach of an Intervention Order.  Those SMS’s are before this Court, and could only be regarded as banal.  They are barely any more than requests to see X in a context where existing Parenting Orders required SMS communication in relation to the Father’s time with X.

   - the Mother’s refusal to allow the Father to collect X from school and instead insists on her own presence at changeover at the library, notwithstanding the extant Orders and her stated fear of the Father;

   - the Mother’s recent unilateral suspension of time (between the last 2 hearings of this matter this year and ongoing) is/was ostensibly said to relate to her concerns as to the Father’s mental stability.  It ought be noted that the Mother made no effort whatsoever to inspect subpoenaed documents from the Father’s work, her suspension of time being said to be contingent upon reviewing those files.  This clearly demonstrates a recent opportunistic approach to suspending time.”

2. Difficulties with the father’s credit arose from his admissions that he had lied to obtain carers leave from his employer, and what I am satisfied, were deliberate omissions in providing full details to all the experts in these proceedings.

3. It should be remembered that a consistent complaint by the mother was that she could not trust what the father was saying and she claimed this fuelled her inability to consistently facilitate time between the child and the father due to her concerns about his mental health.

4. Whilst I have difficulties accepting some of the things the mother said, overall it seemed to me that most of the time the mother was more accurately remembering what happened than the father.

5. There were a number of problems with the father’s evidence which causes me to doubt the veracity of his claims where they are in conflict with what the mother said. The father misrepresented his employment situation by omission repeatedly. The father swore an affidavit in November 2014 without telling the Court he was not working, and hadn’t been (employment omitted) since September 2014.

6. The father was forced to admit in cross examination he had told a lie or “gilded the lily” when applying for leave from his employer. His explanation that otherwise he wouldn’t have got leave left a lot to be desired. His employer had in the past challenged his account for his absence which he had taken exception to when he had in effect lied.

7. Moreover, the father maintained he had told Ms D (the latest family report writer) he had been requesting time with the child but had said in his affidavit he had not spent time by his own choice.

8. The father denied receiving correspondence from his solicitor, and then when confronted with evidence that he had knowledge of it, he belatedly acknowledged he had received it.

9. Whilst the mother’s evidence at times could be described as emotional, and her ongoing complaints of the father was to a degree emotional, the corroboration of those complaints, by at least in part, the father’s lack of candour, and at times what appeared to be deliberate obfuscation, leads to the conclusion that I should not accept his evidence unless otherwise corroborated by documentary evidence.

The mother

1. The mother said in cross examination the father likes to belittle her, and he likes to be in control.

2. The mother said in cross examination the child loves the father and she needs to have a relationship with him.

3. The mother repeatedly said time between the child and the father was not consolidated enough.

4. The mother said in cross examination time in Queensland would be easier.

5. The mother said her heart was in Queensland.

6. When recalled in 2015 the mother’s evidence was that she didn’t believe the child was safe with the father as he blatantly lies and she didn’t trust him.

7. The mother’s evidence was that the father had done everything in his power to break her.

8. The mother said she believed the father could relocate to Queensland.

The father

1. The father agreed in cross examination that if the mother was happy the child would be happy.

2. The father agreed, given his history, the mother was concerned about his mental health.

3. The father agreed the mother had wanted to go to Queensland since 2011 and that he did not seek residence.

4. The father agreed the mother didn’t like living in (omitted). He agreed she didn’t have a job and that she gives the impression she is isolated. He also agreed she is close to her parents who live in Queensland, and would be upset if she had to stay in (omitted).

5. The father acknowledged all of this and yet maintained the mother needed to keep the child’s residence in (omitted) or its environs.

6. The father refused to contemplate moving to Queensland in answer to questions in cross examination.

7. The father claimed the mother lied about the claims she made which led to proceedings against him for breach of the IVO.

8. The father agreed that the allegations the mother made since separation regarding his mental health had lead to a very dysfunctional situation.

9. The father claimed that he was restricted in his ability to relocate by his job, however he acknowledged that he hadn’t applied for a transfer nor applied for a transfer on compassionate grounds.

10. Despite agreeing that since separation things hadn’t worked, the father’s evidence was he was petrified if the child’s residence was changed that would be the end of his relationship with her.

11. The father’s evidence was that since separation he had been restricted from seeing his daughter.

12. The father claimed the mother’s exaggerated claims about his mental health was the main reason he was kept away from his daughter.

13. However, in cross examination the father was forced to acknowledge the mother’s concerns about his hospitalisation in 2009, his suicide letter in 2010, his problems with alcohol and mental health, and his behaviour which resulted in the IVO and the breaches in the IVO.

14. The father also acknowledged sending the inappropriate text messages to both the mother and her solicitors. The father admitted it was possible that he referred to the mother’s solicitor as “a walrus with balls”.

15. The father also acknowledged that it was inappropriate to send a text message to the mother’s solicitor saying that he may be the (employment omitted).

16. When recalled the father’s evidence was he believed that he had been harassed throughout the proceedings about his mental health.

17. The father’s evidence was that he had been on Zoloft 200mg/day since 2009.

18. The father agreed that he hadn’t told the Court in November 2014 he had been off work since September 2014.

Father’s treating psychiatrist

1. Dr O, the father’s treating psychiatrist, gave evidence and was cross examined. Dr O most recent report on the father dated 18 February 2015 was:

   “…Would you kindly confirm the diagnosis.

   Major Depressive Disorder, currently in remission…

   The prognosis is good. This is based on the sustained remission of his symptoms since 2011, although most of his symptoms had disappeared by 2009. It should be said that he has remained in remission despite significant stressors including protracted family court proceedings for several years…”

2. Noting that he relied on the self reporting of his patients, Dr O’s evidence was if it was true the father had an extensive history of deception, he would have to re-evaluate his diagnosis and re-evaluate the risks he might pose.

3. In his evidence before the Court Dr O confirmed he had not seen the file from the father’s previous psychiatrist. Dr O’s evidence was he had seen the father on 8 occasions since March 2013.

4. The report from Dr O referred to above had been requested by (omitted) Medical Services in January 2015 as part of an occupational medical assessment. That request included the following:

   “…The basis of this assessment was a failed (employment omitted) in September, following which Mr Kellett has not returned to work.

   …

   Mr Kellett is awaiting further HR review and investigation of his situation, and plans to delay his return to work…”

   Despite his significant historical life stressors and recent work stress, Mr Kellett appears to be well…His current absence from work seems to be elective and based on unsatisfactory work process, rather than illness.

   Prior to completing my recommendation for Mr Kellett’s manager regarding his work fitness, I would greatly appreciate your assessment and opinion of Mr Kellett’s current status…”

Independent psychiatrist

1. Dr D, a consultant psychologist, prepared two reports on the father (one in June 2012 and another in July 2013). Dr D also prepared a report on the mother (in March 2014).

2. In his first report on the father Dr D’s opinion was:

   “OPINION AND RECOMMENDATIONS

   Mr Kellett is a 33 year-old man raised in a particularly unloving and unforgiving family environment. His parents lacked affection and restricted his development. They place unreasonable and unrelenting demands on him. He was expected to commit to working on the family farm, and prioritise this above any independent plans to seek a relationship and alternative vocation. Mr Kellett formed a particularly ambivalent relationship with his father, and to a similar degree with his mother. Thus background is relevant in relation to understanding Mr Kellett’s complex grief reaction following his father’s death in 2007. Mr Kellett also experienced considerable stress in the relationship with Ms Kellett as his parents never accepted her as his partner.

   …

   Mr Kellett has a clear history of depression, emerging in the context of family and relationship stress, and compounded by the death of his father. Mr Kellett did not initially recognise that he was experiencing a depressive illness.

   …

   Mr Kellett presented well in the assessment, and based on this presentation he should be regarded as having a mental state that would not compromise his parenting capacity. His depressive illness has resolved and he continues to engage in treatment. It is likely that he will remain stable and well.”

3. In his second report on the father Dr D said:

   “Mr Kellett’s presentation is consistent with his previous assessment. He reported that his mental health had been stable and well since he was assessed in 2011. He has remained under treatment for depression with a psychiatrist…

   Based on Mr Kellett’s history and current mental state, I can not identify any foundation for concerns relating to Mr Kellett presenting a risk to either X or his ex-wife. I can also not identify any basis for concerns relating to his parenting capacity.”

4. Having examined the mother in 2014, Dr D’s opinion on her was:

   “1. Ms Kellett is a 39 year-old woman. Ms Kellett’s developmental history is unremarkable. She appears to have been mentally stable and well through her life. She presented as a pleasant and placidly mannered woman in this assessment. She sustained a stable mental state through the assessment, although she was mildly anxious in demeanour and she became episodically teary on a few occasions when reflecting on difficulties she experienced with Mr Kellett…

   11. If Mr Kellett is found guilty of behaviour as alleged by Ms Kellett in July 2013, he might require further psychiatric evaluation.

   12. I do not have any specific recommendations in regards to Ms Kellett’s mental health and parenting capacity…”

5. Dr D was called to give evidence and was cross examined. In answer to questions in cross examination from Counsel for the Independent Children’s Lawyer as to whether his opinion of the father was affected by the father’s guilty plea over breaches of the IVO, concerns about the veracity of the father’s statements, and claims on presentation to the independent experts in this case, his evidence was:

   “MS SEVDALIS: With respect to Mr Kellett pleading to using insulting words in breaches of an intervention order by sending texts and you’ve been provided with copies of those texts?

   DR D:      Yes.

   MS SEVDALIS:     How does that evidence… affect your evaluation – or does it affect your evaluation – of Mr Kellett?

   DR D: Well, it could. I haven’t had an opportunity, obviously, to talk to Mr Kellett about the findings in regards to those two matters. When I met with Mr Kellett …he refuted any wrongdoing very broadly, that there had been no incident that reflected badly upon him and he didn’t engage in any behaviour that would have raised concerns…If he has been found guilty of a breach of the intervention order based on that text exchange which I’ve read and, secondly, if he has used some abusive language, then it does raise some concerns that he hasn’t been candid with me in regards to these matters.  And I’m not sure whether I can draw any conclusions as to why he may not have been candid with me but it does have a – leave a question mark in my mind as to why that may have been.

   MS SEVDALIS:     You’ve also been provided with some information with respect to some records from Mr Kellett’s employer relating to some incidents in 2012?...Do any of those incidents concern you at all at this point?

   DR D: I’m assuming that the inference is that that wasn’t a candid explanation as well.  That that wasn’t a reflection of what was happening at the time and he had other reasons for not attending work.  And, if that’s the case, then I guess it’s another example of him not being honest… But, I guess, collectively, there’s a few examples where he may be considered dishonest in this regard.

   MS SEVDALIS:     Do you have any concerns with respect to his reporting of any symptoms or any discussions with you?

   DR D: …And I guess the question is:  does that relate to depression or is it something quite exclusive of that, more relating to his personality or the circumstances that he found himself in.  In regards to the breach of the intervention order – and I’ve read the text message exchange there – it seems mostly that has been – you know – a chain of exchange communication… He denied that he engaged in any abusive behaviour on that particular day in 2013 – in July.  If he has been found guilty of saying something – and I don’t know the details of that – then, I guess, if it is that he has pleaded guilty or been found guilty of using some form of abusive language, it does – I guess – support Ms Kellett’s account that, on occasions, at least, he has exhibited that form of abusive language.  My sort of interpretation is that sort of abusive – verbal abusive behaviour, it doesn’t correlate, necessarily, with his depression still being active.  I would suggest it more correlates with the prolongation of the stresses relating to – I mean, his frustrations with Ms Kellett and the lack of contact he’s having and, on occasions when his frustrations have boiled over and he has ventured into using inappropriate language.

   MS SEVDALIS:     Does any of that change your assessment of Mr Kellett being psychiatrically stable and capable of safely parenting X?

   DR D: when I’ve met Mr Kellett on two occasions, if I was to just look at him cross-sectionally – and I think that has been detailed in the mental state assessments – and it has also been corroborated, I think, in all the family reports – that his presentation when he has been met by professionals has been – you know – in most respects unremarkable…. I guess it’s one of these cases, I think, where my – as best as I can glean from everything – that he, whilst in the company of X, can conduct himself appropriately and he doesn’t display any of the features that have been seen by Ms Kellett when they are face to face and their – well, his frustrations with her are sort of – are exposed.  The question may be is whether elements of that may manifest with X alone.  He’s not frustrated with X, he’s frustrated with Ms Kellett and I suspect that Mr Kellett would have the capacity to contain himself adequately when he’s in the company of X.”

6. In answer to questions in cross examination by Counsel for the mother, Dr D acknowledged the limitations of his reports and resultant opinion but said in relation to the issues about the father’s honesty:

   “MR HAULT: And you’re here to give evidence, with all due respect, on that limited issue of the psychiatric health of the husband as you saw him at its latest in August 2013?  

   DR D: Yes.

   MR HAULT: …you must get very annoyed when you get asked from time to time, well, what do you reckon, Doctor, do you reckon the father should be having time with the child or the mother should be having time with the child.  It’s not really your brief, is it?

   DR D: No

   MR HAULT: …you’re almost not even up to speed with what’s actually happening in the proceedings. Agree with that?

   DR D: Certainly, on occasions, that would be absolutely the case. I mean, in this case, I haven’t seen either of the parties for a couple of years so I’m not aware of a lot of what perhaps has transpired since.

   MR HAULT: Now, Dr D, what I wanted to ask you about was this: some of the obvious limitations of your report are these: one is your most recent report is almost two years old. That’s the first problem. You agree with that?

   DR D: Well, it’s certainly a long time ago. Yes, if that’s concerning.

   MR HAULT:I mean, you can’t possibly give evidence on Mr Kellett’s state of health psychiatrically, psychological or otherwise as it is now?

   DR D: No … I can’t comment on… how he has been since July 2013 really.

   MR HAULT:   And, of course, the other limitation on your report – and is always a problem – that you very much rely on what people happen to tell you.  You have to certainly, to some extent, believe what they say.  Agree?  

   DR D: Look, that goes without saying. I mean, yes, you take on face value. Sometimes, you have suspicions about the authenticity of things that are told to you, but you keep an open mind.

   MR HAULT: Mr Kellett has over time fundamentally lied about basic things, not only to his employer but to his wife and more importantly to the judge.  Things about whether he’s working or not working;  whether he’s (employment omitted) at the moment when he’s not really (employment omitted) at the moment;  lying to his employer about why he’s not at work on one particular day or the other;  looking the judge in the face and saying I never got a letter on the 9th of January but then saying 10 minutes later, oh, that’s right, I did and …there are some serious issues of consistent lying by Mr Kellett to the court and to my client, these are matters that he really should discuss with Dr O, I take it?

   DR D: Well, certainly. I mean, if there’s a pattern of deception and even self-deception – I suppose, at times as well, he’s sort of convincing himself that he’s not lying – then that is a worrying feature of his personality structure.  I don’t know whether this is something that’s only sort of manifest in the context of the complicated circumstances he has found himself in that he’s sort of finding himself in situations that he has to sort of try and weed around and provide false explanations for rather than it necessarily being a trait that he has had all through his life, but I think Mr Kellett’s life experience in the last few years has probably been particularly difficult for him but not that that’s a – that doesn’t condone him or give an explanation for why, but it might be contextually important to understand as to why he has found himself in situations where he’s sort of chasing his tail and making things up, but it is a worrying feature if he’s not actually able to acknowledge this and also if he has demonstrated those traits with many different people, including myself.

   MR HAULT: Doctor, …you saw Ms Kellett and she, of course, has unqualified but nonetheless firsthand experience of Mr Kellett’s historical issues …she might be a little bit more sensitive, if you like, to most issues of Mr Kellett’s behaviour, whether it be outbursts of anger or calling her a slut in the street or lying.  She’s going to be a lot more sensitive than other persons?

   DR D:Well, absolutely. I mean, it would go without saying that she would be far more affected by his behaviour than someone who hasn’t had a relationship with him. Ms Kellett has described a rather complicated and stressful history with Mr Kellett particularly over the last few years of their marriage and problems thereafter …she seems to be someone who has an anxious disposition although …in some ways hyper-vigilant and sensitive to the possibility that Mr Kellett might continue to demonstrate the behaviours that only she has largely been exposed to.”

19.That all applications relating to a division of property be are hereby dismissed.

20.Pursuant to s 65DA(2) & 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

APPENDIX THREE

A.FINAL ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER:

1. All prior parenting orders be and are hereby discharged.

2. The Wife have sole parental responsibility of X (“X”) born (omitted) 2008 subject to Wife advising the Husband of any proposed change of school for X and any serious medical or hospital procedure which X may undergo.

3. X live with the Wife.

4. The Wife be at liberty to relocate X’s residence to Queensland from 1 October 2015 (it is noted that term 4 of state primary schools in Queensland commences on 6.10.2015 and in Victoria on 5.10.2015).

5. X spend time and communicate with the Husband as follows:
   (a) At all times regardless of location of X’s residence:
   (i) By Telephone and or Skype each Monday, Wednesday and Saturday between 5.30pm and 7.00pm with the Husband to initiate the communication and the Wife to facilitate X’s participation.
   (b) Whilst X resides in Victoria:
   (i) to commence immediately, each alternate Saturday from 10am to 6pm and each Sunday from 10am to 6pm and to conclude at the commencement of term 3 of school being 13.7.2015.
   (ii) Thereafter each Wednesday from conclusion of school until the commencement of school on Thursday and one weekend per month to be on days and times to be agreed but in default of agreement the last Friday of the month from the conclusion of school until 4.00pm Sunday;
   (iii) for three consecutive nights in the term three school holidays in 2015 in line with the Husband’s roster and in default of agreement the first Tuesday of the holiday period from 12 noon until Thursday 12 noon.
   (iv) at all other times as agreed between the parents in writing including text.
   (v) For the purpose of changeover, save as provided for in these orders at school wherein the Husband is to collect and return X to school, changeover is to occur at the (omitted) Library.
   (c) Upon X’s residence being relocated to Queensland:
   (i) One weekend per month to be on days and times to be agreed but in default of agreement the last Friday of the month from the conclusion of school until 4.00pm Sunday;
   (ii) Commencing 2015 long summer school holidays for three consecutive nights in line with the Husband’s roster and in default of agreement the first Tuesday of the holiday period from 12 noon until the following Friday at 12 noon.
   (iii) Commencing 2016 long vacation for two occasions for a seven night period of the long vacation by agreement and in default of agreement the first and fifth week of the Queensland School Holidays from Saturday 12 noon to the following Saturday 12 noon
   (iv) Commencing first term of the Queensland holidays in 2016 half of all holidays.
   (v) For a period of four hours on 25 December and 2 January by agreement and in default of agreement from 2pm to 6pm;
   (vi) Such other and further times as agreed between the parents in writing including SMS TEXT message;
   (vii) For the purpose of changeover, the Husband shall collect and return X to her school when applicable otherwise the parents are to meet at the local library closest to the Wife’s residence.
   (viii) From 1 January 2017 the time in paragraph 5 (c)(i) is to be suspended during school holiday periods.
   (ix) the Husband gives the Wife no less than four weeks’ notice of his intention to spend time with X in either (omitted) or Melbourne.

6. Further to time pursuant to 5(c) herein:
   (a) the Husband gives the Wife no less than four weeks’ notice of his intention to spend time with X in either (omitted) or Melbourne.
   (b) the Husband be at liberty to exercise time spent with X in Victoria subject to the provision of the following details:

1. the Husband provide the Wife with copies of return airline tickets for X no later than fourteen days prior to the departure date

(ii)the Husband provide the Wife with details about where X will be staying in Victoria together with a contact telephone number and provide regular telephone contact with X.

(c) For the purpose of facilitating any trips by the Husband and X to Victoria, the Wife deliver X to the Husband at the (omitted) Airport at such reasonable time as may be nominated by the Husband.
(d) the Husband and Wife share equally the total costs associated with return flights between the (omitted) and Melbourne for X on 4 occasions per year commencing 2016 provided the Husband provides no less than four weeks’ notice of the prospective holiday time with X.
(e) For the purpose of facilitating the time spent by X with the Husband X shall fly unaccompanied and upon such airlines as may be nominated by the parent funding the flights at any particular time.

1. In the event that the Wife fails to deliver X pursuant to paragraph 6, the Wife shall reimburse the Husband any of his costs wasted or thrown away.

2. In the event that the Wife cancels any scheduled holiday visit with X at a time when the Husband is otherwise scheduled to fly with X to another destination, the Wife will reimburse him any costs wasted or thrown away.

3. Should the parents be unable to agree to the costs wasted or thrown away the subject of paragraphs 8 and 9 hereof, such costs are to be based on the current rate for full price economy class airfares for the Husband and/or X.

10. Upon the Wife’s relocation to the (omitted) with X, the Wife ensure that she has a skype/webcam and email facility set up within 7 days of X taking up residence with the parents to bear their own costs associated with setting up and maintaining skype/webcam/email facilities.

11. Both parents are restrained from criticising the other in the presence or hearing of X and must not allow anyone else to do so.

12. The Husband shall attend upon Dr O for regular reviews of his condition as directed by Dr O.

13. The Husband is to sign an irrevocable authority permitting Dr O to notify the Husband’s General Practitioner and the Wife should the Husband be non-compliant with treatment recommendations or attendance requirements without reasonable excuse. 

14. X is to continue to attend (omitted) Primary School until the conclusion of Term 3 of the 2015 school year.

15. This Order be an authority to any educational institution X may attend from time to time to provide directly to the Husband at his expense information about X including but not limited to reports, attendances and school photos.

16. Within 48 hours of the relocation the Wife notify the Husband in writing of her residential address and telephone numbers in Queensland or within 7 days of the final Orders which ever event occurs first.

17. The Wife within seven days of any final Orders is to nominate the local primary school which X will attend and notify the Husband of the nomination.

18. Within fourteen days of Final Orders the Wife is to provide proof of X’s enrolment at the nominated primary school as well as proof that the Husband is listed as an emergency contact with that school and any subsequent school X attends.

19. Both the Husband and Wife shall ensure that the other is updated with any change in their residential address or mobile contact number within 48 hours of that change.

20. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these order.