Kubic & Waddington - [2021] FedCFamC1F 264

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kubic & Waddington [2021] FedCFamC1F 264

File number(s): MLC10055 of 2014

Judgment of: MCEVOY J

Date of judgment: 7 December 2021

Catchwords: FAMILY LAW – CHILDREN – Where final parenting orders were made by consent in July 2016 – where the father recommenced proceedings in July 2017 – where both parties seek that the child live with them – where the father asserts the mother has sought to exclude him from the child’s life – where the mother asserts she facilitated the relationship between the child and father save that she had concerns about the child’s behaviour and could not ignore disclosures being made by the child – where the Independent Children’s Lawyer recommends the child continue living with the mother despite the mother having hampered the child’s relationship with the father and having refused to participate in therapeutic intervention – where it is found that the mother has attempted to prevent or curtail the father’s relationship with the child – where it is found that the maternal grandmother has sought to undermine the child’s relationship with the father – consideration of whether the child should be removed from the mother’s care – where it is found to be in the best interests of the child for the parties to have equal shared parental responsibility and for the child to remain living with the mother, go to school proximate to the mother’s home, and spend substantial and significant time with the father – where the mother is required to participate in reportable therapeutic counselling

Legislation:
Evidence Act 1995 (Cth) section 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 65DAB, 65DAC

Cases cited: Banks & Banks (2015) FLC 93-637
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) FLC 93-428
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
Jones & Dunkel (1959) 101 CLR 298
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Poisat & Poisat (2014) FLC 93-597
U & U (2002) 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 89

Date of last submission/s: 31 May 2021

Date of hearing: 8-12 February 2021; 17-18 March 2021

Place: Melbourne

Counsel for the Applicant: Ms Harris

Solicitor for the Applicant: RT Legal

Counsel for the Respondent: Mr Combes

Solicitor for the Respondent: Trapski Family Law

Counsel for the Independent Children’s Lawyer: Mr O’Connell

Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid
ORDERS

MLC10055/2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KUBIC

Applicant

AND:
MS WADDINGTON

Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

7 DECEMBER 2021

THE COURT ORDERS THAT:
1.The father and the mother shall retain equal shared parental responsibility for the child X born … 2014 (“the child”).
2.The child shall live with the father as follows:
(a)during each school term in the first and second weeks of every three week cycle commencing in the first week of the school term as and from the first term in the school year 2022, from 4.30pm Thursday until the commencement of school or 9.00am the following Monday or Tuesday if such Monday is a public holiday;
(b)on the Thursday of the third week of the said three week cycle from after school or 3.30pm until 7.00pm provided the father has given the mother 7 days prior written notice by text or email that he intends to spend such time with the child;
(c)for one half of all school holidays as agreed and failing agreement, the first half;
(d)on Father’s Day weekend from the conclusion of school or 3.30pm Friday until the commencement of school or 9.00am the following Monday if the child is not otherwise then residing with the father;
(e)from after school or 3.30pm until 5.30pm on the child’s birthday and the father’s birthday if a school day and from 12 noon to 6.00pm if a non-school day when the child is not otherwise then residing with the father;
(f)from 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years and from 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years; and
(g)as otherwise agreed between the parties.

3.Upon the making of these orders, the parties to do all acts and things and sign all documents required for the child to transition to N School in Suburb P from 2022.
4.The child shall reside at all other times with the mother and in addition, the father’s periods of residence with the child shall be suspended when the child is not otherwise living with the mother as follows:
(a)on Mother’s Day weekend from after school or 3.30pm Friday until the commencement of school or 9.00am the following Monday;
(b)from after school or 3.30pm until 5.30pm on the child’s birthday and the mother’s birthday if a school day and from 12 noon to 6.00pm if a non-school day; and
(c)from 4.00pm Christmas Day until 4.00pm Boxing Day in even numbered years and from 4.00pm Christmas Eve until 4.00pm Christmas Day in odd numbered years.

5.The mother shall deliver the child to the paternal grandmother’s residence at the commencement of the father’s time referred to in paragraph 2(a) herein and otherwise where changeover is not at the child’s school, it shall be at the paternal grandmother’s residence at the commencement of the father’s periods of residence and at the mother’s residence at the commencement of the mother’s periods of residence.
6.Each parent shall keep the other informed of any out of the ordinary issues related to the child’s health as well as all doctor’s appointments, procedures or operations prior to such being undertaken and in the case of emergency inform the other of such as soon as possible.
7.Each parent shall be at liberty to attend all school functions, activities and events which parents are usually invited to, including working bees and story time and all extra curricular sporting and artistic events and any religious or cultural events special to the child.
8.The parents shall be and are hereby restrained from denigrating the other parent in the presence or hearing of the child and shall not allow any other person to do so.
9.The mother shall forthwith do all things and sign all documents necessary to attend upon a therapist nominated by Ms D, Family Consultant (“the therapist”), be responsible for the costs of this therapy and follow all directions of the therapist for the purpose of reportable therapeutic counselling directed to the mother achieving and/or sustaining a proper understanding of the importance of the father’s role in the child’s life and the need to comply with these orders.
10.The mother shall authorise the therapist to inform the father of her attendance upon the therapist and whether the mother has kept all appointments made with the therapist.
11.The therapist shall be provided by the father with a copy of these orders, the Judgment herein and all family reports prepared by Ms D prior to the commencement of the therapeutic counselling.
12.The parties have liberty to apply before the Honourable Justice McEvoy in the event that any party issues an application in respect of the child within the next two years.
13.The appointment of the Independent Children’s Lawyer shall be discharged.

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 the pseudonym Kubic & Waddington has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION

The parties to these proceedings are the applicant father, Mr Kubic (“the father”) and the respondent mother, Ms Waddington, (“the mother”). The proceedings concern parenting arrangements for the one child of the relationship, X born in 2014 (“the child”), who is currently seven years old.
The matter has had an unfortunate history, and there are aspects of both parties’ behaviour at various times which may fairly be the subject of criticism. Proceedings were originally commenced by the father in November 2014, and final orders were made by consent in July 2016 providing for the child to live with the mother and spend gradually increasing time with the father. For various reasons however, including the making of allegations by the mother, these orders became impracticable and in July 2017 the father was compelled to make a further application. In August 2017 the mother made an application seeking to suspend the July 2016 consent orders. She sought sole parental responsibility, and that the child have only supervised time with the father. This application was ultimately unsuccessful, and in March 2018 the child commenced spending overnight time with the father.
Before long, however, the mother had made further allegations and the child’s unsupervised time with the father was again suspended, necessitating the making of a further application by the father. Once again orders were made permitting the father to spend unsupervised time with the child, moving to overnight time. The matter was listed for final hearing before Gill J in May 2019, before later being transferred to my docket.
In early 2019 the mother made yet more allegations. However on 7 May 2019 the parties agreed to interim orders providing that they have equal shared parental responsibility and for a regime for the two of them to have time with the child on an equally shared basis. These orders provided that if the parties could not agree on a school for the child to attend, he would attend a school equidistant between their respective homes pending the final hearing which was adjourned by consent. The parties live some 58kms from one another on different sides of Melbourne, and so it is impracticable for the child to live with each of them on a week about basis. The scheduling of the final hearing on a face to face basis was interrupted by the COVID-19 pandemic, and it ultimately did not proceed until February and March 2021. The father’s final submissions were not provided until 31 May 2021 (consistently with a filing timetable agreed between the parties).
By the time of the hearing the parties were broadly in agreement that, save for the issue of choice of school, they could share parental responsibility. They were, however, fundamentally apart on with whom the child should primarily live. The father’s case was that since the birth of the child the mother has participated in a course of behaviour designed by her with the support of her parents to exclude him from the child’s life, inconsistently with Court orders. The father says that despite the mother’s assertions at trial that there has been a change in her attitude for the better, that change is not genuine and should not be believed.
Accordingly the father says that the child should live primarily with him and spend time with the mother three weekends out of four. In the event that the parties were to reside within 30km of each other, the father proposes that the child also spend time overnight time with the mother each Wednesday. The father’s proposal provides for the parties to share school holidays, and for ancillary orders.
The mother contends that she has facilitated a relationship between the child and father, save for when she had concerns about the child displaying concerning behaviours. She submits that she could not have ignored certain disclosures which the child made, and that she had an obligation to act protectively. The mother says that the child has always lived with her, and that as his primary and more significant attachment is to her it would have a detrimental impact on him if the present live with arrangements were to be altered. She says that she will continue to encourage and facilitate a relationship between the child and father, and that the child should spend significant time with the father. The mother now accepts that the father and the child have a close and loving relationship.
The mother therefore seeks final orders that the child live primarily with her, that he spend time with the father for two consecutive weekends in a three-week period from after school Friday to before school Monday, and in the third week of the cycle from after school on Thursday to 7.00pm. The mother also proposes that if the father were to live within 20km from the child’s school, then the child’s time with him be extended to overnight on Thursday. The mother proposes that school holidays be shared, as well as various ancillary orders.
The Independent Children’s Lawyer (“ICL”) has adopted a position which attempts to bridge the parties’ competing proposals. The ICL would have the child live primarily with the mother, despite accepting that there is significant evidence that the mother has not fostered and has actually hampered the child’s relationship with his father, and that the mother has not undertaken any significant therapeutic intervention to address her lack of understanding of the importance of the child’s relationship with his father.
Although the ICL notes that the mother’s attitude appears to have changed, she retains a concern as to whether this change is sincere and sustainable. Nonetheless, the ICL’s position is that protective safeguards can be put in place to address this concern, and in all the circumstances that the child should not be removed from the mother. The ICL submits that it would be no small thing to change the child’s primary residence, and that this would be a step too far.
The ICL proposes that the mother and father have equal shared parental responsibility, that the child live with the mother, and that the child spend time with the father beginning in Term 1 of 2022 in week one and two of a three week cycle from 4.30pm Thursday until the commencement of school Monday. In week three of the cycle the ICL proposes that the child spend time with the father each Thursday from after school until 7.00pm, on the condition that the father has provided the mother with written notice seven days prior. The ICL would have the parties share school holidays and, critically, the mother attend upon a therapist nominated by the family report writer and follow all directions for the purpose of reportable therapeutic counselling so as to achieve and sustain a proper understanding of the importance of the father’s role in the child’s life and the need to comply with the Court’s orders. The ICL also proposes that any further applications between the parties for the next two years be listed before the Court as presently constituted.
The ICL’s position accepts the family report writer’s evidence that the child should go to school in the area where he predominately lives because, as time goes by, it will become more difficult for him to be at a school in between his parents’ homes. Given the family report writer’s recommendation that the child attend a school close to where he predominantly lives, the ICL submits that equal time with each parent would be untenable. It is to be noted, however, that the ICL considers that if the parents lived closer to one another she would have little hesitation in recommending the continuation of an equal time arrangement.
The parties’ competing proposals, minutes of which were furnished to the Court with their respective closing submissions, are set out in the appendix to these reasons for judgment. Suffice to say that the principal issue which now falls for consideration is whether the mother, with the support of her parents, has engaged in conduct which has been calculated to exclude the father from the life of the child and, if so, whether the risk of her continuing to do this is such that the child should no longer live with her.
For the reasons which follow I have accepted the ICL’s submissions and, essentially, the orders which she has proposed. They are consistent with the family report writer’s recommendations and notwithstanding my significant concerns about the mother’s behaviour to date, I agree that if some protective mechanisms are put in place it would not be in the child’s best interests for him to be removed from the mother’s primary care. There will, accordingly, be orders broadly in the terms proposed by the ICL. Plainly, however, the mother and her parents need to make this regime work. If they are unable to foster the child’s relationship with his father, and if the mother does not undertake therapeutic intervention to address her lack of understanding of the importance of the child’s relationship with his father, it may be necessary for the child to be removed from the mother’s primary care.
BACKGROUND
The father was born in Australia in 1987 and is 34 years old. He works in the transport industry. At the time of the trial the father lived in the west of Melbourne. The father has a younger child with another woman. He is apparently no longer in a relationship with this woman. This child was born in 2018 and is almost four years old.
The mother was born in Australia in 1985 and is almost 36 years old. She works part-time, also in the transport industry. The mother and child live with the maternal grandparents in two separate houses on the one property in the outer north east of Melbourne. The mother has been diagnosed with an adjustment disorder, with anxiety.
The parties met at their workplace in 2007. They apparently began a romantic relationship in or about 2013, commenced cohabitation in January 2014, and married mid-2014. The parties separated on 2 September 2014, shortly prior to the birth of the child. The mother says they divorced on 11 April 2017 although the father seems to think this happened in 2016. Nothing turns on this disagreement.
MATERIAL RELIED ON
The father relied upon the following documents:
(a)Affidavit of Dr E filed 12 February 2019;
(b)orders of 30 April 2020;
(c)his affidavit filed 18 December 2020;
(d)Affidavit of Ms O (“the paternal grandmother”) filed 18 December 2020;
(e)his affidavit filed 29 January 2021;
(f)Affidavit of Ms D, (“the family report writer”) filed 1 February 2021;
(g)outline of case filed 3 February 2021;
(h)written submissions dated 31 May 2021; and
(i)documents tendered at the trial.
The mother relied upon the following documents:
(a)psychiatric assessments of the parties by Dr E filed 27 January 2015, 7 December 2015, 13 July 2016 and 12 February 2019;
(a)Family Reports prepared by the family report writer dated 15 July 2016 in previous proceedings (unfiled) and of 14 October 2015 (filed 21 October 2015);
(b)Affidavit of Dr H filed 5 September 2017;
(c)Affidavit of Dr M filed 5 April 2019;
(d)Amended Response to Initiating Application filed 22 January 2021;
(e)her trial affidavit filed 22 January 2021 and accompanying annexures;
(f)Affidavit of the family report writer filed 1 February 2021;
(g)written submissions dated 30 April 2021;
(h)documents tendered at trial; and
(i)Affidavits of the father, particularly paragraphs 11 to 15 of the father’s affidavit filed 15 June 2016 and his affidavit filed 10 November 2014 at paragraph 12(b).

The ICL in the matter relied upon the following documents:
(a)Affidavit of the family report writer filed 1 February 2021;
(b)outline of case dated 4 February 2021; and
(c)written submissions dated 9 April 2021.
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Div 6 of Pt VII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: ss 60CA, 65AA of the Act.
Section 60B(1) of the Act sets out the objects of Pt VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include an assault, a sexual assault or other sexually abusive behaviour, repeated derogatory taunts, and preventing a family member from making or keeping connections with his or her family, friends, or culture. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order. Section 4AB(3) provides that for the purposes of the Act a child will be exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597 at [34]. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 (“Donnell & Dovey”) the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404 (“Mulvany & Lane”), May and Thackray JJ observed at [76]-[77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Original emphasis)
As the High Court emphasised in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 years old has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child (or other relevant child) or family violence. The presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
When the presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
It will be by reference to s 60CC of the Act that the Court will consider the best interests of the child in the context of determining parental responsibility. Findings about the best interests of the child, having regard to the s 60CC considerations, are required to be made in order to come to a conclusion as to whether the presumption in s 61DA, if it applies, is to be rebutted: see the discussion in Hardie & Capris [2010] FamCA 1046 at [60]-[61] (Murphy J).
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2). Thus, the persons making the decision will need to consult one another in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue: s 65DAC(3) of the Act.
THE EVIDENCE
It should be observed that pursuant to s 140(1) of the Evidence Act 1995 (Cth) the standard of proof that is to be applied is the balance of probabilities. Section 140(2) provides that in applying that standard the Court must have regard to the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.
The Lay Evidence
The father gave evidence and was cross examined over the first two days of the trial, and the paternal grandmother also gave evidence and was cross examined. The mother gave evidence and was cross examined on the afternoon of day two of the trial, continuing until day six.
It should be said at the outset that in the course of the parties giving their evidence I became concerned about their preparedness to tell the truth. Being generous one might say that they both saw things from their own perspectives, and lacked insight into how particular actions or events might have been perceived by the other. Both had a tendency to answer questions with an eye to what they thought would better suit their case. On balance however I accept the father’s submissions that generally he impressed as the more truthful witness. He was more prepared than the mother to make admissions against interest and to concede that he could have done things differently, or not at all.
The mother was a difficult witness. She had a tendency to parry particular questions and try to answer different questions, or to be non-responsive. Her cross examination took longer than it should have done for these reasons. On several occasions it was necessary for me to direct her to answer questions that were being put. The mother was frequently argumentative and she seemed unable to accept that there were aspects of her own behaviour, particularly surrounding her efforts to minimise the significance of the father in the child’s life and her failure to engage appropriately with family therapy, which were highly problematic. Very frequently the mother’s substantive answers appeared to be calibrated to assist her case.
It must also be observed, however, that a good part of the parties’ evidence was more in the nature of largely irrelevant background to their unfortunate relationship than expositive of critically relevant disputes about factual matters which must be resolved one way or the other in order to determine what parenting orders are in the best interests of the child. This is particularly so, in my assessment, of the evidence of the competing allegations of family violence and abuse up to April 2016 and its asserted influence on the mother as summarised on pages 5-15 of her closing submissions and in some detail by the father in part 5.1 and 5.2 of his closing submissions. The mother accepts as much, conceding in her closing submissions that the relevance of the alleged family violence is not that the father is a risk to the child but that it was not unreasonable for her to be hyper-vigilant and protective in the circumstances. As will become apparent, I entertain no concerns whatsoever that that father is a risk to the child.
What is relevant, however, is what I accept have been the mother’s attempts to prevent or curtail the father’s relationship with the child. The evidence in relation to these matters is helpfully summarised in part 5.3-5.11 of the father’s closing submissions. In this respect I accept the father’s submissions that the evidence discloses that from the time of the child’s birth the mother made it clear that she did not want the child to have much involvement with his father. She did so by refusing to engage with the father in relation to the child’s birth details (even to the extent of refusing to put the father’s name on the child’s birth certificate), her initial refusal to proceed with supervised time, and her actions in commencing proceedings for an intervention order against the father after he commenced proceedings in the Family Court of Australia.
I also accept that the mother took action to undermine the consent orders made in July 2016 after a three day trial before Macmillan J. She constructively refused to engage with Ms L for family therapy, she refused to change the child’s birth registration details to include the father, she relocated the child’s residence some 30 kms away from the father’s residence, she failed to nominate the father on the child’s pre-school enrolment as a parent or an emergency contact, and she would not initially even provide the father with the name and address of the pre-school.
I also accept, as the father submits, that once he commenced having unsupervised time with the child in January 2017 the mother attempted to undermine the success of this time. She consulted with the psychologist Dr H in relation to the child’s asserted behavioural issues without the knowledge of the father and without his input, she disparaged the father to Dr H, and she utilised Dr H’s report to contend for the cessation of unsupervised time. The mother also made claims that the child was being smacked and reported this to C Family Services which was supporting changeovers pursuant to the July 2016 consent orders. The mother raised her “concerns” with child protection authorities, and she objected to the father’s mother collecting the child at changeovers notwithstanding her preparedness to have her own parents perform that same function.
Ultimately, in the face of the mother’s demands that the father return to having only supervised time with the child, in July 2017 the father was compelled to issue new family law proceedings. The mother had not complied with her obligation under the July 2016 orders to amend the child’s birth registration details, she was refusing to engage with Ms L, and she was unilaterally insisting on supervised time. Thereafter the mother continued her efforts to portray the father as abusive of the child. She engaged a private investigator to collect evidence to use against him in the proceedings. She also reported to child protection authorities that the father and the paternal grandmother were smacking the child and psychologically harming him.
When the father’s unsupervised time with the child was reinstated after a hearing before the Senior Registrar the mother sought a review of that decision before Johns J, which application was substantially unsuccessful. Nonetheless, the mother continued to make allegations, including that the child had sworn at her after time with the father and that the father had hit the child.
The mother’s refusal to engage in the therapeutic process with Ms L is an especially troubling aspect of her behaviour. That she do so was an important feature of the July 2016 orders made by Macmillan J. It was in accordance with the recommendations of the family report writer, and it was clearly necessary. When the mother finally did attend two sessions with Ms L the resulting report noted as follows:
In all communications with [the mother] including telephone conversations and therapeutic sessions, [the mother] presented as defensive and reactive, particularly concerning [the father]. She presented as unwilling to engage in conversations with [the father], noting inter alia that she believed [the child’s] disclosures and intended to take the child to the police … [the mother] presented as focused on the dispute with [the father] and at times, even suggested that I was aligned with him.
I accept the father’s submission that the mother’s evidence about her alleged involvement with a therapist following the 2019 family report is inconsistent and unreliable. The evidence that she sought treatment as a result of the family report writer’s recommendations is not addressed in her affidavits. I accept that this is significant given the importance of therapeutic intervention to support what the mother asserts is her change of attitude towards the father. The mother’s answers in cross examination about her attempts to obtain a mental health plan to address these issues ultimately revealed that she had not sought the necessary treatment and I accept that she has not addressed in a therapeutic environment the matters identified by the family report writer. Ultimately the mother herself accepted in response to a question from the Court that her reluctance to engage in the therapeutic counselling had triumphed over the needs of the child.
The mother’s allegations about the child receiving inappropriate care from the father continued after overnight time recommenced in March 2018. She alleged that the child slept in the bed with the father and his then partner on the second overnight time weekend and that the adults were not clothed. The mother cancelled the third overnight time weekend. After the fourth overnight time weekend the mother alleged that the child had asserted that the father had bruised his ear and made threats that he should not tell anyone. In the face of the father’s denials the mother consulted a doctor and child protection authorities became involved. Unsupervised time was suspended. Ultimately the child was interviewed by the Sexual Offences and Child Investigative Team, the father and his partner were interviewed, an investigation ensued, and child protection “substantiated” the alleged abuse. Thereafter, in May 2018, the mother suspended time with the father and supervised time did not recommence until August 2018.
However the mother was still not satisfied. She alleged that the professional supervisor had fallen asleep and even after the Court had ordered a reintroduction of unsupervised time, leading to overnight time, the mother and her own mother continued to make complaints. These complaints included that the child was being slapped across the face and otherwise assaulted by the father, and that the child was terrified of the father. These complaints led to a further investigation, although this did not result in time being suspended. Nonetheless, the mother and her own mother continued to make complaints about the father physically assaulting the child and the mother complained to the child’s kindergarten that unless there could be substantiation of the child’s injuries no action could be taken. By April 2019 the family report writer noted that the mother’s behaviour revealed a persistent engagement of medical professionals and government authorities which had significant deleterious implications for the child.
I accept that there are other aspects also of the mother’s attempts to undermine the father’s relationship with the child. Although the parties agreed in 2019 that the child should attend a primary school equidistant between them, the mother showed little enthusiasm for this arrangement. She did not take the child to the school barbeque in early 2020 because she thought it would finish too late and there was nothing to do between the completion of school that day and the barbeque afterwards, notwithstanding that one of the purposes of this function was to enable the child to spend time with his new “buddy” – an older child who was assigned to take care of children in their preparatory year. During 2020 the mother did not take the child to the one birthday party to which he was invited. Plainly the mother was not inclined to assist the child to build networks at his new school, and I accept that in this respect she put her own needs ahead of the child’s.

The father, by contrast, has tried to engage with the school in a variety of ways. The father submits, and I accept, that the mother was not focused on building networks for the child because she does not want him to remain at this school. Her preference is for the child to attend a school which is closer to her home, and she is not much interested in the present school. Her behaviour in this respect is a reflection of the attitude which she has consistently exhibited – that the child is hers and that his relationship with his father is unimportant.
I also accept that the mother has failed to keep the father informed of difficulties which the child has in separating from her at school, and significant incidents which notes from the school reveal occurred in February and June 2020. Nor was the father told of attempts made by the child to run away from school or that he had told his buddies that his father hit him (which disclosure resulted in a further notification to child protection authorities). It would seem that the mother was, however, prepared to subpoena the school’s notes about these matters to deploy in these proceedings in support of her case.
Insofar as the mother criticised the father for abrogating his responsibilities to care for the child after May 2019 when they entered into their shared care arrangement, I accept that these criticisms were substantially unfounded. Self-evidently the father had work responsibilities, and it was not inappropriate for the paternal grandmother to care for the child at times (as the mother’s parents also cared for the child at times). Unlike the maternal grandmother the paternal grandmother subjected herself to cross examination in relation to these and other matters. Such arrangements are, in any event, entirely unremarkable when both parents are working. I regard the fact that the father agreed to let the mother home school the child for reasons of consistency during much of 2020 when COVID-19 restrictions meant that he could not attend school as being child focused, and not something for which the father should be criticised. The same can be said of the father’s preparedness to let the child stay with the mother on occasions when he was unwell, rather than be moved between households in accordance with court orders.
On the subject of the paternal grandmother, I accept that she has shown a significant commitment to her grandson, and to supporting the father care for the child, and that she will continue to do so. Her evidence was given frankly, and on the whole I accept that she and the paternal family have endeavoured to protect the child from the disputation between his parents – something which could not be said so readily of the maternal family, particularly the maternal grandmother.
In this respect I accept the father’s submissions that the evidence, particularly the C Family Services notes, discloses that the maternal family harbours an extremely negative view of the father and that they have not hesitated to communicate this to the child. Indeed, it would seem that the child has expressed the opinion to the family report writer that his maternal grandmother dislikes his father more than anyone. The maternal grandmother appears to have been on the lookout for problems after the child has spent time with the father, and given that she and her husband live on the same property as the mother and the child and that she often cares for the child, her opportunities to undermine the child’s relationship with his father are considerable. Also, the fact that the maternal grandmother was not prepared to give evidence and be cross examined is, in my assessment, significant. In all the circumstances I am prepared to infer that whatever evidence the maternal grandmother could have given would not have assisted the mother’s case: Jones & Dunkel (1959) 101 CLR 298 at 308. The failure of the maternal grandmother to give evidence when she was apparently available to do so is consistent with the view that I have formed that she and the maternal family more generally have not fostered the child’s relationship with his father, and indeed that they have sought to undermine it.
It is having regard to all of these circumstances that I accept that the mother and her family have made a sustained and ongoing attempt to prevent or curtail the father’s relationship with the child. I do not accept the mother’s submission that her behaviour has been “not unreasonable”. Although the mother says that her attitude to the child’s relationship with his father has shifted, and that she is now prepared to support the relationship between the child and his father, I am not convinced that this is necessarily so and that if it is so she will continue to be supportive once final orders are made. Certainly the mother’s evidence, and the manner in which she gave it, does not support her contention that she will support the relationship. She has not demonstrated much insight to date, and she has declined to participate in any therapeutic intervention which might have facilitated positive change on her part.
In these circumstances it is necessary to confront the question of whether it would be better for the child to be removed from the mother into the father’s care, with the child attending a school which is proximate to the father’s residence. Resolution of this question requires careful consideration of all the evidence and in particular the family report writer’s evidence, bearing in mind that she has been involved with the family now for several years, and has prepared no fewer than five family reports.
The Evidence of the Family Report Writer
Ms D prepared family reports dated 14 October 2015, 2 July 2016, 13 November 2017, 6 April 2019 and 4 December 2020. The reports dated 13 November 2017, 6 April 2019 and 4 December 2020 were annexed to an affidavit of Ms D filed on behalf of the ICL on 1 February 2021. Ms D gave evidence for approximately three hours on the final day of the trial. She agreed during examination in chief by counsel for the ICL that the main issue was the mother’s capacity to cooperate with the father in the development of the child’s relationship with him, and whether the mother has the wherewithal to do this. Ms D said that while examining the motivation behind the mother’s change in attitude can be relevant and helpful, the ultimate question is whether things can be sustained. Although it is unnecessary to refer to aspects of all of the family reports here, it may be observed that all five of them provide a disturbing picture of the dysfunctional relationship between the child’s parents and the profound impact that this has had on the child.
In his closing submissions the father relies principally upon the more recent family reports, those of 6 April 2019 and 4 December 2020. The mother is less explicit and more wide-ranging, but her closing submissions focus on the 13 November 2017 and the 4 December 2020 reports.
In relation to the 6 April 2019 family report, I accept the father’s submission that Ms D’s statement that the mother says she does not look for evidence of abuse but that the child discloses it to her, is entirely inconsistent with the evidence. The father notes Ms D’s conclusion in 2019 that little had changed in the parental relationship, that the child had formed a close and secure relationship with his father, and that there was nothing in the child’s presentation which raised concerns about the father or his extended family. He draws attention also to Ms D’s identification of the risk to the child’s emotional and psychological development deriving from the mother’s:
(a)persistent engagement of authorities and medical professionals;
(b)little regard to the impact on the child of not spending time with the father;
(c)attempts to alienate the child from his father;
(d)creation of an incongruence for the child regarding how he experiences his father and how the mother perceives the father which may ultimately force him to choose between his parents and interfere with his notion of reality; and
(e)repeated cycle of abuse notification and assessment, which needed to be addressed.
Significantly Ms D opined in her 2019 report that if the mother cannot be stopped from taking the action she has to date, that a change of residence may need to be considered. The father also draws attention to Ms D’s advice that the mother must engage in therapy. At paragraph 69 she said it was:
[i]mperative [the mother] engage in a therapeutic process which helps to address the need to seek constant interventions and beliefs the child is being harmed by the Father. Unless these two conditions are stringently met there is little to suggest this pattern of responding will change and hence, a shift in residency will need to be considered.
The father is especially critical of the mother’s refusal to engage in the therapeutic process, contending that, as I have accepted, the Court would find that the mother has not addressed her issues concerning him.
Insofar as the 4 December 2020 family report is concerned, the father emphasises Ms D’s conclusion that he displays insight into the child’s needs, development, and responses, and that the mother and her mother continue to demonstrate antipathy towards the father. Critical to Ms D’s observations in this report is her view that although there has been an “encouraging shift” in the relationship between the mother and the father, the fundamental issue remains whether the parents have the capacity to promote the child’s relationship with each other. She is concerned by the possibility that the changes are superficial and that the underlying mistrust and relational issues remain unchanged, and notes that the child is not sufficiently protected from the ill-feeling which the maternal family demonstrates towards the father. Although from a practical perspective Ms D considers that the mother may be better placed to provide stable, consistent and regular parenting, she retains real doubts about her capacity to support and promote the child’s relationship with the father and her insight about the importance of this.
Ultimately however, and despite her no doubt well-founded concerns, Ms D makes the following recommendations in her December 2020 report:
(a)the child should attend school, extra-curricular and other activities in the geographical area where he primarily resides, noting that the mother seems more readily available to care for the child on a practical level;
(b)weight be given to the child residing primarily with the mother by reason of the fact that his primary attachment is to her and this may best support his current emotional and psychological needs; and
(c)the child residing with one parent during the week and with the other on at least three weekends per month should be seen to have some merit, noting however that the father’s work roster would mean that he would be unavailable for at least three weekends every two months.
During her examination in chief by counsel for the ICL, Ms D agreed that the historical actions of the mother seemed to be borne out of anger for the father or an immaturity on her part, rather than fear of the father. Ms D also agreed that it was possible that the mother’s loss of friendship and unresolved personal issues with the father could have been the cause of her anger. When asked by counsel for the ICL if she thought the mother no longer had this anger, Ms D said that the mother seemed to be in a much happier place and that when she interviewed the parties for the December 2020 family report the mother’s criticisms of the father were different from previous criticisms and that the anger which she had previously demonstrated was less apparent. Ms D expressed the view that the mother’s criticisms of the father were only in relation to material presented by way of the recent affidavits. The mother apparently no longer had an overwhelming emphasis on problems and on concerns about the father and his relationship with the child. There was a noticeable shift, as far as Ms D was concerned.
When asked what could have caused such a shift, Ms D said that there may have been a realisation on the mother’s part that the relationship between the child and father was important and she had to support it, that the fact that the trial was taking place may be significant, and perhaps that there may be a realisation on the mother’s part that if the relationship between the child and father was not supported, that the Court could make a different decision in terms of care of the child. Ms D said that it could just be that the mother has grown up, she is more mature, that her anger towards the father has dissipated and that she can move on. Despite counsel for the ICL noting concerns that the mother had not engaged substantially with a counsellor as had been recommended in the first family report, it was Ms D’s evidence that if the mother was in a good place then she might not need further intervention although if there were to be further intervention she would need to be willing to engage with that process.
When discussing the father, counsel for the ICL questioned Ms D on the strength of the his contention that the child may be turned against him by the mother when there was evidence that the father had not availed himself of the opportunity to spend time with the child in accordance with 7 May 2019 orders, and that he chose to cash in his annual leave to pay certain debts. Ms D did not accept this criticism, noting that the child seemed happy with both parents and that the transition between the parties seemed easy. She said that this would tend to show that the child has been supported and that she did not think that he was being turned against the father in the way that he had been historically. It was Ms D’s evidence that the fact the father had allowed the mother to care for the child during his allocated time likely meant that he had come to trust her.
It was also Ms D’s evidence that the father’s commitment to work was something that needed to be considered by the Court and that the mother seemed more available for the child. When counsel for the mother asked Ms D about the father’s work schedule in comparison with the mother’s, she indicated that he was perhaps not as present as she thought he was, and noted that the father had been very clear and open with her about how much he had to work due to some significant costs he had such as legal fees. Nonetheless, Ms D said that she did not think the father was a workaholic, and accepted that his intention was to revert back to a more balanced life/work style. All things considered Ms D seemed to accept that the parties were in a “happier place”, and that they appeared to be able to engage in meaningful discussions. She said that it was not impossible for the mother, without therapy, to put aside her feelings about the father and focus on the child and his needs, but she considered it would take capacity to do this.
During cross examination I enquired of Ms D whether her concern as to the mother’s lack of insight and failure to promote the relationship between the child and the father was such that, in her view, the mother should no longer have the primary care of the child. It was apparent that Ms D found it difficult to answer this question with any confidence, but she said that she felt that over the last two years the parties had been moving in the right direction and had become more cooperative. She agreed that it may be a step too far to change the child’s residence, but she said that it would be critical to ensure that safeguards are put in place if the mother were to have the primary care of the child.
MATTERS FOR DETERMINATION
It is clear that the behaviour of the mother and her family, particularly the maternal grandmother, has been highly problematic. Their efforts to minimise the child’s relationship with his father have been considerable. Although there is evidence that the mother has modified her behaviour, the extent to which she has done so, and will be able to keep it up, is less clear. In order to determine what is in the child’s best interests it is necessary to stand back and make an informed, considered, and qualitative assessment of all of the evidence, having regard to the competing submissions made about it by the parties and the ICL, and the requirements of s 60CC of the Act.
The Parties’ Submissions
Clearly it is the father’s position that the mother cannot be trusted to promote the child’s relationship with him and that bearing in mind the primary considerations in s 60CC(2) of the Act he should have the primary care of the child. He submits, and I accept, that there is some risk of ongoing emotional and psychological abuse of the child by the mother and the Court’s orders must operate to protect the child from this. The father submits that the mother’s allegations about him being controlling, manipulating, punishing and eroding her role as the primary carer are all descriptions of behaviour that she has in fact embarked upon against him. The father says that he has actively parented the child and that there is no evidence of inappropriate behaviour or a lack of care when he cares for the child.
Insofar as the s 60CC(3) factors are concerned, the father contends for the reasons set out in part 18.2 of his closing submissions that on balance these also favour the child living with him. It is his position that were the Court to find that the presumption of equal shared parental responsibility did not apply given the allegations of family violence, the parties should share parental responsibility save for in relation to schooling, decisions concerning which he should be responsible for making. The father referred in passing but without elaboration to the decisions of the Family Court of Australia in Goode & Goode (2006) FLC 93-286, McCall & Clark (2009) FLC 93-405, Mazorski & Albright (2007) 37 Fam LR 518 and Godfrey & Sanders [2007] FamCA 102.
The mother maintains that she has facilitated a relationship between the child and father, save for when concerns arose relating to the child displaying concerning behaviours. She says the status quo is that she is the primary care giver of the child and to change this based on the father’s speculation that her commitment to him being a part of the child’s life will not be maintained, would be a significant and serious step.
The mother says that she has been a victim of family violence and she argues that this has been corroborated by the father from his evidence in these proceedings. In these circumstances she says it is understandable that she has not been completely committed to the promotion of the relationship between the father and child, but that more recently she has facilitated time and supported the relationship. She says that it is a testament to her that the father and child have such a close and loving relationship.
The mother refers in her closing submissions to several examples of family violence and says that the father has effectively accepted that some of these incidents occurred. It is her position that the Court could find a pattern of coercive and controlling behaviour on the father’s part. She submits that despite her apprehension and concerns about the father, she maintained contact between him and the child, save for when professionals advised that time should be suspended.
The mother’s closing submissions focus on Ms D’s evidence in cross examination that the mother was more available for the child, that the mother had greatly matured and grown up, that she did not believe the mother had turned the child against the father because the child has a good relationship with the father, that the child’s primary attachment was to the mother, and that there had been a shift in the right direction in the last two years. The mother emphasised Ms D’s view that it was reassuring that the mother’s last conversations with her had been heartfelt, and that she had acknowledged in a genuine way the fact of the good relationship between the father and the child.

As has been mentioned, the ICL submitted that there appeared to have been a change in the mother’s attitude, but she retained a concern about whether this change is sincere and sustainable. She noted Ms D’s evidence that she could not provide the Court with anything concrete to prove that the mother’s apparent attitudinal change could be sustained, but she contended that the fact that the apparent change had lasted for two years was reassuring. The ICL also pointed to Ms D’s conclusion that the child is sturdy and active, and that there is less cause for the mother to be over-protective. Also significant in the ICL’s assessment was that the mother may simply have matured, or been affected by the possibility prior to the adjourned trial in 2019 that she may lose the primary residence of the child because of her behaviour and has modified her behaviour accordingly. The ICL submitted that particular regard should be given to Ms D’s view that it would be prudent for parenting orders to have inbuilt precautions.
The ICL also submitted that Ms D’s observation that the child looks to his mother as his primary carer and main source of emotional nurturing was an important matter to bear in mind, as was the fact that Ms D considered the child to be delightful, intelligent and healthy, and that he had a close and warm relationship with each of his parents and extended family on both sides. The ICL submitted that Ms D’s evidence that the child should go to school in the area where he predominately lives should be accepted. Critically, the ICL submitted that it would be no small thing to change the child’s primary residence when he is going so well at present. For these reasons the ICL submitted on balance that it would be a step too far for the child to leave his mother and for his father to assume primary care. It is her position that if precautions can be put in place it should be possible for the child to live with the mother but continue to sustain his important relationship with the father. The ICL submits that any new orders should commence operation in 2022.
Residence and Parental Responsibility
As has been mentioned, save for the issue of school, which is connected to where the child is to live, the parties agree that they should share parental responsibility. On the subject of residence however, although the matter is finely balanced, and I retain significant misgivings about the behaviour of the mother and the maternal grandmother, ultimately I have come to the view that if protective mechanisms are put in place there is sufficient evidence that the mother may now be able to act protectively of the child’s relationship with the father to justify orders in the terms proposed by the ICL that she have the primary care of the child. This would mean that the child should go to a school proximate to her home.
I have reached the conclusion that orders in these terms would be in the best interests of the child having regard to the primary considerations in s 60CC(2) of the Act and the additional considerations in s 60CC(3) of the Act bearing in mind the following matters. First, the fact that the child’s primary attachment is to the mother and that he looks to her as his main source of emotional nurturing must be regarded as very significant. Functionally the mother has been the child’s primary carer since birth, and I accept that to change this would cause significant dislocation for him. It would be, as the ICL has submitted, a step too far.
Secondly, although I make no criticism of the father in this regard, I accept that the mother seems generally more available for the child than he does. She appears to look after the child more frequently than the father is able to do, and it is my impression that the mother was generally more engaged with the child than was the father. Having regard to the age of the child and the stresses to which he has been subject since birth by reason of the disputation between his parents, I regard this factor as significant also.
Thirdly, I accept that there is some evidence that the mother has matured, at least to a certain extent, and that in more recent times she has been more supportive of the relationship between the child and the father. I refer, in particular, to Ms D’s evidence in her December 2020 report that there has been a positive shift in the parties’ ability to communicate, that they appear to wish to have a more co-operative and harmonious future as parents, and that they may have grown to realise the futility of their ongoing battles.
Fourthly, the mother has stopped making notifications alleging that the child is at risk in the father’s care, and she accepts that the father and the child share a positive relationship. It is clear on the evidence of Ms D that the child is happy in the care of both parents. This fact also suggests that the mother has changed her behaviour.
In relation to all of these matters I am fortified by the knowledge that the family report writer leans in the direction of the child living with the mother, and that this is also supported by the experienced ICL. It is also relevant to note that although the orders for time proposed by the ICL reduce the number of nights the child will have with his father compared to the present regime which provides for equal time on a fortnightly basis, over a three week period they do provide the father with a significant number of school nights and school mornings, as well as substantial quality time on weekends when the child is not at school. If the father can organise his work commitments to fit in with the time the child will have with him then their time together will be able to be maximised. Ultimately I accept, as the ICL submits, that the division of time she proposes is as close as is practicable to an equal division of time without causing too much disruption and inconvenience to the child having regard to the distance between the parties’ respective homes.
It will be implicit, having regard to all these matters, that I am satisfied that orders in the terms proposed by the ICL best facilitate the child having a meaningful relationship with both his parents (s 60CC(2)(a) of the Act) and that I do not consider that it is necessary for the child to live primarily with the father to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b) of the Act). Nor do I consider that, having regard to all of the evidence, there is anything in the additional considerations set out in s 60CC(3) of the Act, particularly s 60CC(3)(b), (c), (ca), (d), (e), (f), (g), (i), (j), (k) and (l) which would operate to displace the conclusion I have reached. Indeed, s 60CC(3)(b) and (d)(i) are considerations which, having regard to the evidence, support the orders proposed by the ICL. I have considered each of the relevant subsections of s 60CC(3) in reaching this decision, although in all the circumstances it is unnecessary to refer specifically to each consideration: Banks & Banks (2015) FLC 93-637 at [49], [52].
Insofar as the obligation to consider both the advisability and practicability of the child living for equal time with the parties, or alternatively living primarily with one and spending substantial and significant time with the other (s 65DAA of the Act), I am satisfied that what the ICL proposes achieves the right balance. If the parties lived closer to one another an equal time arrangement would likely be feasible, but at the present time they do not and so I do not consider that an equal time arrangement would be in the best interests of the child or reasonably practicable.
Other orders
I am also satisfied that the arrangements for special days, changeovers, management of the child’s health, and attendance at school events should be as the ICL proposes. In my assessment what is proposed in this regard is both sensible and practicable. Although the ICL’s orders do not deal with the subject of which school the child should attend in 2022, the trial was conducted on the basis that the child should go to the school proposed by the parent with whom the child would primarily live, and on this basis there should be an order that the child attend N School in Suburb P. The parents should also be restrained from denigrating the other parent in the presence or hearing of the child and encouraging anyone else to do so.
It must be emphasised, however, that my preparedness to make the orders proposed by the ICL hinges fundamentally on the mother’s willingness to participate in directive therapy with a suitably experienced practitioner suggested by Ms D and armed with Ms D’s several reports. The mother must be required to follow all directions of the therapist including as to the frequency of visits. The objective of this therapy must be for the mother to achieve and sustain a proper understanding of the importance of the father’s role in the child’s life and the need to comply with the Court’s orders. Although the ICL’s orders did not so provide, in all the circumstances I consider it appropriate for the mother to be responsible for the costs of this therapy. It is her conduct which has made this necessary.
The mother should also be required to authorise her therapist to inform the father of her attendances and whether she has kept her appointments, and in addition to Ms D’s reports the therapist must be provided with these reasons for judgment and the Court’s orders. If the mother cannot participate fully in this process, and if there is further evidence of her failing to support the relationship between the child and his father, there may be a need to revisit these new arrangements.
In the circumstances I also consider it appropriate to order, as the ICL and the mother propose, that for two years from the date of the orders to be made the parties have liberty to apply to me in respect of any further applications concerning the parenting of this child. As the ICL has submitted, this will provide a further protective mechanism.
Finally, insofar as the mother proposes orders relating to the child’s attendance at Auskick proximate to her home and the cutting of his hair, I do not consider that it is desirable for these matters to be the subject of Court orders. The parties are to share parental responsibility. They must make decisions jointly and consult with one another genuinely: s 65DAC(3) of the Act. In short they must behave like sensible adults. It is to be hoped that after more than seven years this is what they will now do.
The orders of the Court will be as set out at the commencement of these reasons.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.
Associate:
Dated: 7 December 2021
ANNEXURE 1
ORDERS SOUGHT BY THE FATHER (IN THE FORM SENT TO THE COURT ON 31 MAY 2021)
1.That the parents have equal shared parental responsibility for the child X (‘the child’) born … 2014 save that the Father have sole parental responsibility in relation to selecting X’s school.
a.The Father will notify the Mother in writing (including text or email), with sufficient notice of any proposed decision, and seek her views;

b. Consider the Mother’s views, with the Mother to provide those views in a timely manner;
c. Notify the Mother in writing of his decision promptly;

2. That the child live with the Father
3. That the child spend time with the Mother in a four-week cycle as follows:
a.In week one, from after school on Friday (or 3:30PM if a non-school day) to before school on Monday (or at 4:00PM if a non-school day);
b.In week two, from after school on Friday (or 3:30PM if a non-school day) to before school on Monday (or at 4:00PM if a non-school day);
c.In week three, from after school Friday (or 3:30PM if a non-school day) to before school on Monday (or at 4:00PM if a non-school day);
d.In the event that the parents reside within 30 kilometres of each other, the child shall spend time with the Mother each Wednesday after school (or 3:30PM if a non-school day) to before school Thursday (or 9:00AM if a non-school day);
e.Any other time as agreed between the parents in writing or as requested by the child.

School Holidays:
4.The child spend time with the Mother for half the gazetted school term holiday as follows:
a.In 2021 and each alternate year thereafter, for the first week of the school holidays commencing from the conclusion of school on the last day of the school term and concluding at 12.00pm on the middle Saturday; and
b.In 2022 and each alternate year thereafter, for the second week of the school holidays commencing from 12.00pm on the middle Saturday and concluding before school on the first day of the school term.
5.In 2021 and thereafter, the child spend time with the Mother during the gazetted long summer school holidays for two (non-consecutive) one-week blocks as agreed between the parties, and failing agreement, as follows:
a. In 2021 and each alternate year thereafter:
i.1. The first block commencing at 12.00pm on 30 December and concluding at 12.00pm on 6 January; and
ii.The second block commencing at 12.00pm on 20 January and concluding at 12.00pm on 27 January.

b. In 2022 and each alternate year thereafter:
i.The first block commencing at 12.00pm on 6 January and concluding at 12.00pm on 13 January; and
ii.The second block commencing at 12.00pm on 20 January and concluding at 12.00pm on 27 January.

6.The usual spends time arrangements pursuant to Order three (3) herein be suspended during the school holidays and resume in the same cycle as if not interrupted by those holidays.

Special Occasions
7. The child spend time with the Mother as follows on special occasions:
a.In 2020 and each alternative year thereafter from 11:00AM Christmas Day to 11:00AM Boxing day
b.In 2021 and each alternative year thereafter, from 11:00AM Christmas Eve to 11:00AM Christmas Day
c.On the child’s birthday from after school at 6:00PM if a school day or from 11:00AM to 2:00PM if a non-school day (if the child is not ordinarily in her care).
d.On the Mother’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day (if the child is not ordinarily in her care);
e.On Mother’s Day from 11.00am to 3.00pm (if the child is not ordinarily in her care); and
f.As otherwise agreed between the parents in writing.

8.The Mother’s time with the child be suspended for the Father to spend time with the child (if not ordinarily in his care) as follows:
a.In 2020 and each alternate year thereafter, from 11.00am Christmas Eve to 11.00am Christmas Day;
b.In 2021 and each alternate year thereafter, from 11.00am Christmas Day to 11.00am Boxing Day;
c.On the child’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day (if the child is not ordinarily in his care);
d.On the Father’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day (if the child is not ordinarily in his care);
e.On Father’s Day from 11.00am to 3.00pm (if the child is not ordinarily in his care); and
f.As otherwise agreed between the parents in writing.

9.Changeover to take place at McDonalds in Suburb R when not at kinder/school, or as otherwise agreed between the parents in writing.
10.The parents do all such acts and things and sign all documents to request and authorise any kindergarten or school which the child attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the child’s education to both parents at their own expense, if any.
11.The parents shall immediately inform the other of any illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child, together with the name of the treatment provider and the location at which the child is a patient.

12. The Mother and/or any agent be restrained from:
a.Abusing, insulting, or otherwise denigrating the Father or members of the Father’s family or friends in the presence or hearing of the child;
b.Assaulting, intimidating, threatening or any way interfering with the Father or the child; and

c. Using physical force to discipline the child.

13. Notation
a.The father intends that the child X will complete the 2021 school year at Q School;
b.The father intends that the child X will commence the 2022 school year at S School.

ANNEXURE 2
ORDERS SOUGHT BY THE MOTHER (IN THE FORM SENT TO THE COURT ON 30 APRIL 2021)
1.The parents have equal shared parental responsibility for the child X (“the child”).

2. The child live with the Mother.
3.The child spend time with the Father as follows:
a.For two consecutive weekends in a three-week period from after school on Friday (or 3.30pm if a non-school day) to before school on Monday (or 9.00am if Monday if a non-school day);
b.On the Thursday in the third week of the three week cycle from after school or 3.30pm to 7.00pm provided that the Father has given the Mother 7 days prior written notice by text or email that he intends to spend such time with the child, and in the event that the Father resides within 20 kilometres of the child’s school, the time shall be extended to before school (or 9.00am if a non-school day) on Friday.

c. For half the gazetted school term holidays as follows:
i.In 2021 and each alternate year thereafter, for the first week of the school holidays commencing from the conclusion of school on the last day of the school term and concluding at 12.00pm on the middle Saturday; and
ii.In 2022 and each alternate year thereafter, for the second week of the school holidays commencing from 12.00pm on the middle Saturday and concluding before school on the first day of the school term.

d. For the gazetted long summer school holidays on a week about basis as follows:
iii.In 2021 and each alternate year thereafter, commencing on the first week of the school holidays from the conclusion of school on the last day of the school term with changeover occurring on the 7th day thereafter at 5.00pm;
iv.In 2022 and each alternate year thereafter, commencing on the second week of the school holidays with changeover occurring on the 7th day thereafter at 5.00pm;

e. For Christmas:
i.In 2022 and each alternate year thereafter, from 11.00am Christmas Eve to 11.00am Christmas Day;
ii.In 2021 and each alternate year thereafter, from 11.00am Christmas Day to 11.00am Boxing Day;

f. For Easter in 2022 from 5.00pm on Easter Saturday to 5.00pm Easter Sunday;
g.On the child’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day (if the child is not ordinarily in his care);
h.On the Father’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day;

i.         On Father’s Day from 11.00am to 3.00pm; and
j.         As otherwise agreed between the parents in writing.
4.The Father’s time with the child be suspended for the Mother to spend time with the child (if not ordinarily in her care) as follows:
a.        For Christmas:
a.In 2021 and each alternate year thereafter, from 11.00am Christmas Day to 11.00am Boxing Day;
b.In 2022 and each alternate year thereafter, from 11.00am Christmas Eve to 11.00am Christmas Day;

b. For Easter in 2023 from 5.00pm on Easter Saturday to 5.00pm Easter Sunday;
c.On the child’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day (if the child is not ordinarily in her care);
d.On the Mother’s birthday from after school to 6.00pm if a school day or from 11.00am to 2.00pm if a non-school day;

e. On Mother’s Day from 11.00am to 3.00pm; and
f. As otherwise agreed between the parents in writing.
5.Changeover take place at McDonalds in Suburb R when not at kinder/school, or as otherwise agreed between the parents in writing.
6.The usual spend time arrangements pursuant to Order four (4) herein be suspended during the school holidays and resume in the same cycle as if not interrupted by those holidays.
7.Upon the commencement of these orders, the parties to do all acts and things and sign all documents required for the child to transition to N School in Suburb P.
8.The Mother be permitted to enrol the child in her local Auskick/football club and the Father do all things to facilitate his attendance whilst X is in his care.
9.The parties liaise with each other to reach agreement in relation to the cutting of X’s hair.
10.The parents do all such acts and things and sign all documents to request and authorise any kindergarten or school which the child attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the child’s education to both parents at their own expense, if any.
11.The parents shall immediately inform the other of any illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child, together with the name of the treatment provider and the location at which the child is a patient.
12.The parents shall be and are hereby restrained from denigrating the other parent in the presence or hearing of the child.
13.The Mother and Father shall forthwith do all things to attend upon a therapist nominated by Ms D and follow all directions of such therapist for the purpose of reportable therapeutic counselling.
14.The therapist shall be provided with a copy of these Orders, the Judgment and all Family Reports prepared by Ms D prior to the commencement of the therapeutic counselling.
15.For a period of two years from the date of these Orders, all interim applications related to this matter shall be listed before Justice McEvoy.

16. The appointment of the Independent Children’s lawyer be discharged.
17. Any further and/or other order deemed appropriate by this Honourable Court.
ANNEXURE 3
ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER (IN THE FORM SENT TO THE COURT ON 9 APRIL 2021)
1. The Father and the Mother shall retain equal shared parental responsibility for the child X born … 2014 ( “ the child “ )
2. The child shall live with the Father as follows :
(a) During each school term in the first and second weeks of every three week cycle commencing in the first week of the school term as and from the first term in the school year 2022 , from 4.30 pm Thursday until the commencement of school or 9 am the following Monday or Tuesday if such Monday is a public holiday .
( b ) On the Thursday of the third week of the said three week cycle from after school or 3.30 pm until 7 pm provided the Father has given the Mother 7 days prior written notice by text or email that he intends to spend such time with the child .
( c ) for one half of all school holidays as agreed and failing agreement , the first half
( d ) on Father’s Day weekend from the conclusion of school or 3.30 pm Friday until the commencement of school or 9 am the following Monday if the child is not otherwise then residing with the Father
( e ) from after school or 3.30 pm until 5.30 pm on the child’s birthday and the Father’s birthday if a school day and from 12 noon to 6 pm if a non school day when the child is not otherwise then residing with the Father
( f ) from 4 pm Christmas Eve until 4 pm Christmas Day in even numbered years and from 4 pm Christmas Day until 4 pm Boxing Day in odd numbered years
( g ) as otherwise agreed between the parties .

3. The child shall reside at all other times with the Mother and in addition , the Father’s periods of residence with the child shall be suspended when the child is not otherwise living with the Mother as follows:
( a ) on Mother’s Day weekend from after school or 3.30 pm Friday until the commencement of school or 9 am the following Monday
( b ) from after school or 3.30 pm until 5.30 pm on the child’s birthday and the Mother’s birthday if a school day and from 12 noon to 6 pm if a non school day
( c ) from 4 pm Christmas Day until 4 pm Boxing Day in even numbered years and from 4 pm Christmas Eve until 4 pm Christmas Day in odd numbered years

4. The Mother shall deliver the child to the Paternal Grandmother’s residence at the commencement of the Father’s time referred to in paragraph 2 (a ) hereof and otherwise where changeover is not at the child’s school , it shall be at the Paternal Grandmother’s residence at the commencement of the Father’s periods of residence and at the Mother’s residence at the commencement of the Mother’s periods of residence .
5. Each parent shall keep the other informed of any out of the ordinary issues related to the child’s health as well as all doctor’s appointments, procedures or operations prior to such being undertaken and in the case of emergency inform the other of such as soon as possible
6. Each parent shall be at liberty to attend all school functions , activities and events which parents are usually invited to , including working bees and story time and all extra curricular sporting and artistic events and any religious or cultural events special to the child
7. The parents shall be and are hereby restrained from denigrating the other parent in the presence or hearing of the child and shall not allow any other person to do so
8. The Mother shall forthwith do all things and sign all documents necessary to attend upon a therapist nominated by Ms D, Family Consultant and follow all directions of such therapist for the purpose of reportable therapeutic counselling directed to the Mother achieving and / or sustaining a proper understanding of the importance of the Father’s role in the child’s life and the need to comply with these orders .
9. The Mother shall authorise such therapist to inform the Father of her attendance upon such therapist and whether the Mother has kept all appointments made with such therapist
10. The therapist shall be provided with a copy of these Orders , the Judgement herein and all Family Repots prepared by Ms D prior to the commencement of the therapeutic counselling .
11. For a period of two years subsequent to these Orders all interim applications related to this matter shall be listed before McEvoy J .

File number(s):	MLC10055 of 2014
Judgment of:	MCEVOY J
Date of judgment:	7 December 2021
Catchwords:	FAMILY LAW – CHILDREN – Where final parenting orders were made by consent in July 2016 – where the father recommenced proceedings in July 2017 – where both parties seek that the child live with them – where the father asserts the mother has sought to exclude him from the child’s life – where the mother asserts she facilitated the relationship between the child and father save that she had concerns about the child’s behaviour and could not ignore disclosures being made by the child – where the Independent Children’s Lawyer recommends the child continue living with the mother despite the mother having hampered the child’s relationship with the father and having refused to participate in therapeutic intervention – where it is found that the mother has attempted to prevent or curtail the father’s relationship with the child – where it is found that the maternal grandmother has sought to undermine the child’s relationship with the father – consideration of whether the child should be removed from the mother’s care – where it is found to be in the best interests of the child for the parties to have equal shared parental responsibility and for the child to remain living with the mother, go to school proximate to the mother’s home, and spend substantial and significant time with the father – where the mother is required to participate in reportable therapeutic counselling
Legislation:	Evidence Act 1995 (Cth) section 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 65DAB, 65DAC
Cases cited:	Banks & Banks (2015) FLC 93-637 CDJ v VAJ (1998) 197 CLR 172 Donnell & Dovey (2010) FLC 93-428 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Hardie & Capris [2010] FamCA 1046 Jones & Dunkel (1959) 101 CLR 298 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Mulvany & Lane (2009) FLC 93-404 Poisat & Poisat (2014) FLC 93-597 U & U (2002) 211 CLR 238
Division:	Division 1 First Instance
Number of paragraphs:	89
Date of last submission/s:	31 May 2021
Date of hearing:	8-12 February 2021; 17-18 March 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Harris
Solicitor for the Applicant:	RT Legal
Counsel for the Respondent:	Mr Combes
Solicitor for the Respondent:	Trapski Family Law
Counsel for the Independent Children’s Lawyer:	Mr O’Connell
Solicitor for the Independent Children’s Lawyer:	Victoria Legal Aid

MLC10055/2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KUBIC Applicant
AND:	MS WADDINGTON Respondent

ORDER MADE BY:	MCEVOY J
DATE OF ORDER:	7 DECEMBER 2021