Klaric & Varga
[2022] FedCFamC2F 1691
Federal Circuit and Family Court of Australia
(DIVISION 2)
Klaric & Varga [2022] FedCFamC2F 1691
File number(s): SYC 3111 of 2012 Judgment of: JUDGE ELDERSHAW Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – PARENTING – FINAL ORDERS – Best interests – With whom a child lives – With whom a child spends time – Where the child is developmentally vulnerable – Where the parents are unable to communicate effectively and previous co-parenting attempts were unsuccessful – Where the child has been exposed to high-level parental conflict – Where it is proposed the child attends a boarding school to be insulated from conflict – Where the child has a positive relationship with the father – Where the child’s relationship with the mother is fragile – Where the child shall live with the father – Where the father shall have sole parental responsibility for decisions about major long term issues for the child – Where the child shall spend time with the mother Legislation: AustralianPassports Act2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 106A, 117
Division: Division 2 Family Law Number of paragraphs: 172 Date of hearing: 25 & 28-30 November 2022 Place: Sydney The Applicant: The Applicant appeared in person The Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
SYC 3111 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KLARIC
Applicant
AND: MS VARGA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE ELDERSHAW
DATE OF ORDER:
8 DECEMBER 2022
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior parenting orders be discharged.
2.In these Orders, “X” means X born in 2008.
Parental Responsibility and Parental Communication
3.Subject to any other order to the contrary, the father shall have sole parental responsibility in relation to all decisions about issues of a major long term nature for X.
4.Except in cases of emergency, the father shall notify the mother 14 days in advance of making a decision about a major long term issue and shall inform the mother of the decision he proposes to make, including his reasons for making that decision and the name and contact details of any professional person who would provide services to X in relation to that decision.
5.If the mother provides a response to the father’s proposal about a major decision, she must do so within 14 days of receiving the father’s notification.
6.The father shall notify the mother of any decision he makes in the exercise of his parental responsibility for X within two days of making it.
Parental Communication
7.The parties shall forthwith do all acts and things to subscribe, and remain subscribed, to the “2houses” application for all communication between them.
8.The father must notify the mother of any medical appointment for X via the scheduling function on the 2houses application not more than two days after the appointment takes place.
9.The father must notify the mother of any sports fixtures or special events at school involving X, via the scheduling function on the 2houses application seven days prior to the fixture or event taking place.
10.Unless otherwise agreed between the parties in writing, any communication from one parent to the other by means other than the 2houses application may be ignored by the other parent.
11.In the event the 2houses application ceases being available, the parties shall use a substitute co-parenting application as nominated by the father.
12.The costs of any subscriptions to the 2houses application (or its substitute) shall be paid by the father.
Residence and Time With
13.X shall live with the father.
14.The father must use his best endeavours to actively encourage X to spend time with the mother as follows:
(a)From 10.00 am to 2.00 pm on the following dates:
(i)20 December 2022;
(ii)26 December 2022;
(iii)1 January 2023; and
(iv)15 January 2023.
(b)
Commencing 29 January 2023 until 31 December 2025, from 10.00 am
to 4.00 pm each alternate Sunday (except for Father’s Day), regardless of whether it is school terms or school holidays;
(c)On Mother’s Day from 10.00 am to 4.00 pm;
(d)On X’s birthday in 2024 and 2025 from 10.00 am to 7.00 pm; and
(e)On Christmas Day in 2024 and 2025 from 10.00 am to 7.00 pm.
15.If X does not spend time with the mother on the days and times pursuant to Order 14 herein, there is no need for the parties to arrange make-up time.
Telephone Communication for X
16.Each party is restrained from interfering in any way whatsoever with X’s ability to telephone the other parent at any time.
Changeover
17.Changeover shall take place on the public footpath adjacent to B Street, Suburb C.
School
18.X shall attend D School for the remainder of his secondary education.
19.The mother is restrained from attending X’s school for any reason whatsoever other than for parent-teacher interviews as scheduled by the school, school concerts, annual Presentation Days, or as expressly invited by the father.
20.The father shall do all acts and things to authorise X’s school to include the mother on any email distribution list for the school, including newsletters, X’s school reports, and school photograph order forms at the email address….
21.This Order is sufficient authority for the mother to obtain from any school at which X is enrolled, all information as she reasonably seeks with respect to X’s education, welfare and development.
X’s Health
22.Other than in the case of emergency, X shall attend the Suburb E Medical Clinic for all his general medical needs.
23.Within 14 days from the date of these Orders, the father shall cause X to attend on Suburb E Medical Centre for the purpose of:
(a)Requesting a current specialist referral to Dr F; and
(b)Obtaining a blood test referral form for X to address the matters contained in Dr F’s reporting letter for X dated 16 March 2022 and thereafter causing X to undergo the tests.
24.The father shall do all acts and things to comply with all recommendations for X made by Dr F (or any such other physician to whom she transfers X’s care), Ms G, X’s dietitian, and X’s general practitioner, including diet plans, blood tests and other diagnostic testing.
Attendance at Medical and Allied Health Appointments
25.The mother is restrained from attending X’s medical appointments with X.
26.This Order is sufficient authority for the mother to obtain from any of X’s medical or allied health professionals all information as she reasonably seeks with respect to X’s care, welfare and development.
27.Each party may provide a copy of these Orders to any medical or allied health professional who treats X.
Sport
28.The father shall do all acts and things to cause X to be enrolled in at least one team-based sport during school terms.
29.The mother is restrained from attending X’s sporting fixtures other than with the express invitation of the father.
30.If the father invites the mother to attend a sporting fixture for X, he is correspondingly restrained from attending the same.
31.The father shall do all acts and things to authorise any sporting team or club in which X is involved to include the mother on any email distribution list for team/club news, including training schedules, match/game fixtures and awards nights, and photograph order forms at the email address….
Information
32.Each party shall inform the other party, in writing, of any change to his or her residential address within seven days of such change occurring and of any change to his or her telephone number within 24 hours of such change occurring.
33.The parties shall ensure that each other party is kept informed of:
(a)Any serious medical problems or illnesses suffered by X while in their care; and
(b)Any medication that has been prescribed for X, and shall ensure the other party is provided with this medication while X is in the other party's care.
Passport
34.Pursuant to section 11 of the AustralianPassports Act2005 (Cth), the father may apply for an Australian Passport for X without further consent of the mother.
35.X’s passport shall remain in the custody of the father at times X is not travelling internationally.
36.Within 48 hours of receiving X’s passport, the father shall post on the 2houses application a colour image of the formal parts of X’s passport which displays X’s photograph, passport number and date of expiry.
Restraints
37.Each party be restrained from:
(a)Passing messages through X to the other party about his parenting arrangements;
(b)Hitting or physically disciplining X;
(c)Criticising or denigrating the other party or member of that party's extended family in the presence or hearing of X, or allowing X to be exposed to such criticism or denigration by any other person;
(d)Allowing X to access any document filed or created in these or any other Court proceedings involving the parties; and
(e)Discussing these or any other Court proceedings involving the parties with X or with any other person in his presence, or allowing X to be exposed to such discussion by any other person.
Money Orders
38.By not later than 4.00 pm on 18 December 2022, the father is to pay the mother the sum of $7,656 on account of his share of the Expert’s fees, with such payment to be made to BSB …30; Account Number: …02.
39.By not later than 4.00 pm on 31 March 2023, on account of each party’s contribution of the costs of the Independent Children’s Lawyer:
(a)The father shall pay the sum of $6,479.84 to Legal Aid New South Wales; and
(b)The mother shall pay the sum of $6,479.84 to Legal Aid New South Wales.
Independent Children’s Lawyer
40.The Court requests that the Independent Children’s Lawyer meet with X to explain these Orders to him.
41.Within seven days from the date of these Orders, the Independent Children’s Lawyer is requested to provide to the Suburb E Medical Centre:
(a)A copy of these Orders;
(b)A copy of Dr F’s reporting letters dated 9 September 2019 and 16 March 2022; and
(c)Any other document the Independent Children’s Lawyer considers appropriate to so provide.
42.Within seven days from the date of these Orders, the Independent Children’s Lawyer is requested to provide a copy of these Orders to:
(a)D School;
(b)Dr F;
(c)Ms G;
(d)New South Wales Police with a request that such orders are noted in connection with the records for the father, the mother and X; and
(e)Dr H together with a copy of the Reasons for Judgment.
43.The Independent Children’s Lawyer in these proceedings is otherwise discharged.
Other Orders
44.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
45.All outstanding applications are otherwise dismissed and the proceedings are removed from the list of matters awaiting finalisation.
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 Klaric & Varga has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW
These proceedings concern parenting arrangements for the child, X born in 2008 (“X”), currently 14 years of age.
The Applicant father is Mr Klaric born in 1975 (“the father”). The Respondent mother is Ms Varga born in 1975 (“the mother”). X is the only child of the parties.
The parties married in 2004 and separated in July 2009.
These are the second tranche of proceedings for final parenting orders for X. The first set of proceedings began in 2012 and were determined after a contested hearing in July 2015 (“the 2015 Orders”). These proceedings commenced in November 2019.
The extent of parental conflict is a significant risk to X. Added to that, X is developmentally vulnerable. At the age of three years, X was diagnosed with a developmental disorder. In 2020, X’s intelligence was assessed at the borderline level of functioning. X will enter Year 9 in 2023. He attends a mainstream school and receives additional classroom supports.
The father relies on:
(a)His affidavit filed 26 October 2022; and
(b)His affidavit filed 10 November 2022.
The mother relies on :
(a)Her affidavit filed 28 October 2022; and
(b)The affidavit of Mr J filed 19 October 2022.
Both parties were cross examined. Mr J was not required for cross examination.
The Court was assisted by an Independent Children’s Lawyer and an expert report from Dr H (“the Expert”) dated 24 November 2021. Dr H was also cross examined.
After the conclusion of the evidence, the Independent Children’s Lawyer proposed that there be an order for sole parental responsibility in favour of the father, that X live with the father, continue to attend D School and spend special occasions with the mother on a day-only basis.
The father joined with the Independent Children’s Lawyer’s proposal save that he suggested the time X spends with the mother on X’s birthday be from 10.00 am to 7.00 pm, rather than 10.00 am to 2.00 pm. The father seeks that he retain X’s passport when it is not in use.
The mother consented to the father holding sole parental responsibility other than for health related decisions for which she seeks joint parental responsibility.
The mother seeks that X attend K School (“K School”) as a weekly boarder; but alternatively, that X attend K School as a day student and live with his uncle, Mr J, during the school week.
The mother conceded that, if the Court orders that X remain at D School, he would live with the father. Regardless of where X goes to school, the mother seeks that X spend alternate weekends with each parent during school terms and half of each school holiday period. The mother seeks that X’s passport be held by the Registry of the Court or Mr J when it is not in use.
X’S DEVELOPMENTAL ISSUES
Given the importance of X’s developmental vulnerabilities, it is apposite to extract the findings of his Honour from the 2015 Reasons to provide context (references omitted):
26The Disability Services Unit (“DSU”) assessed the child on four occasions. A summary of their diagnosis and recommendations on each of those occasions is as follows:
26.1Following an assessment on 10 December 2010 the child was diagnosed as having an overall global developmental delay falling within the mild rage, with particular difficulties in language and social communication. It was noted that the child presented at the observation with features keeping with an autism spectrum disorder (language delay, poor eye contact, and tendency to play on his own). It was recommended that the child’s preschool apply for additional funding to increase the child’s support, that the child increase his preschool days, and a follow up observation occur in the following months. It was also recommended that the child continue speech pathology and attend occupational therapy, and have a follow up with [Dr F] and a [Dr L].
26.2Following an assessment on 25 August 2011 the child was diagnosed with an autism spectrum disorder. This was based on his level of eye contact, facial expression and gesture to regulate social interaction and compensate for his language delays. It was recommended that the parties access FaHCSIA funding, speech therapy and other early intervention services. The parties were recommended to apply for a carer’s allowance, continue the inclusion of the child’s preschool and to continue consulting with [Dr F].
26.3The child was again seen on 22 October 2012, 15 November 2012 and 29 November 2012. It was noted that results from testing and observations suggested his intellectual abilities were not within the disability range but that he would still struggle with his same aged peers. The DSU opined that the child’s past social engagement and behaviour might have been influenced by his parents’ separation. It was noted that his current skills suggest strengths in areas that are unexpected for children with autism. It was recommended that the child would be old enough to go to school the following year but that it would be better for him to start in 2014. Speech and language assessment for the child was recommended prior to the child starting school. The DSU also recommended the child commence school in a mainstream class and that there be consistency of routines and discipline strategies across home environments.
26.4A fourth assessment was undertaken over August and October 2013. The child was diagnosed with a speech and language disorder. This assessment showed low average nonverbal thinking skills and extremely low verbal thinking skills. The DHS recommended that the child obtain an eye review (due to recent continued rubbing of his eyes), ongoing consultation with [Dr F], continued speech and occupational therapy, and ongoing psychological help to assist the child adapt to changes in his family life and develop resilience and confidence at school.
In May 2020, Ms G conducted a psychometric assessment of X, then aged 12 years and four months and in Year 6. X’s composite Wechsler Intelligence Scale for Children was ranked as very low (fifth percentile) with “very low” results in the domains of verbal comprehension, fluid reasoning and working memory; “low average” for visual spatial skills, and “average” for processing speed. Listening comprehension, reading skills, spelling and maths problem solving were assessed as “very low”. Numerical operations were assessed as “average”.
SINCE THE 2015 ORDERS
It is common ground that the parental conflict is harmful to X. It is also common ground that the parenting orders should protect X from being exposed to further parental conflict.
The mother deposes that there have been many occasions when the father did not make X available to spend time with her, contrary to the Orders.
The father agreed in his oral evidence that there had been a number of such occasions. He said that, in many instances, X did not want to attend the visit and that he made a judgment as to whether it was in X’s interests to be made to go. Also, during COVID, the father did not make X available out of concern for X attending the Suburb M area where there were high numbers of cases, despite being aware the Chief Justice had advised the public that parenting orders were to be implemented.
Turning to specific aspects of the evidence in chronological order, on 9 October 2015, X’s school recorded the following incident:
[Mr Klaric] approached me this morning regarding the Court Order explaining that with the new term the weekly cycle for pickup and delivery to school resets back to Cycle 1 for Week 1. So Term 4 Week 2 will be Cycle 2. However, [Ms Varga] believes Week 2 to be Cycle 3 and insists that she will pick him up every Thursday and [Mr Klaric] is wrong Conference call with [Ms N] and [Ms Varga] did not clear up matters. Contacted Legal Branch and was advised that since both parents share custody either parent can collect him and the Court Order must be worked out by them. If there is a confrontation between both parties at school, we should ask them both to leave for 5 minutes and only one return when they have done so. If neither or both return, explain the school will contact FACS or the Police.
On 23 October 2015, X’s school made an incident report:
[Mr Klaric] and [Ms Varga] are still in disagreement as to when the 4 week custody cycle begins as stated in the court order. Both parents are unable to work this out. Consequently, [X] was not picked up form school…
On 18 March 2016, X’s school recorded the following:
Discussion with parent re Band tutorial. Father has paid for tutorials but mother refuses for him to be out of class for band tutorial. [Mr O] discussed and the mother agreed advantages of band. Parent continued with comments that nowhere else do student be (sic) withdrawn for band. [Mr O] disagreed. Discussion ended and [Mr O] emailed [Ms Varga] contact details for [Mr P] – band master, for mother to arrange tutorial time outside of school. [Mr O] informed Mother that she needs to contact his father of a change of plans.
On 31 March 2017, X’s school recorded the following:
[X]'s mum spoke to me Thursday 30th March after school regarding the IRP program. She said she does not want him withdrawn from class for anything at any time. I reminded her that 4 weeks ago we met and I explained the process (which is similar to the STAR program) in which [X] has attended in previous years. She-was quite vocal that she does not want him in any program that takes him out of class. I told her the program finishes in 2 weeks and that her ex-husband and herself need to come to an agreement regarding [X] together and then to let the school know of their decisions. She raised band and if he is out of class and singled out again. I said no child is singled out as the programs we offer at school are in the student’s best interests and many students attend a variety of programs. She said she does not want him to go. I said again that is to be decided between herself and her ex-husband…
On 27 April 2017, X’s school recorded the following:
[X]'s mother was in the playground at lunchtime today to collect [X] for an appointment – not sure why she was there?? She approached a group of year 6 girls, asked their names and then proceeded to tell them to stop bullying her son. The girls have written reports to say they have nothing to do with [X] who is in Yr 3.
The mother agreed that she spoke to some girls at the school in the playground. She said that X was being bullied and that the school had not addressed this, despite her raising the issue on multiple occasions. On the day in question, the mother went to the school to deliver X’s lunch, after he had left home without it. X pointed out the girl who had been most upsetting to him and the mother spoke to this girl.
On 12 April 2019, X’s school recorded the following:
Background context: [X]'s mother emailed [Ms Q] earlier in the week stating she did not approve of [X] attending band and wanted him withdrawn. [Ms Q] followed up appropriately.
Today, just before lunch [X] approached me and asked to speak privately. [X] was quite distressed and told me that he wanted to warn me that his mother might come up to the school today for the Easter Hat parade. I asked [X] why he was concerned and why I might need to be warned. He told me that he is having, “some issues with my Mum and she might come up this afternoon”. I asked [X] if he could tell me specifically what he was worried might happen if his mother came up to the school but all he could tell me is that there would be trouble and it would upset him. I asked [X] if this was something he would like to discuss with a school counsellor and he said yes…
On 15 May 2019, X’s school recorded the following:
Emails from mother claiming [X] is being bullied. [X] has stated to class teacher, counsellor and DP that he is not. Concerns about [X]'s mental health. Contact with Child Wellbeing with [R] and self on a phone conference. Recommendation to speak to father about him seeking a mental health assessment for [R]. We rang father and he agreed to follow up. Parents are divorced and there are court orders in place. [X] often concerned about going to his mother's when it is her turn to have him…
The mother’s oral evidence was that X was still being bullied at school. She said she had contacted the school and kept following up on what she considered to be an ongoing issue. The mother said that she felt Ms Q was being dishonest by saying that X was not being bullied. The mother saw a booklet that the school had given X in which he could record any bullying. As I understood the mother’s evidence, she considered that Ms Q’s assertion that X was not being bullied to be inconsistent with X being given a booklet in which he could record being bullied.
On 23 May 2019, X’s school recorded the following:
Ongoing issues with mother re [X] attending band and seeing counsellor. Updated legal information for [X] to see counsellor when in dad’s care.
The father deposes that X became distressed when he became aware that he was not allowed to attend band and was very angry with his mother.
The mother was asked about X attending the school band. She said that she was concerned about X missing “key learning” due to band practice. Counsel for the Independent Children’s Lawyer asked the mother to consider if X’s involvement in the band was part of his school curriculum and may be beneficial to him. To this, the mother said that the band was “outsourced”. She agreed that it would be good for X to be involved in music, but that he could participate in the band outside of class hours. When asked how X may have felt about not being able to go to band practice during the day, the mother did not see that to be an issue because X could go to band in the morning. The mother did not acknowledge that X may have been upset about not being allowed to participate fully in the school band.
The father describes a musical performance at the school involving X in about June 2019. He deposes that the mother had said that X was not allowed to participate in the performance, but that X convinced her otherwise. When it came time for the performance, the father deposes that the mother changed her mind and there was an argument between the mother and X about this. He deposes that the mother delivered X to the school hours ahead of the start time. He knew this because he received a call from the school principal, who had found X wandering around the school on his own at about 5.00 pm, visibly upset. The father says that the principal asked him to come to the school to collect X, but he was reluctant to do so as that may breach the Court Orders. The principal contacted the mother, who had to be convinced to return to the school to collect X. The father says that, after this, X was markedly more resistant to spending time with the mother.
In her oral evidence, the mother said she did not leave X at the school by himself as there were other people around. The mother said that she did not think that it was a good use of X’s time to wait for two hours until the band was due to play given the performance would only go for a few minutes. The mother did not acknowledge that X may have been upset about the incident and had wanted to play in the concert.
On 19 June 2019, X’s school recorded the following:
Meeting with father, [R], [S], [T] and DP regarding [X]'s learning at school. Decision to make this the parent/teacher interview for Semester1. Mother regularly emailing school about lack of appropriate teaching for [X]. Father very supportive of school and wants all the support we can offer for [X] but mother refuses to support our offers. Mum believes [X] is going "backwards" which is inaccurate.
On 1 July 2019, X’s school recorded the following:
Thursday 27/06/19 [X] saw me very agitated about mother making a scene at [sports] training that afternoon. [R] brought [X] to me middle session on that day because [X] was very distressed. He said there was an issue with mother where she said she would not pick him up from [sports] training that evening and he shouldn't go. [X] said dad was picking him up from school and taking him to training. [X] was worried that mum "would make a scene" at training. I told [X] he was to wait in his classroom and I would find dad at 2.55 and take him to the room. [R] and myself spoke to father who is very concerned about [X] and his relationship with mother.
Friday 28/06/19 [X] found me twice during the day to say that he didn't go to [sports] training because he was so worried about his mother turning up and making a scene. He said he refused to go home with her and stayed with dad. He presented as very upset and highly anxious. [Mr Klaric] saw me at 2.50 to tell me about [X] on Thursday evening. It was exactly as [X] had told me. Father very worried about [X]'s mental health and is contacting solicitor. [R] and I have just spoken to [X] - Monday 1/07/19 - who said he stayed with father over the last weekend although it was mother's weekend. He said mother would be picking him up this Friday from school.
(As per the original)
On 25 October 2019, the father called the police to arrange a welfare check while X was spending time with the mother. He deposes that he had arranged to take X to a sports match the next day, during what would otherwise be the mother’s time, and that the mother had initially agreed to this but then changed her mind. The father telephoned X to confirm the time for collection from the mother. He says he telephoned X because the mother had blocked his number on her phone. The father deposes that, while speaking to X, the mother took the phone from X. He heard X saying “Help me dad, help me dad”. X was crying and wailing. The mother screamed down the phone “He is not going. You are not coming to get him” and then terminated the call. The father tried to call the mother back but could not get through. He then called the police to conduct a welfare check who reported that X was safe. The father adhered to this account in his oral evidence.
The mother deposes that she changed her mind about the sports match due to problems making arrangements for it. In her oral evidence, the mother said that she could not understand why the father saw the need to call the police as this just seemed to escalate the situation.
On 28 October 2019, the father deposes to receiving a telephone call from X’s school principal and the school counsellor. He says that the principal reported X to be in a very distressed state and reporting that he did not want to go home with his mother anymore. The principal said that she had made a report to the child well-being unit and suggested the father obtain an Apprehended Domestic Violence Order for X. The father took X to Region U Police Station where X spoke to an officer. The father deposes to X telling the officer that “Mum has said that someone is going to come and fix dad up at work”. X was distressed and anxious after this and told his father that he would not go to his mother’s residence. X did not spend time with the mother from about 28 October 2019 to about 28 December 2019.
The mother cross examined the father about this incident and was concerned about why the police were involved. When cross examined, the father adhered to his affidavit evidence.
The Computerised Operational Policing System (“COPS”) entry for the police’s involvement with the family describes the police’s interaction with the father in what appears to be the presence of X at 9.30 pm on 28 October 2019. That record is to the effect that the father said to police “his son had told him that the [mother] had said ‘I’ll send people around to your dad’s to sort this out’. The [child] was unable to elaborate or recall any words said by her or when this happened…” That is, the police’s contemporaneous record does not accord with the father’s evidence that X told the police officer “Mum has said that someone is going to come and fix dad up at work”. Instead, it describes X telling the father a similar message and the father repeating it to police.
The same COPS entry records the police’s interaction with X’s school earlier that same day. The school principal and school counsellor are recorded as telling police of X:
“…He finds it hard to say no to his mother and for that reason is unhappy with decisions she is attempting to make for him like changing school. When in her care, she often confiscates his phone and does not allow him to call his father. She can be verbally aggressive and he feels afraid of her when she becomes angry. He has made no allegations of her committing offences against him however, he sees the school psychologist weekly and often seeks support from the deputy. They are liaising with the child wellbeing unit in regards to his situation…”
I make no finding about whether the mother told X that she was going to send someone to “fix up” the father. However, the report by the school to the police earlier the same day is a record on which weight can be place, given it was made by a person with no interest in the proceedings and who has a professional obligation to make accurate reports. The salient point from the 28 October 2019 incident is that X had reported that he fears his mother when she is angry and was distressed by the fact he cannot call the father.
On 8 November 2019, X’s school recorded the following:
Yesterday afternoon 7/11/19, 3.00, [Mr Klaric], [X]'s father spoke to me about [X] and his relationship with his mother. [Mr Klaric] seeing solicitor today and intends to go to court to put in an immediate cessation of previous court orders relating to mother's access to [X]. [X] rang mother Tuesday? Wednesday? of this week to tell her he didn't want to see mum for a while. Mum replied that she would come up to school on her days and get him. [X] replied that [Ms Q] wouldn't let that happen. [Mr Klaric] told [X] that was not the correct thing to say. [Mr Klaric] asked if [Ms Varga] had emailed me. She had not but I found out after school that [Ms Varga] had contacted director saying I was favouring the father.
Attempted to contact [Ms Varga] today in regards to report made to child wellbeing. Also tried yesterday. [Ms Varga] said she would call today but did not thus prompting my call to her.
(As per the original)
On 15 November 2019, X’s school recorded the following:
Spoke to [Ms Varga] regarding [X]'s absence from school today and yesterday. Advised her that [X] had not attended school as he was worried about pick up.
On 25 May 2020, X’s school counsellor recorded:
[X] self-referred to SC. [X] discussed with SC his unsupervised visit with mother on Saturday. [X] returned to see SC later today. Wanted to discuss with SC as he was feeling upset/angry over what happened on weekend visit with mother. [X] reported to SC that is mother speaks badly of his father in front of [X]. [X] reported he got particularly angry upset about this and after visit with mother, sent her a “rude” txt telling her to stop. [X] reported that he discussed with his dad what he did and what his mother said.
(As per the original)
On 17 June 2020, Ms G recorded of that day’s counselling session:
[X] very worked up about his high school choice for next year. Doesn’t want to go to a private school like his mother is pressing for. Wants to go to local high school because that is where his friends are going. Frustrated, loud voice. Angry that his Mum is “making his do this” – panic state. Determined not to go, then worrying about how he will cope if he does go.
Moved off topic – but [X] often returned to it. Relationship with his father seems stable and consistent. Relationship with his mother seems turbulent.
(As per the original)
In her oral evidence, the mother said she was concerned about how X told the counsellor that he did not want to go to a private school. She said that she had taken him to V School a couple of years prior but did not speak to him about the high school. The mother did not appear to connect the fact that she had taken him to school with how X would be aware of her desire that he attend a private school.
On 9 September 2020, Dr F reported:
Thank you for your letter regarding [X], a now 12 year 8 month old boy who I haven’t seen since 2015. I saw him today with both of his parents and both separately, but not [X] separately. The consultation was assisted by a psychometric assessment looking at his educational ability and IQ score done in May this year by [Ms G], educational psychologist. His cognitive assessment would suggest that he will struggle and require a lot of support in any educational environment. Overall, his IQ is in the borderline range and his learning is in the borderline range, and explaining to his parents today how important it is to maintain a good level of support at school both at school and at home to keep him out of the disability range is very important… Again, given his IQ and his educational ability a lot of work will need to be put in in all environments to assist him with his progress.
Current concerns medically are his weight, particularly truncal obesity and stretch marks and the possibility of associated insulin resistance … He is good at sport ad enjoys [sports] once or twice a week, but he doesn’t do a lot by way of incidental exercise. His father is focussed on keeping him happy and resilient but his mother would like him to be further supported educationally and in a sporting sense.
…
In association with his truncal obesity, there is borderline hypertension at a BMI of 28. His blood pressure today was 132/96. His weight 95.7 kg, his height 185 cm …
…
I have sent him off for standard bloods…
I will see him again in 6 months to see how things are going in terms of his weight, his BMI and his pubertal status, and the recommendations that have been made for dietetic review, podiatrist review, and additional learning support at school should be adhered to.
Despite a recommendation in 2020, the father did not arrange for X to have a dietetic review until 2022. When asked about this, the father said that there was a context, being that X did not want to go to appointments for fear the mother may be there. That said, the father accepted that it was not good enough that two years had elapsed before X was taken by him, as X’s primary carer, to see a dietician. Nevertheless, the diet plan for X is that he eats a proper breakfast, has less access to sugary foods at the school canteen and eats his evening meal at about 6.00 pm or 6.30 pm rather than later at night. The father said that this plan is working well for X, who is more aware of his weight.
On 18 September 2020, the mother emailed the father to enquire whether he had made an appointment for X to see a podiatrist. The father did not respond. On 24 September 2020, the mother sent a follow-up email about this. The father did not respond. In his oral evidence, the father said he could not recall why he did not respond to the mother.
On 11 October 2021, the mother sent a third email to the father to follow up about making an appointment for X to see a podiatrist. Having not received a response from the father previously, the mother made an appointment for X and advised the father of it. The father accepted that failing to respond to the mother was likely to have added to parental conflict.
On 20 October 2020, the podiatrist emailed the mother with a detailed summary of her assessment of X and the recommendations she had made when speaking with the father at the consultation. The podiatrist made some specific recommendations about the brand and style of shoes that X should wear. The mother said she would buy the recommended shoes and have him fitted for orthotics. The mother deposes that the father purchased Nike shoes rather than the recommended brands. In his oral evidence, the father said that he bought X a pair of limited edition Nike shoes as a present and that he bought other shoes, including brands that had been recommended by the podiatrist.
On 31 December 2020, the mother emailed the father:
There is a suggestion after speaking with [X] only moments ago that you shall not drop him off at [Mr J’s] [[Mr J]] office tomorrow morning so that I may spend time and see [X] for his birthday. I have organised such a beautiful day for him! Please ensure that you do.
I am so over this, you constantly cause unnecessary stress, anxiety, worry and disappointment for me and my family time and time again. Not to mention what this erratic behaviour does to [X]. All this is extraordinary to say the least.
I am looking forward to seeing my darling [X] for his birthday.
Further, the mother’s email of 31 December 2020 suggests that the father involved X in passing information to the mother about the parenting arrangements. While not in specific reference to any particular instance, the father conceded in his oral evidence that he did use X as a conduit of information between himself and the mother. He suggested that the reason for this was to enhance their relationship by making their own arrangements for time. When tested on this, the father accepted that it was inappropriate for X to be making his own arrangements with the mother in circumstances of high parental conflict.
X was scheduled to attend on Dr F on 17 March 2021. The father cancelled the appointment without telling the mother. On 15 March 2021, the mother emailed the father as follows:
[X] had a follow up appointment with [Dr F] this Wednesday 17 March and I have just been informed this morning by [W] Paediatrics that you cancelled the appointment without communicating with me prior to doing so. Please remember [X] has a mother and that is me, I am not dead [Mr Klaric] and I have a say with what happens with [X] especially when it comes to his learning, development, health and wellbeing. I am so disappointed with your actions, this was an important follow up with [Dr F] which we cannot get back. Please may I also ask you not to bad mouth [Dr F] to [X] instead you should be taking on board [Dr F]’s recommendations ie not allowing [X] extensive time to sit on the PlayStation instead encourage more exercise activities and reviewing his diet. Both of which remain unchanged. Further discussions about these issues needed to be had with [Dr F] on Wednesday as you cannot continue to compromise [X]'s health and future.
Appointments with [Dr F] are hard to obtain and as a result we cannot see her again until Wednesday 21 July at 2.30pm. Under no circumstances are you to cancel this appointment.
The father responded soon after:
[X] has been invited to a very special birthday after school on Wednesday afternoon. He has expressed a desire to go and to not miss out on this?
It is scheduled at 4.30pm to 7.30pm. It is a [sports activity themed] birthday party which includes 16 boys from his school and he really wants to go.
I have spoken to the father of the Birthday boy and he has paid for [X] to participate in the event and all the boys are so excited. So you can imagine how excited [X] is as well?
Can you please support our son to participate and we can re-schedule the [Dr F] appointment?
In his oral evidence, the father conceded that a specialist medical appointment was more important than a birthday party. When next asked why he cancelled the appointment in favour of the birthday party, he said the party was very special for X because of what it had to offer. The father accepted the tension within his evidence.
The mother deposes that, at 4.26 pm on 11 April 2021, shortly before the parties were to attend changeover, she emailed the father about the shoes that X was wearing. The email chain indicates that the mother told the father that the shoes were ill-fitting and that she had thrown them out, before explaining the importance of wearing well-fitted shoes. The father responded with outrage that she had thrown away a pair of $400 shoes that he had bought a month or two before. The mother defended her actions, stating that the shoes the father had bought were the wrong size and very hard and stiff, whereas the shoes she had bought were of softer material and supported X more firmly. The father was still outraged but said to the mother to return the shoes to him so he could donate them to charity. The mother said she would donate the shoes as the father could not be trusted to do so.
The parties then attended changeover. The mother deposes that at changeover, the father walked towards her car and pressed his nose on the window next to her and said “open the window right now” and “you cunt”. The mother reached for her phone and told the father she would call the police. The father left. In his oral evidence, the father denied behaving towards the mother in a threatening manner. The mother’s evidence was unchallenged.
From 1 June 2021, the father was in hospital for a few days. X remained at the father’s home being cared for by his paternal grandmother. During the time the father was in hospital, the mother and X exchanged a series of happy text messages in which X wrote that he loved her, that she “have a good night” and also “bye mum talk tomorrow”. X also sent a photograph of himself in his Sports Team jersey.
On 21 June 2021 at 11.46 am, the mother emailed the father as follows:
…We had a follow up appointment with [Dr F] on the 17 March which you cancelled on the morning of the appointment, without my knowledge and without re-scheduling it.
I made another appointment on the day you cancelled, new appointment shall be on 21 July at 2.30pm. This is an important follow up with [Dr F]. Please do not cancel this appointment, it is in [X]'s best interest to go.
This appointment holds priority over other events such as birthday parties, which is the reason you cancelled the last appointment…
On 24 June 2021, Ms G recorded:
…
… [X] easily worked up and frustrated - most of this directed towards his mother. Unable to give specific details as to what exactly had happened. Physically easily agitated. Loud voice, waving arms.
Happy at school. Mildly worried about Covid-19, misses friends. Happy that he is going to local school with friends - "imagine if I had to go to Mum's school,... that would have been terrible".
[X] and I mainly focussed on some strategies to reduce frustration and also multiple perspective taking. When given the option not to see his mother, [X] says "no that wouldn't be fair because she is my Mum". [X] found it hard to see things from different point of views - became defensive, and interpreted that I was not believing his narrative. Determined that his mother just 'cared about herself' and Dad 'does everything'. Despite this later in the session, able to talk positively about time and activities spent with Mum.
…
(As per the original)
On 22 July 2021, the school counsellor recorded:
… [X] reported that he had an incident with his mother during the school holidays that resulted in the Police being called. He has decided that at present he does not want any contact with his mother. Discussed [X]'s current sense of well being and who he can talk to etc when he is anxious. [X] states that generally he is coping well with online learning and has maintained contact with his friends.
On 9 July 2021, X was due to spend overnight time with the mother for the first time since the proceedings commenced. The mother deposes that she was driving to Suburb Y Sports Park with X during the morning and that:
53…Whilst driving there [X] started calling his dad, I asked [X], “why are you calling your dad?” He replied with words to the effect: “to ask him if I can stay until Wednesday”. [X] proceeded to call the father and I heard the phone ringing and said to [X] words to the effect, “I will email your dad later.” I took the phone from [X] and hung up. [X] said words to the effect “OK mum”.
…
55 Whilst at the Park, I received a call from [Constable Z] at 11.18am.
56Constable [Z] appeared confused as to why the father called him, I to was confused as to what was going on. I started to worry and thought that something had happened at my home as the Constable thought we were there and mentioned something about [X] talking to someone on the phone. I responded with words to the effect, "Oh yes X was speaking to his grandfather when we were at home but we are at the Park now". The Constable then proceeded to say we have received a call from your ex husband. I asked why? About what? He asked is everything Ok? I responded words to the effect, "Everything is absolutely fine. I don't understand what is going on".
57Whilst speaking to the officer [X] approached me and started to overhear the conversation. The officer then proceeded to ask if we at some stage could come to [Suburb M] police station just to make sure you're ok. I said yes of course. When I got off the phone [X] started to look worried and scared. He asked me "who I was on the phone with?" I replied, "The police". [X] then asked, "Mum am I going to get into trouble?" I said " [X] no not at all, you have done nothing wrong". I was not sure as to what was going on and why the father called the police.
58After leaving the park I proceeded to go to seven eleven petrol station to get petrol it was upon returning to the car that I noticed that [X] was on his phone. [X] told me that his father called him and asked him to put his phone on locator. I then asked him why? [X] replied, "Dad is coming here". I had no idea as to why the father was coming and why he was trying to interfere in my time. I called the number which the police officer earlier on called me from. I wasn't sure if it was the same constable as I spoke to previously but I proceeded to explain what was going on and that the father is trying to collect my son and I don't know why. The officer said words to the effect, "turn off the locator immediately and we can either send for police there or leave". I told the officer that I would go home which I did.
59When driving home [X] asked me again if he was going to get into trouble. I assured X you haven't done anything wrong. Why is Dad trying to pick me up? I have no idea. Close to home I decided to stop at the petrol station to grab some bread, I asked X to come with him, I then noticed [X] started walking the other direction I said to [X] where are you going? He didn't answer I then walked his way. He entered a pizza shop and started getting really worried. [X] asked the lady if she could call the father. The father told this lady that he was coming there. I quickly then ran to the car to grab my phone and called [Suburb M] police station to have the police come.
60The father arrived before the police and I asked "what is going on? Why did you call the police this morning?" He said because I heard you say on the phone "I am going to kill you". I was shocked by this allegation and said to the father, words to the effect, "what are you talking about? I did not say that. That is not true. Neither of us spoke to you [Mr Klaric] ". I was unsure as to why [Mr Klaric] would say this when we did not speak over the phone, I have not spoken to [Mr Klaric] over the phone for years. Then I heard [X] repeat what [Mr Klaric] had said about me. I asked [X] "why did you repeat this [X] ?" [X] responded "dad said you did”.
(As per the original)
In her oral evidence, the mother adhered to her belief that the father had fabricated his evidence about this incident. She said she proposed that X stay until Wednesday, and he was excited about the proposal. While driving to the park, X rang his father. The mother says she took the phone from X because she did not want X co-parenting by telling the father of the altered arrangements. The mother was asked if she saw a disconnect between, on the one hand, her direct enquiry with X about extending the time, while on the other hand, telling X not to call the father because that would place X in a position of co-parenting. The mother accepted that it was not a good idea to have asked X if he would like to stay until the Wednesday and creating an expectation that may not be followed through.
The mother said that X did not run away from her. She said she pulled into the 7-Eleven at Suburb AB for fuel. While in the shop, X called the father. The mother said that she called a police officer but she did not want the police to attend. The mother denies that she said to X “I’m going to kill you” and cannot understand why the father called the police.
The mother agreed that the police attended the scene and spoke to both parties. When asked if there was anything she might have done differently during the day with the benefit of hindsight, the mother said that, had she known that the day would have panned out as it did, she would not have asked X if he would like to stay until the Wednesday. She affirmed her decision to confiscate X’s phone.
The father deposes of an incident on the same day. He says he delivered X to the mother’s home at about 9.00 am and that:
…Approximately 2 hours later, [X] telephoned me and said words to the effect of “Mum said she is going to hang onto me until next Wednesday”. I could hear the Respondent saying “I’m going to kill you” to [X] because he called me. I then rang [Suburb M] police station and reported the situation. The police told me they would go to the house and then rang me back to say they could not find the Respondent or [X]. A woman then rang me on a landline after about another hour from a pizza shop in [Suburb M] and said “Your son has run away from his mother and has asked me to call you” and put [X] on the phone. I said, “Stay there, don’t move, I’m coming to get you”. I could then hear the Respondent who had parked up the road from the pizza shop yelling at [X] “come here, what are you doing?” [X] said “leave me alone”. The woman from the pizza shop then came back on the phone to me and said “I’m ringing the police”. I drove straight from my workplace to [Suburb M]. The police then attended the pizza shop with 2 paddy wagons and arrived about 10 minutes after I arrived. The respondent was still yelling. Three female police officers took the Respondent away from the scene while the male police officers spoke with me and [X] separately and then told me to take [X] home after he had expressed a wish to police to go home with me.
(As per the original)
The father adhered to his version of events of the 9 July 2021 incident in his oral evidence.
The COPS entry for 9 July 2021 records:
…About 11:00am on Friday the 9th of July 2021, the father contacted police regarding the victim contacting him and wanting to talk and hearing the mother yelling in the background. The victim kept telling the father to pick him up as he didn't want to spend any more time with his mother as she lied to him. The mother picked up the victim and informed him that instead of dropping him off on the weekend, she was in fact keeping the victim until Wednesday. Police believe the victim and the mother potentially suffer some form of mental health and are unable to communicate at a usual level. The mother was out with the victim and the victim continued to update the father where they were so that the father could come and get him as he didn't want to remain with the mother. Eventually the father caught up with the two at I love Pizza on [Suburb M] road where a verbal argument between the two erupted inside of the store. According to staff at the pizza shot , the mother was quite loud and yelling about it is her weekend to spend with the victim, however, the victim wanted nothing to do with her and wanted to go home with the father. Police spoke to all parties and told the victim that if he wishes to go home with his father that he could and there would be no issues. The victim left the location with his father and police informed the mother that due to what the victim wanted, he was allowed to go with the father. The mother continued to argue with police and began making tit for tat allegations about the father and his alledged aggression. The mother was explained that if she wishes to see the victim that she will need to continue with the current family law court proceedings of which police cannot enforce. However, police did inform the mother that police were in fact stating that this weekend, the victim is to stay with the father due to de escalating the situation that has occurred this weekend about custody. The mother continued to make allegations and contacted several police stations as police informed her that no ADVO was being applied for on her behalf due to the situation not requiring one. Several police stations including 14 have informed her that no ADVO will be applied for in this situation. The mother then began to make allegations of historical domestic incidents which 14 informed her that if she wishes to report them they would have to be reported as a separate incident, and due to the circumstances, the current incident would be taken into account for credibility…
(As per the original)
X spoke to Ms G about the incident on 19 August 2019. Ms G recorded:
…Keen to tell me his version of events. Turned up at Mum’s house on Friday willing to stay 1-2 nights. [Ms Varga] repeatedly pressured him to stay until the Monday as soon as he [got] there. [X] called Dad to talk to him about staying longer and [Ms Varga] reportedly “lost it” in the car. Pushed [X]'s head against the window yelling “I’m going to kill you”, “I’m going to have a car accident.” [X] stopped seeing Mum after incident. Only spoken on the phone. Mum telling [X] “nothing happened”, “I’ve done nothing wrong”. Last spoke a week ago. Following this [Ms Varga] unfriended [X] on Facebook and he blocked her on his phone.
(As per the original)
On any view, the incident on 9 July 2021 was distressing for X, exposed him to high levels of parental conflict including police intervention, and damaged his relationship with the mother, who he did not see again until November 2021.
X was scheduled to attend on Dr F on 21 July 2021. This appointment was made by the mother to replace the appointment the father cancelled in March 2021. The mother emailed the father to remind him of the appointment on 21 June 2021 and 19 July 2021. The mother attended Dr F’s rooms for the appointment and, after the father did not arrive with X, made another appointment for 26 July 2021. The father conceded that such discourtesy would have served to antagonise the situation with the mother and contribute to parental conflict. That said, it is not implausible that X may have been resistant to going to the appointment if he expected the mother to be there, given the events of 9 July 2021.
The mother deposes that, on 28 August 2021, X called her at the father’s instigation to tell her that he would not be spending time with her again until 8 November 2021, when students returned to face to face learning.
On 15 September 2021, Ms G recorded of an interaction with the father and X:
… [X] has spoken to Mum over the phone and Facetime but no F2F contact.
[X] going [very] well on his own. Independence increased. [X] asked Mum to come over and meet up near Dad’s place – Mum repeatedly refused. [X] upset because Mum called his school a “bogan haircut” and his school a “bogan school”.
(As per the original)
In her oral evidence, the mother denied describing X’s school as a “bogan school” but matter-of-factly stated that she had said his haircut was a “bogan haircut” because it was cut with a short front and long at the back. She said that she had told X that he looked more handsome with a clean cut hair cut. Despite being taken to Ms G’s note from 15 September 2021, the mother did not think that X may have been insulted by these comments about his haircut.
On 21 September 2021, the Court ordered the father to pay his share of the Expert’s fees. He did not do so. In his oral evidence, the father said he was thinking about paying the fees but wanted the money to pay his barrister for the hearing. When it was identified to him that he was self-represented so would have money available to pay for the report, the father was
non-committal. The father said, in answer to a direct question, that he has about $9,000 in the bank. When pressed, the father conceded he could reimburse the mother immediately. The father accepted that the non-payment of his share of the fees would have contributed to parental conflict.On 17 November 2021, [X]'s school counsellor recorded:
… [X] wanted to provide feedback regarding situation with visitation with his mother. [X] stated that Legal mediation has occurred and himself [he] and both parents provided input. He is now visiting his mother every weekend and things have been going well… [X] is feeling positive about the arrangement…
On 16 March 2022, Dr F reported to a General Practitioner:
Thank you for your letter regarding [X], a now 14 year 2 month old boy who I haven't seen since September 2020. For various reasons the planned follow up appointment after that consultation was not attended. General well-being bloods and chromosomal studies were though promptly attended to as requested after the appointment in 2020. You do have the results in his file. Pleasingly his detailed genetic studies returned normal results. Of note though were abnormal lipid studies with a raised cholesterol, TG and LDL. Bloods were done because [X]'s BMI was in a well above a healthy weight range (28). There was no increase in insulin on fasting bloods. His BMI today has edged up to 28.5. It is time to get a dietician and/or a personal trainer involved in meal planning, dietary advice, regular weight measurements and an exercise program to address his weight and abnormal lipid profile. Because of the complex parent dynamics. [X]'s eating and weight needs to be monitored externally and regularly until his BMI comes into the normal range. I will make some recommendations about health professionals who might take on this role and provide a referral.
I saw [X] on his own, his father and mother on their own but separately, and all three together.
I am trying to maintain some objectivity around caring for [X]. I have known him since preschool when he was diagnosed with a pervasive developmental disorder. He has an IQ in the borderline (slow-learner) range without additional specific learning disabilities. He is in year 8 at D School. I have spoken to [Mr AC] to gain further information regarding [X]'s academic progress, the support he receives and the provisions he has for exams. [Mr AC] forwarded [X]'s term 1 progress report for my file. He is in a class with targeted learning support by a special needs teacher with remedial tuition across all subjects for 20 periods a fortnight with occasional SLSO support in addition. He receives the provisions of small group supervision and extra time (5 minutes every 30 minutes) for exams. Attendance for this term is 83%. [X] is reported to be well behaved with rare minor misdemeanours. He requires support to stay on task to complete work. He is reported to tend to rush through work in science. He is distractable.
By definition children with borderline intellectual ability require repetition and support to learn. His mother would prefer that he is educated in a more focused and supportive environment than where he is currently. Speaking to [X] on his own today he is happy at his current school and would prefer not to change schools. His mother emphasised today that she believed [X]'s best outcome would come through improving his educational support. [X]'s father acknowledges that his strengths are in practical subjects such as tech and woodwork and this is where he will settle in the longer term. There is a lot to take into account when considering moving schools at this stage of [X]'s education. He is reported to have quite a few friends at his current school. [Mr AC] did confirm that there had been some social issues with perceived bullying which had been addressed by the school deputy principal and may have been related to [X] misreading social cues.
[X] would like to be involved in team sport. He has played [sports] in the past but is considering [sports]. He would be at an advantage in his age group given his size. Team sport would mean regular training and games which would be good for [X]'s physical fitness and weight control, not to mention sleep although this is reasonable at present. Team sport also means that he would have to commit to the sport with regular attendance so not to let his team down.
[X] has a large appetite. Take away food is an exception rather than the rule. He is exposed to cigarette smoke at his father's house.
On examination today [X] was generally well. His weight 111.9kg and his height 198cm. BP was down compared to previously at 113/69, heart rate 79/min and regular. Pubertal staging was Tanner 4. Prosody was direct and volume loud. His mother was concerned that he had been coached in what he should say to me but I did independently corroborate what he told me with what his father told me separately, thus I would consider that there was validity to what I was told about what food was eaten at home, how often takeaway was eaten etc.
[X] will need his fasting bloods rechecked six months after he commences his dietary/exercise program. I am happy to arrange this.
I will see him again as necessary.
(As per the original)
In her oral evidence, the mother did not accept that X was “actively opposed” to changing schools. She accepted that X would be initially upset but, once he sees the facilities at K School, would settle quickly. She pointed out that lots of children change schools and make new friends. The mother suggested that X could retain his friends from his current school in the Region U, even though he would be boarding at K School or living with his uncle at Location AD. The mother was certain that Dr F had specifically recommended K School, even though Dr F’s letter identifies that there are a number of things to consider before changing schools.
On 24 June 2022, X’s school counsellor recorded:
…Wanted to share historic information re mother. Reported instances of mum:
•Hitting him in the head when he was younger
•Not collecting him from school when he was younger
•Calling the police on dad when he and dad were enjoying a holiday at Queensland theme parks
SC acknowledged that this must have been difficult for L and his father. L reported having more control now and a great relationship with dad.
L reported that he has moved 12 x since he was a child and that mum would like him to attend [V School].
L reported having a children’s lawyer and has supervised visits with his mother. General reports of mental health concerns in relation to his mother…
(As per the original)
In her oral evidence, the mother denied hitting X on the head, not collecting him from school and calling the police about the Queensland trip. The mother was of the view that the school counsellor’s notes are not accurate because it contains information that is not true.
X’s school report for Semester Two in 2022 recorded 18 whole days absent of which five were unexplained and two explained partial days of absence. X’s performance was graded in the sound to basic range in the various subjects. He is consistently described in terms such as an engaged, diligent, polite and an enthusiastic learner who makes a positive contribution to the classroom environment.
On 18 September 2022, X spent time with the mother. The father’s version of events is that X reported to him when the mother and X were driving, the mother cut off another vehicle and, as she drove past, raised her middle finger at the other driver. The mother and the other driver were yelling at each other. X apparently reported that he felt scared and asked the mother to stop yelling, and that she hit him across the face twice. The father deposes that X rang the father and said “Dad come and get me now. Mum’s just hit me twice across the face and told me to shut up”. The father adhered to his version of events in his oral evidence.
The mother deposed that, while driving through the AE Tunnel, X started arguing and waving his arms around. She was worried that she would not be able to pull over in the tunnel. She had to concentrate on driving in the tunnel which had dim lighting and traffic. She deposes that she “tried to contain X’s movement and behaviour whilst driving by placing my left hand across his upper body to allow me to continue driving safely”. The mother deposes that, once out of the tunnel, she pulled over and called the maternal uncle “to advise what occurred as it was a stressful ordeal and, due to this, we both agreed we should cancel dinner due to X’s behaviour. X got upset at this decision we made and proceeded to call his father at around 6.00pm to pick him up earlier than we had organised”.
In her oral evidence, the mother denied striking X on the face and denied that there was an incident of road rage. She said that X was upset because, earlier that day, he asked the paternal grandfather to collect him but he could not collect him because of the Sports event. X then became upset about the Court proceedings and the contents of affidavits.
On 31 October 2022, X’s school principal emailed the Independent Children’s Lawyer as follows:
[X] was distressed at school today following a delivery of donuts from his mother [Ms Varga].
[X] was called to the office to accept the delivery. He opened the card that read “Happy Halloween my beautiful boy!!!! Love you so much XXXXX ” and he immediately scrunched the card in a ball and threw it in the bin. [X] proceeded to tell office staff he did not want the donuts.
The office staff alerted me to [X]'s upset and I asked him to come and have a chat to make sure he was okay.
[X] then stated he wanted nothing to do with his mother. The reason he gave for this was that the last time he saw her (September) she was engaged in a road rage incident in her car. He said that he asked her to stop and she turned her anger on him and slapped him across the face twice. He said he got out of the car in the middle of the city and called his dad on his mobile phone to collect him. He talked about his mother trying to take him away from his father and wanting him to change schools which he did not want to do. He repeatedly states he wants nothing to do with his mother.
An E-report regarding this incident has been made to the DCJ (ref no: …).
(As per the original)
Regardless of the competing accounts of 18 September 2022, it is apparent from the email from X’s school to the Independent Children’s Lawyer that X remained highly distressed about his mother even though several weeks had passed. In this regard, I note that X reacted strongly even though she had come no further than the school office, delivered a gift for him and did not see or speak to him. Resolving the competing accounts of 18 September 2022 would not alter the main point, which is, as the Expert evidence will show, that X’s relationship with his mother is volatile and when it breaks down, X’s strong emotions persist for some time.
EXPERT EVIDENCE
The interviews for the report took place on 20 and 21 September 2021 and 21 October 2021.
Of the mother’s view as to why there was ongoing conflict with the father, the Expert reported at page 13 and 15:
I asked [Ms Varga] to reflect on the ongoing conflict with the father and why she thought they had not been able to resolve conflict. She said she thinks it is because the father interferes with her time with [X] unnecessarily. She said the father involves [X] unnecessarily and give [X] anxiety and stress. She described the father as being the cause of unnecessary conflict.
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I asked the mother how she felt she had contributed to eth conflict with the father [a propos of the incident on 6 June 2021]. She said “I don’t think I’ve done anything to contribute to the conflict”. She said she is not sure why the father is doing this but the conflict needs to stop.”
Of the father’s view as to why there was ongoing conflict with the mother, the Expert reported at pages 24 and 25:
Given the length of the history of the dispute, I asked [Mr Klaric] why he thought that he and the mother were still in conflict with one another. He said “I have tried and tried to resolve it. I’m at the point where I don’t know what path to take anymore. He said in the past he had worked very hard to “take the high road” and had “stayed silent so many times”. He said that initially he thought he should just do whatever [Ms Varga] demanded, but that even when he tried this approach, she continued to be critical and derogatory. He said that the mother would “blackmail” him and say things such as “you won't see your son”, “I will ruin you” and “I will make sure your friends hate you”. He said he still does not understand what he has done for the mother to be so revengeful towards him.
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I asked [Mr Klaric] to reflect on his own behaviour in the conflict with the mother. He said “I have had some monumental arguments with her”. He said that in general they had “terrible arguments”. He was said there were times when he “couldn’t get a word in” and he was “cut off and abused”. I asked the father specifically about some of the language and behaviour he had engaged in. He agreed that the language in text messages he had sent the mother was “horrendous”. He agreed that he used inappropriate language. He agreed that he had called the mother “psycho” and described her as having mental problems and used other offensive terms to describe her. He said that when they have arguments, “they get personal” and he can “get the point where I can't take any more of it”.
Over the last two years, [Mr Klaric] told me that the mother has “just stopped communication” and consistently tells him that he is “blocked”. He said that even if he has engaged in neutral or positive communication, such as saying thank you to the mother, “she just wants to fight and argue”.
Of the mother’s view of X’s psychological health, the Expert reported at page 17:
With respect to [X]’s psychological health, [Ms Varga] noted that he is very anxious because “his father constantly involves him in problems.”
Of the father’s view of X’s psychological health, the Expert reported at pages 29 and 31:
[The father] acknowledged that [X] had been adversely affected by conflict. He sometimes wonders whether [X]'s cognitive delays had been caused by the parental conflict or at least made worse by it.
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Overall, [Mr Klaric] said that he thinks that [X] has been “pummelled by the family law system”. He said that “it has never been about [X] not seeing his mother”. He said that his strongest first instinct is “to protect our child.” He said [X] “comes straight to me for comfort”. He said, “I’m pretty sure he loves her a lot and wants to have a relationship with her”. He said that despite everything that happened between them that “ [X] has still been keen to go back and see his mum. He still loves her and wants to have a mother”. However, he said that [X] has been worn out by the conflict. He described himself as fatigued and said “I don’t know what we are still fighting for”.
The Expert observed interactions between the mother and X, as described at pages 36 and 37 of the report:
[Ms Varga] arrived later in the day, and I was able to observe her with [X]. Although there was a great deal of initial awkwardness, [X] politely greeted his mother. [Ms Varga] was positive with [X]. She affectionately greeted him and hugged and kissed him. Although [X] was not terribly enthusiastic, he accepted his mother’s affection. At several points, [Ms Varga] affectionately stroked [X]'s hair and he tried to brush this off and appeared mildly irritated.
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I asked [X] what his mother could do to improve their relationship. He said “for me to be able to call dad” when he was with his mother.
I asked [Ms Varga] what [X] could do to improve their relationship and she said, “that when I am with you that your dad respects the time we have and doesn’t interfere in that time”. I observed that [X] had become very upset at this comment and was looking away quite tearfully.
The Expert observed interactions between the father and X, as described at page 32 of the report:
Throughout the observation, [Mr Klaric] was patient, attentive and kind towards [X]. I noted that he allowed [X] to speak to me independently, and from time to time encouraged [X]'s prosocial skills. For example, at one point after I had asked a question [X] was looking towards his father and [Mr Klaric] encouraged [X] to respond directly to me, which he did. At another point, [Mr Klaric] corrected [X] as he had used a swear word, and [X] complied with his father's direction. [Mr Klaric] was verbally affectionate towards [X], referring to him as “mate”.
Of X’s description of his parents and other family members, the Expert reported at pages 32 and 33 of the report:
[X] and his father told me about his paternal grandmother who lives with them. [X] refers to her as “bubba”. He said that she speaks a mixture of English and [Language AH]. He said that his grandmother is “very protective” of him, which can be “annoying” at times. He gave the example of his grandmother hovering over him in the kitchen without understanding he can do things independently and will not hurt himself.
[X] thought that his father was “not too strict”. There was general discussion about the rules at home. [Mr Klaric] told me that [X] is a very tidy sort of person who takes great care in ensuring his room is impeccable. [X] agreed and said that he liked his things a particular way.
[X] spoke openly and positively about his mother. He also spoke very positively about his uncle [Mr J] [[Mr J]], explaining that his uncle had been able to take him to [sports games]. He also pointed out that his uncle lives nearby [to my offices in the city].
Of X’s views, the Expert reported at pages 35 and 36:
[X] he said he wants his mother to try to understand that he wants to be able to see her when he wants. He said that there had been so many problems over the years. He said that he does not understand “why we can’t communicate”. He said that things can go well for a period and then “something always goes wrong” between them and “there are always fights”.
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[X] spoke about feeling caught in a never-ending conflict with his parents. He said, “mum thinks that dad tells me lies about her and that dad is brainwashing me”. He said, “I argue back and I say, ‘it’s not true’”. He said he normally keeps quiet about things he has done with his father. He said that he thought that his father does not speak to his mother.
[X] said that his relationship with his mother “frustrates me”. He said, “she can be a really good mum” and acknowledged that there had been things he had done with his mother which had been fun. He said, “I want her to support me” and “not be rude with me”. He said that his mother did not support him playing [sports] near his home and with his friends. He said he wanted to play [sports] with his “mates”.
[X] was able to describe some positive experiences with his mother. He said that they used to go to some sporting events together and they supported [AF Team] last year. He said that he also had fun with his mother at the pool and [sports] and that he loves going to the beach.
I asked [X] about spending time with his mother again. He gave mixed views. He said “I am not going near her without supervision” but then said that he wished his mother could come out to near where he lives. He said that he would like his mother to come and walk his dog with him. He went into a lot of detail about how the dog might manage this [i.e. whether the dog would jump all over his mother]. He said that he would also prefer his mother to come to the oval with him or go to his favourite fishing spot.
[X] spoke very positively about his father. He said that his father generally does not speak about or to his mother. He said that his father can be annoying at times but that he appreciated that his father always organised things to do which he liked. He spoke about holidays, afternoon activities and sports. [X] said that the main difference [between his parents] is that his father tries to understand him whereas his mother always argues with him and wants things her way.
I accept the totality of the Expert’s opinion. The Expert’s written report was detailed and her recommendations clearly tied to the factual material to which she had regard, which was itself thorough. The Expert’s oral evidence was confirmatory of her written opinion. The Expert is highly qualified and experienced in family law parenting matters.
Primary considerations
The primary considerations in determining what parenting arrangements are in the best interests of the children are twofold:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This takes precedence over the first primary consideration.
There is no issue that X would benefit from a meaningful relationship with each parent. At this stage of his development, and in light of his developmental characteristics and need for calm, stable parenting, X is better served by being afforded the opportunity of a relationship with his mother, rather than positive orders in that regard.
There is overwhelming evidence that X has been, and will continue to be, exposed to high levels of parental conflict if the parents are required to interact. The Expert opined that no therapeutic intervention was likely to succeed. While there are a range of contested facts about particular events over time, the real issue is that on any view of the evidence, there has been intense parental conflict to which X has been exposed. On some occasions, police have been involved, which amplified the situation for X. It is common ground that it is not in X’s best interests to be exposed to this and that measures need to be put into place to insulate him from it.
The effect on X of being exposed to this conflict is that it is emotional and psychologically damaging for him, as he experiences hyper-arousal, anxiety and then shuts down his relationship with his mother until he is able to recover. School records and school counselling notes between late 2015 and 31 October 2022 indicate that X has been consistently concerned about the mother arriving at the school and reacting badly when she has attended the school. At other times, the parental conflict has meant that X has not been collected from school as required.
School attendance records indicate that X has had a number of unexplained absences. The father deposes that some of the absences have been due to X refusing to go to school out of fear the mother will attend. This is plausible having regard to the school and school counsellor records of X’s fear about the mother attending. For this reason, the impact of parental conflict to X extends to his learning and social development.
X would be exposed to a high risk of anxiety and dysregulation if his parents are both present at a school event, extra-curricular event or medical appointment.
Taken together, these matters indicate the need for orders that are prescriptive, and ensure X’s school, extra-curricular and health environments are only attended by one parent at a time.
Any view expressed by a child and any factors (such as the child’s maturity or level of understanding) that the court considers relevant to the weight that should be applied to the child’s views
At the time of the Expert report, X wanted to live with his father, spend time with his mother in accordance with his views from time to time, and remain at his current school. Although his current views are not known through the Expert, the email from the school principal to the Independent Children’s Lawyer dated 31 October 2022 records strong emotion by X against seeing his mother.
Limited weight should be given to X’s view having regard to his cognitive development. That said, if I were to make an order contrary to his views with respect to school, X may be unhappy and this could be a problem for his education and social development.
Deferring to X’s views would place undue pressure on him, and so ought not to occur.
The nature of the child’s relationship with (i) each of the child’s parents and (ii) other persons (who may include grandparents or other relative of the child)
The evidence establishes that X has:
(a)A volatile relationship with his mother, although one from which he can identify positive attributes. X could recall many good times with the mother but was frustrated by the fact that the times would end badly. In my view, orders need to be designed to conserve the mother-child relationship rather than be too ambitious about advancing it, hence the notion of providing an opportunity to X rather than imposing an obligation to spend time with his mother. X requires calm and time to recover from disruptions in his relationship with his mother due to his cognitive limitations;
(b)A secure and consistent relationship with the father. The father is X’s primary parenting resource and the Orders need to take care to ensure that the father-son relationship is not fractured by orders that create coercive obligations that either produce more conflict between the parties and directly or indirectly expose X to the risk that entails, or require the father to cause X to spend time with the mother if X is resistant; and
(c)A positive relationship with his paternal grandparents and his maternal uncle. These can serve as a gateway for X to better enjoy his relationship with the mother, and are valuable to X in their own right.
The extent to which each of the child's parents has taken, or failed to take, the opportunity to: (i) participate in making decisions about major long-term issues in relation to the child; and (ii) spend time with the child; and (iii) communicate with the child
Both parents have taken the opportunity to participate in these matters.
The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
There is no evidence that either party has failed to fulfil his or her obligation in this regard.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he has been living
The mother’s proposal is that X attend K School as a weekly boarder or, alternatively, as a day student and lives with his maternal uncle during the school week. This proposal would mean that X ceases living primarily with the father and effectively lives with neither parent. Her rationale is that it would insulate X from parental conflict.
It is an agreed fact that X cannot attend K School as a day student and travel from his father’s home at Suburb AG as the distance is too great. The mother concedes that if X remains at D School, that he should live with the father.
The mother’s alternate proposal, that X attend K School as a day student and live with his uncle, need be taken no further given the Order would constitute a parenting order and Mr J is not a party to the proceedings.
Thus, the effective proposal of the mother is that X attend K School as a weekly boarder. There is an intersection or overlap between the issue about X’s school and the question of a change of circumstances more generally. It is thus convenient to resolve the school issue at this juncture.
I acknowledge that the mother places high value on X’s education and wishing for him to have the best opportunity in this regard. However, there is no evidence about how X would manage being a boarder when he has never lived away from home. It is not apparent from the documents that X is even aware that the proposal is that he boards, as his comments, as recorded by Ms G and the school only refer to a “private school”.
X is opposed to changing schools. His opposition has been recorded over time, noting the COPS record for 29 October 2019, Ms G’s notes of 17 June 2020 (which observed X to be in a panic state at the prospect of changing schools) and 24 June 2021, and what X told the Expert in September or October 2021. At the Expert assessment, X told the mother that he did not want to change schools. The Expert opined, and I accept, that it is very difficult to successfully move a child’s school if the child is unwilling to move and it may result in school avoidance or truancy.
X has established social and other support networks at his current school which are an asset to him, considering his particular need for stability arising from his cognitive difficulties. The Expert described, as I accept, X’s longevity at his current school, since kindergarten, as a “big asset” for him, even if there may be perceived benefits elsewhere.
Year 9 is a difficult point in school life to change schools because social groupings are established and it can be difficult for a new student to fit in.
There is no evidence that K School will offer X more or better educational opportunities than his current school. The information about K School that was attached to the mother’s material related to junior school services, where X would be in the senior school. The Expert’s opinion, which I accept, is that X’s current school is meeting his overall academic and developmental needs and appropriately monitoring him. X’s school report for Semester 1 of 2022 indicates that he received a “C” grade for Visual Arts, English, History, and PDHE and a “D” grade for Science, Maths, Spanish and Technology. For clarity, “C” refers to a “sound” learning outcome and “D” refers to a “basic” learning outcome. Given X is cognitively impaired, this appears to be a good result for him.
The mother identifies that X has been absent from school, while in the father’s care, for 35 days in the past nine months. Boarding at K School may overcome unexplained absences. I accept that it is important for X to be in full attendance at school except where there is a reasonable excuse. This is an area for the father to focus on and to draw from the supports available at the school. That said, the evidence also indicates that X’s absences may be due to his fear about being collected by the mother, and that he is refusing to attend for that reason. By making final orders that set out when the mother may attend the school may assuage that fear and improve attendance.
The mother deposes to having no confidence in the teaching staff at D School, that she feels they take the father’s side, and that they exclude her from decisions concerning X’s welfare. The mother is aggrieved by the fact the school called the police and made a report to the Department of Communities and Justice in 2020. However, documents produced on subpoena by the school indicate that the mother may have conducted herself inappropriately at the school. I accept the veracity of these notes, having regard to the professional and legal obligations that attach to their making. For example, the mother apparently spoke directly to some Year 6 girls in the playground and told them to stop bullying X, who was then in Year 3. Although the girls denied such behaviour to staff, whether they were or were not bullying X is not the point: it was inappropriate for the mother to directly approach children in the playground in that way.
No application has been made for X to attend K School. He does not have a place at the school. Even if an application were made now, there is no way of knowing whether X would be offered a place at the school or when that place may become available. Leaving aside the other issues that speak against X changing schools, the uncertainty associated with the proposal for K School lessens its viability.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The father lives at Suburb AG in Sydney’s Region U area and the mother lives at Suburb M. The travel time by car is about 45 minutes to an hour in each direction.
Shorter visits may be beneficial to X in the early stages of the arrangements to ease X into restoring his relationship with the mother and promote confidence in his mind. The mother confirmed that she would not travel to the Suburb AG area under any circumstances. The father is prepared to deliver X to the mother and collect him at the end of the time. While there is a two hour return trip for a four to six hour visit each fortnight, I am satisfied that this is reasonably practicable for X and the father.
The demonstrated inability for the parties to communicate about parenting arrangements constitutes a practical difficulty as to the implementation of orders. For that reason, the Orders aim to be simple.
I will require the parties to use a co-parenting application for all of their communication. These applications are designed from separated parents and permit the use of an electronic synchronised calendar function and short messaging system. The lengthy emails involving lectures and commentary that has been demonstrated through the evidence needs to cease.
I accept that the mother would prefer to continue with email communication but phone-based applications are common place and there is no reason she cannot adopt the technology.
In an effort to extinguish excessive communication and any basis for a subsequent complaint, I will make an express order that permits each party to ignore communication other than via the application. The father must upload or post information about appointments for X into the application within the prescribed time. The purpose of communication is to inform one another of matters related to the implementation of the orders. It is not a forum for discussion.
I will make an order that the father pay for the subscription fees to ensure that the application is promptly set up for use, given he will be the person principally posting information and indicated he is in favour of it, and to remove any debate about this issue.
The capacity of (i) each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The father’s strengths are his ability to provide calm, consistent parenting to X, which is a major asset to X. A weakness has related to his attention to X’s health needs and this plainly needs to be an area of greater diligence.
The mother’s strength is in her focus and diligence in relation to X’s health and education. However, she lacks insight into the effect of her parenting style on X, which is combative. By reason of this, the mother has not displayed a capacity to meet X’s core need for calm and steady parenting in times of emotional arousal when he has very limited ability to self soothe.
The maturity, sex, lifestyle and background (including any lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks relevant
X’s health needs have been identified by Dr F in her report dated 16 March 2022. X’s Body Mass Index was 28 at that time, described by Dr F as being “well above” the healthy weight range. He was found to have an abnormal lipid profile.
X’s attendance on medical and allied health professionals as recommended by Dr F is a high priority and needs to be attended to urgently. I add to that, that such attendance needs to continue as recommended.
X is keen to play team sport, and his engagement in such an activity is compatible with Dr F’s recommendations for physical activity. Both parties agree that he should be involved in a team sport. That activity will be of most benefit to X if he engages with it consistently, regardless of which parent is caring for him at the scheduled training and match fixtures. The sports team that X may wish to join has trials on 18 December 2021, so I will defer his potential time with the mother until after that.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
One of the primary responsibilities of parenthood is to demonstrate to the child that the other parent is to be respected and to nurture and support the child’s relationship with the other parent. The evidence establishes that neither party has discharged this responsibility.
The father concedes that he has been disrespectful towards the mother at times. Changing medical appointments without telling her, even though he knew she was intended to meet X and the father for the appointment and not paying half of the Expert’s fees for these proceedings with no genuine intention of ever doing so, are illustrations of this.
The mother could not identify any particular fault in her attitude to the father. Yet, as the emails from her to him indicate, she lectures and berates him.
The Orders will be realistic about this. Therapeutic intervention to improve the parent’s relationship is not viable. Instead, the Orders will provide clear direction as to what is to occur, how the parties are to communicate and, so much as possible, minimise the opportunity for the expression of their conflict.
Any family violence order involving the child or members of the child’s family
There are no family violence orders in place.
Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child
This case warrants orders that will avoid difficulties in interpretation or implementation. The Orders will be based on a fixed fortnightly cycle that will commence on the first weekend after the making of the Orders and continue until X attains the age of 18. This will apply throughout school terms and school holidays with minimal exceptions. I am aware of the difficulties that the parties experienced with the 2015 Orders, as indicated by the school records from that time. The Orders I will make are intended to be “set and forget”, that is, the alternate Sundays can be programmed into the electronic calendar without further need for discussion.
PARENTAL RESPONSIBILITY
It is common ground that the father should hold sole parental responsibility for all matters other than health. The father and the Independent Children’s Lawyer propose that sole parental responsibility extend to health, whereas the mother seeks joint parental responsibility for this issue. No party invited me to make a finding that would attract the operation of s 61DA(2) of the Act . Instead, all parties appear to have framed their reason for sole parental responsibility on the basis of s 61DA(4) of the Act, that is, equal shared parental responsibility is not in X’s best interests.
The rationale for the mother seeking joint parental responsibility for health was to ensure that the father was kept accountable in this domain of X’s care, as she had been diligent and attentive to these issues where the father had not been.
The father’s attendance to X’s health needs has reflected poorly on him, whereas the mother has been diligent in this regard. There is merit to the proposal that the mother should remain engaged in health related decision making in order to better ensure that X’s needs are met.
However, this would require the parties to interact in the face of a demonstrated history of inability in that regard. The more effective mechanism to ensure X’s needs are met by the father is to permit the mother to confer with health professionals to ascertain the recommended course of treatment. If this does not occur, and the father does not comply with the Orders, a judicial consequence may flow.
For these Reasons, I will allocate all aspects of parental responsibility solely to the father.
CONCLUSION
For the Reasons given, X will attend D School for Year 9 until the conclusion of his secondary education.
In those circumstances, there is no dispute that he would continue to live with the father.
As to the time X should spend with the mother, I have considered making orders for alternate weekends on the one hand, and for day-only time on the mother. I have also considered whether to express the “time with” Orders in positive terms or on a more flexible basis. The evidence establishes that X is more likely to benefit from a meaningful relationship with the mother if he has the opportunity to spend time with her, rather than making coercive orders with which the father must comply. It is not appropriate to defer to X’s views because this is likely to place pressure on him.
X has not spent time with the mother since September 2022 after a volatile event. There was a disturbance to his time with her in late 2021, also after a dramatic episode. X needs time after these upsets to recover in a calm environment before re-engaging with the mother. The Orders will be for day only time because this is intended to signal to X that spending regular time with his mother is in his interests but without the intensity of a full weekend.
I have considered the proposal in Order 5(c) of the Independent Children’s Lawyer’s proposal, namely an express order that the parties can reach agreement for additional or different times and I decline to make that Order. Firstly, such liberty is implicit. Secondly, I am concerned that this may place pressure on X, similar to that which occurred on 9 July 2021 when the mother invited X to stay with her for some additional days.
I have considered whether the time with the mother on Sundays should conclude at 5.00 pm, as the Independent Children’s Lawyer and the father propose or at another time. I will conclude the time at 4.00 pm because there is about an hour’s travel between the houses and X’s diet plan encourages him to eat his evening meal at about 6.00 pm or 6.30 pm. If the day with the mother has been volatile or distressing for X, it is important that he have a normal evening routine in order to prepare for school the next day. An earlier changeover will give X a little more time for this.
I have considered whether the Orders could include block time in school holidays in 2023 and onwards and decided against it. The volatility of the relationship between X and the mother, coupled with the fact that time has not been occurring since September 2022 would require me to speculate as to the likely advantage to X of such time.
I will restrain the mother from attending X’s medical appointments with him in order to shield those appointments from parental conflict. I will only require the father to notify the mother of the appointment after the fact. This is intended to bolster X’s confidence that his mother will not be at the appointment if that has been a past deterrent, and facilitate his attendance.
It is common ground that X should have a passport and so I will make an order for X to have a passport. It will be retained by the father as the primary carer of X. The Court can hold the passport but to release it will require the parties to interact to have it released. Although the parties agreed to the Independent Children’s Lawyer’s proposal that they do all acts and things to apply for a passport, I see no good reason to invite even that level of co-operation between them. I have considered including an order under s 106A of the Act to enable the father to ask the Registrar to sign an application form but that adds to the burden of this Court and causes the family to remain engaged with the legal system. However, there is provision under the Australian Passports Act 2005 (Cth) for the father to make a sole application, so I will engage that tool in the interests of X obtaining a passport without conflict.
I will make orders granting leave to provide the Orders to agencies who are likely to be involved with X and the parents. I will extend a copy of the Reasons to Ms G as that may assist with her therapy for X. I will make orders for the Expert to receive the Orders and the Reasons for her own information.
In all the circumstances, I am satisfied the Orders that I will make are in X’s best interests.
Cost of the Independent CHILDREN’S lAWYER
The mother opposes paying her share of the Independent Children’s Lawyer’s costs. Costs are determined by reference to s 117 of the Family Law Act 1975 (Cth).
The mother is not in receipt of Legal Aid and proposes to be responsible for the whole of X’s boarding fees at K School for Years 9 to 12. If she can be responsible for such fees, there is no ground for her to assert financial hardship. The mother will pay her share of the Independent Children’s Lawyer’s costs.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 8 December 2022
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