Keymer & Keymer (No 2)
[2023] FedCFamC1F 485
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keymer & Keymer (No 2) [2023] FedCFamC1F 485
File number(s): BRC 976 of 2019 Judgment of: GILL J Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – PARENTING – Family violence by the mother against the father – Emotional abuse by the mother – Unreliable allegations by the mother against the father – Manipulation of the child to further conflict between the parties – Consideration of the risk of mother spending time with the child balanced with the benefit of a meaningful relationship – Order for recognition time with the mother – Injunction heavily restraining mother’s communication with child – Time spent with mother to be determined by taking into account child’s wishes after a certain age Legislation: Family Law Act 1975 (Cth) - ss 60B, 60CA, 60CC, 65DAA, 69ZW, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - r 10.6
Cases cited: Eastley & Eastley [2022] FedCFamC1A 101
Isles & Nelissen [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
M v M (1988) 166 CLR 69
Malburon v Waldlow [2013] FamCAFC 191
Marsden & Winch (No 3) [2007] FamCA 1364
Phillips & Hansford (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 129 Date of hearing: 5-8 June 2023 Place: Canberra Solicitor for the Applicant: Litigant in Person Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: KPW Lawyers Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid, ACT ORDERS
BRC 976 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KEYMER
Applicant
AND: MR KEYMER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS:
1.That all previous parenting orders be discharged.
Parental Responsibility
2.That the respondent father (‘the father’) have sole parental responsibility for the child X, born 2011 (‘the child’).
3.That the father have sole parental responsibility for the purpose of applying for a passport to be issued for the child from the Department of Foreign Affairs and Trade of the Commonwealth of Australia pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 or renewing a passport for the child, without the consent of the mother, and has leave pursuant to section 65Y(2)(b) of the Family Law Act 1975 to take the child outside of the Commonwealth of Australia or permit the child to travel outside of the Commonwealth of Australia.
Lives with/spends time with
4.That the child live with the father.
5.That, until the child reaches the age of 15 years, the child spend time with the mother as follows:
(a)On one (1) occasion every three (3) months for no less than 4 hours on the following basis:
(i)The time to be professionally supervised by an agreed professional supervisor or, failing agreement, to occur at the D Contact Centre in City A;
(ii)The costs of the supervision to be shared equally between the parents; and
(iii)The first occasion will occur on Saturday 9 December 2023, and following this on the second Saturday of the third month after the month in which the previous visit took place, unless otherwise agreed in writing between the parents and the supervision service.
(b)If the mother fails to attend for two occasions in a row, time spent with the mother pursuant to order 5 shall be suspended unless otherwise agreed by the parents in writing.
6.That, upon the child reaching the age of 15 years, order 5 above is discharged and the child may spend time with the mother as agreed in writing by the parents taking into account any views expressed by X.
Communication
7.That the parents shall communicate with each other about issues relating to the child via email unless it is an emergency when the communication shall be via SMS or phone call.
8.That the father shall, within 21 days of these orders being made, provide the mother with an address (such as a PO Box) to which the mother can send the child gifts and cards.
9.That other than as set out in Orders 5 and 8 above, the mother shall have no communication with the child and for the purposes of this order the mother is restrained by injunction from:
(a)communicating or attempting to communicate with the child in any manner including via social media or electronic means; and
(b)causing a third party to communicate or attempt to communicate with the child on her behalf by any means.
10.That each parent shall advise the other of any change to their email address, the nominated address for the sending or gifts and cards or mobile phone number within 24 hours of such change and in writing.
11.That each parent shall notify the other as soon as practicable of any medical emergency involving the child.
Restraints
12.That each parent is hereby restrained from:
(a)denigrating the other parent or members of their family to or in the presence of the child or allowing anyone else to do so;
(b)passing messages to the other parent through the child; and
(c)discussing these proceedings with the child or in her presence or allowing anyone else to do so, except to explain the arrangements.
13.That the mother is restrained by injunction from removing the child:
(a)from the care of the father without his written consent or pursuant to these orders;
(b)from any third party engaged by the father to care for the child; and
(c)from any school or extra-curricular activity in which the child is enrolled or engaged.
14.That the mother is restrained by injunction from approaching within 200 metres of the father or the child unless it is in accordance with these orders or by written agreement between the parents.
Miscellaneous
15.That all extant parenting applications are dismissed.
16.The property proceedings are listed for directions a before Senior Judicial Registrar on 21 July 2023 at 10am and the mother is at liberty to appear by video link.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
INTRODUCTION
These proceedings concern the parenting arrangements for the child of the parties, X, born 2011.
The relationship between the parties, which commenced in about 2009, was characterised by periods of separation, including separation under the one roof, until 2017, when the parties finally separated. It was a relationship characterised by highly abusive, threatening and violent behaviour by the mother toward the father, often in the presence of X.
Although during early periods of separation it appears that the mother exercised primary care of X (at times despite the father’s pursuit of greater involvement on his part), from January 2021 the father has had almost the sole care of X, the mother only intermittently spending supervised time with X.
Conduct of the final hearing
The proceedings are conducted in a context where the mother has failed to file material for the trial of the matter.
The mother has not, as the applicant in these proceedings, prosecuted her application with due diligence, nor has she complied with the directions of the court to prepare the matter for hearing. In terms of Part 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the mother is in default. It is also a default that occurs in the context that orders were made on 5 April 2023 that specifically provided that parties were unable to rely on evidential material filed other than in accordance with the procedural orders without the leave of the court, and an accompanying notation that the effect of that order is that a party may be left without evidence to rely upon. The potential effect of the mother’s failure to comply with the filing directions could not have been clearer.
Liberty was also given to permit the urgent relisting of the matter for further directions, a liberty that was noted to deal with whether there was a need to vacate the trial dates, and where it was specifically noted that if vacation was sought “it will be incumbent upon the party to file sufficient evidence to support the need for a change in the trial date.” The mother did not avail herself of that liberty.
On the first allocated morning of the trial the mother sought that the trial be vacated and adjourned. That application was refused, and the trial was then listed to commence the following morning, a step that allowed the mother time to inspect material produced under subpoena and pursuant to s 69ZW Family Law Act 1975 (Cth) (the “Act”). The mother advised that she would not attend for the commencement of the trial, being unable to afford to do so.
However, the mother did attend.
The parties are subject to the provisions of s 102NA of the Act which prohibit personal cross-examination. The mother has neither availed herself of a lawyer pursuant to the scheme that provides for representation under such circumstances nor has she secured private representation such as to allow cross-examination of the father to take place. This is despite the mother having obtained a partial property adjustment in order, in part, to assist her in preparation for the litigation.
Accordingly the trial was conducted without affidavit material from the mother, and without the mother being able to cross-examine the father.
During the trial an issue arose as to an incident occurring after the filing of material, relating to the mother’s contact with X by sms. The mother was permitted to adduce oral evidence in relation to this issue. The mother, more generally, was also permitted to tender various documents.
ORDERS SOUGHT
The minutes of orders relied upon by each party are annexed to this judgment.
The mother sought orders that provide for X to spend professionally supervised time with her each month in City A. Orally the mother sought that there be provision for this to transition to unsupervised time. The mother also sought a suite of injunctions and restrictions.
The father ultimately adopted the orders proposed by the Independent Children's Lawyer (the “ICL”).
In general terms, the ICL sought orders that provide for the father to hold sole parental responsibility for X, that X live with him and that, until she is fifteen years old, her time with the mother be professionally supervised visits in City A four times each year, an arrangement described as recognition time. Once X is fifteen the ICL sought that the arrangements be by consent and taking X’s views into account.
The ICL sought that communication outside of the supervised time be restricted to gifts and cards only.
MATERIAL RELIED UPON
As noted above, the mother failed to file affidavits for the trial.
The father relied upon an affidavit filed 28 March 2023.
A family report was prepared by Dr E and released to the parties on 2 May 2022.
KEY ISSUES
The parties made serious allegations of family violence against each other. Much of each party’s focus was upon the other as a perpetrator of family violence, and as exposing X to family violence. Each party asserted that the other presents a risk of harm to X, and is lacking in parental capacity to properly care for X.
HISTORY OF THE RELATIONSHIP
Given the lack of material filed by the mother, the history between the parties was largely reliant upon the account given by the father in his affidavit material, and as tested under cross‑examination by the ICL.
The parties’ relationship has been characterised by periods of separation, including under the one roof, moves together to different cities whilst separated but under the one roof, and periods of reconciliation.
The parties married in 2009. At that time the father was on a posting with the Defence Force to C Town in Victoria. The mother was working in C Town as an administrator.
During 2010 the parties lived in the USA as the father was then posted to F State. Whilst there the mother threw an object at the father and threatened him with a knife.
X was born in 2011.
The father asserts, and the mother has previously admitted an incident in 2012 when the mother put a sock into X’s mouth because X (then aged less than six months) would not stop crying.
The father says that the parties were separated but remained living under the one roof between early 2012 and late 2014.
During part of this time they were living in Brisbane together. In early 2014 the mother called the father threatening harm to herself and X. The father was in South Australia (“SA”) at the time. He described that the mother said that she had a knife and said to X, whilst on the phone to the father “do you want to die [X]?” X replied “no mummy.” In response the father called the police, and caught the earliest flight that he could back to Brisbane. He then took six weeks leave to be present to care for X.
In early 2016 the parties (apparently back in a relationship) moved again to F State in the USA for a posting for the father. The father describes an incident in late 2016 where the mother, in X’s presence, struck him to the face. He describes a further incident in late 2016 where X approached him and said “mummy says to get the fuck downstairs” following which the mother gave X an object and told X to hit the father with it. The mother, who was verbally abusing the father, took the object from X and also struck the father. After the father held the mother’s wrist and took the object from her, the mother called the police, alleging that the father had beaten and strangled her. The father was arrested, interviewed, but released and the mother was taken to hospital. She returned to the home that evening. Although the mother was charged the father asked that the charge be withdrawn, and it was.
By late 2016 the father was sleeping separately from the mother in the basement of their home. He describes that the mother dragged X to the basement and verbally and physically attacked him. The mother was charged and a protection order was taken out against her. The father says that the mother called him and threatened to kill herself and X by driving off a bridge. The mother was located, but claimed that the father had sexually abused X.
Although separated, the parties together relocated to C Town in early 2017. They slept in separate rooms at their accommodation. The mother attempted to force her way into the father’s room, yelling at X to help her. The father asked reception to call the police, who attended with a Defence Force chaplain. The father moved out into accommodation on the Defence Force base. This marked the final separation of the parties.
In early 2017 the father received a call from the mother where she told the father to collect X before the mother did something to her. The father rode a bicycle to where the mother was staying and a verbal conflict ensued, including over the bike, in X’s presence. The father left the residence on foot.
A further incident occurred the following month after the father came to the mother’s home for dinner. Following an argument the father left the home at about 9 pm and ran to the taxi rank. He was pursued there by the mother with X in a car. The mother demanded that X get out of the car and sit on the bench, but when the father approached the mother yelled at X to get back into the car and then started to drive away. The mother returned and the incident repeated, with the mother threatening the father that if he did not return to the home the mother would keep X out there all night. The father called the police and returned to his accommodation on the base.
A few days later the mother attended at the father’s residence with X. She was verbally abusive to the father and refused to leave. She physically assaulted the father. The father says that his mother contacted him later that evening to say that the mother had contacted her and threatened to kill X and herself by driving off a bridge.
The local welfare agency obtained an order to place X with the father for a period of six weeks. At the end of that time the mother indicated that she would move to Brisbane and leave X in the care of the father in C Town. However the mother then attended X’s school, and removed her. The mother did not permit the father to spend regular time with X.
In late 2018 the father stayed at the mother’s home whilst the mother was recovering from surgery, in order to provide support for the mother and X. An argument ensued and the father left, with the intervention of the police, as the mother stood in the way of his car to prevent him from leaving.
Various other incidents occurred.
In late 2018 the father took a posting in City A. Before taking the posting the father had secured a position that would have allowed him to remain in C Town proximate to X and the mother. However, the mother indicated a desire to move to City A and the parties reached an agreement that would see the mother and X also move to City A. In accordance with this agreement X was enrolled at a school in City A for Term 1 2019.
In early 2019 the mother messaged the father “I will kill my problem and mistake” and “Biggest mistake in my lifetime was to fly to [City G] and not go to my appt.” The father inferred that this was a reference to X, and that the reference to “[City G]” was a reference to an appointment for an abortion that the mother did not attend that would have seen her pregnancy with X terminated.
The mother and X then travelled to City A in early 2019 to stay with the father pending finding accommodation. A verbal argument occurred between the parties regarding the mother having created a Facebook account using the father’s profile. The mother said that she would leave when they returned to the father’s apartment. However, she did not and the police were called, who spoke to the mother and persuaded her to leave. The mother has claimed that the father threatened to throw her from the balcony, an allegation that he denies.
The mother returned to C Town with X.
A further verbal altercation occurred between the parties by telephone in early 2019. It was arranged that X would fly to spend time with the father. The father attended the airport but X was not put onto the plane by the mother.
The mother then refused to allow the father to spend time with X.
The father commenced proceedings in the then Federal Circuit Court and on 22 August 2019 interim orders were made. Reliant upon those the father sought to travel to C Town to spend time with X, generally on a fortnightly and school holiday basis.
In late 2019 a further incident occurred while X was in the care of the father, where the mother alleged that X was crying to her and the father was hurting her. The mother attended the father’s apartment demanding entry. The police attended and removed the mother.
The mother was obstructive and failed to consistently provide X. For example, the mother refused to facilitate handover when the father had travelled from City A to C Town in October and December 2019, and refused to hand X over in April, May, August, September and November of 2020.
In mid-2020 the mother complained to the police that the father was abusing X.
In January 2021 Judge Hughes made further interim orders that provided for X to move to City A and to live with the father. It appears that at about this time the mother was living in City B. Orders were also made for the mother to spend supervised time with X, and a sum of $10,000 was released to the mother from the proceeds of the sale of a property held during the marriage.
On a date in early 2021 X spent time with the mother.
Exhibit ICL1 records that the next day a referral was made to the Australian Federal Police (the “AFP”) from the Child and Youth Protection Services (the “CYPS”) as to an alleged disclosure by X to the mother that the father had sexually abused X. The identity of the notifier of this complaint to CYPS was not disclosed. The statement attributed to X, and said to have been made the previous day, was “I don’t like how daddy treats me” and “he pulls down his pants and pulls out his boy parts and he told me to lick it.”
As a result of this referral the police attended X’s school and with the assistance of a witness intermediary, interviewed X. Exhibit ICL1 contains a summary, but not transcript of the interview. During the interview X said that she had spent time with the mother the previous day, but that there had been no discussion about the father. X said that had been scared when she was living in America (inferentially some five years earlier), and that the father had strangled the mother and that the police had attended. It was not clear what prompted this comment by X.
X also described that she had been scared a number of weeks ago when the father removed a telephone from her and she did not know why. X asserted that the father’s partner, Ms H, had slapped her once.
X made no disclosure as to sexual assault, was recorded as unable to describe male genitalia, and denied having seen boy’s parts other than on a 4 year old boy that she had once seen running around naked.
The police recorded that there was insufficient evidence to proceed further, noting at the same time that there may be reasons why a disclosure is not made in the context of an interview such as that conducted with X.
The mother has alleged that X had been coached by the father on the basis that if X did not deny the allegations, she would not see the mother again. The mother denied coaching X herself.
Since this time the mother has spent supervised time with X on four occasions in early to mid‑2022.
Exhibit ICL4 shows that the mother emailed the ICL following a supervised visit of mid-2021, suggesting that X had made a disclosure of sexual abuse and emotional harm to the contact supervisor. The father says that he spoke to X about this and that X told him that the mother had told her to say bad things about the father. The father said that he refrained from discussing this in detail with X.
The father says that CYPS contacted him in mid-2021 and advised that they had interviewed X, who had told them that the mother had told her to tell the supervisor that the father had strip searched X prior to the visit and that the father’s partner had slapped her. No records were produced relating to this interview with X.
There was a gap in time before the mother again arranged to spend supervised time with X on two consecutive dates in mid-2022. The mother failed to attend for the first day and the father arranged then for a longer period on the next day.
The mother, at short notice, cancelled time that was arranged for late 2022, and then did not spend time with X again until early 2023.
Perhaps providing some context for the apparent unreliability of the mother in attending for supervised time is contained in the police records tendered by the ICL. Whilst they do not go so far as to support a conclusion that the mother has engaged in the criminal conduct they attribute to her, they indicate that the mother has frequent and current interactions with the South Australian courts and police in a manner indicative of a chaotic life.
There has also been some electronic communication between X and the mother. The father says that these calls have been upsetting for X, in part because the mother has sought to obtain from X the father’s address, which he does not want the mother to have due to the history of family violence.
Messaging on Mother’s Day
During the trial a series of messages sent by the mother to X on Mother’s Day 2023 were tendered. The mother was also afforded the opportunity to give evidence about the messages and their circumstances, given the late breaking nature of the evidence such that it was not contained in any affidavit filed by the father.
The mother accepted that she had sent the messages in the form set out below. Their compelling nature warrants their being set out in full.
[mother] “Hello [X], did your shopping work now. Sorry my card was temporarily locked up earlier, it’d fixed now. Try again. Xx”
Monday 8 May 6.54am
[X] “I got your gifts can you see the transactions”
[X] “I got you flowers and jewellery”
[X] “And something secret that comes with the flowers”
[X] “I put your phone number in case anything happens”
[photograph of receipt dated 7 May 2023 sent by the mother]
[X] “And the flowers should come tomorrow”
[mother] “Yes. Xx Thank you”
[X] “Okay love you I’ve got to get on the bus in 5 minutes”
[X] “Byeee [wink and kiss emoji]
[mother] “Love [heart emoji] you, have nice day”
Monday 8 May 7.21pm
[photograph of [online shopping] website sent by the mother]
Tuesday 9 May 6.57pm
[mother] “I might be in the newspaper again tmw or after when they print x”
Wednesday 10 May 6.43am
[X] “Okay”
[mother] “I won another court case x”
[X] “Okay I’ve got to go to the bus stop now so I hope you have a nice day”
[X] “Love you [heart emoji] byee [waving hand emoji]”
[mother] “I hope you have a better day my sweetheart [X]. Love you always [two pink, one yellow heart emoji]”
Wednesday 10 May 10.05am
[photograph of the mother sent by the mother]
[mother] “Mummy won, got back money [money bag emoji] yay horray [laughing emoji] girl power!”
[mother] “Won the case today!”
Wednesday 10 May 11.43am
[photograph of the mother sent by the mother]
Wednesday 10 May 4.04pm
[mother] “Baby my address is [J Street, City A]
You gave florist wrong address but they will deliver n fix tmw xx”
Thursday 11 May 5.29pm
[X] “Okay”
[X] “I’ll ring you later tonight”
[X] “I just have to have dinner”
[X] “Talk to you later [heart emoji]”
[mother] “Ok [heart emoji] tonight is not good for me …”
Thursday 11 May 7.35pm
[X] “Ok I’ll call tomorrow night then night love you [face with hearts emoji]”
[mother] “You can call me tonight if you want I sitting here.. I am free xx”
[mother] “Your delivery is at [K Post Office]. Please bring ID and collect by the end of 25 May 2023. More details: […]. Australia”
Saturday 13 May 2.17pm
[X] “When are you available to call today? Can you give me a specific time not just ‘all day is fine for me’”
[X] “The only person who is stopping me from seeing you is you so when can I next see you?”
[mother] “[X] [waving emoji] x”
[mother] “Hello, you can always ring me when you want to talk to me, there is no specific time. If I miss your call, I always ring you back… but my calls to you never get through anyway cos it appears it’d filtered and blocked”
[X] “I not stopping you and I from seeing each other. I always want to spend time with you and care for you and have you live with me”
Saturday 13 May 5.04pm
[X] “K I’ll call you around 2 hours”
Either 13 or 14 May
[a series of three photographs of the mother and [X] sent by the mother]
[mother] “Abusive language is never needed to be said. I’ve politer asked you many times the reason I not seeing you is not my doing or wishes.”
[mother] “You continue on. Enjoy your life without a mother!”
[mother] “Be a hooker or a prostitute I don’t care! Be drugged funked, I don’t care! Bash that baby to stop its crying, I don’t care! Tell your wanker father”
[mother] “I love you too [X]. But the words you giving me, I’ve had enough now.”
[mother] “I know you want to see me and you love me. You been the pawn to your dad and abusing me to this, has broken me down. The outcome you essentially get now, is you will never see me”
[mother] “And you continue to blame me for their actions. I am not going to welcome this anymore in contact. So goodbye [X]. Take care of yourself”
Sunday, 14 May 10:54pm
[mother] “[X], I am sorry about today. I just need some time to sort my life. But I do care and I am going to be there but I just can’t be there right now XOXO [blowing kiss emoji] [waving hands emoji] [love heart emoji] I love you [X].”
[mother] “I have to block you right now, it hurts too much. And right now I have a bunch of stuff to sort out first before I can be there for you xx [blowing kiss emoji]”
[11.01pm]
[mother] “I love you very much [X]. I didn’t mean what I said in the msg I sent you. I love you. I care for you. I want to be there for you. It’s not your fault Love Mummy [heart emoji]”
Monday 15 May 9.14am
[mother] “Your life hasn’t been fair. But you can I don’t need to prove our love for each other XOXO [wink and kiss emoji]
Monday 15 May 4.59pm
[a series of three photographs depicting a package, a bracelet and a card]
Tuesday 16 May
[Social media] post posted by the mother
“Mothers Day apart but [X] purchased this present with our joint bank account [present emoji] Neither of us was happy about it. But I do hope this is not forever.”
[photograph of mother’s day card with text reading:
“To Mum
Happy mothers Day! The infinity symbol means I will Always love you! <3”]
Sunday 21 May 6.39 pm
[a photograph of silver boxes sent by the mother]
Tuesday 23 May 5.03pm
[mother] “I love you [emoji with heart eyes] [X] XOXO”
Wednesday 24 May 5.41pm
[mother] “Can you pls give me a call pls [X] it’s important XOXO”
Monday 29 May 3.08am
[Photograph of a card reading:
“To My Daughter
YOU ARE THE MOST PRECIOUS GIFT LIFE HAS GIVEN ME. I AM SO GRATEFUL TO YOU.
I CHERISH EVERY MOMENT I GET TO SPEND WITH YOU AND EVERY MEMORY WE HAVE MADE.
I CAN’T PROMISE TO BE HERE FOR THE REST OF YOUR LIFE, BUT I CAN PROMISE TO LOVE YOU FOR THE REST OF MINE. SOMEDAY WHEN THE PAGES OF MY LIFE END, I KNOW THAT YOU WILL BE ONE OF THE MOST BEAUTIFUL CHAPTERS.
Love, Mum”]
The mother characterised this as a “one off”. Given the history, recited above, of the mother’s involvement of X in her attacks upon the father, rather than being “one-off” this exchange represents a continuation of the subjection of X to emotional abuse.
Family report
A family report was prepared in April 2022.
This report contained analysis of extensive information provide by third parties, such as various police services, and State welfare agencies, along with a review of material filed in the proceedings, interviews with the parties and observations of each parent with X. These occurred in a context where X was living with the father and Ms H, and had no recent contact with the mother, including no face to face time since mid-2021.
The report writer described that X presented as positive and excited about living in City A with the father, that she liked living with the father and that she has a positive relationship with Ms H. In contrast, X appeared “ambivalent about, and visibly uncomfortable with, the possibility of recommencing spending time with her mother.” The report writer did not consider that this appeared to be the product of coercion or manipulation (presumably by the father).
After initial awkwardness with the mother, X “relaxed and the dynamic was warm and somewhat comfortable” showing a “clear bond between mother and daughter.” Even so, the mother’s discussion with X, emphasising that she missed and loved X “appeared to be geared towards enticing her back to her care” in speaking for example, of a place reserved for X with an extracurricular group. The reporter observed X’s body language to become “more awkward and contorted” in response to the mother’s assertions, even though at the end of the session X told the mother that she loved her.
Debriefing to the reporter, X said that it had been good to see her mother, although she described that the mother’s presentation differed (in a pleasant manner) from other behaviour the mother has displayed toward her.
The report writer assessed that X remained ambivalent about spending regular time with the mother, suggesting that the mother needed to rebuild trust between them.
The observation of X with the father “evidenced a clear, loving bond” and “appeared comfortable, relaxed and fun” which the reporter assessed as interaction that “appeared natural and likely reflected the dynamic in his care.”
The report writer identified that there is a “strong, loving bond between [X] and the father,” but in contrast, a “somewhat strained” relationship with the mother, despite the mother’s deep affection for X. X is currently “somewhat guarded” given past experiences with the mother, although there were indications of a previous close bond between them.
In relation to X’s views, that she wishes to continue to live with the father, the report writer considered that her views ought to be accorded weight. Although she has not yet reached adolescence “her narrative and presentation was indicative of a child who is mature beyond her years. However...she remains emotionally vulnerable” pointing to a need for X to have “her voice heard and acted upon where possible.” X was assessed as having expressed a “clear view that she was content to reside with her father in [City A]. She views this arrangement as stable and appeared to have assimilated well into her new school and interstate environment.”
On the issue of capacity of the parents to support X’s relationship with the other parent, the report writer considered that the father appeared more likely to do so, given the mother’s history of not facilitating time.
X told the report writer that the mother tells her to “say things that aren’t true” such as alleging that Ms H had hit her. X emphasised that Ms H has not. X described that the mother would become angry with X and punish her if she did not say “the right things.” One matter of particular concern was the allegation that the mother had passed a note to X during supervised time, apparently encouraging X to make a false allegation against the father. This, if true, was considered by the report writer to show a “concerning lack of insight as to the impact of her actions on [X] and the potential ramifications for her own relationship with the child over time.”
Importantly the report writer assessed that the information available to her:
Raises significant concerns about [X’s] emotional and psychological safety and wellbeing in (the mother’s) care, with a pattern of cumulative harm. This includes the exposure [X] has had to the adult conflict and acts of family violence, the majority of which appear to have been perpetrated by (the mother) against (the father).
The report writer further considered that the mother:
At times lacks the capacity to understand and respond to [X’s] needs. Such actions demonstrate a concerning lack of insight as to the impact of her actions on [X] and the potential ramifications for her own relationship with the child over time
The involvement by the parties of external agencies was identified as having the potential to constitute systems abuse, and it was recommended that X’s involvement in multi-agency forensic interviews should be avoided.
Whilst not considering that the mother would reach the threshold to meet a criteria for diagnosis, the report writer thought that the mother’s “behaviour and attitude was suggestive of a degree of dysfunction and an inability to contain strong emotional responses.” She harboured significant concerns about the mother’s “capacity to prioritise [X’s] psychological and emotional needs above her own.”
Whilst threats of harm to X by the mother were assessed as attention seeking and an attempt to incite a reaction, the report writer noted that “it cannot be said that there is no risk or that (the mother) may one day act on same.”
The report writer recommended that X continue to live with the father in accordance with her wishes. She thought that there was scope to explore X spending time with the mother, subject to a need to protect X from harm. Initially that would involve further supervised time with the mother in City A. It may also involve, in accordance with X’s suggestion, telephone time, either audio only or audio visual, acknowledging that there may be a need for the father to provide some supervision of such.
However, the report writer recommended that, if the mother reverts to patterns of previous behaviour, then time should be reduced to recognition time only of at least four times per year, due to an ongoing risk of cumulative harm. Such an arrangement was assessed as giving the opportunity for X to maintain relationship with the mother and connection to the maternal family, in a safe space for X. Potential benefits also include exposure to positive interactions with the mother, in allowing the mother to demonstrate that she cares for X, and in X developing her sense of identity.
Recognition time would also allow X to experience further warm interactions with the mother, of a similar nature to those observed by the report writer in the assessment. It may also be observed that the supervised time records also demonstrate a warm, enjoyable and affectionate bond between X and the mother.
The report writer observed that cessation of the relationship with the mother could cause emotional distress to X, but potentially also relief.
However, the report writer acknowledged that even the prospect of such time could lead to anxiety for X, and that if the time proved to be unreliable, for example with the mother failing to attend, such could lead to X feeling rejection from the mother.
In her oral evidence the report writer described the Mother’s Day messaging as abusive, and as being likely to cause emotional harm to X, particularly due to the push and pull nature of the messaging, expressing both that the mother wanted and did not want X. Such was likely to be productive of confusion for X such that she would not know where she stands with the mother.
The report writer observed that the mother’s conduct carries with it a risk of cumulative harm to X, and that while children are generally resilient, repeated patterns of such behaviour magnifies their impact. Those impacts include upon the development of the child, upon the mental health of a child, being potentially productive of anxiety and depression, along with potential physiological impacts such as headaches and stomach aches. Further impacts such as rendering a child as vulnerable, and causing a child to withdraw from relationships more generally are also potential consequences of the exposure to abuse.
It was also identified by the report writer that it is necessary to ensure that X is protected in all of the interactions with the mother. A consequence of the Mother’s Day messaging is that it points to there being heavily constrained communications outside of supervised visits.
PRINCIPLES IN RELATION TO PARENTING ORDERS
The focus and the paramount consideration in determining what order should be made for X is, pursuant to s 60CA of the Act, the best interests of X. Those are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The court is required to evaluate the s 60CC considerations to the extent that they are at “issue in the proceedings,”[1] and are “relevant to the particular circumstances of the child.”[2] This calls for a focused examination of the considerations that arise in the individual case. While often the evidence filed in a case ranges across, and touches upon many of the considerations, those that require closest attention can usually be identified from the matters that the parties ultimately placed emphasis upon in the trial.
[1] Phillips & Hansford (2019) 60 Fam LR 160, [43].
[2] Jollie & Dysart [2014] FamCAFC 149, [45].
The s 60CC considerations may point in conflicting directions, and toward different outcomes and, by virtue of s 60CC(3)(m) may include any “fact or circumstance” relevant to the wellbeing of a child. It is the synthesis of the considerations that determines best interest.
The considerations have themselves been divided into primary and additional considerations.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The structure of s 60CC points to some emphasis being given to the two primary considerations. In Marsden & Winch (No 3),[3] Warnick and Thackray JJ observed that the primary consideration are “manifestly of the utmost importance in determining what outcome will best advance a child’s interests.” Section 60CC(2A) requires the court to place greater weight upon the second of these two primary considerations.
[3] Marsden & Winch (No 3) [2007] FamCA 1364.
The primary considerations are to be considered as a part of the whole suite of considerations contained at s 60CC. Often there is overlap between the considerations, and many of the additional considerations are effectively subsumed into the primary considerations. For example, s 60CC(3)(j)’s reference to “any family violence involving the child or a member of the child’s family” necessarily forms a part of the protective considerations of s 60CC(2)(b) and may also form a part of the consideration of the degree of benefit flowing to the child from meaningful relationship with a parent at s 60CC(2)(a). Similarly, s 60CC(3)(f)’s reference to the capacity to provide for the needs of the child necessarily forms a part of the consideration of the benefits of meaningful relationship at s 60CC(2)(a).
In this case, the dominant issues were related to the protection of X from harm occasioned by being subjected or exposed to emotional abuse or family violence by the mother, the amelioration of such risks, and consideration of the benefits of meaningful relationship with the mother, particularly where those benefits may be undermined by the mother’s emotional abuse of X.
As identified in the Full Court case of Isles & Nellisen,[4] the consideration of risk “is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.”
[4] Isles & Nelissen [2022] FedCFamC1A 97.
The Full Court identified that, depending upon the evidence before the court, a risk of future abuse may be established by the possibility of past abuse, a conclusion consistent with the reasoning of the High Court in the foundational case about risk, M v M.[5]
[5] M v M (1988) 166 CLR 69.
Such an understanding was recently further confirmed by the Full Court in Eastley & Eastley,[6] (at [18]):
…the assertion the primary judge was obliged by law to settle certain nominated factual controversies is rejected. The parties’ evidence revealed a multitude of factual discrepancies, many of which were specifically addressed by the primary judge in the reasons for judgment, some without any positive or negative finding being made. Importantly though, the primary judge was not required by law to definitively resolve even the pivotal factual disputes when assessing the risk of harm within the wider context of the discretionary determination of the particular orders which would best promote the children’s interests.
[6] Eastley & Eastley [2022] FedCFamC1A 101.
Further, in the same manner (at [31]):
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred ... However, the primary judge’s enduring suspicion the incident might have occurred ...was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children.
Finally, in that same case the Full Court observed the need for a trial judge to consider the whole of the evidence in determining the question of risk, rather than merely dealing with each allegation in an isolated fashion:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
DISCUSSION REGARDING PARENTING PROCEEDINGS
There is no contest about X living with the father.
There is also no contest in relation to X’s time with the mother being, at least initially, professionally supervised in City A.
Where, as outlined below, there is a strong history of family violence and discord between the parties, there is no option in X’s best interests that supports an order for equally shared parental responsibility. The presumption in favour of equally shared parental responsibility does not apply, and the facts of the case do not in any event support such an order. Given that the father will have the almost sole care of X, it is appropriate in those circumstances that he hold sole parental responsibility.
To the extent that allegations have been made against the father, alleging that he has engaged in family violence directed to the mother, or exposed X to family violence (other than when being subjected to such himself), or has abused X, such allegations should not be accepted.
In particular the allegation that the father has sexually abused X should not be accepted. Each such allegation comes through the mother, who now does not dispute the father as the primary carer in these proceedings.
More importantly than that, the mother’s limited oral evidence left a deep impression as to her unreliability more generally. The mother’s evasive, deflective approach to giving evidence may in part be, as asserted by her, due to her difficulty in maintaining focus, but in large part it indicated an intent to avoid giving truthful evidence. Whilst judgments based on demeanour should be engaged in cautiously, both the demeanour and the content of the mother’s evidence pointed to a resistance to giving truthful evidence where such did not benefit her case.
When weighed against the evidence of the father, it should be concluded that the mother’s allegations against the father are unreliable.
A consequence is that where an allegation is reliant upon the mother, such as assertions that X has alleged sexual abuse, no reliance can be placed on the mother’s assertions. This is particularly so where, for example, a police investigation has failed to offer any support for the allegation.
Caution should also be exercised where X has made an allegation adverse to the father in the context of X’s exposure to the mother. For example, while X has reported to other third parties that she has been slapped by her stepmother, such also cannot be accepted where it follows X’s exposure to the mother, particularly where X has otherwise expressed no negative issue regarding the stepmother to the report writer when asked about her, and in fact denied that she has been struck.
Accepting the father’s evidence, it should be concluded that the mother has not only engaged in family violence directed at the father in X’s presence, but also that she has used X as a part of that violence. She has made threats against X to the father, she has directed X to be violent to the father, she has directly used X as an instrument of the conflict by taking her to the father in order to abuse and coerce him, such as seen in the taxi rank incident, or incidents at the Defence Force base.
These matters alone are sufficient to call for strong protections for X in relation to the mother.
The breadth of the necessary protections is indicated by the Mother’s Day communications. They are highly abusive of X, asserting that the mother never wanted to have contact with X again, and suggesting that X could become a “hooker” or drug addict, and that she could bash her baby sister. The mother’s communications carry with them considerable prospects of harming X.
They cannot be regarded as an isolated aberration on the part of the mother, noting her use of X in the conflict with the father.
Together, the exposure to family violence and direct abuse of X by the mother are matters that call for the protection of X from the mother as essential to meeting her best interests.
There are matters that point to potential benefits for X in continuing a relationship with the mother. The observations of the report writer, the observations of the supervisors, and the potential benefits identified by the report writer are supportive of an ongoing relationship, provided that X can be sufficiently protected from the mother in the conduct of the relationship.
Professional supervision is the appropriate protection for X. The nature of the mother’s previous use of X as outlined above can only be counteracted by professional supervision. It may be observed that professional supervision does not provide an impregnable protection as elements of the mother’s manipulation of X can be seen in the supervision reports, such as the report at Exhibit F2 for early 2021. However, given the potential benefits of the relationship for X professional supervision offers the appropriate balance.
An issue that confronts such an order is that, despite the mother’s hope to transition at some time to unsupervised time, there is nothing about the risk posed by the mother that points to an abatement of the risk to enable such a transition, aside from X reaching an age where she can choose the appropriate arrangement. This leaves the prospect of a long term supervision order. In cases such as Malburon v Waldlow [2013] FamCAFC 191 the Full Court has emphasised that, absent a review mechanism, such orders require cogent reasons. Here the cogent reasons are provided by the potential benefits available to X, identified by the report writer as available even under supervised time to occur four times per year, but that are only available whilst X is reasonably protected from the risks posed by the mother.
Whilst the mother sought a monthly arrangement, with supervised periods on consecutive days due to the need for the mother to travel from SA, four sessions each year strikes a better balance. A significant benefit of more restrictive time is that it contains less prospect of the mother failing to attend and leaving X disappointed and rejected. This is particularly important where the time with X appears to have been ad hoc since X moved into the father’s care, in a manner suggestive that the mother has been either unable or unwilling to have it occur otherwise. It is also the appropriate frequency where there is the prospect that despite professional supervision the mother may engage in manipulation of X, as seen in the otherwise positive supervision records. Such a frequency is supported by the report writer as an appropriate arrangement where, as indicated by the Mother’s Day communications, the mother has continued her emotional abuse of X.
The father and the ICL, consistently with the report writer, point to one matter that may be anticipated to bring change to the arrangements, being X reaching fifteen years of age. The father and the ICL propose that from that time the arrangements be as X chooses, with the agreement of the parties. This provides some amelioration of the supervision, but no guarantee as to what the arrangement should be from X reaching 15. However, there can be little expectation of agreement and so this provides at best an uncertain point of change. Even so, the proposed change at X turning 15 is appropriate.
One matter emphasised by the report writer was the need for consistency in the arrangements. At least conceptually the mother and the ICL agreed that it is appropriate that there be some form of mechanism that allows the suspension of the identification time where the mother consistently fails to attend. Such an order should be made. Although the mother sought that there be an exception should there be a requirement that she attend court on the day scheduled for the visit, the scheduling of visits for weekends removes this prospect.
Given the risk now associated with the mother’s communications with X, a necessary part of the protections is the restriction in the communication with X outside of the professional supervision. Electronic communication carries with it too great a risk as demonstrated in the Mother’s Day messages. The communication outside of the supervision should be restricted to the provision of gifts and cards, which can be sufficiently monitored to allow contact to take place in a safe manner.
The father seeks, and the mother opposes that the father be authorised to apply for a passport for X. The mother expresses a concern that, despite his evidence to the contrary, the father will seek to relocate overseas. Where orders are made for X spending time with the mother four times a year, it may be anticipated that an international relocation, to the extent that it interfered with such arrangement, would require the father to apply to the court in any event, and so the prospect of a relocation is one that should be viewed through such an impediment.
To the extent that the passport might allow other international travel, the decision to engage in such should be a matter for the father as the effective sole carer for X.
Although the father and the ICL agree to orders that he arrange therapeutic support for X, and that he comply with recommendations made by such support. Such orders do not appear necessary in a context where the ICL accepts the father may be entrusted with determining the appropriate care for X.
The ICL proposes various restraints upon the parties in relation to what is said to X. Further restraints ae proposed upon the mother removing or approaching X, or approaching the father. Given the potential for emotional harm, including that caused by exposure to family conflict and manipulation by the mother, these restraints are appropriate for the personal protection of the father and the child.
CONCLUSION AS TO PARENTING
Orders will be made largely as sought by the ICL for X to live with the father, for the father to exercise sole parental responsibility, and for X to spend recognition time on a supervised basis with the mother.
The orders will provide certain dates for the visits with X, subject to agreement to vary, or subject to the mother identifying that she has a court attendance on the scheduled day.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 16 June 2023
ANNEXURES
Orders sought by the applicant mother
(1)That the child, X born 2011, shall spend time with the Applicant Mother as follows:
1.1.That the first weekend of each month, for a minimum period of (5) five hours on Saturday, and (5) hours on Sunday, or as additionally agreed by the parents.
1.2.The first weekend of each month:
1.2.1.From 9:00AM to 2:00PM on Saturday and Sunday, the first weekend of the month, if failing agreement from the parties.
1.3.The time is supervised by a person or organisation called D Contact Centre or if D Contact Centre is not available a professional organisation or person nominated by the mother, with two weeks’ notice to the father in email or writing.
1.4.That the cost of the supervision and supervised reports shall be shared equally between the parties
1.5.That the Father pay the supervised visit for the Saturday and the Mother pay the supervised visit for the Sunday direct to the supervised organisation that is to conduct the supervised contact.
1.6.That the cost of accommodation and flights to and from City A, shall be paid by the Mother to spend time with the child.
(2)That at least (7) seven days prior to the supervised contact is to take place, all payment shall be paid in full to the invoice of the supervised organisation.
(3)That the Mother be at liberty to attend any school or significant extracurricular activity events in which the child is involved, irrespective of in whose care the child is present with at the time.
(4)That the father will not forfeit the care of X to a third party on any permanent basis of longer than 7 days without the express agreement of the other parent.
(5)Each parent shall ensure that the other parent is kept informed at all times in a timeframe that is appropriate in all of the circumstances of the full name and contact telephone number of any other person who may resides with the child whether on a full-time or part time basis, or any significant changes of circumstances.
(6)That during the time the child is with the Mother or Father, each parent shall:
6.1.Respect the privacy of the other parent and not question the child about the personal life of the other parent;
6.2.Speak of the other parent respectfully to the child and not denigrate or insult the other parent in the child’s presence or hearing and use their best endeavors to ensure that others do not denigrate or insult or criticise each of the parents in the child’s presence or hearing
(7)That the child shall have the following telephone communication with the Mother
7.1.On Wednesday 5:00PM and Saturday 4:00PM (City A time), or such alternative time as agreed from time to time;
7.2.On 5:00PM of the child’s birthday and the Mother’s birthday
7.3.At 10:00AM on Mother’s Day and Christmas Day
7.4.At any reasonable time requested by the child.
(8)That each parent keep the other parent informed in respect of their address, contact email and mobile phone number, and any changes to same within forty-eight (48) hours.
(9)That the Father provide the Mother the child’s current new address.
Medical and Education of the Child
(10)That by this Order, each parent authorises any school that the child may attend from time to time to forward directly to each parent copies of all the child’s school reports and merit cards, and written material pertaining to each child’s academic and extra-curricular activities, and order forms for school photographs (at that parent’s cost).
(11)That by this Order, each parent authorises any medical, dental or allied health practitioner that the child may attend from time to time to provide such information to each parent’s as may lawfully be provided to a parent of a child.
(12)That for the purpose of communicating information between the parties about the matter pertaining to the child, consultation between the parents about making major long-term decisions shall be in writing, child focused and non-derogatory: a) That the parents will communicate by text message in relation to matters that are time-sensitive or a matter of emergency and by email message about all matters that are not time-sensitive.
(13)That both parents inform the other as soon as reasonably practicable of any serious accident, illness or injury involving the child. 26.That the Mother and Father will inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness the child suffer and these parenting orders provide to any treating medical practitioner all authority necessary to provide to each parent all information about such illnesses or treatments.
International Overseas Travel
(14)That the father, Mr Keymer be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the child, X born 2011 from the Commonwealth of Australia.
(15)That the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the father Mr Keymer born 1981 and the child, X born 2011 on the All Ports Watch Alert System at all International departure ports in Australia.
(16)That the Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.
(17)That the Australian Federal Police (AFP) place the child’s name on the Family Law Watchlist or Airport Watch List (made under s34 or s68B) or a parenting order that limits or prevent the child’s overseas travel with the Father, and request that the AFP assist in the implementation of the order.
(18)That the Australian Passport Office and Australian Government of Defence are required to take all necessary steps to not issue the child, X born 2011 a “Government Official or Diplomatic Passport” at the request of Mr Keymer, born 1981, without the expressed written consent from the child’s mother Ms Keymer, born 1980.
(19)The Airport Watch List order shall be suspended during the period that the mother and father both travels together with the child, without restrictions or any conditions; and it shall be suspended during the period that the child travels without her parents for cultural experiences with her school during school excursions.
(20)During the suspended period for international overseas travel:
20.1.Travel is to a country at this a signatory to, and which has ratified, The Hague Convention on the Civil Aspects of International Child Abduction unless otherwise agreed in writing;
20.2.The holiday shall be of no more than three weeks duration;
20.3.The travelling parent is to give the non-travelling parent 30 days’ notice of his/her intention to travel including providing copies of a return flight confirmation, and itinerary and contact details for the Parent & Child while away;
20.4.Both parents shall ensure that the child speaks to the non-travelling parent by telephone or Skype if the parties can facilitate Skype communication, not less than every three days whilst overseas other than when such contact is not possible because of airline schedules or local conditions beyond the parent’s control;
(21)Unless otherwise agreed between the parties, the Father is to provide a monetary sum of $55,000 as security bond at least 7 days before leaving Australia for travel under these orders, the father is to pay a security bond of $55,000 by bank cheque to be held on trust by the Mother’s Lawyer or by the Court and disbursed:
21.1.By repayment in full to the Father within 5 days of his return to Australia; or
21.2.To be paid on account of any legal and other appropriate fees incurred by the Mother if the Father fails to return the Child to Australia.
21.3.Each parent is at liberty to renew the child’s standard Australian Passports (or if either of them expire or are lost, to have new Passport issued) and, for this purpose, each parent shall do all acts and things and sign all documents necessary to cause the child’s passport to be renewed or issued and each parent shall equally bear the costs associated with the Australian passports being renewed or issued.
(22)That the Independent Children’s Lawyer be discharged.
(23)Such further and other orders as the court may deem appropriate.
Orders sought by the Independent Children's Lawyer (adopted by the father)
(1)That all previous parenting orders be discharged.
Parental Responsibility
(2)That the Respondent Father (‘the Father’) have sole parental responsibility for the child X born 2011 (‘the child’).
(3)That the Father have sole parental responsibility for the purpose of commencing proceedings with respect to an application for a passport to be issued for the child from the Department of Foreign Affairs and Trade of the Commonwealth of Australia pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 or renewing a passport for the child, without the consent of the Mother, and has leave pursuant to section 65Y(2)(b) of the Family Law Act 1975 to take the child outside of the Commonwealth of Australia or permit the child to travel outside of the Commonwealth of Australia.
(4)That, in the exercise of his parental responsibility for the child, the Father facilitate the child attending upon a psychologist or allied mental health professional for the purposes of the child obtaining therapeutic support.
(5)That, in relation to Order 4 above, the Father comply with any recommendations as to treatment made by any psychologist or allied mental health professional who is providing the child with therapeutic support.
Lives With/Spends Time With
(6)That the child live with the Father.
(7)That, until the child reaches the age of 15 years, the child spend time with the Mother as follows:
(a)On one (1) occasion every three (3) months for no less than 4 hours on the following basis:
(i)The time to be professionally supervised by an agreed professional supervisor or, failing agreement, to occur at the D Contact Centre in City A;
(ii)The costs of the supervision to be shared equally between the parents; and
(iii)The time to occur at such times and on such days as agreed between the parents and the supervision service.
(b)In relation to 7 a iii above and in the event the parents cannot agree as to days and times for contact, the following shall apply:
(i)The Mother shall provide the Father with no less than four (4) weeks written notice of an intention to spend time with the child; and
(ii)The Father shall respond in writing to any request for time made by the Mother pursuant to 7 b i above within two (2) days and if time cannot be facilitated as requested by the Mother, he shall explain why and offer the Mother a reasonable alternative date and time and the time shall occur on that alternative date and time.
(8)That, upon the child reaching the age of 15 years, order 7 above is discharged and the child spend time with the Mother as agreed between the parents in writing and in accordance with the child’s wishes.
Communication
(9)That the parents shall communicate with each other about issues relating to the child via email unless it is an emergency when the communication shall be via SMS or phone call.
(10)That the Father shall, within 21 days of these orders being made, provide the Mother with an address (such as a PO Box) to which the Mother can send the child gifts and cards.
andletters.
(11)That the child shall communicate with each of her parents at any reasonable time requested by either parent or the child. That other than as set out in Order 10 above, the Mother shall have no communication with the child and for the purposes of this order the Mother is restrained by injunction from:(a)communicating or attempting to communicate with the child in any manner including via social media or electronic means; and
(b)causing a third party to communicate or attempt to communicate with the child on her behalf by any means.
(12)That each parent shall advise the other of any change to their email address, the nominated address for the sending or gifts and cards or letters or mobile phone number within 24 hours of such change and in writing.
(13)That each parent shall notify the other as soon as practicable of any medical emergency involving the child.
Restraints
(14)That each parent is hereby restrained from:
(a)denigrating the other parent or members of their family to or in the presence of the child or allowing anyone else to do so;
(b)passing messages to the other parent through the child; and
(c)discussing these proceedings with the child or in her presence or allowing anyone else to do so, except to explain the arrangements.
(15)That the Mother is restrained by injunction from removing the child:
(a)from the care of the Father without his written consent or pursuant to these orders;
(b)from any third party engaged by the Father to care for the child; and
(c)from any school or extra-curricular activity in which the child is enrolled or engaged.
(16)That the Mother is restrained by injunction from approaching within 200 metres of the Father or the child unless it is in accordance with these orders or by written agreement between the parents and IT IS NOTED that this is an order for the personal protection of the Father and the child.
Miscellaneous
(17)That all extant application be dismissed and the proceedings finalised.
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