Lamb & Dorsey

FEDERAL CIRCUIT COURT OF AUSTRALIA
Lamb & Dorsey [2021] FCCA 1783

File number(s): TVC 11 of 2020

Judgment of: JUDGE BOWREY

Date of judgment: 4 August 2021

Catchwords: FAMILY LAW – parenting – child living with the Mother up until 6 years old in late 2018 – child then comes to stay with the paternal grandparents at the Mother’s request – dispute about whether the move to grandparents was short term or long term – Mother seeks child return to live with her – change of living arrangements would mean transfer from North Queensland to Victoria – child has learning/behavioural difficulties – Family Report and an expert witness support child’s return to Mother

Legislation: Family Law Act 1975 (Cth)

Cases cited: Prendergast & Parsons (No 12) [2007] FamCA 1233

Number of paragraphs: 235

Date of hearing: 19-21 July 2021

Place: City F

Counsel for the Applicant: Mr Van Der Weegen

Solicitor for the Applicant: Freedom Law

The Respondent: The Respondent appearing on his own behalf

The Interveners: The First and Second Interveners appearing on their own behalf

Counsel for the Independent Children's Lawyer: Ms Lawrence

Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers

ORDERS

TVC 11 of 2020

BETWEEN:
MS LAMB

Applicant

AND:
MR DORSEY

Respondent

MR B DORSEY

First Intervener

MS DORSEY

Second Intervener

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

4 AUGUST 2021

THE COURT ORDERS THAT:
1.All previous orders regarding the child X born in 2012 (‘the child’) be discharged.

Parental Responsibility
2.The Mother have sole parental responsibility for the major long term decisions relating to the child’s care, welfare and development. For the purpose of this order, parental responsibility includes but is not limited to:
(a)Any medical or health matter concerning the child including those which require the child to undergo any medical treatment or intervention or the child being prescribed any medication by a medical practitioner;
(b)Matters relating to the education of the child including but not limited to, the choice of school and curriculum;
(c)Disciplinary matters;
(d)Matters concerning the religion, faith and/or culture of the child;
(e)Matters concerning the social development and sporting activities of the child;
(f)Generally, any matter regarding the child in respect of which a parent should be informed or consulted having regard to Part VII the Family Law Act.

3.The Mother must advise the Father in writing by email or text message, of all major decisions which she makes for the child, within seven (7) days of making the decision.

Residence
4.The child live with the Mother.
5.The child shall transfer into the Mother’s care at the Mother’s cost, at the end of the current Queensland school term, so as to be able to commence term four at a City D, Victoria, primary school.
6.Each parent do all acts and sign all documents necessary to:
(a)Complete any necessary notification to the child’s present school Suburb E, to confirm the child in ceasing his enrolment there;
(b)Enrol the child at a primary school in City D as chosen by the Mother;
(c)Provide authority to Suburb E School to provide copies of records and all relevant information regarding the child, to the child’s school in City D;
(d)Ensure that the Mother and the Father are listed as contacts and persons to whom information is to be provided, for the child’s school in City D;
(e)Engage what may generally be described as learning support assistance for the child through the child’s school in City D or otherwise as arranged by the Mother.

7.The Mother must advise the Father in writing not less than 28 days beforehand if she intends to relocate where she and the child live, from City D Victoria.

Care, Welfare, Communication and Time Spent
8.The Mother, the Father and the Paternal Grandparents as the case may be, have responsibility for the day to day care, welfare and development of the child when he is in their care.
9.Unless otherwise agreed in writing between the parties, the child spend time with the Father and the child’s Paternal Grandparents as follows:
(a)For all of the Victorian gazetted school holidays at the end of term one;
(b)For all of the Victorian gazetted school holidays at the end of term two;
(c)From 2022, for one half of the Victorian gazetted school holidays at the end of term three with the Mother to have the first half of those holidays in odd numbered years and the Father to have the first half of those holidays in even numbered years, with either parent then having the second half of those holidays and on an alternating basis in future years;
(d)For one half of the Victorian gazetted school holidays at the end of term four (Christmas) with the Mother to have the first half of those holidays in odd numbered years and the Father to have the first half of those holidays in even numbered years, with either parent then having the second half of those holidays and on an alternating basis in future years;
(e)For the purpose of this paragraph, school holidays commence on the Saturday immediately following the end of the school term and conclude on the Saturday preceding the commencement of the next school term. The midpoint of school holidays is the Saturday closest to one half of the school holidays as defined in this subparagraph.

10.The Father and the Paternal Grandparents are to arrange and pay the cost of the child’s airfare from Melbourne Airport to City F Airport and return, for the time spent in paragraph 9.
11.The Father and the Mother are to ensure that the child is taken to and collected from the airports in Melbourne and City F respectively, for the flights arranged for the child.
12.The Mother and the Father as the case may be, must do all acts and sign all documents necessary to facilitate the child’s travel to and from Queensland in accordance with this order and to comply with all government directions with respect to COVID-19 arrangements, including but not limited to obtaining a Queensland Border Declaration and/or Pass and a Victorian Border Declaration and/or Pass for the child.
13.The child have video, FaceTime or telephone communication with the parents and the Paternal Grandparents at all times agreed between the parties and failing agreement, at the following times:
(a)6:00pm or such other times as may be agreed, on each Sunday, Tuesday, and Friday;
(b)Christmas morning at 10:00am;
(c)On the Birthday of the Mother and of the Father, at 6:00pm or such other time as may be agreed;
(d)On the child’s Birthday at 6:00pm or such other time as may be agreed;
(e)The right to have a video, FaceTime or telephone communication with the child shall apply to the Mother, Father and Paternal Grandparents as the case may be and for any of those parties with whom the child is not spending time on the relevant day.

14.The parents and the Paternal Grandparents shall not:
(a)Denigrate the other parties or their family to or in front of or within the hearing of the child;
(b)Allow other persons to denigrate the parents or Paternal Grandparents to or within the hearing of the child;
(c)Discuss these proceedings with the child.

15.The Mother, Father and Paternal Grandparents shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent and the grandparents respectfully;
(c)Not record any communications between the child and his parents and Grandparents;
(d)Use their best endeavours to ensure continuation of the positive relationship between the child and all parties.

16.The Mother shall keep the Father informed of the child's doctors, healthcare and other treatment providers and advise the Father of any change to the child's health care professionals within seven (7) days of any change.
17.Each party shall inform the other parties to this Order as soon as reasonably practical, of any medical condition, significant health issue or significant illness suffered by the child.
18.The Mother shall keep the Father informed of any school, educational facility or extracurricular activity of the child.
19.Each parent shall keep the other parent informed at all times of their residential address and contact telephone number and advise the other parent at least seven (7) days after any change to their address and/or telephone number.

Authorities
20.This Order acts as an authority for the child’s doctors, healthcare and other treatment providers to provide each parent with information that they are lawfully able to provide about the child.
21.This Order acts as an authority for the child’s school and extracurricular activity provider to provide each parent with information that they are lawfully able to provide about the child.
22.If there is a cost associated with the provision of information or documents under this Order whether from the child’s doctors, health care and other treatment providers or school or extracurricular activity provider, the cost shall be paid by the parent requesting the information.

Ongoing health arrangements
23.The Mother shall continue to engage in counselling with Ms G psychologist for personal support and therapy until such time as the Mother and Ms G determine that it is appropriate to cease that counselling.
24.The Mother shall do all acts and sign all documents necessary to arrange for the child to attend counselling with a psychologist near where the child lives and to take steps to obtain a cognitive assessment of the child. The Mother shall inform the Father of the name and business address/details of the psychologist engaged for the child, within seven (7) days of making the necessary arrangements.
25.The Father shall be permitted to participate in any intake interview process required by the psychologist referred to in the previous paragraph. The child psychologist is authorised pursuant to this Order to provide to each parent all information that they are lawfully able to provide about the child (and recognising that some discussions between the psychologist and the child may be regarded as confidential by them) in accordance with the authority contained in paragraph 20 of this order.
26.Until the child has engaged with a psychologist in Victoria, he shall continue consulting with Ms H, psychologist. This order shall be authority for Ms H to provide information including copies of her file and written records, to the child’s psychologist appointed in Victoria should that psychologist request relevant information regarding the child.
27.Pursuant to s. 121 of the Family Law Act, the parties are permitted to provide to the child's present psychologist Ms H, the Mother's psychologist Ms G and to the psychologist appointed for the child in Victoria, copies of the following documents:
(a)Updated Family Report dated 21 October 2020;
(b)This Order;
(c)Reasons for judgment.

28.Save for an emergency, should the parties be in dispute about parenting arrangements for the child, they shall attend family dispute resolution prior to making any application to this court.

Advice to child
29.In accordance with s. 65L of the Family Law Act, the Family Consultant at the City F Registry of the Federal Circuit Court is requested to supervise and assist in the compliance with this Parenting Order and in particular, to meet with the child in the company of the Independent Children's Lawyer at the City F Registry, for the purpose of explaining the effect of this Parenting Order to the child, in particular the relocation of the child's residence to live with his Mother in Victoria.
30.The Independent Children's Lawyer is discharged after the completion of paragraph 29 of this order.

NOTATION
A.The transition period and arrangements referred to in paragraphs 5 and 6 of this order are intended to provide the child with an orderly transfer between schools in City F and City D and to provide the child with educational and psychological assistance necessary for that transfer.

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 under the pseudonym Lamb & Dorsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOWREY

These proceedings were commenced by the Applicant Mother MS LAMB. An Amended Initiating Application was filed by the Mother on 27 November 2019. For the trial of three (3) days which commenced on Monday 19 July 2021, the Mother relied on her Affidavits filed on 21 June and 13 July.
The proceedings are with respect to the child X. X was born in 2012 and is now 9 years old.
The First Respondent to the application is MR DORSEY. He is the Father of X.
The Father's parents MR B DORSEY and MS DORSEY intervened in the proceedings. The reason for this is that since 2018, X has lived with Mr and Mrs Dorsey. Mr Dorsey lived in City J until approximately October 2020. Since then he has lived in his parent’s home in City F with X and the Paternal Grandparents.
In addition to the Amended Initiating Application and two Affidavits of the Mother referred to above, quite a number of Affidavits were filed on her behalf. Those Affidavits were by friends and family. The Mother did not call on her other witnesses and the other parties did not require those persons for cross-examination. In my view this was appropriate. Having read their Affidavits, my view is that they did not expand on the Mother’s case any further than her own evidence.
The Father's material relied on at the hearing was his Affidavit filed 4 July 2021.
The interveners Mr and Mrs Dorsey relied on documents as follows:
(a)Affidavit of Mr B Dorsey filed on 4 July 2021;
(b)Affidavit of Mr B Dorsey filed on 19 October 2020;
(c)Affidavit of Ms Dorsey filed on 11 May 2020.
Mr Dorsey and his parents acted jointly and presented their case jointly. Their case was that X continue to live with Mr Dorsey and Mr Dorsey's parents in City F.
ORDERS
Relevant Orders in this matter are as follows:
(a)Consent Order dated 12 November 2018 which provides that X live with the Paternal Grandparents and communicate with and spend time with the Father (who was not living with his parents at the time) and the Mother.
The 12 November 2018 Order included Mr K who had been a partner of the Mother after she and the Father separated. The Mother and Mr K had a child L who is referred to in the Order.
(b)Consent Order dated 11 December 2018. That Order provided that the child L (L) reside with Mr K and spend time with and communicate with the Mother. The Order also provided that the Mother, Father and Paternal Grandparents share parental responsibility for X, that X live with the Paternal Grandparents in City F and that he spend time with and communicate with the Mother and the Father.
(c)Order of 27 November 2019 which provided that the cases involving L and X be split, with the case involving X being transferred to the City F Registry of this Court.
(d)Order dated 12 February 2020 which provided that X be separately represented in the proceedings and that the Paternal Grandparents advise the Court of the documents in file BRC12742/2018, they wish to rely on in the City F proceedings.
(e)Order dated 21 February 2020 which required the parties to attend a Child Inclusive Conference.
(f)Order dated 30 April 2020 that a Family Report be prepared.
(g)Order dated 24 September 2020 listing the matter for hearing in City F commencing 16 November 2020 and with trial directions.
(h)Order dated 26 October 2020 for the release of an updated Family Report by Ms M dated 21 October 2020.
(i)Consent Order dated 17 November 2020 which provided for the discharge of some of the 11 December 2018 Orders and for X to spend a greater time with the Mother. The proceedings were listed for hearing commencing 20 July 2021.
As referred to above, it was ordered that X be independently represented. The Independent Children's Lawyer is Ms Falcomer. She engaged Ms Lawrence of Counsel to appear at the hearing.
THE PARTIES’ POSITIONS
In the Mother's Amended Initiating Application filed 27 November 2019 she seeks the following final orders:
(a)X lives with her.
(b)That she further particularise parenting orders following consideration of the Family Report.
The Mother's Amended Initiating Application set out in detail orders she was seeking for the child L.
The Mother's Outline of Case document filed 15 July 2021 seeks orders about X which in summary are as follows:
(a)The Mother have sole parental responsibility for X.
(b)The parties are not required to consult each other about decisions for X when X is in their care.
(c)X live with the Mother.
(d)X spend time with and communicate with the Father and Paternal Grandparents at times specified including for approximately half of the school holidays in each year.
(e)X have telephone or video communication with the Father and Paternal Grandparents.
(f)The Father complete courses which could be described as parenting and anger management courses.
(g)All parties keep the others advised about medical and educational issues for X and all parties be permitted to obtain medical and school information.
(h)Non-denigration orders.
(i)Unless there is an emergency, the parties attempt Family Dispute Resolution before any application is made to the court for an Order about X.
The Father and his parents sought orders in their Outline of Case document filed 15 July 2021 which in summary are as follows:
(a)Parental responsibility for X be shared between the Mother, Father and Paternal Grandparents.
(b)X live with the Paternal Grandparents and Father in City F.
(c)X spend time with and communicate with the Mother at all times as may be agreed and failing agreement, whenever the Mother is in City F and for more than half of the school holidays in each year.
(d)The Mother be responsible for the cost of X travelling between Victoria where the Mother lives and City F where the Father and his parents live. Should the Father and/ or Grandparents accompany X on travel, they pay their own costs.
(e)X attend Suburb E School in City F.
(f)No parties are to physically discipline X or allow any other person to do so.
(g)A limitation on X having video or internet games, to age appropriate material and to no more than one (1) hour per day on weekends and school holidays.
(h)A restraint on X associating in any way with Mr N. Mr N is the biological Father of the Father Mr Dorsey in these proceedings. He is the former husband of the Paternal Grandmother.
The position of the Independent Children's Lawyer at the commencement of the trial was that she did not have a firm view about parenting orders for X. At the end of the trial and prior to submissions, the Independent Children's Lawyer formed a view and advised the Court and the parties of the orders she proposed. I refer to this below.
FAMILY REPORT

On 30 April 2020 Judge Andrew ordered that a Family Report be prepared.
The Report was prepared by Family Consultant Ms M. An updated Report by Ms M is dated 21 October 2020.
In the Family Report, the Family Consultant makes various observations, by reference to the following paragraph numbers:
21. Ms Lamb continues to seek that X lives primarily with her and that his parental responsibility is equally shared between all parties.
22. Mr Dorsey seeks that X’s parental responsibility is shared by all parties however if consensus is not attained, Mr and Mrs Dorsey make a final decision. He proposes X continues to live with Mr and Mrs Dorsey. He seeks no prescribed time between him and X as he holds confidence he will continue to communicate and spend time with X as arranged between him and the Paternal Grandparents.
23. Mr and Mrs Dorsey appear less united at interview about X’s best interests. In this regard, Mrs Dorsey positions that X should live with them into the future, regardless of any positive change in capacity Ms Lamb may attain. Mr Dorsey offered an opinion which suggested X’ future parenting arrangements should be reflective of his parent’s capacity to fulfil this.
24. Ms Lamb maintains a position that she was the victim of family violence from Mr Dorsey. There is no information available to indicate that any misuse of power, abuse or coercion has presented between them since these proceedings commenced in 2018 and no current issues of safety were raised by either parent.
30. Ms Lamb was cooperative and engaging during her interview. There was a marked change in Ms Lamb’s personal insight and child focused foresight from her first interview.
32. Ms Lamb reports experiencing a significant improvement in her emotional well-being and mental health over the past two (2) years. For her, this is evident in her completed studies and sustained employment in aged care since December 2019, as well as securing and furnishing independent accommodation in City D, with provision for both children. Personally, she feels “empowered and I have my confidence back.”
33. Ms Lamb openly discussed that her mental health was poor during her relationship with Mr K, culminating in her feeling suicidal on one occasion prior to their separation and experiencing persistent anxiety and depression for a period post separation. By Ms Lamb’s own admission, she proactively engaged in counselling commencing early 2019, reportedly taking on board feedback and learnings from the initial Family Report.
34. At the end of this paragraph, it is said “Ms Lamb’s discussions about X’s emotional needs and disrupted attachment experiences were indicative of her having gained relevant knowledge around this and having formed a greater understanding about his relationship needs.”
36. It is reported that Ms Lamb spoke about her regret using a wooden spoon to discipline X in the past.
37. Ms Lamb credits Mr and Mrs Dorsey for the commitment they have a shown to take on the parenting of X, particularly when she requested their assistance in September 2018. Ms Lamb reports that “I wouldn't be the parent I am today if not for them”. She recognises that they love and care for X deeply and that he has a fond relationship with them, particularly sharing a strong bond with his Paternal Grandfather.
42. This paragraph notes that Ms Lamb acknowledges that X has come “leaps and bounds” with his literacy and numeracy at school, however she reports that subpoena notes about him sitting alone in class worry her for his emotional and psychosocial development.
43. In discussing herself in this paragraph, it is reported that Ms Lamb said “I wasn't in the right headspace. I have told him I'm sorry I wasn't emotionally there and didn't listen. I know I definitely was a good parent too at times. Those last few years were very hard coming out of a DV relationship with his father and into another toxic relationship. It wasn’t a very good experience for X, I'm reflective of that”.
46. Ms Lamb is reported as saying “X needs to be safe and happy and have a meaningful relationship with his sister”.
52. Mr Dorsey described himself as “I'm a single guy living in a one bedroom apartment. I'm not going to try and be his primary parent”.
56. The Report Writer describes Mrs Dorsey as dominating the interview the Writer held with the Paternal Grandparents. The Writer reports that Mrs Dorsey appeared reticent to consider alternate perspectives to views already formed by her.
65. It is Mrs Dorsey’s position that changing X’s school enrolment to Suburb E School was the best thing they have done for X.
69. When Mrs Dorsey was queried about information sharing and communication to X’s parents about his school progress and general feedback, Mrs Dorsey advised that Ms Lamb did “not seem interested” in school information whereby they sent her his first report card. However she did not reply about it so they have not continued forwarding subsequent reports.
70. Regarding X's relationship with Mr Dorsey, Mrs Dorsey advised that “it's growing and expanding. Mr Dorsey loves him dearly” Mrs Dorsey explained that previously, Mr Dorsey was being stern and directive in his approaches to parenting X. The Grandparent’s approach is more rewards-based. Mrs Dorsey advised that it became difficult with the polarizing approaches and therefore they informed Mr Dorsey that it was not his role to parent, it was theirs. Mrs Dorsey observed “since Mr Dorsey stopped trying to be a parent on visits, X is having a great time with him”.
71. Regarding X’s relationship with Ms Lamb, Mrs Dorsey has observed that “all the hostility has stopped.” Mr Dorsey describes the relationship between X and Ms Lamb appears to be relaxed, he's very comfortable talking with her.
74. Queried directly around why they do not consider any prospect of X returning to live with Ms Lamb, Mr Dorsey initially responded explaining his position that “if she's proved to be capable of being able to parent, I don't see why not”. Mrs Dorsey subsequently added her position that when X was in Ms Lamb’s care previously, he was assessed for NDIS, was on Ritalin and was generally having his needs unmet. She spoke about the progress and opportunities X has had and will have living with them.
76. Offering feedback that Mr Dorsey has maintained a long-term position of not wanting to assume a primary parenting role which he also confidently reaffirmed today and the sense that Ms Lamb could very easily feel a sense of three against one, Mr Dorsey spoke thoughtfully and with due consideration, acknowledging how things could appear to present that way for Ms Lamb.
79. The Report Writer advised that the day after the family report interviews, Mrs Dorsey sent an email to the Report Writer which included “I'm not sure what you said to Mr Dorsey yesterday but it's spurred him into action. He has made a firm commitment to relocate to City F as soon as he is able. He has asked if he can live with us in the family home. Shared care of X and Mr Dorsey relearning his role as a parent. Win-win for us all, especially X who is so excited already.”
84. When the Family Consultant interviewed the child X, he said “when can I live with my mum? Because she promised she won't hurt me anymore. She said sorry and that she didn't mean it.” When queried, X advised that he remembers being smacked by Ms Lamb with a wooden spoon. The Family Report continues that notwithstanding her smacking him in this manner, X advises that he felt “happy” living with his mother. He continues to feel sad about being separated from her now.
88. X told the Family Consultant “my grandma doesn't care about my mum. But God said you should love your neighbour”.
91. When asked about how he feels when he is in Mrs Dorsey’s company and care, X said “sad, because I'm not with my mum”.
96. If X was in charge of making decisions about his own living arrangements, he would determine that he would “live with Mum”. X advised that when he feels sad and upset, it is Ms Lamb who makes him feel better.
111. In the section of the Family Report headed Evaluation, the Report Writer notes as in the previous Family Report, that X’s formative years lead to him experiencing a myriad of change and adverse childhood experiences which are highly likely to have contributed to his developmental and behavioural vulnerabilities in the first instance. Consequently the opportunity to experience continuity in remaining in one stable home with Mr and Mrs Dorsey over the past two (2) years has been invaluable for X’s capacity to be able to meet increasing milestone markers.
112. The updated information confirms that Mr and Mrs Dorsey have demonstrated a steadfast capacity to meet X’s daily care needs and to support his access to available supports to meet his additional therapeutic and behavioural needs. Mr and Mrs Dorsey’s competency to provide safe care to X appears reliable and indeed, has been invaluable in enabling X to attain the positive progress he has made.
113. The available information does indicate that Mrs Dorsey possesses firm views and beliefs and that she has difficulty at times considering alternate viewpoints if these challenge her own. The presenting information from her and Ms Lamb respectively about the process for decision making about X repeating a grade level at school and ultimately changing his school when his former school also opposed this, speaks to Mrs Dorsey’s persistency and dogmatic approaches.
114. Mrs Dorsey’s narrative and presentation at interview indicates that her position is entrenched and intractable regarding her views of X’s best interests and Ms Lamb’s inability to fulfil a parenting role for him. Her comments throughout the interview demonstrate her difficulties considering or accepting that Ms Lamb has the capacity to make and sustain appropriate change and were most often prefaced with negative comments about Ms Lamb’s competency and parenting history.
115. As X's primary caregiver, this cognitive schema held by Mrs Dorsey gives significant concerns about her capacity to genuinely support and nurture X’s relationship with Ms Lamb which is evidently, extremely valuable, important and prioritised by him. Consequently considerations exist relating to Mrs Dorsey’s capacity to support and meet X’s emotional needs in this regard. As X ages, Mrs Dorsey’s existing attitude and views will become increasingly problematic whereby X’s innate desire to feel connected to Ms Lamb already remains enduring.
117. Whilst it is important to recognise that X’s wants and preferences do not override his needs and best interests, so too must outcomes for him be carefully considered, weighed and rationalised so as to foresee not only the immediate consequences of the decisions that will be made but will also be responsive to his future needs and the likely consequences of these decisions.
118. Should Mrs Dorsey’s application be accepted (that X continue living in City F with his Grandparents) X is likely to enjoy the privileges of a stable home environment with caregivers who provide him reliable, consistent and competent care. It is likely however that Mrs Dorsey’s capacity to support X’s relationship with Ms Lamb continuing to organically strengthen and develop, is likely to be a barrier and one that has the potential to result in very negative outcomes for X.
119. The enduring longing X has to live with Ms Lamb will create increasing challenges as he ages, whereby should he continue to experience the negative relationship he perceives exists from Mrs Dorsey towards Ms Lamb, the probability of X’s relationship with Mrs Dorsey becoming complicated and negative will increase. The Report Writer considers that there would be a risk of X self-electing to live in Ms Lamb’s care regardless of any parenting arrangements that exist for him on paper.
120. Mrs Dorsey has a very high commitment and dedication to parenting X, as is evident in her sacrifices to take on his parenting role as was necessary in 2018 and remains evident in her narrative at interview. Mrs Dorsey’s self-reports about previously informing Mr Dorsey not to take on parenting leadership when he spends time with X also highlights her vulnerability to foreseeing her role as governing all others in X’s life.
I consider the above comment to be quite significant.
121. It is not assessed that Mr Dorsey has previously wanted to take on a primary parenting role of X and his reported decision to have given up stable employment, accommodation and his lifestyle in City J overnight, to cohabitate with his parents with a view to X living with him, appears significantly at odds with his own sustained self-reports, behaviour and taken opportunities to parent X until this time.
123. Should the Court accept Ms Lamb’s proposal, X will have the opportunity to experience the sense of belonging and family cohesion he desires and aspires to attain. He will have the opportunity to grow up with his sister L. X’s strong desire to live with Ms Lamb is undisputed, with X frequently demonstrating sadness and resistance in separating from Ms Lamb after time spent together over the past two years.
124. The Court must also consider however the readiness and capacity of Ms Lamb to meet X’s daily care needs, which includes complex behaviours at times. Should X return to an environment that previously existed for him, the journey for him to overcome these adverse experiences and to meet his continuing developmental milestones will be fraught with challenge and risk.
125. Whilst Ms Lamb reports her readiness and competency to resume a primary parenting role of X now, her parenting of X remains largely untested over the last two (2) years.
127. In reassessing her current circumstances, Ms Lamb’s narrative at interview is indicative of her having learnt relevant and appropriate knowledge regarding child rearing, attachment and connection seeking behaviours for children.
128. Ms Lamb’s emotional health also appears to have improved considerably and this is supported in her ongoing commitments to engagement in counselling as was previously recommended for her.
129. The decisions for X at this juncture remain complex and costly whereby strengths and vulnerabilities are identified for him in the competing proposals of the parties.
In the final paragraph of her report (paragraph 130) the Family Consultant identifies an approach which could be in X’s best interests if he is to be ordered to live with his Mother Ms Lamb. I have taken note of those recommendations in framing the orders which will be made.
In a number of the quoted paragraphs from the Family Reports set out above, not the whole of the paragraph written by the Family Consultant is included. I am comfortable that what is recorded above accurately presents the relevant content and the opinion or recommendation of the Report Writer.
EVIDENCE
Because three of the five parties in the hearing (counting the ICL) were self-representing, I have set out in more than usual detail the comments in the Family Report and the evidence which I recorded.
MOTHER
The Mother gave evidence first.
The Mother's evidence was presented in an appropriate manner. The Mother was careful with her replies in cross-examination and answered each question on the point raised. She did not appear to exaggerate not did she argue with the questioner. The Mother was an impressive witness and I believed her evidence.
Cross-examination on behalf of the respondents was carried out by the Paternal Grandmother Mrs Dorsey. The respondents were acting on their own behalf. Mrs Dorsey’s questioning of the Mother was generally on point although until a number of objections were taken by Counsel for the Mother, it could be said that some of the questions commenced with a statement often a self-serving one, by Mrs Dorsey.
The Mother said that the Father was guilty of family violence against her.
In relation to the Mother's description of the Father forcing himself on her (my description) in a sexual manner (referred to in paragraph 58 and 88 and 89 of the Mother's Affidavit filed 21 June) the Mother said that her agreeing to have sex with the Father following pressure from him, “wasn't rape, it was pressure”.
Under cross-examination by Mrs Dorsey, the Mother maintained her position that X should live with her. She was open to X having regular contact with the Father and the Paternal Grandparents, both personally face to face during school holidays and regularly by phone or video.
The Mother said that life was going well for her in City D. She moved there in late 2019. The Mother has accommodation which is comfortable for her and adequate in size for X and for her daughter L when they live with or spend time with her.
The Mother agreed that in 2018, her circumstances were very different. She was suffering from a lack of self-esteem and she said she was depressed after the failure of her relationship with the Father and then with Mr K. Additionally, Mr K was domestically violent to her.
When cross examined by Ms Lawrence for the ICL, the Mother said that if X lived with her, she wanted him to spend school holiday time with the Father and the Paternal Grandparents including at Christmas.
The Mother said that she wanted sole parental responsibility for X if he lives with her. She said that if X continues to live in City F, she wanted joint parental responsibility with the Father and the Grandparents. She said however that this was “not working” at present. The Mother’s complaint in this regard is that she feels and certainly has felt in the past, shut out of the decision making for X.
The Mother agreed with Ms Lawrence that in reality, parental responsibility largely follows where a child lives.
The Mother was asked whether she thought the Mrs Dorsey opposed her contacting experts who have treated X. She replied “yes, including the paediatrician”. She was asked whether she thought Mrs Dorsey opposed her contacting the school X attends. She replied yes.
The Mother said that she was not involved in decisions about X seeing the paediatrician Dr O or seeing his psychologist Ms H. She said that she was not provided with information regarding this.
In relation to a proposal that X be home schooled, the Mother's said that she received an email from the Deputy Principal of the Suburb E School, advising of X being suspended. The Mother said that she did not know that X was not doing well at school. She said that Mrs Dorsey then suggested Distance Education. The Mother did not agree.
The Mother said that she had contacted Mrs Dorsey about the home schooling idea for X. She said she received a response from Mrs Dorsey but could not remember exactly what it said. When asked what the meaning of the response was, the Mother said that she felt Mrs Dorsey wanted to do what was best for X and that she thought she was doing the right thing for him.
When pressed about her understanding of X's behaviour at school, the Mother said that she thought he was going relatively well but knew he has some trouble in the classroom emotionally. She said “I didn't know how bad it was”.
The Mother said that a change of schools for X from the Suburb P School to Suburb E School, occurred essentially without input from her into the decision. She understood although did not necessarily agree at the time, that Mrs Dorsey’s decision reflected her concern that X was not a ready to go into grade 2 which was what would have happened at Suburb P School.
The Mother did not seem to be aware of all of the details of the move by X from one classroom to another at Suburb E School. She was aware that X has made that move (to the other class) and that it seems to have been beneficial for him.
In relation to the Mother sending X up to City F to stay with Mr and Mrs Dorsey in 2018, she said that her position was that this travel would be for 2-3 weeks. The trip for X was organised by text messages. The Mother said that later X had moved, she received a text from Mrs Dorsey saying that she (the Mother) should move on with her life and devote herself to her daughter, or words did that effect.

I would comment that the evidence presented supports the Mother’s description of what occurred. Clearly, the Mother had significant difficulties coping personally and looking after X in mid to late 2018. She asked would Mr and Mrs Dorsey care for X. It is a credit to the Mother that she identified the difficulties she was having at the time and the difficulties this caused in her parenting of X. It is a credit to Mr and Mrs Dorsey that they promptly and willingly agreed to care for X.
The relevant evidence presented by the Mother was as follows:
(a)Around 16 August 2018 the Mother separated from her partner Mr K;
(b)Around 17 August 2018, Mr K terminated the lease on the home the parties had. The Mother said that she felt unable to contact the real estate agent. Mr K had taken their baby L (L) with him to his parent’s home;
(c)Mr K and his parents would not respond to the Mother about times for her to see L;
(d)Mr K had taken their car. As a result, the Mother had no way of getting X to school or herself to work. She had little money and no support network in Victoria;
(e)The Mother says that she was in a bad headspace, feeling stressed and overwhelmed;
(f)On 2 September 2018 the Mother sent the Paternal Grandmother a text message asking whether she would like to have X for 2-3 weeks. The Grandmother responded that she would fly to Melbourne and take X back to City F to stay with her and her Husband Mr B Dorsey;
(g)The Mother drove to Melbourne with X on 6 September 2018, met the Paternal Grandmother at Melbourne Airport and delivered X to her;
(h)The Mother sent the Father an email on 26 September 2018 which says:
I have been waiting patiently the last few days and have been very upset. It’s traumatising having my son not back with me. I trusted your mum to have him for 2-3 weeks. I want X back into my care primarily. I am willing to do a consent order and send him up regularly. I am a great mum and he needs me, I know he needs you too. I don’t want to keep him from you.
(i)The above email from the Mother to the Father followed an email from the Mother to the Paternal Grandmother three days earlier, “Hi Ms Dorsey, when is X coming back to me?”
The Mother said that the child's Father Mr Dorsey asked her to send up school books. She said that she sent a suitcase of X’s belongings but that was not all of his things.
The Mother was asked and whether in August and September 2018 she had difficulty with PTSD. She replied yes. She was asked whether she felt depressed at this time. She replied yes. The Mother also said that she had been diagnosed in 2011 with a medical condition. This causes fatigue and tiredness. She is now on medication.
The Mother said that her daughter L who is now 5 spends four (4) nights per fortnight with her. She said that sometimes, L spends a lot more day time with her. L and her Father Mr K live in City D.
The Mother said that she would like any time X stays with her if he remains living in City F, to coincide with time that L is with her.
The Mother said that her understanding is that X benefits from seeing a child psychologist (she is aware that he consults one) for the “trauma he has been through” and perhaps, speech therapy and a cognitive assessment.
The Mother complained that her impression was that Mrs Dorsey had told X's school not to provide a large amount of information to her until Final Orders had been made. The Mother pointed to Annexure -41 one of her Affidavit filed 21 of June. It is worthwhile to set out the text messages between the school and Mrs Dorsey in that Annexure.
On Wednesday 27 March 2019 the school contacted the Paternal Grandparents (Ms Dorsey and Mr B Dorsey ) saying “I have had another request from Ms Lamb to add her to the contact list. Would it make things easier for you if I did this instead of getting you to forward on any communication?”. Mrs Dorsey responded the following day “Morning Ms Q. We have a court hearing on the 5 April so if you could just hold off until we know the requirement of the Court Orders.”
The Mother's evidence was that she believes Mrs Dorsey’s view about providing information since the above exchange of emails in 2019 has moderated somewhat but she is not necessarily proactive about sending information and documents to the Mother.
The Mother said that she was not asked to complete forms for X to cease attending Suburb P School or to enrol at Suburb E School. This was clear from the relevant forms signed by the grandparents and/or not including the Mother’s contact details, presented in evidence.
The Mother was asked what she would do if there was an emergency for X. She said that she would call the Father (Mr Dorsey) and would arrange care for X. The Mother said that she had a number of friends close by some of whom had young children, who could assist her.
The Mother said that she has had over 20 appointments with her psychologist Ms G in City D. She had done a PPP Parenting Course. She sees her GP when needed. She said that she listened to recommendations from the Health Professionals.
The Mother said that she accepted a diagnosis of ADD for X. The terms ADD and ADHD seemed to be interchanged during the hearing. She acknowledges that Mrs Dorsey does not agree with that diagnosis. The Mother said that she thought that X’s paediatrician Dr O believes he does have ADD.
The Mother said that X taking Ritalin when he was with her, was based on medical advice.
The Mother said that she was aware from Mrs Dorsey’s Affidavit that X is seeing the psychologist Ms H. She said that she had not meet Ms H. She said she has contacted Ms H and that Ms H told her that she is not able to advise of all discussions with X as these are in confidence.
The Mother said that Mrs Dorsey supported Mr K’s case that L should live most of the time with him. She confirmed that proceedings about L in the Federal Circuit Court were resolved with a Consent Order rather than a hearing.
When asked what topics were in the evidence Mrs Dorsey gave by Affidavit in L's case, the Mother replied that Mrs Dorsey deposed to her still not being well mentally, that there was no family violence perpetrated by Mr Dorsey, that Mr and Mrs Dorsey were raising X successfully and that L is “only” X’s half-sister.
The Mother said that she is aware that Mrs Dorsey has taped phone conversations between her and X. She said that sometimes when X is on a video link to her, the recorder can be seen. The Mother said that in her view, calls like this should not be taped as X “cannot be himself” if he knows the calls are recorded.
The Mother said that Mrs Dorsey recording calls has not helped trust between the two of them.
When asked when X may come to live with her, the Mother said that it was “not urgent” and it may be best if he starts a new term with her. This would allow for any transition to be undertaken with less pressure and during the school holidays.
There was discussion between the Mother and Ms Lawrence of Counsel for the ICL about the cost of X travelling between City F and Victoria. The Mother said that at present, she pays for X’s travel. When Mrs Dorsey accompanies X (two return trips each time) Mrs Dorsey pays for these herself.
The Mother said that she earns about $1,800 per fortnight after tax. She could earn more but I gather she tries to limit her work in the time that L is with her. Rent is $260 per week. The Mother said that she has outgoings including sharing costs such as school expenses, for L.
The Mother said that City D is about a three (3) hour drive one way from Melbourne Airport.
The Mother said that there had been some dispute between her and the Father about Child Support. It appears that the Mother is now assessed to pay the basic monthly amount of Child Support.
The Mother agreed that X stayed with her in Suburb CC for about ten nights in January 2020. The Mother agreed.
There was a dispute between the Mother and Mrs Dorsey about when the parties first appeared before Judge Andrew. Mrs Dorsey said that up until the end of 2019, this matter had been heard by Judge Middleton rather than by Judge Andrew. The Mother thought that Judge Andrew had been involved earlier. I do not think that this disagreement is significant.
The Mother confirmed that Mrs Dorsey brings X to Melbourne by air and collects him, when X visits his Mother. The Mother said that X has not been resistant to getting on a plane and that he is settled flying with his Grandmother. The Mother said that X has never said to her that he is afraid of flying.
In re-examination by Mr Van Der Weegen (the Mother’s Counsel) the Mother said that she has L “outside” the terms of the consent order which applies for L. By this she meant that she has a greater amount of time with L than what is referred to in the consent order between her and Mr K made earlier this year.
By reference to the Mother’s affidavit filed on 21 June, the Mother has done a Circle of Security Course, Post-Parenting Separation Course and has attended webinars with information regarding attachment theories and intervention and strategies with children regarding self-regulation. The Mother’s affidavit says that she is currently undertaking two new courses, Family Transitions Triple P and Post-Separation Triple P, Primary Care.
When asked what the main issues for her are, the Mother said that she wanted X to live with her. She said there are problems co-parenting with Mrs Dorsey as they do not share the same views.
When asked what she would say to Mrs Dorsey, the Mother said that she must thank Mrs Dorsey for looking after X in 2018 until she got back on her feet.
FATHER
The Father Mr Dorsey confirmed that he had read the Mother’s Affidavit. He denied the Mother’s allegations of family violence.
To the extent that it was put to the Father that the Mother’s Affidavit and annexures to it provide his own confirmation of family violence (see paragraphs 92 and 93 and annexures -11 and -12 of the Mother’s Affidavit filed 21 June 2021) the Father said that he did not recall these incidents as they were in 2013. The messages from the Father to the Mother in annexures -11 and -12 in order, were as follows:
I’m in a feral mood probably best I’m not at home you gotta learn when someone is having a really bad day you don’t pester them about stupid shit like shopping fucking centres
In answer to the Mother saying by text
I am not happy with our relationship and you swearing and threatening to break our necks. I couldn’t sleep last night. I’m sorry but if you don’t take your medication and see a counsellor or go to this violence course then I don’t want to be with…
The Father replied
Look I wasn’t feeling good last night I’m sorry please don’t tell everyone crap before we talk.
The Father denied that he confronted or threatened the Mother’s then partner Mr K in 2015. The Father agreed that he saw Mr K at the taxi rank at City F Airport. He denied there was any personal contact and/or argument between them.
The Father was confused initially regarding the protection order against him in which the Mother is the aggrieved. The order was made by consent and without admissions. The Father said that there was no order made against him or in the alternative, that he had not consented to an order. I explained to the Father that an order without admissions may be made by consent and on the face of the order made in the Magistrates Court, this was the case for him. The Father then agreed that there was a protection order and that he had consented to the order being made but without admitting any of the allegations in the Mother’s application.
I should refer early in this section of the judgment dealing with the Father’s evidence, to the dispute between the parties as to whether there was a short term or long term agreement about X living in City F, in August – September 2018. I have referred above at paragraph 42 to what the Mother says about this.
In the Father’s affidavit filed 19 October 2020, the father says at paragraph 94 that in August 2018 the Mother contacted him to see if he was open to X living with the Father’s parents on a permanent basis and she would have him (X) for the holidays. The Father says that the Mother told him that there were strains in her relationship because of X and she thought it would be best for her relationship (presumably with Mr K) if X lived with the Paternal Grandparents permanently. The Father says that he said immediately that he would be more than happy with this arrangement.
In paragraph 95 of his affidavit the Father says that on 31 August 2018 the Mother confirmed to him that she would be sending X to City F to live with his parents on a permanent basis. He says that text messages confirm this. I note that there are no such text messages annexed to the Father’s affidavit.
At paragraph 96 of his affidavit the Father says that his Mother Ms Dorsey travelled to Melbourne to collect X from the Mother and for him to start living with the Paternal Grandparents on a permanent basis. X had a very large suitcase and a backpack filled with all his belongings. Again, I have not seen written evidence of any such arrangement between the Mother and the Paternal Grandmother. The evidence such as it is and referred to in paragraph 42 of this judgment above, paints a different picture.
It was put to the Father that up to when he and the Mother separated, the Mother was the primary carer of X. The Father disagreed and said that parenting was shared between them. He said “I was working. I started coming home at lunch break to check on X. Sometimes his nappy was not changed”.
When it was put to the Father again that the Mother was the primary carer given his work, the Father again disagreed. He said that “the care was 50/50, then I took over”.
The Father said that he had some difficulty accepting that the relationship between him and the Mother was over. In reply to a question, he said that he accepted their relationship was at an end when the Mother told him (apparently when he returned home from work) that she had seen or was seeing, Mr K.
The Father again denied that he was responsible for family violence. He said he understood what coercion and control meant in a family situation. He agreed that family violence could include going beyond boundaries in a personal relationship. In response to a question that he had breached boundaries, the Father said that this was not correct. He would go to the shed or go for a walk.
In relation to the Father changing his mind and deciding to return to City F to live with his parents and X which the family report writer Ms M describes as being a sudden and to her, perhaps a suspicious decision in the context of the litigation (see paragraph 79 of the Family Report, referred to above) the Father said that it had “sunk in” with him after speaking to Ms M in the family report interview, how important it is that X is looked after well. He said that he decided to come back to City F “for X”.
Asked if X would be well looked after by his Mother, the Father said X is well looked after and “I think she did a good job in the last holidays.” He said that he supported X spending school holidays with his Mother in that “it’s all about X not me”.
The Father was asked if he was aware that the Mother had been undergoing rehabilitation and that this would be improving her ability to care for X. The Father replied “I guess so. I’m proud of her. It will make her a better Mother. It’s a win-win.”
It was pointed out to the Father that there is medical opinion that X has ADD. This is not a view held by the Grandmother. The Father said “X does have problems. I work with (school) Principal weekly. It is not an overnight fix for X. I want him to have the best education and keep working at it”.
When it was put to the Father that the medical experts should be relied on to give opinions about X, he said “they are experts. He is going well. I am open to it. He has not been struggling, don’t concentrate on 2017”.
When asked if X was still struggling, the Father said that he had seen the latest school reports and that X was a lot better from 2017.
The Father said that his relationship with his parents (Mother Ms Dorsey and Stepfather Mr B Dorsey) was good. He said that his mental health was good. The Father referred to being on anti-depressants years ago although he then said words to the effect that a script had been written for him but he did not fill it.
The Father said that he struggled as a teenager following his parents’ separation.
The Father agreed that when he was around 14, his Stepfather Mr B Dorsey punched him. This was because the Father was “hard to handle”. This resulted in Mr B Dorsey being interviewed by the police.
In cross-examination by Ms Lawrence representing the ICL, the Father said that he hand wrote his affidavit and his Mother typed it up. He agreed that some of his affidavit would reflect his Mother’s language. Asked whether the criticisms of the Mother in his affidavit were his personally, the Father said yes.
Ms Lawrence questioned the Father further about his behaviour as a teenager. The Father said “I used to lash out” and “I was distressed to hear about parenting issues”.
It was put to the Father that X may be similarly distressed when he (X) hears about parenting issues involving him. The Father agreed. When asked if X loved his Mother, the Father said that X loved his Mother, Father and Grandparents.
Ms Lawrence suggested to the Father that his affidavit painted the Mother in a negative way. The Father responded “I’ve told the truth”.
The Father said that he had obtained from Mr K documents from the matching court file namely the file regarding the dispute between the Mother and Mr K about the parenting of L. He said that Mr K had suppled some documents. He could not recall all of the documents which Mr K supplied. Ms Lawrence asked the Father why suddenly after his interview with the family report writer Ms M, he decided to come to City F which included resigning from his employment. The Father said that after speaking to Ms M, he thought “what am I doing in City J when my beautiful son is in City F”.
On the second day of the hearing and with the Father still under cross-examination, he supplied via his Mother Mrs Dorsey copies of documents provided to the Dorseys by Mr K.
The Father was referred to an incident in 2013 in which he and the Mother had an argument in their car when the Father was driving and X was less than 1 year old. The argument escalated to the Father breaking the sunglasses he was holding and throwing them on the floor. The Mother complained to the police that she became fearful and got out of the car, to remove X from the back. The Father also got out of the car and prevented the Mother taking X. The Father agreed that he did stand in the Mother’s way and she was not able to remove X from the car.
The Father said that during the relationship they and particularly the Mother, would “yell about simple things.” He felt entitled to ask her to stop. The Father denied that X would have suffered any trauma from the yelling which went on when he was very young.
The Father said that he understood co-parenting means making decisions for X. He agreed that communication between parents is necessary. He said that he and the Mother have been able to co-parent X. The Father said “I have always tried to be supportive including with Mr K’s break-up”.
When asked how he co-parents, the Father said “with my parents and Mr S at school. I ring Ms Lamb”.
It was pointed out to the Father that he has been very critical of the Mother. For example at paragraph 103 of the Father’s Affidavit filed 19 October 2020 in which he says that he and his parents are dedicated to giving X the best life he deserves, the Father says that the Mother makes it extremely difficult to co-parent. He said the Mother “is critical and negative regarding my parents’ care of X and consistently negative and argumentative in regard to any decision made regarding X.” The affidavit says that the Mother texts the Father complaining about his Mother. In answer to this, the Father said that the Mother has “got a lot better this year. Although at times she is hard to agree with, we are better than before.” The Father said “just because we have a different opinion (about X) we can still co-parent”. When asked about the statement in his October 2020 affidavit that the Mother is consistently negative and argumentative, the Father said that the Mother can be negative at times.

The Father said that he pays about $5,000 per year for X to attend Suburb E School. He makes the payment to his Mother. The Father said that he thinks the Mother’s child support assessment is about $24 per week.
The Father agreed that the Suburb E School enrolment contract which is on pages 142-151 of the second tender bundle in this matter, was completed by his parents or his Mother. When it was pointed out that the Mother’s name was not shown on the enrolment form he said that his was not either.
The Father said that he thought the ICL was going to arrange cognitive testing for X. He said that he would like to have a good relationship with the Mother. The Father said that he had some concerns that when X returns home from spending time with the Mother, X says things such as “you hurt my mum” and “you stole me from her”.
The Father said that the current orders are working ok, that he would agree to X spending time with the Mother during most or all of the school holidays including extra time at Christmas and that “at the end of the day, she is his mum”.
The Father said that he did not have any plans to move out of his parent’s home at the present time. He said that X loves his life with them. The Father said that X might live with him and in a home separate from the Grandparent’s home, when he is older, say when he is 16.
The Father was argumentative in this and other parts of his cross-examination. I thought that he minimised his involvement in family violence during the relationship.
It was put to the Father that X has some form of attachment disorder. The Father said that this may have been caused by the Mother breaking the agreement they had about the custody of X, saying that the Mother broke the agreement by going to Brisbane and that “she caused him (X) to be not attached to me”. He further said referring to the period before separation, “I don’t think it was good for X when he was aged between 1 and 3 and we were arguing often”.
When asked if it was the Mother’s fault that X has an attachment disorder. The Father replied “It depends on if it is her (the Mother) taking him away”. When asked if there was anyone else to blame, the Father said “perhaps me for not stopping her going with X”.
PATERNAL GRANDFATHER
Mr Dorsey gave evidence.
When asked whether X and Mr Dorsey had similarities, Mr Dorsey said yes. He said that Mr Dorsey got into mischief to a greater extent than X does. He agreed that there are times when as a teenager, Mr Dorsey was “frustrating”. Mr Dorsey said that in the incident when he hit Mr Dorsey, he thought Mr Dorsey was about 16.
Mr Dorsey disagreed that there were grounds for the Mother to fear the Father. He said that he asked the Mother whether Mr Dorsey had hit her and “she told me no”.
Mr Dorsey was asked whether he thought the Mother had addressed her former mental health and trauma issues. He said that he believed she had. Asked whether he would not have fears for the safety of X with his Mother, Mr Dorsey said that he may have some concerns at present although given time, perhaps not. Mr Dorsey explained this as being based on what he has seen and from what he has heard in phone contact.
Mr Dorsey recalled a text message from the Mother in 2015 which said words to the effect that X is too much. He said that his concern now is that the Mother’s parenting skills are untested. Asked if as a result of that view he disagreed with the opinion of the psychiatrist Dr T on page 17 (electronic copy) of Dr T’s affidavit including “I believe that she has the ability to take care of her children fully and there is no resultant physical or psychological abuse that may come to the children if they were in her care”. Mr Dorsey said “I do disagree”.
Cross-examined by Ms Lawrence on behalf of the ICL, Mr Dorsey said that the Mother’s description of damage to the home unit in which she and the Father lived in Suburb P City F, was not correct. Mr Dorsey did agree that family violence can be more than just physical violence. He said that it can include arguing and throwing things. He said that he could not recall any incident which the Mother complained of or he had heard about, which would constitute coercive control.
Mr Dorsey said that the Mother had psychological issues in the past. She has taken part in therapy to his understanding although he cannot say if that therapy has worked. Asked whether he had genuinely supported the relationship between X and the Mother, Mr Dorsey said yes. Asked if his Wife Ms Dorsey had supported the relationship, Mr Dorsey said “reluctantly but yes”.
Mr Dorsey said that “the three of us” had chosen the psychologist Ms H. He was not sure who had chosen the paediatrician Dr O for X. Mr Dorsey agreed that all parties should communicate freely about X. Asked what would happen if the three City F family members disagreed with the Mother, he replied “it’s a democracy”. I took his as inferring that the City F view would prevail because it was three against one.
Despite my comment in the above paragraph, Mr Dorsey struck me as a person who was conscious of the family dynamics. When asked if he would promote the relationship between X and his Mother, he said yes. Mr Dorsey said “you say things you cannot take back. I want to change that”. When I put to Mr Dorsey that the Mother could perceive that there is a three against one position in parental decision making, he said that given the lack of communication in the past, this could be correct.
THE PATERNAL GRANDMOTHER
Mrs Dorsey’s evidence was completed over two days due to two of the experts being interposed for their evidence.
Mrs Dorsey was asked whether initially and when she was with Mr Dorsey, the Mother was coping with parenting X. She said that this did not always occur. Asked to explain, Mrs Dorsey said that the Mother used to sleep a lot. She referred to the Mother’s diagnosis of having a medical condition and said that she (the Mother) claimed it made her tired.
Asked whether she thought the Mother was affected by family violence, Mrs Dorsey said that she did not agree. Asked about physical violence, she said no. Asked about coercion or coercive control, she said no. She said that she had not been told of any family violence.
It was put to Mrs Dorsey as per paragraph 96 of the Mother’s affidavit filed 21 June, that she and her Husband were aware of the domestic violence caused by Mr Dorsey and had seen evidence of it in the house at Suburb R. Mrs Dorsey said that this was not correct. Further, she said that she did not recall a text to her from the Mother in 2013 in which the Mother said that the Father shook X and was screaming at him.
I note that the text in question is annexure -15 to the Mother’s affidavit filed 21 June 2021. It is addressed to the Mother on 9 March 2013 (admittedly 8 years ago) and would be concerning for any parent. The text says:
Just letting you know at 5 this morning Mr Dorsey got up to X throughout the night because I had to work today. He shook X and was screaming at him and said if he doesn’t shut up he will break mine and X’s neck. Mr Dorsey went to sleep at 4am this morning. Stayed up playing computer games. X was so frightened. Mr Dorsey has been going to bed after 12, that’s why he has been late for work. And he has not been taking his tablets regularly. I had to get my parents to watch him because he’s sleeping and I don’t trust him now.
It was put to the Grandmother that she herself had been a victim of family violence in her first marriage. Mrs Dorsey said that she was a victim of physical violence. When asked if she had empathy for the Mother in that the Mother says that she suffered from family violence as well, Mrs Dorsey said that she was not aware of this. For herself, Mrs Dorsey said that she told no one as she was ashamed.
It was put to Mrs Dorsey that the Mother says that she suffered from family violence but was not believed. Mrs Dorsey said that she had spoken to the Mother “yesterday” and the alleged rape was consensual sex. I would comment that on my view of the evidence, the Mother is not alleging that the Father raped her. She alleges that he pressured her into having sex – see paragraphs 88 and 89 of the Mothers affidavit filed 21 June. I would further comment that the Mother’s description is not what I would regard as consensual sex.
When asked whether the Mother not sleeping well or being tired could have been caused by family violence, Mrs Dorsey did not agree. She said by way of comparison apparently, “I fled. I just got on with life”.
I do not see the response by Mrs Dorsey referred to in the previous paragraph, in a negative or critical way. It seems Mrs Dorsey removed herself from an abusive marriage when that would not have been easy to do. She did as she said, just got on with her life. There is a strength of character in that. Her decision-making for X since late 2018 although it should have welcomed or at least permitted a greater input from the Mother, has been one of the features which I find has enabled X to progress whilst in the Dorsey household.
Mrs Dorsey was asked whether her view of the Mother was different now compared with when the Mother separated from Mr Dorsey. She replied “her leaving Mr Dorsey for Mr K was a shock”.
Mrs Dorsey was questioned about the circumstances in which X came to City F to live in 2018. She said that understood paragraph 34 of the Mother’s affidavit filed 21 June 2021 where the Mother said that she reached out to Ms Dorsey and Mr Dorsey, was in a bad headspace, was feeling stressed, overwhelmed and isolated and was unsure how she was going to provide for X’s needs in the coming (late August 2018) weeks. Mrs Dorsey said rather surprisingly I think, that she did not agree that the Mother was reaching out to them.
Mrs Dorsey was aware of the text to her from the Mother asking would she like to have X for 2-3 weeks, sent on 2 September 2018. She was also aware of annexure -6 to the Mother’s affidavit which included a text:
Ms Dorsey just letting you know X is only with you for a short holiday. I will pick no one over him. He is to always live with me. Thanks for being supporting.
Mrs Dorsey said that it was Mr Dorsey’s decision to keep X in City F. She said that Mr Dorsey told the Mother that X was not being sent back to her.
It was put to Mrs Dorsey that her answer in that regard was the first time that this description of the decision-making in September 2018 had been raised. This was significant evidence in the hearing. Mrs Dorsey said that she thought she did write something about plans for X at school. If this was not in any previous document before the court, it was an oversight.
It was put to Mrs Dorsey that in September 2018, Mr Dorsey was living in City J. She agreed. It was put her that there was no consultation with the Mother. She did not agree. Mrs Dorsey was referred to a text to her from the Mother on 23 September 2018 at which time X had been in City F for three weeks. The text from the Mother asked “when is X coming back to me”. Mrs Dorsey said that she thought that she called the Mother following that text. There does not seem to be any evidence of a response. Mrs Dorsey thought that she would have called the Mother and told her that Mr Dorsey would call her.
Mrs Dorsey said that she was not aware of or could not recall, that the Mother was making it clear in text messages that X was to be in City F for 2-3 weeks only.
Mrs Dorsey agreed that it was her decision to take X off Ritalin, which he had been receiving when living with his Mother as a result of his ADD diagnosis. Mrs Dorsey said that when X arrived, his behaviour was reasonable but then it deteriorated. She said that she recalled that Mr Dorsey may have been on Ritalin for a short period when he was young.
When it was suggested to Mrs Dorsey that medical decisions should be left to doctors, she replied that she could still make decisions herself. She said “I do not believe X has ADHD”. When asked “not ever” she replied “never”. When it was suggested that the paediatrician Dr O did diagnose X with ADHD, Mrs Dorsey replied that no tests had been done. She did not agree that further testing was required for X.
When asked if she would accept an independent assessment, Mrs Dorsey said that she did not trust “putting a little kid on drugs”.
Mrs Dorsey was referred to a school report dated 27 March this year in which the school notes refer to X being rude, shouting and loudly rattling the chair next to him. There was also a record on 26 May this year of X arguing with the teacher and complaining loudly. Mrs Dorsey said that she was aware of the incidents but did not think they were serious.
Mrs Dorsey agreed that the report on the Mother from the psychologist Ms G was a good assessment. She said that she would not agree with the conclusions of Dr T until she cross-examined him.
As with her Husband, Mrs Dorsey said that she accepts that issues for the Mother have improved since 2018. However she said that the Mother’s parenting is untested. She denied that her view about this was intractable. She denied the assessment at paragraph 114 of the updated Family Report, that her positon about parenting of X and the possibility of his return to the Mother, is entrenched and intractable.
Mrs Dorsey was cross-examined by Mr Van Der Weegen Counsel for the Mother. Mr Van Der Weegen raised with Mrs Dorsey an allegation that she told X that he may go to foster care. Apparently, this arose from a behaviour report from Suburb E School dated relevantly 6 April 2019. It is page 46 of the first tender bundle. The quote is:
When most of the children were in the playground X and Ms U (coordinator) talked about why he had been sent from the playground. Then Ms U talked to another child as well about the same thing. When Ms U was talking to the other child, X said that he did not want to be in foster care. Ms U said that he was not in foster care, he lived with his Grandparents. X said that he did not want to be in foster care because you have to go and live with strangers. Once again Ms U said that he was not in foster care, that he lived with his Grandparents.
Mrs Dorsey denied any conversation with X about his going to foster care.
Mrs Dorsey agreed that the Order made in December 2018 was by consent. The context of this is that Ms Lawrence who then cross-examined Mrs Dorsey, referred to Mrs Dorsey telling Suburb P School that she or she and her Husband, had been “awarded’ custody of X and/or the right to make decisions for him. Mrs Dorsey agreed that the writing on the school enrolment form was hers. She further agreed that the only reference to the Mother on the enrolment form was on page 5 with respect to Medicare information.
With respect to the enrolment process at Suburb P School which occurred shortly after X arrived in City F in 2018, Mrs Dorsey said:
(a)The Father Mr Dorsey is noted as living in City J.
(b)There is no emergency contact except for her home.
(c)The Dr V referred to in the enrolment form is her GP.
(d)She agreed there are no details about the Mother. Mrs Dorsey said that she did not think they asked for them. The form referred to carers only.
(e)She attended the enrolment interview on 12 October 2018 and X started at Suburb P School at the beginning of term 4 of 2018. This was about three weeks after X arrived in City F because the September school holidays were in the meantime.
In relation to the enrolment of X in January 2019 at Suburb E School, Mrs Dorsey said:
(a)She organised the enrolment and filled it out.
(b)She and her Husband are shown as guardians.
(c)She and her Husband are shown as emergency contacts. Mrs Dorsey said that it was pointless having people who were outside City F as contacts.
(d)She had ticked “no” to all boxes about learning issues for X.
When asked on what basis Mrs Dorsey wanted X to repeat grade 1, she said “he was so far behind. He couldn’t read or write. He couldn’t catch up”.
Asked whether she believes that X has a learning difficulty, Mrs Dorsey said no. When asked:
You don’t accept he has a learning difficulty?
She said:
No.
Asked about a cognitive assessment for X, Mrs Dorsey said:
We were having this organised but it is not done.
She said that cognitive testing is not arranged by Suburb E School.
Mrs Dorsey explained the possibility of X being home schooled as arising from his school reports. She said however that the change from one class to another namely from the teacher Ms W to the teacher Ms Y, had resolved this.
Mrs Dorsey was asked when her son Mr Dorsey’s girlfriend moved into their home. Apparently, the girlfriend is either a backpacker or similar, working in Australia on the appropriate visa. She is from Country Z. Mrs Dorsey said she was not sure of the date but it was early this year. It was pointed out that for over six months, there have been four adults in the Dorsey family home but this was not referred to in any affidavit. Mrs Dorsey said that this must have been an oversight.
When asked how she would like X to spend time with his four important adults, Mrs Dorsey said that this would be in accordance with their Case Outline. I note that the Case Outline filed 15 July 2021 refers to X spending time with his Mother on any weekend she is in the City F area and for the three school holiday periods during the year and for half of the Christmas school holidays. X turned nine in April this year. Mrs Dorsey said that he may have to be accompanied on flights between City F and Victoria until he is twelve.
There was further discussion between Mrs Dorsey and Ms Lawrence of Counsel for the ICL, about paying airfares for X or for the Mother, to allow more contact between X and his Mother should X remain in City F. I would comment that Mr and Mrs Dorsey have been quite generous to date regarding X, for example paying his school fees at the private school in City F and paying for Mrs Dorsey to make two return flights to Victoria when X travels down and back for holidays.
In relation to X’s health, Mrs Dorsey said that she does not believe that X has asthma. In relation to a diagnosis of ADHD as discussed earlier in this judgment, Mrs Dorsey said that she did not accept that X has ADHD. She said “Dr O says no” (I note that this is not entirely accurate) and that it is contentious. She said “I don’t want to put a tag on him” and “Dr O does not agree with Ritalin”.
In discussion about X possibly going to live in Victoria with his Mother and having issues of upset and grief should this occur, I have recorded Mrs Dorsey as saying:
(a)I will speak to Ms H about either way the decision goes.
(b)Asked if she would support X if a decision was made that he live with his Mother, Mrs Dorsey replied “I do this”.
(c)She said “I play the role of Mother”.
(d)When considering who would tell X about court orders, Mrs Dorsey suggested that she and her Husband Mr B Dorsey would tell him. She said that the Mother might be on the telephone.
(e)Mrs Dorsey said that X thinks he is going to live with the Mother, although he is also saying that he wants to live with the Father.
(f)She said “Ms Lamb always wanted X back so we didn’t get on, we can cooperate”.
(g)And further “I assume Ms Lamb and I will be able to be friends again”.
When it was suggested to Mrs Dorsey that she and the Mother have not been able to agree on health issues and school for X, (raising the question that this disagreement may continue) Mrs Dorsey said “there will be civility between us”. Mrs Dorsey was asked how the Mother in her view, had tried to alienate X from her. Mrs Dorsey replied that the Mother told X “I am a liar. I stole him. The Judge did not say that you (X) could stay with me”.
Mrs Dorsey said that the police had told her to record phone calls between X and his Mother. When asked whether X might perceive negative issues about his Mother because phone calls with her were being taped, Mrs Dorsey denied this. She said words to the effect that X knows the taping is taking place and thought it was funny. She said that the taping was for a short period only. She agreed that an order could be made that no party tapes phone calls with X.

Mrs Dorsey said that she did not think the CIC memorandum was fair to anybody.
Mrs Dorsey said from her point of view, the Child Inclusive Conference memorandum was unhelpful to the City F adults. She said it was so unreflective of the real position. She said “all we were doing was deflecting accusations”. In relation to the comment in the updated Family Report that Mrs Dorsey said that she taped the CIC interview, Mrs Dorsey said that she had said this but it did not in fact occur.
Examined in relation to limitations in parenting identified for her in the updated Family Report, Mrs Dorsey said that she did not agree that she had a limited capacity to interact with the Mother. Mrs Dorsey disagreed with the final sentence of paragraph 120 of the Family Report, which says that her informing her son Mr Dorsey not to take on any parenting leadership when he spends time with X also highlights vulnerability to foreseeing her role as governing all others in X’s life.
Mrs Dorsey confirmed again that she does not believe that X has ADHD. She is a vegetarian and supports that diet. She said that she had a firm belief in God and is comfortable that X is at a Christian school. It was pointed out to Mrs Dorsey that although there are four adults in X’s life and it has been suggested that there be equal shared parental responsibility, the reality in City F at least, is that she made the necessary decisions. Mrs Dorsey agreed, saying “all the parenting things are left to me”. When it was suggested that the Mother’s perception may be that it is three against one, Mrs Dorsey said (I think correctly at present) that issues for X were really between her and the Mother.
THE FATHER
The Father was re-examined briefly. This arose from the Paternal Grandmother’s evidence that it was Mr Dorsey (the Father) who decided in September 2018 that X not be returned to the Mother.
The Father agreed that it is in the best interests of X to have a good co-parenting arrangement. The Father did not agree that an eventual reunification with the Mother would be in the best interests of X. It was put to the Father that there was no compelling reason for X to remain in his care including the care of the Grandparents. He said that he did not understand that question. When asked whether he accepted that the Mother has improved herself, the Father said “I don’t know. I haven’t seen where she lives in City D”.
It was put to the Father that there was no agreement from the Mother that X would remain in City F in September 2018. He disagreed, saying that “Ms Lamb and I made that decision”. It was put to The Father that his previous answer could not be correct. By reference to Exhibit annexure -8 to the Mother’s affidavit filed 21 June, she told the Father by text on 26 September 2018 that she expected X to be back to her within 2-3 weeks. The Father said that there were other texts or phone calls giving a different position and agreement, around that time. He was not able to point to another text message. Nonetheless, the Father complained to the Mother’s Counsel “you are choosing two text messages and withholding some”. The Father continued to argue for some minutes that he was being misrepresented and/or that all of the available evidence (of whatever nature) was not being presented.
The Father was asked where in his affidavit it is said that it was his decision that X stay in City F. The Father replied that he was not sure.
The Father’s further evidence was marked by a relatively hostile manner including that he was reluctant to accept responsibility for any of the disputes between him and the Mother.
DR. O
Dr O is a paediatrician practicing in City F. She first saw X on 19 September 2018. She has now seen him four times face to face and spoken to X once by telephone. The most recent appointment was in September last year. There are no further appointments scheduled at present.
Dr O had seen the 11 December 2018 court order. She said that she was engaged by the Paternal Grandmother Mrs Dorsey and it is Mrs Dorsey who brings X to his appointments. She has not had contact with the Father.
Dr O said that she has had two emails from the Mother and a phone conversation. After each appointment with X, she issues a short report.
Dr O said that she is not qualified to undertake a cognitive assessment of X. A psychologist or perhaps the school guidance counsellor could do this. She said that she would recommend that X have a cognitive assessment although it may not be essential. The assessment would help in considering resources for X, in particular at school.
Dr O said that X came to her with an ADHD diagnosis. A diagnosis such as this can be complex and there can be multiple underlying factors, family violence and trauma included.
Dr O said that it would be difficult for her to say emphatically that X has ADHD. Different or inconsistent information coming from one or more parent would make that diagnosis more difficult. She said that she suspects that X does have ADHD. She said that although it is sometimes difficult to confirm, she has observed some issues with X which are consistent with that diagnosis.
Dr O said that in her view, X does not have RAD. He has a form of attachment disorder but does not fulfil the DSM-5 requirements for an RAD diagnosis. Presentation by a child with an attachment disorder can be similar to what is observed for a child with ADHD.
Dr O said that attachment difficulties can be long lasting but can be lessened if there is no trauma in a child’s life. These difficulties for a child can follow negative aspects of a parent’s life such as anxiety and depression as well as family violence.
Dr O was cross-examined by Mr Van Der Weegen on behalf of the Mother. Dr O said that the Mother had referred during her discussion, to the Father being responsible for family violence.
Mr Van Der Weegen asked if X had a primary attachment to his Mother until age 6 and then this changed because X was brought to City F, would that be a factor in his attachment difficulties now. Dr O said that it would be although family violence may be a bigger factor. She said that the answer to the question depended on the nature of the parental relationship.
Asked to confirm her opinion that X does have ADHD, Dr O said that this was her subjective feeling. A second opinion could be arranged.
In relation to the answer from Dr O referred to in the previous paragraph, that answer is consistent with a letter which Dr O wrote to Dr AA of BB Family Clinic in City F. The letter is on pages 161-163 of the second tender bundle. There does not appear to be a page 162 of the tender bundle. A paragraph in Dr O’s letter says:
I have explained to both Ms Lamb (the Mother) and Ms Dorsey (the Grandmother) that X has some features that would be in keeping with ADHD, but children who have been exposed to domestic violence and have attachment difficulties will present with similar features. It is not always possible to distinguish between these two conditions and we rely heavily on parental/carer history which, as demonstrated above, varies between the two parties involved.
The reference to “above” in Dr O’s letter as quoted is that earlier in the letter, Dr O was advising Dr AA of the difference views held by the Mother and the Paternal Grandmother about X’s behaviour and medical needs. I note that in the enrolment application for Suburb E School completed by the Grandmother, Dr AA is shown as the family doctor – see page 146 of the second tender bundle.
Asked for an overview of X now, Dr O said that he looked settled and happy. His attention span remains short and X can be easily distracted.
DR T
Dr T gave his evidence from his office in Melbourne. His affidavit annexing a report about the Mother and dated 29 June 2021, was filed on 16 July.
Dr T said that he had read a large volume of documents which were supplied to him by the Independent Children’s Lawyer reasonably recently. He said that overall, this did not change the views he expressed in his 29 June report. In particular, there was no change to his answer to question one on page 5 of the report (page 17 of the filed document). Dr T’s answer to question 1 is:
I do not believe Ms Lamb suffers from any current psychiatric illness or condition. However in the past she has had recurrent depressive episodes with her last episode being in 2018.
Dr T said that he had a concern about the Mother after reading the updated Family Report which at paragraph 114, referred to the Mother’s entrenched and intractable views. It was pointed out to the Professor that this reference in paragraph 114 was to the Paternal Grandmother Mrs Dorsey. The Professor then said that there was no change now to the view expressed in his answer to question two, of his report.
Question 2 in the Professor’s Report is answered by him as follows:
I believe that currently she is taking psychological therapy to help deal with the stressors of not being able to have both children is her custody, and I believe that this is appropriate. I do not believe any other treatment is required.
I believe that she has the ability to take care of her children fully and there is no resultant physical or psychological abuse that may come to the children if they were in her care.
Care arrangements that could possibly be in the best interests of the children would be to have both children together in her care with custody being shared with the father.

MS M
Ms M prepared two Family Reports in this matter. The first report is dated 7 December 2018 and is annexed to the affidavit of Mrs Dorsey filed 11 May 2020. The second report which is described as the updated family report, was ordered by Judge Andrew on 30 April 2020 and is dated 21 October last year.
Ms Lawrence on behalf of the ICL advised Ms M that Dr O resiled form her RAD diagnosis of X but considers that he has attachment difficulties. Ms M said that this was outside the scope of her report.
Ms M explained that children form attachments within the first 36 months of their life. The Mother has experienced high and low qualities of life and parenting. Ms M said that the Mother was open about her mental health difficulties in the past, spoke about family violence by the Father and more so from Mr K. X spoke of his fear in that relationship.
When asked if there would be disruption to X if he was returned to live with the Mother, Ms M referred to her updated report. I record the first sentences of paragraphs 124 and 125 respectively. They are:
124. The court must also consider however, the readiness and capacity for Ms Lamb to meet X’s daily needs, which include complex behaviours at times.
125. While Ms Lamb reports her readiness and competency to resume a primary parenting role for X now, her parenting of X remains largely untested over the past two years.
Ms M answered the above question by saying that X has and would likely continue to have, an enduring emotional sense of belonging to the Mother. In this regard and if handled properly with professional help, a reunification would not necessarily be a disruption.
Ms M said that X had missed some opportunities last year to spend time with his Mother, because of COVID restrictions. Spending time had now been resumed. Ms M said that she was aware that decision-making between the Mother and the parties in City F was not always smooth. She said that there is a need for the benefit of X, to reduce the risk of too many different opinions.
Asked if her recommendation remains that X live with his Mother, Ms M answered that it was, consistent with a paced approach which was within his capabilities. This would include that X maintain consistent contact with his Father and Grandparents both during holidays and by phone.
Ms M said that good parenting gives children a good sense of belonging. In relation to parental decision making, there could be some form of consultation and consensus between the four parties. If this is not possible, the residence parent should make the final decision. In relation to parenting generally, Ms M said that there are really two players in the present case, the Mother and Mrs Dorsey. They are the significant parent figures and tensions between them should be removed as much as possible. X is aware of the stress caused by any conflict.
In relation to her comment recorded in the previous paragraph, Ms M was asked whether the Father being present in the Grandparents (his parents) home would change her view on the relevant matters. She answered “no”.
Ms M referred to paragraph 30 of the updated Family Report. Its content is referred to on page 5 of this judgment. Ms M was asked whether it appeared to her that the Mother’s personal insight had improved. Ms M answered that in her view, there had been a profound change in how the Mother presented in the interview for the updated Family Report compared with the interview for the first report in late 2018, approximately two years earlier. Ms M said that the Mother recognises the loving care which X has received from his Grandparents. When asked whether the Mother was now child focused, Ms M answered “yes”. She said that she believed that the Mother had taken on board and applied, lessons from the courses she had undertaken.
Ms M was referred to the section of her updated Family Report which refers to Mrs Dorsey’s fixed views. She was asked for comments about her concerns. Ms M’s comments included:
(h)X needs a coherent life story. He sees his Mother as being an important part of that story.
(i)The Father is good to and with X but because of the household arrangements, is still similar to a “visiting dad”.
(j)X continues to identify the Mother as his key potential parental relationship.
(k)There is a genuine risk to the Mother - Son bond if X stays where he is in City F, given that the Mother’s role and position is minimised.
Ms M was asked were there any potential detriments to X if he did live with his Mother. Ms M said that there were and they included:
(a)X may have trouble adjusting to the new home, new surroundings in Victoria and new school.
(b)He would miss some of his relationship with his Grandparents which was a good and significant relationship.
(c)The Mother may not be able to provide as a single parent and afford, the quality of care which X now receives and the City F lifestyle.
(d)The Mother would have the usual pressures of being a single parent who has to work and has two children to look after. This includes that L comes and goes from the Mother’s household and this could cause some disruption.
(e)X would be likely to experience grief if he leaves the household of his Grandparents and Father in City F.
Ms M said that the Mother and the other parties could assist in any adjustment for X during any transfer period by ensuring that his relationship with his Father and Grandparents was maintained, that X be encouraged to continue to have a genuine sense of closeness to all four adults, that the Mother’s anxiety about the City F adults’ view of her be managed and minimised and that as far as possible, X have a predictable and reliable life at home and at school.
When asked whether given the concerns and unknowns whether she continued to support X living with the Mother, Ms M said that she did support this. She said that X could have an ongoing sense of loss if he does not live with the Mother.
Ms M said that the relationship between X and his Father and Grandparents should be maintained, including regular phone or video calls. She said that preferably, someone with an established relationship with X but not his parents, tell X of any decision that he move from City F. She thought that the school guidance officer may be able to assist in that regard.
Ms M said that the Mother should continue her consultations with her psychologist Ms G.
Under cross-examination by Mr Van Der Weegen for the Mother, Ms M was sked whether she had seen the cognitive assessment prepared for X. She was not sure. She was asked what she saw as the risk for X if he remained in City F. Ms M referred to paragraphs 113 and 114 of the updated Family Report, in particular the fixed views which Mrs Dorsey holds.
Mrs Dorsey cross-examined Ms M. She referred to an email sent to Ms M on 21 June 2021, asking whether there would be any addendum to the updated Family Report given changes in X’s circumstances this year. She said that Ms M replied that there would be no addendum. Mrs Dorsey asked whether this may have been helpful. Ms M replied that the nature of working with people and children makes it not unusual that there will be changes, both to a person’s circumstances and their needs.
Mrs Dorsey asked Ms M about her concern (this is the way I have recorded the tone of the questioning) about the Father now taking a more active role in X’s life in City F. I have recorded Ms M various answers as follows:
(a)I have concerns regarding the Father’s “surprise” decision to return home “from City J”.
(b)The reference to the advice against X having a third move of residence, meant a full return to the Father, not to the Mother. A return or move to the Father would be a third change, the first and second changes being X in the care of the Mother and then being in the care of the Grandparents.
(c)The Father was consistent that he was enjoying City J and had a visiting role to see X. What he said in the 2020 interview was consistent with the first Family Report which records that the Father said that he had no intention of changing his living arrangements.
(d)It is true that a change of school (X has been to two schools in City F) could present another hurdle for X. However X has a long time left at school – about nine years – and a move now if consistent with returning to live with his Mother, would be best in the long term.
MS H
The Independent Children’s Lawyer arranged for X’s psychologist Ms H to swear an affidavit and to give evidence. Ms H’s affidavit was filed 13 July. The annexures to it are a letter to the ICL Ms Falcomer from Suburb E School dated 29 January 2021 and a letter “to whom it may concern” from Ms H dated 12 July.
In answers to Ms Lawrence on behalf of the ICL, I have noted Ms H’s evidence as follows:
(a)She knows of the paediatrician Dr O but has not met her.
(b)She acknowledged advice from Ms Lawrence that Dr O in her evidence had said that she does not think that X has RAD although he has attachment difficulties.
(c)Ms H said that X does have difficulties making relationships.
(d)She has dealt almost exclusively with Mrs Dorsey regarding X.
(e)She has had no contact with the Father.
(f)She has received two emails from the Mother.
(g)She suggested to Mrs Dorsey strategies for improving the relationship between X and the parents and the City F parties with the Mother.
Ms H said that she thought there would be a benefit to X in continuing to see her for his behavioural difficulties if he remains in City F. This included assistance for him in dealing with school issues. She said that skills can be taught to X although it is a long slow process.
Ms H said that if X goes to live in Victoria, she could be involved in any transition arrangements for him and may initially continue to see him by video, being a familiar face for X. In the longer term, she though it would be better for X to have a psychologist in Victoria.
Ms H said that it could be expected that X would experience grief if he leaves City F. A psychologist could work with him in that regard. In relation to a cognitive assessment for X, Ms H said that she could do it. It may take 5-7 sessions on top of his regular monthly sessions for therapy. X’s achievements at school, attention, concentration and feedback from his teachers would be considered.
The evidence shows that a cognitive assessment was carried out for X in December 2017. Commencing on page 14 of the first tender bundle, an 11 page document prepared by Assessments Australia became Exhibit 7 in this case. The date of the assessment was 14 December 2017, carried out when X was 5 years and 8 months old and attending prep at City D Primary School.

The assessment contains much of the information which the parties referred to in their evidence and were cross-examined about. This includes X finding it very difficult to listen to full instructions and to wait until prompted, to start an activity. X appears to have lost concentration easily. The assessment report contains a series of charts and gradings for X in a range of tests. As an example, X received ‘mild deficit’ levels for communication, daily living skills, socialisation and what is called adaptive behaviour composite. The assessment which seems quite comprehensive had considerable detail about X’s strengths and weaknesses both in behaviour and academic levels. It may be useful for X to have an updated cognitive assessment carried out.
Ms H said that most discussions with X are kept confidential by her although she can present feedback and strategies to Mrs Dorsey and the Mother. She said that she tried to be impartial and that Mrs Dorsey had requested this of her.
In answer to questions from Mrs Dorsey, Ms H said that X’s presentation was not uncommon. Given what has happened in his life, it may not be unexpected. Many children have these difficulties although X may have more than usual. X has behavioural challenges. Now, he is more able to control his emotions. Certainty in his life will help.
COMMENTS REGARDING EVIDENCE
As I have commented at the beginning of the part of this judgment referring to the Mother’s evidence, I found the Mother’s evidence to be believable. The Mother was cross-examined by Mrs Dorsey on behalf of the Father and the Grandparents and also by Ms Lawrence of Counsel who represented the ICL. I thought that the Mother’s evidence was consistent with her affidavits.
Mrs Dorsey was cross-examined by Mr Van Der Weegen on behalf of the Mother and by Ms Lawrence. In some parts, I thought that Mrs Dorsey’s evidence had an element of self-justification (although this is not unusual for virtually all witnesses) but generally, Mrs Dorsey gave evidence in a straight-forward manner consistent with her affidavit. To the extent that the Mother and Mrs Dorsey are in dispute and subject to what I say in the following sentence, the issues between them are not so much of a factual nature but about their respective views on where X should live. I did not think that there can be much dispute about the Mother’s evidence that in September 2018, she agreed and expected that X would spend only a short time in City F. This is a separate issue from whether it was good for X to spend a longer time here. The fact that I find is that the Mother did not agree with X being in City F for longer than 2-3 weeks.
Mr Dorsey’s evidence was also straight-forward and believable. The Family Report records (paragraphs 23 and 74) that the Grandparents might not be completely unanimous about X’s future. To the extent that this observation in the updated Family Report was relevant to whether X could live with his Mother, I find that there is no inconsistency between the Grandparents in their loving care and support of X in City F.
Mr Dorsey’s comment that even if the Mother has improved personally and as a parent to a great extent since 2018, this does not avoid the argument that her parenting is untested, flies in the face to some extent, of the fact that she is looking after L for up to half the time. It was not however an unreasonable observation for Mr Dorsey to make.
The Father was more argumentative and sometimes aggressive in replies to questions. I would place less weight on his evidence than on the other witnesses. The Father argued that the Mother’s evidence in her affidavit and recorded at paragraph 42 of this judgment, was not correct or complete about the circumstances of X coming to live in City F. However, he presented no credible or consistent alternate evidence. The Father was not able to show why he claimed that Counsel for the Mother had omitted some evidence about that point – see paragraph 165 of this judgment.
The evidence of the experts and of the Report Writer Ms M was believable and appropriate. These witnesses were not shaken by cross-examination.
CASES
Mr Van Der Weegen on behalf of the Mother referred me to the case of Prendergast & Parsons DGF764 of 2004 Prendergast & Parsons (No 12) [2007] FamCA 1233.
Prendergast & Parsons is a parenting case which may be summarised best by reference to the headnote as follows:
Competing applications for residence of a seven year old girl. Husband, a litigant in person sought child live with him and that the time spent with Wife be supervised. Wife sought child live with her then spend time with Husband each alternate weekend and half school holidays. Husband seized with an “encapsulated belief” that Wife psychiatrically disturbed and was emotionally and physically abusive of the child. Orders during trial for parties to attend psychiatric assessment. Wife attended and received favourable opinion. Husband refused to attend. Evidence led dealing with Husband’s encapsulated ideation and potential impact upon child who was already evidencing withdrawal. Issue of unacceptable risk. Adverse inference drawn on Husband’s refusal to attend psychiatric assessment. Order made for Husband to spend time with child for six hours each alternate Sunday supervised.
Having read the decision of Justice Guest fully, I said to Mr Van Der Weegen that the view and behaviours of the Husband in that case were much greater and much worse than in the present case. Although Mr and Mrs Dorsey and their son Mr Dorsey appear to have little faith in the Mother’s parenting ability or at least, take the view that such ability is untested, this is a much more moderate position and in my view not outside the range of views that could appropriately be put before a court, compared with what was the case in Prendergast.
In Prendergast, the Husband’s fixation without any basis on the Wife being psychiatrically disturbed and a risk to the child, was not only unwarranted but contrary to the evidence. The Husband’s view was found not surprisingly, to be harmful to the child. It was clearly open to the court to significantly restrict the time and communication which the Husband had with the child.
SUBMISSIONS
Counsel for the Mother pointed to:
(a)The Mother’s claim to have been the primary carer of the child up until late 2018.
(b)The Mother not agreeing that the child X would live with the Paternal Grandparents more or less indefinitely, when she sent him to City F in late 2018.
(c)The Mother’s acceptance of the difficult personal and psychological circumstanced including problems caring for X, in 2018 and her gratitude to the Paternal Grandparents for assisting with X when asked.
(d)Significantly, the considerable insight of the Mother in “turning her life around” including by attending a number of courses and taking on board what she has learned.
(e)The content of the updated Family Report which says that X longs to be with his Mother and that psychological harm may occur if this wish is not granted.
(f)The other expert opinions presented to the court essentially supporting the conclusion in the Family Report, with respect to the Mother’s present life, her parenting capabilities and the benefit to and of X living with her.
(g)The Mother’s willingness to facilitate an ongoing relationship with the Father and his parents.
(h)The Mother’s understanding of the issues flagged in the Family Report and expert evidence regarding care to be taken in any transition for X from City F to Victoria.
Mr and Mrs Dorsey and Mr Dorsey submitted:
(a)The Mother was in a bad way personally and as a parent to use that general description, in 2018.
(b)X was not being cared for properly in 2018. This includes poor behaviour, poor language skills and not appearing well physically.
(c)X has had a significant turnaround in his physical and mental health, development and behaviour, in the almost three years he has been with his Paternal Grandparents.
(d)They are willing to facilitate an ongoing relationship between X and his Mother including personally during school holidays and by telephone/video. To the extent that there is evidence that this has not been done proactively in the past, these matters will now be attended to.
(e)Despite what appears to be impressive progress personally for the Mother, her parenting skills are largely untested.
Essentially, the Paternal Grandparent and Mr Dorsey submitted that it would be too much a leap of faith and potentially into the unknown, to change X’s residence from City F to Victoria.
The Independent Children’s Lawyer supported the Mother’s case in broad terms. Prior to submissions being presented after the end of the evidence, the ICL gave the court and the parties her proposal for final orders which in summary are as follows:
(a)All previous orders be discharged.
(b)The child X live with the Mother in City D Victoria.
(c)The Mother have sole parental responsibility for the major long term decisions for the child.
(d)The child spend time with the Father and Paternal Grandparents during most of the school holidays in each year and communicate with them by phone or video on a regular basis.
(e)The usual authorities for school and health care providers and orders for non-denigration of each other party to or in the presence of the child.
(f)The Mother continue with psychological counselling.
(g)The Mother arrange for the child to have a psychologist in Victoria and until that was put in place, he continue to consult Ms H.
The ICL accepted generally the views and recommendations of the family report writer and the expert witnesses.
COMMENTARY AND CONCLUSIONS
As referred to above in my recording of the submissions by the Father and his parents Mr and Mrs Dorsey, their view is that it would be a leap of faith to change X’s residence from City F to City D. They believe that the Mother’s parenting skills are untested, even if the evidence is that she has made significant progress since the dark days for her of 2018.
The expert evidence is that X will benefit from living with his Mother and in fact, it may be a source of considerable emotional and psychological loss for him in the future if this does not occur.
The updated Family Report supports X living with his Mother although it recognises that caution about an order changing residence, should be exercised. The report recommends support for X during any transition period.
The Mother is seeing her daughter L regularly. She has had X and L in her household during school holiday periods when X has travelled to City D.
In my view, the recommendations of the Family Report Writer which are supported by the Mother’s psychologist and by the Independent Children’s Lawyer, should be put into effect.
It needs to be recognised that the Father and his parents have had a significant input into X’s life, particularly in the last three years although in reality, longer than that. The Father was generous in assisting the Mother and being available for her calls, when she separated from Mr K. The Paternal Grandparents have been very generous in their support of X since late 2018, notwithstanding that from the Mother’s point of view X should not have been in City F for as long as he has. X’s school arrangements and engagement with healthcare professionals have been arranged by the Grandparents and at their cost. Further, they have incurred considerable expense in arrangements for X to spend holiday time with his Mother. The Father and the Grandparents should continue to be very important people in X’s life.
My decision in this case has been difficult. I was assisted by all of the lawyers including by the orders proposed by the ICL. Nevertheless, the Grandparents have not been incorrect in referring to some uncertainty for X with this substantial move.
In all of the circumstances and on the evidence presented, I find that it is in the best interests of X that he live with his Mother, spend holiday time with his Father and Grandparents and communicate with them regularly.

I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bowrey.
Associate:
Dated: 4 August 2021

[2021] FCCA 1783

4 August 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Costs

Appeal

Judicial Review

File number(s):	TVC 11 of 2020
Judgment of:	JUDGE BOWREY
Date of judgment:	4 August 2021
Catchwords:	FAMILY LAW – parenting – child living with the Mother up until 6 years old in late 2018 – child then comes to stay with the paternal grandparents at the Mother’s request – dispute about whether the move to grandparents was short term or long term – Mother seeks child return to live with her – change of living arrangements would mean transfer from North Queensland to Victoria – child has learning/behavioural difficulties – Family Report and an expert witness support child’s return to Mother
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Prendergast & Parsons (No 12) [2007] FamCA 1233
Number of paragraphs:	235
Date of hearing:	19-21 July 2021
Place:	City F
Counsel for the Applicant:	Mr Van Der Weegen
Solicitor for the Applicant:	Freedom Law
The Respondent:	The Respondent appearing on his own behalf
The Interveners:	The First and Second Interveners appearing on their own behalf
Counsel for the Independent Children's Lawyer:	Ms Lawrence
Solicitor for the Independent Children's Lawyer:	Keir Steele Waldon Lawyers

TVC 11 of 2020
BETWEEN:	MS LAMB Applicant
AND:	MR DORSEY Respondent
MR B DORSEY First Intervener MS DORSEY Second Intervener

ORDER MADE BY:	JUDGE BOWREY
DATE OF ORDER:	4 AUGUST 2021