Larson & Kidd
[2022] FedCFamC2F 55
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Larson & Kidd [2022] FedCFamC2F 55
File number(s): PAC 1260 of 2012 Judgment of: JUDGE NEWBRUN Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – Parenting – best interests of children – Orders made. Legislation: Family Law Act 1975 (Cth), ss.60B , 60CA, 60CC, 61DA, 65 DAA, 65D
Evidence Act 1995 (Cth), s.140Division: Division 2 Family Law Number of paragraphs: 293 Date of last submission/s: 10 November 2021 Date of hearing: 8 - 10 November 2021 Place: Parramatta Counsel for the Applicant: Mr O’Brien of Counsel Counsel for the Respondent: Mr Flanigan of Counsel Counsel for the Independent Children’s Lawyer Ms Stolier of Counsel ORDERS
PAC 1260 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LARSON
Applicant
AND: MS KIDD
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
1.That all previous Orders be discharged.
2.That the Father have sole parental responsibility for the child X born in 2008 (“the child”).
3.That the child live with the Father.
4.That the Father shall keep Ms Kidd (‘the Mother’) informed of details for the child’s General Practitioner and such other treating doctors or therapists that the child may see from time to time
5.That the Father is to notify the Mother in writing or email, as soon as practicable as to any serious illness or medical condition suffered by the child.
6.That the Father shall keep the Mother informed of address of the child’s school and home at all times.
7.The Mother shall have such authority as is necessary to obtain information from the children’s schools as would normally be available to a parent in relation to the children’s respective school reports and educational progress.
8.The Mother shall have such authority as is necessary to obtain information from the child’s treating medical practitioners as would normally be available to a parent.
9.To facilitate Order 7 and 8 the Father is to provide a copy of these Orders to the children’s respective schools.
10.That the child spend time with the Mother as follows:
(a)During school term at the 4th and 8th weekends from 6pm Friday to 6pm Sunday and if the Mother’s time falls on a long weekend, then such time will conclude at 6pm on the Monday of the long weekend.
(b)During the April and October mid-term school holiday periods, from 2:00pm on the first Sunday until 6:00pm on the middle Sunday.
(c)During the July mid-term school holidays from 2:00pm on the first Sunday until 2:00pm on the middle Sunday;
(d)For half of the long summer holiday period such time commencing:
(i)In even numbered years at 6.00 pm on the day after school term concludes and concluding on the third Sunday after the conclusion of school term at 6.00 pm.
(ii)In odd numbered years from 6pm on the third Sunday after school concludes until 6pm on the Sunday prior to the commencement of the first term of the next school year.
11.That changeover shall take place as agreed and, failing agreement, at Suburb B McDonald’s.
12.That the Mother shall be at liberty to have telephone contact with the child each Tuesday and Thursday, Christmas Day, Easter, child’s birthday, mother’s birthday and Mother’s Day between 6:00pm and 7:00pm.
13.That during the child’s time with the Mother, the Father shall be at liberty to have telephone contact with the child on Tuesdays, Thursdays, Christmas Day, Easter, Father’s birthday between 6:00pm and 7:00pm.
14.In the event that Mother’s Day does not fall on a weekend when the child would otherwise be spending time with the Mother pursuant to these Orders from 10am to 5pm on the Mother’s Day.
15.At such other times and dates and for such other periods as agreed to by the parties in writing.
16.That the Father is to contact Dr C within 48 hours of the making of these Orders for the purpose of arranging an appointment for the child to review and assess X’s progress and management of his ADHD diagnosis.
17.That the Father and the Mother keep each other informed and update each other of their respective contact details including telephone numbers and email addresses.
18.That the Father and mother to each enrol in and participate in the online course Tuning into Teens.
19.That, other than in the event of a genuine emergency, the Mother is restrained from taking the child to any general practitioner or specialist without the Father’s prior written consent.
20.That the parties are restrained from denigrating the other parent or a member of the other parent’s household or family in the presence of the child and, further, shall immediately remove the child from the presence of any other person denigrating the other parent.
21.That the parties are restrained from discussing these proceedings or any allegation made by the Mother against the Father in the presence of the child and, further, shall immediately remove the child from the presence of any other person discussing these proceedings or any allegation made by the Mother against the Father.
22.That the Independent Children’s Lawyer be discharged.
23.That within 6 months of the date of these Orders, the Mother shall pay to the Father the sum of $2,200 in reimbursement to the Father of the Mother’s share of the family report writer’s costs, pursuant to Orders made on 8 April 2019.
24.That the ICL explain the above Orders to the child, and, for the purpose of giving effect to this Order, the ICL shall arrange to speak with the child within 7 days of the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Larson & Kidd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final parenting hearing relates to the child X born in 2008.
PROPOSALS
The Mother’s proposals were set out in her proposed Minute of Orders being:
1.The child X, born in 2008 (“Child"), live with his Mother.
2.The Mother have sole parental responsibility for the Child.
3.The Father to spend time with the Child as follows:
(a)Every third weekend of each calendar month other than in school holidays;
(b)The first half of every school holidays in every even numbered year otherwise the second half of each school holidays.
4.Changeovers to give effect to Order 3 to occur at 6.00pm at Suburb B.
5.If requested by the Child, the Father to allow the Child's dog, D, to reside with the Child at the Mother's residence.
6.The Father be restrained from drinking alcohol in the presence of the Child.
7.The Father complete courses, within 6 months from the date of these Orders, in positive parenting and parenting after separation.
8.The parties refrain from making any derogatory remarks in relation to each other in the presence or hearing of the Child and that each party shall do all things necessary to ensure no third party makes any such derogatory remarks about the other parties in the presence or hearing of the Child.
9.That each parent agrees that the communication between them will be respectful and child-focussed.
10.That each parent is to inform the other parent as soon as practicable, of any emergency, medical or otherwise, hospitalisation, illness or injury suffered by the child should such an event occur whilst the child is in either party’s care.
11.That each parent keep the other informed of any health issues relating to the child, including any medical or dental treatment, procedures or operations to be undertaken prior to those treatments, procedures or operations occurring, except in the case of an emergency, with the party who has the care of the child to inform the other party as soon as practicable.
12.The parents will authorise all doctors, specialists, medical centres and any other health care provider that is consulted in respect to the child’s health to provide information directly to the other party about the child’s treatment.
13.That the child’s school and other care providers be authorised to provide all information and documents about the child to both parents, including but not limited to the child’s progress, newsletters, reports, photographs, and details of any school activities.
14.That both parents be at liberty to attend any significant school event and any significant extra-curricular or sporting event for the child.
The ICL’s proposals were set out in his proposed Minute of Orders being:
1.That all previous parenting orders between the parties be discharged.
2.That Mr Larson (‘the Father’) have sole parental responsibility in respect to X born in 2008 (‘the child’).
3.That the child live with the Father.
4.That the Father shall keep Ms Kidd (‘the Mother’) informed of details for the child’s General Practitioner and such other treating doctors or therapists that the child may see from time to time
5.That the Father is to notify the Mother in writing or email, as soon as practicable as to any serious illness or medical condition suffered by the child.
6.That the Father shall keep the Mother informed of address of the child’s school and home at all times.
7.The Mother shall have such authority as is necessary to obtain information from the children’s schools as would normally be available to a parent in relation to the children’s respective school reports and educational progress.
8.The Mother shall have such authority as is necessary to obtain information from the child’s treating medical practitioners as would normally be available to a parent.
9.To facilitate Order 7 and 8 the Father is to provide a copy of these Orders to the children’s respective schools.
10.That the child spend time with the Mother as follows:
(a)During school term at the 4th and 8th weekends from 6pm Friday to 6pm Sunday and if the Mother’s time falls on a long weekend, then such time will conclude at 6pm on the Monday of the long weekend.
(b)During the April and October mid-term school holiday periods, from 2:00pm on the first Sunday until 6:00pm on the middle Sunday.
(c)During the July mid-term school holidays from 2:00pm on the first Sunday until 2:00pm on the middle Sunday;
(d)For half of the long summer holiday period such time commencing:
(i)In even numbered years at 6.00 pm on the day after school term concludes and concluding on the third Sunday after the conclusion of school term at 6.00 pm.
(ii)In odd numbered years from 6pm on the third Sunday after school concludes until 6pm on the Sunday prior to the commencement of the first term of the next school year.
11.That changeover shall take place as agreed and, failing agreement, at Suburb B McDonald’s.
12.That the Mother shall be at liberty to have telephone contact with the child each Tuesday and Thursday, Christmas Day, Easter, child’s birthday, mother’s birthday and Mother’s Day between 6:00pm and 7:00pm.
13.That during the child’s time with the Mother, the Father shall be at liberty to have telephone contact with the child on Tuesdays, Thursdays, Christmas Day, Easter, Father’s birthday between 6:00pm and 7:00pm.
14.In the event that Mother’s Day does not fall on a weekend when the child would otherwise be spending time with the Mother pursuant to these Orders from 10am to 5pm on the Mother’s Day.
15.At such other times and dates and for such other periods as agreed to by the parties in writing.
16.That the Father is to contact Dr C within 48 hours of the making of these Orders for the purpose of arranging an appointment for the child to review and assess X’s progress and management of his ADHD diagnosis.
17.That the Father and the Mother keep each other informed and update each other of their respective contact details including telephone numbers and email addresses.
18.That the Father and Mother to each enrol in and participate in the online course Tuning into Teens.
19.That, other than in the event of a genuine emergency, the Mother is restrained from taking the child to any general practitioner or specialist without the Father’s prior written consent.
20.That the parties are restrained from denigrating the other parent or a member of the other parent’s household or family in the presence of the child and, further, shall immediately remove the child from the presence of any other person denigrating the other parent.
21.That the parties are restrained from discussing these proceedings or any allegation made by the Mother against the Father in the presence of the child and, further, shall immediately remove the child from the presence of any other person discussing these proceedings or any allegation made by the Mother against the Father.
22.That the Independent Children’s Lawyer be discharged.
The Father, during his oral submissions, agreed to consent to the ICL’s above proposed Orders. He sought an Order for costs of $2,200 against the Mother regarding her share of the Family Report Writer’s costs, as well as an Order that the ICL explain the Orders to the child.
The Father relied upon the following documents:
(a)His Case Outline filed 2 November 2021;
(b)Amended Initiating Application filed 24 November 2020;
(c)His Affidavits filed 28 June 2019 and 23 February 2021;
(d)Affidavit of Ms R filed 28 June 2019;
(e)Tender bundle: see Exhibit A.
The Mother relied upon the following documents:
(a)Her Case Outline dated 2 November 2021;
(b)Her Affidavit filed 28 October 2021;
(c)Affidavit of Mr E filed 31 August 2020;
(d)Tender bundle: see joint tender bundle in Exhibit A.
The ICL relied upon:
(a)Her Case Outline filed 4 November 2021;
(b)Family Report of Dr F dated 6 November 2019;
(c)Child Inclusive Conference Memorandum dated 30 June 2021;
(d)Tender bundle: see Exhibit A.
The following Exhibits were relied upon:
(a)Joint Tender Bundle, Father’s Additional Subpoena Tender Bundle material, ICL’s Additional Subpoena Material Tender Bundle: Exhibit A;
(b)Family Report and CIC Memorandum: Exhibit B;
(c)Letter from G School dated 1 November 2021 and school report for Semester 1 for 2021 from G School: Exhibit C.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons (including under the Court’s discussion of the s 60CC Family Law Act 1975 (Cth) (“the Act”) considerations), the Court will refer to a number of facts, and any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities (see section 140 of the Evidence Act 1995 (Cth)).
The Father’s Affidavits
The Court does not propose to set out the entirety of the Father’s Affidavits.
The Father’s Affidavit filed 28 June 2019
The Father is aged 61 years. The Mother is aged 38 years.
The Father works as a factory worker, full-time. The Mother has experience as a health care worker.
The parties commenced a relationship in about 2001 and separated on a final basis in June 2011.
The Mother was the child’s primary carer during the parties’ relationship, but the Father helped the Mother with the child’s day-to-day care.
The Father has two sons from a previous relationship, Mr H aged 37 years, and Mr J, aged 33 years. The Mother has another child from a subsequent relationship, being K. He is aged 8 years.
The Father consented to an ADVO on a without admissions basis in about September 2011 with the protected persons being the Mother and the child.
There were previous parenting proceedings in 2012 between the parties in relation to the child. The parties agreed to consent final parenting Orders providing, inter alia, that the child live with the Mother, the Mother have sole parental responsibility, and the child spend time with the Father each alternative weekend, Tuesday and Wednesdays after school, and one half of all school holiday periods and on special occasions.
After the final Orders were made, there were occasions when the Father would receive calls from the Mother asking the Father to collect the child earlier than planned, or asking the Father to come back to her house after he had dropped the child off, as the Mother was having trouble managing his behaviour, and wanted the Father to help her settle him. One such occasion was in December 2013.
In late December 2013 the child was in the Father’s care and that evening the child fell off the back of the Father’s utility vehicle. The child told the Father he had hit his head. The child seemed to recover quickly and as such the Father did not think the child needed medical attention.
From July 2014 until about August 2018, the child lived with the Mother in Town G and the Father spent time with the child in accordance with the above final Orders.
The Mother told the Father in June 2018 that she was thinking of moving from Town G. The Father told the Mother that he did not agree to the Mother causing the child to be relocated.
In about early August 2018, the child remained in the Father’s primary care in Town G. Then on about 10 August 2018, the child was retained by the Mother, the Mother having relocated with the child to the Region L. The Father then spent time with the child on alternate weekends and during school holidays. Then interim orders were made in early December 2018 providing for the child to return to live in Town G and spend time with the Mother. The child came back into the Father’s primary care in early January 2019. The child was very excited to be back at school with his friends.
Since the commencement of Term 1, 2019, the child spent time with the Mother on alternate weekends. In the days before most contact weekends, the child said to the Father: “I don’t want to go” and “I’m too tired, I’m sick of travelling.” On his return to the Father on the Sunday night the child was tired.
The distance between the Mother’s home in Suburb M and the Father’s home at Suburb N, Town G is about 200 km. This is at least about a 2 hour and 45 minute drive.
The Father’s brother has a son O aged about 13 years. The child and O are close and enjoy spending time together.
The Father has not observed the child to have any unsettled or difficult behaviours. The Father asserts that he is a social, active child. He is a soft child, who is sensitive to emotions. He is a generally well-behaved child. The Father rarely raises his voice to the child and the child will do his chores as asked. When the child is upset, the Father finds it best to leave the child alone to cool down.
The child has told the Father about the difficulties in his relationship with the Mother. The child often says to the Father, “Mum and I have been fighting again.”
The child often complains to the Father about the Mother disciplining him by making him have cold showers when he misbehaves.
In 2018, the child was in a special-needs class. In 2019 the school placed the child in the general Year 5, where he progressed well. The child has been attending Town G Public School since 2017.
The Father does not agree that the child requires medication as he has not observed the child to have any behavioural issues in his care. The child has taken Ritalin and Intuniv for a couple of years. The Father observed that this medication had a significant impact on the child; the child became very quiet, stopped engaging in conversation activities, and had reduced appetite and in the morning the child had sore and irritated red eyes with a lot of sensitivity to light. Even though the Father has issues with the child’s diagnosis of ADHD, he always makes sure that the child takes medication when he is in the Father’s care.
Since the child returned to live in Town G, the Father has taken the child to all medical appointments. He takes the child to his usual GP, Dr P in Town G, and his paediatrician Dr C who has rooms in Suburb Q.
Whilst the Father is aware that the Mother has previously taken the child to psychologist appointments with a number of psychologists, the Father has not observed any behaviours in the child which concern him and which would prompt him to arrange an appointment. If the Father noticed any concerning behaviours in the child or mood changes, he would seek appropriate professional assistance.
In January 2019, the Father met with the child’s paediatrician, Dr C. In consultation with this doctor, the child no longer takes his Ritalin medication on weekends and during holidays. The child continues to take his evening medication each day. In late April 2019, Dr C took the child off his Intuniv medication.
Since ceasing to take the Ritalin medication on weekends, the child has more energy and his appetite is bigger. He is more social and outgoing. He takes his Ritalin medication each school day morning. The dosage has been halved by Dr C. The Father has not noticed any changes in the child’s behaviour.
In early April 2019, after the child spent weekend time with the Mother, the child was very upset and told the Father that the Mother wanted him to take his tablets and that the Mother was so cross at him that she locked the child out and the child kicked the door. The police came. The child was very upset, agitated and pacing up and down. The Father spoke to the child, cuddled him, listened and talked to him, to calm him down.
Prior to the child coming into the Father’s care in January 2019, the Father would call the Mother’s phone to speak to the child at least once a week. The Father heard the Mother often yelling at the child about his household chores and turning off his Xbox in the background.
The Father lives on a small farm just outside of Town G. The farm has a shed and a camp trailer which the Father lives in, and the child stays with the Father there when he is in the Father’s care. The child has his own bedroom.
The child is a well-behaved child, and the child and the Father get on well together. The child has a kind and gentle personality. When X is in the Father’s care, they spend a lot of time outdoors.
The Father commenced a relationship with his current partner Ms R in about 2012 and in June 2019 Sue moved in with the Father full-time. Sue has a great relationship with the child. Sue helps the Father care for the child by preparing meals, and performing other domestic activities.
The paternal grandmother lives in Town G. She is 80 years old. She has a close relationship with the child. The Father’s son Mr H lives in Town G with his partner Ms S and their two children. The Father’s other son Mr J also lives in Town G with his wife Ms T and their children. The Father has a very close relationship with his extended family as does the child. The child and the Father see members of the Father’s extended family at least once a week.
The Father understands that the Mother has a fractious relationship with her family. He understands the Mother is only in regular contact with her father.
The Father of K, Mr E, lives in Town G.
The child is happy and very well-settled in Town G.
Father’s Affidavit filed 23 February 2021
On 7 July 2014 the Mother was found to have contravened the 2013 final parenting Orders.
In January 2020, the Father became aware that the Mother had a public Gofundme page accusing the Father of gas lighting, family violence and sexual abuse.
The Father asserts that the Mother has falsely alleged, inter alia, that the Father denies the child has been diagnosed with oppositional defiance disorder, ADHD and an unspecified learning disorder.
Since January 2019, the Mother has spent time with the child in accordance with the 3 December 2018 interim Orders; that is, during school terms, alternate weekends from Friday afternoon to Sunday evening. Changeover takes place at McDonald’s at Kings Park.
The Father understands, to a degree, that the child probably tells each parent what he thinks they want to hear.
In about February 2021, on a Sunday afternoon after the child had spent time with the Mother, the child messaged the Father telling him that he did not want to come home because he wanted to see his brothers grow up, he still loved the Father, but he just wanted to live with his brothers and the Mother. Then the Father spoke with the child over the telephone, telling the child he had to come home, and the child stated again that he wanted to see his brothers grow up. Up until that Sunday afternoon, the child had not expressed any unhappiness in living with the Father.
The child, according to the Father, has been well settled in the Father’s care since January 2019. He has close friends at school, has rejoined mainstream schooling, and is progressing well.
The child rarely mentions his brothers to the Father. The child does not communicate with his brothers. K has severe autism and has difficulties with speech.
The child’s transition to high school has gone well. Some of his friends from primary school have transitioned with the child to high school. The child has an issue with one teacher for a subject. He is enjoying Science, Woodwork and Metalwork.
The Father and his partner have nearly finished building their house on their property near Town G. The child’s dog D remains living with them. The child adores this dog. The dog often sleeps on the child’s bed with him.
Since January 2019, the child has complained about the travel burden required of him to give effect to the time Orders and, at times, has been reluctant to spend time with the Mother. On each occasion, the Father has persuaded the child to spend time with the Mother in accordance with the Orders.
The child is not able to have play dates with his friends on Fridays when he spends the weekend with the Mother. This is often a source of complaint by the child. In the days before most contact weekends, the child says, “I don’t want to go”, and “I’m too tired, I’m sick of travelling.” The Father encourages the child to see the Mother and his brothers. On his return to the Father’s care on Sunday night, the child is tired. They usually do not get home until about 9 PM. When the child returns to the Father’s care, almost every weekend, the child says to the Father that he just played his Xbox all weekend.
From time to time, the child expresses frustration that he cannot play team sport in Town G.
Since ceasing to take Ritalin medication, the child has more energy and his appetite is bigger. Over the past two years, and under the supervision of Dr C, the child’s prescription declined to the point where he no longer is prescribed it. Since coming off his medication, the child’s appetite has improved and his eye sensitivity has reduced. The Father has not noticed any changes in his behaviour.
Affidavit of Ms R
The Court does not propose to set out the entirety of the Ms R’s Affidavit.
Ms R’s Affidavit was filed 28 June 2019. She is aged 55 years. She is the partner of the Father. She started a relationship with the Father in about 2011/2012. At this time the child was about 3 years of age. She has developed a close relationship with the child over the years and enjoys spending time with the Father and the child as a family.
Up until early June 2019 she lived and worked in Suburb B. Her daughter aged 28 years lived with her until recently.
When the child is in the Father’s care, she assists the Father with the child’s day-to-day care, such as preparing meals, and doing washing. She has observed that the Father has a close relationship with the child. At changeovers, the child always greets the Father and herself with a hug and talks excitedly about the activities they will be doing together. The child is quite open with the Father about his emotions, and she has noticed that the child will confide in the Father any concerns or worries he may have.
Ms R stated that the child can be reluctant to spend time with the Mother and travel on Friday nights. The child having spent time with the Mother, they do not get home until about 9 PM on Sunday nights. The child is very tired on Monday mornings and hard to get out of bed.
From June 2019, Ms R has lived at the Father’s farm full-time with the Father and the child.
Ms R is very fond of the child and loves him dearly. They have a close relationship and enjoy spend time together.
Ms R stated that the child is a gentle and quiet boy, who enjoys keeping busy and learning new things. He loves spending time outdoors.
Ms R has not observed the child to have any difficult behaviours. She finds the child as polite, well mannered and a compliant boy. She does not really have to discipline the child. If she asked the child to do something, he will usually do it straightaway.
Ms R stated that since the child’s medication has been changed, the child seems more engaged, has a larger appetite and his eye irritation has gone away.
Ms R stated that the child seems very well-settled in the Father’s care. He is doing well at school and is a happy child. The child tells herself and the Father about his day each evening when they have dinner and spend time together as a family.
The child often asks to spend time with his brother Mr H and Mr H’s daughter, Charlee, who is about the same age as the child. When they have family get-togethers, the child and Charlee spent a lot of time playing together.
At times when the child is upset, the Father will speak to him one-on-one in a calm way and listen to what the child has to say. They talk a lot together and have a close, comfortable relationship.
The Mother’s Affidavit
The Court does not propose to set out the entirety of the Mother’s Affidavit.
The Father was in a relationship with the Mother’s mother for about three years from about 1997. That relationship ceased in early August 2000. The Mother had known the Father before he entered the relationship with her mother as he frequently visited the Mother’s foster parents. The Mother was in foster care at the time with the Father’s parents.
In about mid August 2000, the Mother left the Father’s parents’ house and went to live in South Australia on her own. The Father visited the Mother. The Mother and Father left for New South Wales in about early 2001. They went to live in Town G. The parties lived together there with the Father’s two sons Mr H and Mr J. The two sons left the premises in about 2003.
At separation the Mother and child left the premises. The Father spent time with the child overnight every alternate weekend.
The Mother formed a relationship with Mr E from Town G. They had a child K born in 2013. This relationship lasted about two years. Shortly after this relationship ended, the Mother, the child and K moved to different premises in Town G. At these new premises the Mother entered an on and off relationship with Mr U. They eventually separated whilst living under the one roof. The Mother left these premises in about August 2018. Before she left these premises she met Mr Kidd online and they had been communicating for about six months. They decided to start a live-in relationship. The Mother moved in with Mr Kidd at Suburb M in 2018 with the child and K.
Mr Kidd has a daughter V, from a previous relationship, and she was born in 2008.
The Mother gave birth to a baby boy named Y in 2020. Mr Kidd is the Father of Y.
The Mother asserts that the child has formed a very good relationship with Mr Kidd’s children.
Affidavit of Mr E
Mr E’s Affidavit was filed 31 August 2020. The Court does not propose to set out the entirety of his Affidavit.
Mr E was in a de facto relationship with the Mother for almost three years. During this period he and the Mother attended family therapy with Ms Z to further support the child and implement behavioural techniques.
Mr E has supported the Mother and the child in the Mother’s Family Court proceedings since they started in 2012.
Mr E states that he has outlined in his previous Affidavits where he has witnessed the child’s emotional meltdowns and injuries after returning from the Father’s care. He states that upon returning from the Father’s care, the child has historically and religiously been aggressive and angry towards the Mother. He states that it was not uncommon to take up to 3 days for the child to resettle into the family environment. He states that he witnessed the Mother always remaining calm when dealing with the child’s meltdowns. He states that these times mostly happened when the child returned from the Father’s care.
Mr E states that the Mother has spent endless hours supporting both the child and K with their additional special needs. He states that after separation he also attended the appointments with the paediatrician Dr C via video call.
Mr E states that K has mild to moderate global developmental delay, autism spectrum disorder, sensory processing disorder, receptive and expressive language delay, lactose intolerant, severe in social communication and restriction, dust mite allergy, neophobia, glue ear, Skeeter syndrome and severe phonological disorder.
Mr E states that the child and K are very close. He states that, “K being well bonded with X and being autistic is very attached to X.” He states that K’s development has regressed at the upset of not living with his big brother.
Oral evidence of the Father
The Father gave oral evidence and was cross-examined. The Court does not propose to set out the entirety of his oral evidence.
The Father denied that he had given the child alcohol or had hit the child in the face and arm in about October 2013.
The Father denied that in about September 2000 he grabbed Ms AA by the neck. He agreed that he had broken a glass pane to effect entry into his residence. He stated that he was being locked out of his own house. He stated that “in the long run” he should not have done it.
The Father stated that he does not have any concerns about Mr Kidd.
The Father stated that he goes to work at 5:20 AM. His partner goes to work at 5 AM. The child was expected to get a school bus at 7:50 AM. He acknowledged that the child was on his own for about 2 hours before getting the school bus, and stated that the child was 13 years and was a big boy.
The Father stated that he recalled saying to the Mother, in relation to the child not wanting to return to the Father’s care, “kick him” in the backside, however he stated that he did not intend his words to be taken literally by the Mother.
The Father acknowledged that he probably should not have left the child in the back of the utility vehicle before going into the garage. The Father stated that he did not expect the accident to happen.
The Father stated that the child had been living with him for basically 3 years.
The Father stated that the child’s medication was no longer required and his ceasing medication was done in accordance with the paediatrician’s advice. He stated that he had seen the child medicated and not medicated and that in his view the child performs better when not medicated.
The Father stated that he had previously invited the Mother to come to the child’s consultations with Dr C however he did not recall when.
The Father stated that he had built a new house on his block of land. The child has had Internet access for about 12 months.
The Father denied inappropriately touching the Mother on a truck trip in 1998 or 2000.
The ICL cross-examined the Father.
The Father stated that overall the child’s health was fine although he has a bit of asthma for which he takes Ventolin when needed.
The Father stated that the child has not seen Dr C this year although he was meant to see the doctor in early 2021. The Father stated that the Mother had retained the child and then Covid intervened.
In relation to Dr C’s diagnosis in the child of ADHD, the Father stated that initially Dr C had not had a chance to talk to the Father or the child’s school. The Father stated that when the child came into his care he took the child to see Dr C soon thereafter. The Father stated that Dr C had decided to decrease the child’s medication after the Father had suggested this might occur. The Father stated that presently the child is taking no medication for ADHD.
The Father stated that from kindergarten to Year 6 the child probably had four years of support class assistance at the instance of the Mother.
The Father’s attention was drawn to incidents at school involving the child being bullied in the second half of 2020. The Father stated that once every 4 to 5 months the child was having a disagreement with some child at the school. In relation to an incident at school in July 2020, the Father stated that the child had complained to him of being picked on by some children at school. The Father stated that the school has always had the matter under control and had dealt with it. He stated that the child had always stated to him that he had gone to teachers who had dealt with the issue. The Father stated that the child had never asked him to go to the school to deal with the issue. The Father stated that if the child was hurt, injured or distressed, he would go to the school.
The Father stated that the child had never told him anything in relation to wanting to harm himself.
The Father stated that the child was aware he could obtain counselling at his school.
The Father stated that he was not sure that the child would be happy relocating (to live with the Mother). He stated that the child has many friends here (in Town G) and a girlfriend. He stated that the child would not be happy to go.
The Father acknowledged receiving a letter dated 1 November 2021 from one of the child’s teachers at the G School which had commended the child for his performance in Mathematics. The letter referred to the child being an active and diligent learner and that he had improved in his classwork.
The Father stated that he had read the child’s Semester 1 report from his school. The Father stated that the child likes Science and Technology, and language classes.
The Father recalled that the child had attended the BB School in 2018 when living with the Mother. The Father did not contact that school because the Mother did not tell him where the child was for a good period of time. The Father stated that on the child returning to his primary care in 2019, the child returned to Town G Public School where he had attended previously.
As to the Father’s communication with the Mother, the Father stated that he texts the Mother whenever required. He stated that the Mother responds to his text messages if it suits her.
The Father stated that he and the Mother are rarely able to agree on anything. He stated that he could consult with the Mother, regarding major decisions to be made for the child, but it would not matter what he recommended to the Mother, the Mother would not agree with him. He stated that if he had sole parental responsibility he could seek the Mother’s opinion.
The Father stated his intention for the child to remain attending G School if the child continued to live with him.
The Father confirmed that, if the child was to remain living with him, the child should spend time with the Mother on the sixth weekend of each school term, representing one overnight visit during each school term. In this context, the Father stated that the child was tired of travel (to and from the Mother’s residence) and had stated that he does not like the travel. He stated that it was difficult for the child to be returned (from the Mother’s care) with the Mother keeping him there.
The Father was asked whether the child could cope with two visits each school term for the non-live with parent, to which the Father stated, “I think so”.
The Father stated that the school bus departure point for the child is two minutes away from his residence. He stated that the child has missed the school bus possibly three times. He stated that if the child missed the school bus, if he was able, he would come home and take the child to school. He would find out if the child had missed the school bus through the child messaging him or the school contacting him.
Oral evidence of the Mother
The Mother gave oral evidence and was cross-examined. The Court does not propose to set out the entirety of the Mother’s oral evidence.
The Mother was cross-examined by the Father’s counsel.
The Mother’s attention was drawn to the report of Dr C of 17 August 2020. It was suggested to the Mother that part of the child’s reported improvements were due to the Father’s parenting. The Mother stated that possibly could be, however maturity was also a factor. She then stated that the Father’s parenting had not contributed to the child’s performance, stability, or consistency. She stated that she was sure that the child has been loved by the Father.
The Mother’s attention was drawn to a police report dated 11 March 2016 relating to the Mother (see police report 9217 dated 11 March 2016 in Exhibit A). The Mother denied having attempted to take her own life. She stated that she had ingested tablets excessively and she had been drinking alcohol as well. She acknowledges that she had ingested 12 tablets. She had stated to police that she was sick of life and that life was hard. That was why she had been drinking. She was taken Town G Hospital and she was discharged a short time later.
The Mother stated that she had had difficulty handling the child’s behaviour in the early days, when the child was 5 years.
The Mother’s attention was drawn to an incident at her residence in the evening of 6 April 2019 in relation to the child when the police were called. The Mother acknowledged that the child’s adverse behaviour at that time constituted a serious behavioural issue. She stated that the child had had a meltdown and had started throwing things around in a fit of rage about 10:50 PM. She stated the child had been spoken to by the police. She acknowledged it would have been intimidating for a boy to be interviewed by the police. She acknowledged that she had called the police as she had been unable to manage the child’s behaviour. The Mother, explaining to the Court the genesis of the child’s behaviour that evening, stated that the child was found not to be going to bed on time and was playing his Xbox. The Mother told the child that there would be consequences and that she would send the child to bed earlier. She told the child that “we have rules”. The Mother stated that at one point she locked the child outside after he had damaged the front door. The Mother conceded that she had been unable to control the child’s behaviour that evening.
The Mother stated that her partner, Mr Kidd, has a daughter aged 13 years, V, who resides with them. V spends every second weekend and half school holidays with her mother. The Mother stated that her son K, aged 8 years, also lives with them, together with her 18 month old child Y.
The Mother acknowledged swearing in the child’s presence but she stated that she did not swear at the child or others.
The Mother was questioned in relation to an incident at her residence earlier in 2021 when the police had been called. The incident related to the Mother and her brother-in-law. (The incident is reported by the police in their report of 16 January 2021, no 7792, appearing in the Father’s additional tender bundle, forming part of Exhibit A). There had been drinking the evening before in the backyard. The Mother stated that her brother-in-law became angry and swore at her. The Mother stated that they had been jokingly throwing things around before the incident. The Mother had thrown a water bottle at her brother-in-law. The arguing (between the Mother and her brother-in-law) started after she had thrown the water bottle. The brother-in-law had become angry and had punched a hole in the wall. The police were then called. The brother-in-law was arrested. The Mother stated that the child was not with her at the time of this incident. She stated that they do not drink much at all when the children are in their care. She stated that the child K was asleep at the time of this incident. The Mother blamed alcohol on the incident.
The Mother stated that her brother-in-law interacts with the child.
The Mother was questioned in relation to a police report dated 27 June 2021 (this report is contained in the Father’s additional tender bundle, forming part of Exhibit A). The Mother acknowledged having contacted the police in relation to alleged harassing text messages sent by the Father to her. The police attended upon her. The Mother acknowledged raising her voice in discussions with the police at one point, “like I am doing now” (in Court). (The Court observes that during this particular section of the Mother’s oral evidence she was not raising her voice in Court). The Mother acknowledged possibly yelling at the police as they would not leave her residence and that she slammed her door as she was angry at them. She acknowledged that she was quite upset at this time.
The Mother stated that the child was in the Mother’s care from August 2018 to December 2018, and for a period in about March 2021.
The Mother agreed that she had had discussions with the child in relation to the proceedings when the child asked her questions. The Mother was asked whether she had had any discussions with the child about his live-with preferences and the Mother stated that maybe she had from time to time.
It was suggested to the Mother that it may be that things that she states that the child has told her are not true. The Mother responded by stating, “maybe, but I believe what (the child) tells me.”
The Mother was questioned as to the child’s academic performance at school. The Mother stated, inter alia, that the child is obsessed with technology, such as iPods, and that he was good with his hands.
The Mother stated that the child’s handwriting was quite poor and was part of his “intellectual disability”.
In relation to these parenting proceedings, the Mother stated that she would abide by the Court’s Orders.
The Mother was questioned in relation to an email she sent the ICL on 24 March 2021. The Mother stated that she had been angry at the ICL as she had supported the Father’s proposed recovery order application. The Mother stated that she was regretful that she had sent the email, that it was out of place and that she had lost control.
The ICL’s counsel cross-examined the Mother.
The Mother stated that she prefers email communication with the Father as it is not a spur of the moment decision.
Oral evidence of Ms R
The Court does not propose to set out the entirety of her oral evidence.
Ms R works as a professional.
She stated that the child’s Semester 1 2021 school report showed a great improvement from previous school reports.
She stated that the child’s routine each morning is that a lunch has already been prepared. The child gets his own breakfast being cereal and toast. The Father packs the child’s lunch comprising a sandwich, fruit and snacks.
She stated that she gets home from work at 5 PM/5:30 PM. The Father is already at home at this time. She stated that the child often attends his brother’s home frequently. She stated that Mr H is the Father’s eldest son, aged in his early 30s, and he lives in Town G.
She stated that the child usually goes to bed at about 8:30 PM although sometimes a bit later.
She stated that the child has friends in the local street. The child has expressed an interest in (playing) soccer.
The child’s school bus arrives at Suburb N at 4 PM/4:15 PM. The Father’s work shift ends at 2:30 PM and he has a 15 minute drive home.
She stated that the child was very quiet and sensitive. She stated that the child doesn’t need a lot of discipline and she adopts the “soft approach”.
She referred to the child having a girlfriend who is aged 12 years. The child has had two play dates with this girl so far. She stated that the child is approaching puberty. She and the Father do not allow the child and the girl to close their door.
She states that she has two children from a prior relationship aged 26 and 31. These children live in Suburb CC and City DD.
She stated that the child was progressing well at school.
Oral evidence of Mr E
The Court does not propose to set out the entirety of his oral evidence.
Mr E confirmed that he been asked by the Mother to give evidence in these proceedings.
He stated that he had used his memory in preparing his Affidavit. He was asked whether there was room for error regarding his memory. He replied, “I don’t think so. Maybe. I won’t say yes or no.”
He stated that the Mother and himself had completed a parenting course which had said that if you cannot get the child to settle then call the police. It was suggested to the witness that it might be alarming to a child for police to be called, to which he replied, “possibly”.
Tender bundles
The Court does not propose to refer to the entirety of the tender bundles in evidence (see Exhibit A).
The Father’s additional subpoena tender bundle; part of Exhibit A
In the Father’s additional subpoena tender bundle material, at page 3, a medical consultation note in relation to the child from the child’s GP dated 19 October 2021 states, inter alia, “has been back at school-teachers have no concerns regarding mood. There is no pressure of mind. No suicidal thought. Don’t cry at drop of hat… average at school. Doesn’t get in trouble at school much. Sometimes get bullied at school but doesn’t bother him at all. Don’t feel anxiety at all.”
In the letter from the child’s mathematics teacher dated 1 November 2021, addressed to the Father, it is stated, inter alia, that the child was to be commended for his performance in Mathematics. He had demonstrated the following positive attributes in class: active and diligent learner, and improved classwork. The letter referred to the child’s high level of commitment to personal excellence and to his class which makes him a valuable member of the school community.
Joint subpoena tender bundle; part of Exhibit A
In the letter from the child’s GP, Dr P, dated 1 September 2020, it is stated, inter alia, that the Father was currently looking after the child. The letter states that during this time of care the child has made dramatic improvements in both self-regulation and has managed to come off his medication whilst achieving better academic results and behavioural self-control. The letter states that the child is currently being reviewed by Dr C paediatrician specialising in this area who also agrees that the child is doing exceptionally well under the care of the Father.
In the report of Dr C dated 20 February 2019, in relation to the child, it is stated, inter alia, that the child was brought in by his father. The report states that the Father and his partner do not think that there is behavioural difficulty at home. The report states, however, that the Father would like to comply with the currently prescribed medication for the child. The Father had many questions about the benefit and side effects and the risk of taking the medication. The child was examined by Dr C. The doctor stated that certainly the child was busy but the Father could manage his behaviour very calmly and very well. Dr C stated that he was very surprised to see (this) as this was not what was described to him before about the relationship between the Father and the child. Dr C stated that the Father indeed managed the child’s behaviour very well during consultation. Dr C stated clearly that the medication Vyvanse was not necessary on weekends or school holidays. Otherwise the said medication was to be given daily. The doctor stated that if the child continues to show significant behavioural improvement while living with the Father, he was happy to support weaning the child off the medication eventually.
In the report of Dr C dated 17 August 2020, it is stated, in relation to the child, inter alia, that the child was diagnosed with intellectual disability and significant ADHD previously. It states that since the child has been living consistently with the Father, the child has shown steady improvement. The child has been off medication in the last six months and continues to manage well with his behaviour and learning both at home and at school. He has achieved satisfactory academic results. The recent WISC-V from the school (reported on 21 July 2020) showed the child’s intelligence overall in the low average range. The report stated that this was indeed a significant improvement in all aspects. The report stated that this goes to show that with stability, consistency, and love from his corresponding parent, that this child’s behaviour and learning have improved dramatically. The report states that with this result, the child can remain off medication and will go to mainstream G School next year. The report states that Dr C is extremely pleased with the child’s progress without medication. Therefore, the doctor states, he would like the child to remain off medication. The report states that the doctor will review the child again after the first term of high school next year.
The confidential school counsellor report dated 21 July 2020 in relation to the child (the child being then in Year 6 and aged almost 12 years), states, inter alia, that the child was referred for an updated cognitive assessment. The report states that the child had been enrolled in the Support Class at Town G Primary School and current data on his cognitive functioning was required to update his details and plan for his transition into High School in 2021. The final “Summary” of the report states that cognitive assessment by school psychologist Ms FF indicates that although the child’s level of functioning is very low, he does not meet criteria for having an intellectual disability and therefore it is recommended that the most appropriate placement for the child is in mainstream classes for his secondary education.
The report of psychiatrist Dr GG dated 9 May 2018, in relation to the Mother, states, inter alia, that he has seen the Mother in his role as psychiatrist at the Town G Specialist Medical Centre on a number of occasions in 2012 and 2013, on several occasions in 2015 and again on several occasions since 2017 and last on 9 May 2018. He stated that the Mother has a history of chronic dysthymia, major depression and PTSD with a history of childhood neglect, physical and sexual assault as a child and abusive adult relationships. It states the Mother has had quite extensive psychological support from psychologists and in the past has been on antidepressants, and is still intermittently receiving psychotherapy.
Family Report
The family report was prepared by Dr F (the family report writer) and is dated 6 November 2019.
The family report writer interviewed the parties, the parties’ respective partners and the child on 1 July 2019.
The family report writer stated that the parties married in 2004, they separated in 2011 and were divorced in 2015.
Both parties told the family report writer that they had completed certain courses. The Father stated that he had completed the courses that had been requested of him through the Court. The Mother said that she has completed ADHD parenting courses, an assertiveness training course, Positive Parenting course and Parenting After Separation course.
The Father denied to the family report writer there was any violence in his relationship with the Mother.
The Father acknowledged that his former wife, and the Mother’s mother, had taken out AVOs against him. He denied he had been violent towards them but acknowledged he agreed to the AVOs to avoid the costs of defending the proceedings. He stated that in September 2011, the Mother applied for an AVO protecting herself and the child. He claimed that the Mother alleged he was emotionally abusive and physically assaulted her. He denied the allegations made by the Mother but a final AVO was issued.
The Mother told the family report writer that the child had seen a number of psychologists over the years. She stated her belief that the child has not had any further therapy since he returned to live in Town G.
The Mother told the family report writer that she was prescribed medication for depression and saw a psychologist prior to the separation. The Mother referred to a psychiatrist that she had consulted. The Mother told the family report writer that she was taking an antidepressant. The Mother stated that she was not currently receiving any mental health intervention. She stated that she had previously received therapy from a Ms HH who treated her for PTSD symptoms. She stated that she has made good progress in treatment, but still wakes up in the night feeling restless, screaming and thrashing. She stated that given her childhood experiences, she fears abandonment and finds it difficult to be alone.
The Father stated he works as a factory worker in Town G. The Mother stated she works on a casual basis as a health care worker. The Mother stated that she was financially very stressed.
The Mother was interviewed by the family report writer.
The Mother presented as quite tense with a flat affect. She became labile at times.
The Mother stated that she was one of seven children who her mother had to 5 relationships. She commented that she felt abandoned by her mother and she was placed in foster care due to the sexual and physical abuse perpetrated by her stepfather who was her mother’s fifth partner.
The Mother said she has worked in a supermarket, a shop and a health care practice.
The Mother referred to her mother who lives in South Australia and that they have repaired their previous estranged relationship. She stated that she has formed a relationship with her father and his partner who live on the Region L.
The Mother asserted that the child’s behaviour has been challenging and she referred to him having meltdowns and using things around the home as weapons. She claimed that she has often called on the Father as it was important for the child to see a united parenting relationship. She stated that in those circumstances the Father has often told her that the child does not misbehave for him. She added that the Father speaks with the child on the telephone and that seems to settle the child.
The Mother stated that it concerns her that the child’s reading glasses seem to have disappeared and he no longer seems to be in therapy which has been a significant protective factor in helping him with his anger.
The Mother claimed that the child has a close relationship with K and her partner Mr Kidd.
The Mother stated that living on the Region L would enable the child to have more contact with her father and her sister. She added that Mr Kidd’s family provide her and her children with a significant amount of support.
The Mother spoke about the child. She referred to the child as a child whose brain never stops. She stated that he was active, very intelligent, good on facts and has good imagination, however she also said that he doesn’t like to be told what to do.
The Mother stated that when the child needs to be disciplined, she takes things off him and removes privileges. She said that based on the ADHD courses she has done, she rewards good behaviour.
The Father was interviewed by the family report writer.
The Father presented as considered and quite distinct in the responses he gave to questions posed to him.
The Father stated he has lived in Town G for the majority of his life. He said he is close to his mother who now lives in Town G. He said his parents separated when he was 15 years old.
The Father said that he had attended school in Town G and was an average student but he disliked being at school and could not get out of school fast enough.
The Father stated that the Mother was the primary caregiver for the child throughout their marriage. He added that he assisted with the child’s day-to-day care when he was an infant.
The Father stated that the parties have had a poor coparenting relationship.
The Father stated that he felt concerned about the symptoms the child was showing to the ADHD medication he had been prescribed. He stated that he had taken the child to Dr C, paediatrician, who had reviewed his medication. He stated that Dr C had recommended that the child only take medication during the week when he was at school. He stated that he continues to have appointments every two months with the paediatrician. The Father commented that he believes there has been a marked improvement in the child. He asserted that since coming off the medication on weekends, the child has changed from being quite robotic to now being a more active boy with a better appetite.
The Father stated that he offers the child stability in an environment he has known since his birth and supported by extended family. He referred to the close relationships that the child enjoys with his paternal grandmother, his paternal half-brothers and their children. He stated that the child would see his extended family on a weekly basis. He said that from what he observes the child has a good relationship with Ms R.
The Father commented that the child would never be an A grade student but was quite smart and especially likes maths.
The Father commented that he appreciates the child has a close relationship with the Mother. He stated that he does hold some concerns about how the child manages his emotions while in the Mother’s care. He said that he is aware that the child has pushed and shoved the Mother and made threats which she found difficult to handle. He said that he understands from what the child has told him that the Mother has locked him out of the house in the dark as a form of punishment. The Father asserted that he has been responsive in the past when the Mother had sought his support when the child had had episodes of dysregulation.
The Father stated that the child does not need to be disciplined too often and is usually compliant. He commented that on the occasions when the child’s behaviour does need addressing, he raises his voice and speaks to the child in a stern tone. He said that he does not need to threaten or smack the child.
The family report writer interviewed Ms R.
She disputed that the Father was a violent person. She stated that the Father was extremely devoted to his family. She had known the child since he was three years old and believes she and the child have a good relationship. She stated that she observes the child to be talkative and smart in respect of things that interest him. She said that she believes the Father is patient and gentle with the child and they share a lot of interests.
The family report writer interviewed Mr Kidd.
He stated that he is very close emotionally and geographically with members of his extended family to whom he lives close by. He commented that the child gets on well with his extended family.
He stated that the child’s behaviour was more plateaued when he was taking medication and living in their care. He stated that the child had adopted a more standoffish attitude and appeared to be expressing more anger. He stated that the child has triggers that set him off and he had observed the child lashing out at the Mother on at least two occasions. He added that the child has also called him a faggot.
The family report writer interviewed the child.
The child presented as a cooperative and forthcoming child. He stated that he thought the interview was intended to discuss with whom he would live. He was in Year 5 at the Town G Public School. He recounted how the JJ Public School did not give him enough help so his mother helped him move to a special education class at Town G and then to BB School which gave him more assistance. He stated that he does not really like school but enjoys seeing his friends. He nominated Art and Science as his favourite subjects. Out of school he likes playing with his Xbox and with the Father’s dog.
The child stated he loves both his parents and got accustomed to moving between the two households.
The child described the Father as nice and funny and a cool dad. He added that the Father plays with him and tickles him.
The child stated that the Mother can be nice, happy, calm and playful but also frustrating and annoying. He said that she rarely played with him because she tells him she has a sore back and a migraine.
The child said that Mr Kidd was nice and funny and a bit of a mechanic as well. He stated that Ms R can be nice but also annoying at times. He commented that she laughs when he asks a silly question and does not know why she would do that.
The child stated that what he enjoys about spending time with the Mother is that they have a new house and he has his own bedroom. He stated that he does not like that the Mother is always telling him to do stuff when he is in the middle of a game. He stated that when he misbehaves, the Mother puts him in the shower, hits him or washes his mouth out with soap. He added that he is known to get really angry when he is with the Mother and he can be terrifying at those times.
The child stated that the Father lives in a shed which has a tent inside. They have electricity and water but no Internet. He likes riding his motorbike around the paddocks and into the bush with the Father, brothers and cousins. He stated that it is nice at the Region L but he misses the outdoors activities on the farm. He stated that he doesn’t get that angry at his father’s home. He stated that if he needs to be disciplined, the Father raises his voice at him.
The child spoke about his ADHD for which he said he takes tablets. He added that he believes the tablets help him with his anger and concentrate at school. He stated that he doesn’t take the tablets on the weekends or holidays.
The child seemed to expect that he would have to make a choice about where he lived. Early in the interview he stated that he was happy to live with the Father when Orders were made as he was fighting a lot with his mother. He added, “basically I’ve been forever fighting with Mum but I don’t fight with Dad.”
The child stated that he now thinks he might want to live with the Mother because he lived with her for the first 10 years of his life and his brother, K, who was autistic, misses him. Later in the interview, he said that he would like to alternate living with each parent every two weeks.
The family report writer observed each parent had positive interactions with the child during the observation sessions.
The family report writer had a telephone conversation with Mr KK, the principal of Town G Public School.
Mr KK reported that the child was achieving at a satisfactory level academically and socially at school and he indicated that he had no concerns for the child’s school performance. Mr KK reported that he had observed the child settle into the year and he had not had any reason to question the child’s adjustment to his living arrangements or school. He stated that the child generally seems to be a contented boy who had a smile on his face and always presents to the school as clean and well groomed. He said that the child’s school attendance had been satisfactory and truancy had not been an issue. He commented that the Father had made modifications to his work schedule to be available for the child, had demonstrated an appropriate level of engagement with the school, and had liaised with the school on a number of occasions. Mr KK stated that the child is now in the mainstream classroom and is doing well. He stated that he believes this will position the child well for entering high school. He stated that the child seems to have a supportive peer group and he, in turn, is a support to his friends. He recounted a recent incident where he observed the child assist a friend who was experiencing some psychological distress and anger management. Mr KK stated that the child had disclosed to him that he has had anger management problems in the past but was getting better at it now.
Under the heading, Evaluation, the family report writer stated, inter alia, that the child presented as somewhat immature for his chronological age. She stated, therefore, that his views needed to be considered with some caution. The family report writer stated that the child expressed a number of views which suggested that he feels ambivalent, does not want to be seen as partisan, and wishes to please both parents.
The family report writer stated that on the one hand, the child said that he wanted to live with the Mother because he has always lived with her and his younger brother was missing him. These accounts would suggest the child senses his mother’s loss and does not want to disappoint her or his sibling. On the other hand, the child had commented that he wanted to live with the Father once the Mother relocated and his narrative revealed some awareness of the impact on his well-being of the conflict and tension in the Mother/son relationship. He also commented that he considers himself to be better able to regulate his emotions in the Father’s household. The child’s accounts of his behaviour in both households was congruent with those provided by his parents.
The family report writer stated that it was very likely that out of his desire to please both parents, the child tells them what he expects them to hear.
The family report writer stated that from the accounts of the parties and the child, the child seems to have positive relationships with both parents. This was also observed in the interactions with each parent.
The family report writer stated that any actions which sever a child’s contact with the parent or interrupt the continuity of care provided by a parent are unwise and stand to have a detrimental effect on the child.
The family report writer stated that notwithstanding the relationships the child enjoys with his parents, he seems to be able to have better emotional regulation in his father’s household and his mother’s accounts which were also shared by the child of his scariness and aggression when he cannot contain his emotions are quite perturbing. In this context, the family report writer stated that an explanation for the differences in the child’s behaviour in each household could be, inter alia, that there could be differences in the parties’ responses to how they manage the child’s behaviour and defuse his emotions.
The family report writer stated that while Mr KK, the principal of the child’s school, reported favourably on the child’s education progress since returning to live in Town G as well as the responsiveness of the Father to the child’s educational needs, the Court may benefit from access to subpoenaed documents from Dr C to obtain a better perspective on which of the parents has a more realistic view of the child’s medical needs and responds most appropriately to them. This, in turn, would be an essential to inform the Court’s decision about the final living arrangements for the child and in which environment his needs are best met.
The family report writer stated that in comparison to the Father, the Mother tends to catastrophise the child’s condition and portrays him as significantly developmentally challenged.She presented as having a marked level of fear and worry that the child’s needs are going unchecked by the Father who she believes is neglectful of the child. The family report writer stated that if the Mother’s concerns are found to be unwarranted, her concerns could stand to pathologise the child resulting in him being overmedicated, being placed in educational environments which do not extend him to his full potential and ultimately arrest his development.
The family report writer stated that the Father was the parent who seemed more likely to encourage the child to confront the world and step out of his comfort zone.This is important for extending the child’s abilities and interests. He presents an image of the child as much more able than the Mother.
The family report writer stated that the child is at a stage of development where he will seek to become more autonomous and independent. His peers are likely to become increasingly important and, given the reports of the parties that the child is prone to be suggestible, it is imperative that his environment is one that provides stability, security and safety with a pro-social peer group. It is also essential that the child is relieved from any pressure he feels to align himself with one or the other of his parents in order to please them and dealing with the disappointment that this is an unattainable goal.
The family report writer stated that if the child was to continue to live with the Father in the Town G area, he would be able to continue attending the school in which she has now been enrolled since 2017. He can also continue to be monitored by Dr C who has been his treating paediatrician. The child would remain living in the community he has known since his infancy and which he has significant paternal family support.
The family report writer stated that if the child was to live with the Mother on the Region L, the child will need to engage with a different paediatrician to monitor his ADHD. One of the risks with this option pertains to issues raised in the Mother’s household arising from the child’s violence. The family report writer stated that it is concerning that the distance which separates the households of the parties will make it more difficult for the Mother to lean on the Father for support, notwithstanding the criticisms she has made of him.The family report writer stated that the implications for the blended family, especially if Mr Kidd intends to proceed with litigation to have his daughter V in his care, are significant. Even though the child has received substantial ongoing counselling and has been medicated, his capacity to self soothe and regulate has been poorly refined. Given the child’s propensity for violence, questions would need to be asked about the Mother’s capacity to manage him especially as he becomes older and his behaviour could potentially become more aggressive. The entire family system she has formed with Mr Kidd would need a significant amount of support to work through the impact further episodes of dysregulation from the child would have on its stability. There is a chance that without such support, the child’s placement with the Mother will break down resulting in a crisis which could lead him finding his way to Town G or the hands of an inappropriate peer group and exposure to antisocial behaviour. Already the parties have recognised the child as a child who is easily led.
The family report writer stated that realistically the child is moving to a stage of development where his peers will assume a greater role in his life especially on weekends. This is likely to compete with him spending time with one of his families irrespective of any other commitments.
The family report writer stated that the child is well aware of the conflict between the parents. She stated that the parties need to be mindful that children who are exposed to family conflict or violence are significantly at risk because they are prone to suffer adverse consequences in their emotional and cognitive development. It is imperative that the parties do all in their power to not expose the child to any further violence or conflict both in their parental relationship as well as in other relationships they might form. Emotional dysregulation on the part of adults also provides poor role model to the child who is struggling with strategies to manage his emotions, especially anger.
The family report writer stated that the Mother had reported that she had been diagnosed with PTSD and depression. She also had reported a complex constellation of physical health concerns for which she was hospitalised in December 2018. Included in her concerns are autoimmune conditions. The Mother had stated that she has received counselling in the past and was currently medicated with antidepressants. The family report writer stated that although the Mother attributes the cause of her PTSD symptoms almost exclusively to the Father, it is likely that the childhood trauma that she experienced including her parenting history, abuse perpetrated by significant adults in her life, abandonment by her mother and her relationship history since the Father had been significant contributing factors to her mental health symptomatology. The family report writer stated that experiences of the ilk she has described are very likely to have left her with feelings of abandonment, trust issues and low self esteem. In the course of the interview for the family report, the family report writer stated that the Mother demonstrated limited insight into how the totality of her life trajectory may have impacted on her mental health, notwithstanding that she has received therapy.
The family report writer stated that the Mother did not report that she is currently seeing a psychologist or is receiving therapeutic intervention. The family report writer stated that as part of her ongoing support it is imperative that this continues.
The family report writer stated that some of the disclosures made by the child do raise concerns about the way his behaviour is managed in the Mother’s household especially when he has episodes of dysregulation. She stated that if the child’s accounts are correct, there are suggestions that strategies the Mother currently uses could lead to further conflict.
The family report writer stated that it is imperative that the parties be guided by the paediatrician as to the child’s medication regime.
Under the heading Recommendations, the family report writer recommended, inter alia:
(A)Where the child lives be contingent on which parent is determined to be most attuned to his educational and medical needs, which party is most likely to facilitate the relationship with the other parent, and whether there are any at risk concerns in either household. The Father reported favourably on the child’s academic current performance. The Court may need to secure further information from Dr C.
(B)Unless further evidence comes before the Court, it would be recommended that the option of the child continuing to live with the Father be favourably considered. If this is the case, it is recommended that the Father makes a commitment to supporting the recommendations of the child’s school and paediatrician and ensure that the child attend therapy, if needed.
(C)If the child lives with the Mother, it is recommended that the Mother support the recommendations of the child’s school and paediatrician and that the family participate in family therapy.
(D)That the child spend time no less than once every three weeks with the non-live with parent and that the parties consider spending time with the child in the environment where he lives on alternate visits.
(E)That school holidays and special occasions be shared between the parties.
(F)That the parties share the travelling time for the child to spend time with the non-live with parent.
(G)As far as practicable that both parties be involved in educational and medical assessments and be provided with reports of such assessments.
(H)There be no denigration of the parents or significant others or any discussions pertaining to the adult dispute with the child.
The family report writer gave oral evidence.
The Court does not propose to set out the entirety of her oral evidence.
The family report writer stated that she has been a psychologist since 1979.
The family report writer stated that she had been provided with some updating material including updating Affidavits, some police records and school records, and the Child Inclusive Conference Memorandum.
The family report writer stated that it was still her preference that the child live with the Father. In this context, she stated that that option, that is, the child living with the Father, is the option that gives the child a continuity to what has been in place, stability.
The family report writer opined that the child may want to spend some of his school holidays in both parents’ homes, having regard to his peers and friendships.
The family report writer stated that because the conflict and lack of communication between the parties did not seem to have improved it may be that the Court has no option but to make orders for sole parental responsibility to one parent. In this event, it would be of the essence that there be a consultative clause or orders providing for the parent with sole parental responsibility to inform the other parent of relevant matters pertaining to the child.
Counsel for the Father questioned the family report writer.
The family report writer stated that stability and security are two of the factors that she would consider essential for the well-being of any child, irrespective of any diagnosis. She stated that with children with developmental concerns, it was even more essential that there be early intervention, and that there be attunement and responsiveness to their needs that are stable and secure.
She stated that stability and continuity of the child’s education experience was important. She stated that a school becomes part of the child’s community. The other dimension of school that provides continuity is a cohort of peers that follow you through your education.
The family report writer stated that the child’s school and community of peers would be part of the child’s support systems.
The family report writer gave the following evidence in relation to parents approaching their discipline of a child with an ADHD diagnosis:
You were asked some questions by Mr O’Brien about ADHD and you’ve made some comments. Do you have any understanding as to how children diagnosed with ADHD, such as a child of now the age of X, how their carers should approach their discipline of such a child with an ADHD diagnosis? Well, look, you know, I – I think that – that there are – there are probably some – some universal practices of – of parenting that – that I would say are appropriate for – for adolescents including – including children with – with ADHD. You know, certainly, the impulsivity and the limit-testing that – that – or how limit-testing manifests with ADHD can, at times, you know, be very challenging to parents. So, you know, I think parents need to have firm boundaries but also be able to listen to their – to their child’s views, be attuned to the – to the feelings, to the emotions, because the emotions can certainly sometimes become bigger than the person. Provide containment for those – for those emotions within the boundaries that – that they – they set, and – and, certainly, I – I think consistency in both – in – with both parents is also much – very much to a – to a child’s advantage, and that – that would be the benefit that’s derived from parents doing similar parenting courses which provide them with – with some parenting strategies.
…..
Is there any particular methodology and approach by a parent towards enforcing boundaries with a teenager with ADHD, such as X, including such things as the parent’s ability; whether they are calm or otherwise; whether they are prone to raise their voice, and so forth? Well, look, based on X’s history, I think that he can escalate very quickly. And I think that escalation builds if its met – met by escalation. So – so it’s – it’s a parent’s – well, I guess several factors. One would be being preventative. So I think parents who read their – their – their teenage child may put structures in place that perhaps are less likely to – or that are going to provide some containment for – for a child. By that, I might – or I might – it might be, for example, being consistent in – in what – what I am – I am saying is – is the bottom line. Then, once a child begins to – to escalate, I think that – that a parent escalating is likely to – to fuel that. So – so being able to – to de-escalate, or, you know, give the child some – some – some space, some – some defusing space rather than escalating is – is really important. And then being able to, you know, process with a child after – after a – a – a dysregulated episode is important. You know, having strategies to help the child. For example, deep breathing strategies; distraction, are – are helpful in – in helping a child who maybe has the potential to be dysregulated. You know, a – a balance, I think, of lifestyle. Good sleep habits; diet; exercise; healthy social contacts, you know, a – a good lifestyle balance is – is important as well. You know, trying to minimise technologies, particularly material on technologies that might be violent or aggressive. And modelling, I suppose, as a parent, non-aggressive, and relationship management in their relationships beyond the child. So a child observing the adults in their space being able to resolve conflict, manage conflict, rather than escalating. Because, you know, if a – if a child sees parents and adults escalating, well, then, it’s easy for them to come to see that as the norm. So – and, you know, I might recommend a course such as Tuning into Teens, which – which is offered online, that the parties might be able to – excuse me – complete to develop – excuse me – further skills as to how to be more emotionally attuned rather than reactive. It’s about, really, when a child escalates, to be responsive rather than reactive.
The Court accepts the evidence of the family report writer, subject to the Court’s discussion below under the meaningful relationship primary consideration.
Child Inclusive Conference
A Child Inclusive Conference was held on 24 June 2021 with senior family consultant Mr MM and his Memorandum to Court is dated 30 June 2021. The Court does not propose to set out the entirety of the contents of that Memorandum.
The Mother reported to the family consultant that the child has expressed suicidal thoughts to her, in the context of his belief that she is not trying hard enough to have him live with her. Further, she said that she is aware through the parental controls she has in relation to the child’s mobile phone that the device has been used to search for, “how to kill yourself”. She said that she has reported her concerns for the child to DCJ and other agencies.
The Mother told the family consultant that she had previously experienced depression, anxiety and post-traumatic stress, predominantly arising from her experiences of alleged abuse by the Father through her childhood and through their relationship.
The family consultant stated that the parties appear to have an acrimonious post separation parenting relationship, with poor communication, little or no trust in each other, and very limited capacity to reach agreement regarding parenting arrangements for the child. The parties each reported poor communication regarding arrangements for the child. The family consultant stated that it does not appear possible that the parenting relationship of the parties will improve, even with therapeutic assistance, within the foreseeable future.
The child was interviewed by the family consultant.
The child stated a clear preference to live with the Mother. He said that this was because his younger brothers live there. The child said, however, that he would be “fine” if he continues to live with the Father. He spoke positively about each of his parents and indicated a range of activities he enjoys doing with each of them. He expressed no fears or concerns about either parent and indicated close relationships with the other members of his mother’s household, as well as with his extended paternal family. He indicated that he does not like the travel between his parents’ homes, but he is prepared to accept this because he would feel sad if he was not able to spend time with the parent he is not living with. He said that he is familiar with the school he would attend if he lives with the Mother, saying that he has some friends there from the period in which he attended the school earlier this year. He said that he would maintain contact with friends from his current school using Snapchat.
The child was informally observed interacting in a manner with each of his parents that suggested he has well-established and generally positive relationships with each of them. He did not say or do anything during the assessment that raised particular concern about his mental health state.
Both parents expressed concern about the child’s recent performance at school. The Father related his poor school performance this year to the disruption for the child caused by the Mother retaining him in her care and enrolling him in another school earlier this year. The Mother related the child’s difficulties to lack of support from the Father in relation to homework and the Father’s opposition to the child accessing any supports through school.
The Father told the family consultant that the child has been involved in sports training in Town G.
The family consultant stated that the child is likely to be experiencing stress as a consequence of his parents’ acrimonious and highly conflicted parenting relationship. He stated that it was very unlikely that any therapeutic program or other intervention will improve the parenting relationship for the child or ameliorate any stress or developmental harm that may arise for him from his ongoing exposure to this.
The Court accepts the evidence of the family consultant, subject to the Court’s findings below.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with the both parents and will benefit from a continuance of those relationships.
Should the child live with the Father and spend time and communicate with the Mother pursuant to the ICL’s proposed Orders, there is a significant prospect that the child’s meaningful relationship with the Mother can be maintained.
The Court has a concern that should the child spend time with the Mother, during school term times, no less than once every three weeks, as recommended by the family report writer, there is a real risk that the child will experience instability in his schooling and peer relationships in the Town G area. In this context, the child experiences significant tiredness in his fortnightly travel between the parties’ residences. As the child grows older, his peer relationships in the Town G area will become more important.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The child is well settled in the Town G area living with the Father, having lived there with the Father now for about the last three years. He enjoys stability in his living arrangements with the Father, his schooling, his peer relationships and friendships, his regular connections with his paternal extended family, and with his usual GP and paediatrician; the child holds significant social capital in his present living arrangements with the Father in Town G. In the view of the Court, should the child now live with the Mother on the Region L, there is a significant risk that this stability will be up-ended resulting in the child’s emotional well-being being put at serious adverse risk. In the view of the Court, the prospects of the child establishing significant social capital on the Region L if living with the Mother, in a timely fashion, is speculative and unlikely.
The child suffers from ADHD and can be prone to episodes of impulsive and oppositional behaviour, anger and violence. The Court finds that the Father and his partner have managed these issues very well in their parenting of the child to date. On the other hand, the Mother has experienced significant difficulties in managing these issues with the child (for example, the incident on 6 April 2019 when the police were called) probably by reason of her own problems with emotional regulation (for example, note the Mother’s anger with the Police on about 27 June 2021 and in her communication with the ICL on about 24 March 2021) and mental health issues which appear to be not optimally treated. The evidence of the family report writer is consistent with these views (for example, the family report writer had stated, inter alia, that the Mother had reported to her that she was not currently seeing a psychologist nor receiving therapeutic intervention; the family report writer had opined that as part of the Mother’s on-going support it was imperative that such treatment continue).
In this context, it is likely that the Mother lacks insight into her own problems with emotional regulation and mental health issues and their potential effect upon the child. For example, in relation to emotional regulation, the Mother’s oral evidence that she had raised her voice with the Police in the same manner that she was raising her voice in Court lacked credit in that she was clearly not raising her voice in Court when she gave this part of her oral evidence. In relation to the Mother’s mental health, the family report writer had commented that in the course of the interview for the family report, the mother had demonstrated limited insight into how the totality of her life trajectory may have impacted on her mental health, notwithstanding that she had received therapy.
The Court has a significant concern that should the child now live with the Mother, the Mother will be unable to consistently and appropriately manage the child’s above issues (again, the child suffers from ADHD and can be prone to episodes of impulsive and oppositional behaviour, anger and violence) resulting in the child experiencing significant emotional and behavioural instability. In this context, the Court refers to the above discussion relating to the Mother’s issues with emotional regulation and not optimally treated mental health issues, in combination with the likely significant demands on the Mother’s parenting obligations in her own household by reason of her very young child Y, the significant disabilities of K, and her care (with Mr Kidd) of V. It is unclear as to the extent to which Mr Kidd assists the Mother in the care of these children as the Mother did not seek to rely on any affidavit of Mr Kidd.
Further in this context, the Court refers to the evidence of the family report writer, including her evidence that the Mother tends to catastrophise the child’s condition and portray him as significantly developmentally challenged, which evidence is consistent with the Court’s significant concern. The Father has appropriately managed the child’s ADHD issue with Dr C, and the reports of Dr C and the child’s GP tend to confirm the Father’s satisfactory management of the child’s health and well-being whilst in his care and which is at odds with the Mother’s contentions, which the Court does not accept, that the Father has failed in this regard.
The Court finds that the Father has not abused the child either psychologically or physically.
On the balance of probabilities, the Court does not accept the Father has physically abused the Mother, whether sexually or otherwise.
The Court finds that the Father is satisfactorily managing the child’s schooling and which is borne out by his evidence, the child’s school reports and recent letter from the child’s teacher regarding maths, and the family report’s writer’s evidence in relation to her discussions with Mr KK, principal of Town G Public School.
The Court finds, on the balance of probabilities, that the child has not experienced suicidal ideation, and in this regard the Court refers to the child’s emotional wellness in the Father’s care over about the last three years, the reports of the child’s GP Dr P dated 26 March 2020 and 1 September 2020, the reports of Dr C dated 23 March 2020, and 17 August 2020, and the evidence of the family consultant in the Child Inclusive Conference Memorandum to Court.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court does not place any significant weight upon the child’s views expressed to the family report writer and to the family consultant that he wishes to live with the Mother. It is likely that the child, out of a desire to please both parents, tells them what he expects them to hear. The Court refers to the evidence of the family report writer in this context. Whilst the child may well desire to spend regular time with his stepbrothers, this issue is significantly outweighed by the significant risk to the child’s well-being of living with the Mother and in this regard the Court refers to its discussions above under the need to protect primary consideration. There is a significant prospect that the child can maintain and enhance his relationship with his step siblings should the Court make the ICL’s proposed Orders.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The child has a significant long-term relationship with the Father’s partner, Ms R, who has known him since he was 3 years old, and with his paternal half-brothers and their families who live in Town G. The child has a positive relationship with the paternal grandmother who has moved to Town G. The child has a close relationship with his younger half-brother K. The child has a positive relationship with the Mother’s partner Mr Kidd, members of his family and with members of the Mother’s family.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties have sought to take such opportunities. The Court observes that the parties’ communication and level of trust with each other is unsatisfactory.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parties maintained the child satisfactorily in their care during their relationship.
The Father has maintained the child satisfactorily in his care post separation.
Post separation the Mother paid not insignificant child support, and only relatively recently has been unable to pay to the Father significant child support because of loss of employment.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations.
Again, there is a significant prospect that the child can maintain and enhance his relationship with his step siblings should the Court make the ICL’s proposed Orders.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is a significant practical difficulty in relation to the child spending regular time with the non-live with parent; the Father lives in Town G and the Mother lives on the Region L and there is a significant drive time between those residences. Again, the child has been experiencing significant tiredness in relation to travel between the parties’ residences. Nevertheless, the Court refers to its discussions above under the meaningful relationship primary consideration in relation to the child maintaining his meaningful relationship with the Mother should it make the ICL’s proposed Orders.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parties probably have such capacities, subject to the Court’s discussions above in relation to the Mother under the need to protect primary consideration above.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court, in relation to the parties and the child, refers to its discussions above under the need to protect primary consideration. The Court observes that the family report writer, when she interviewed the child in July 2019, observed that the child was somewhat immature for his chronological age and that therefore his views needed to be considered with some caution.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
There is a suggestion in the family report that the Mother may have some indigenous heritage. The family report writer had stated in her report that according to the Father this was not an issue that was highlighted by the Mother in their marriage or that she identified as indigenous.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Subject to the Court’s discussion above in relation to the Mother under the need to protect primary consideration, both parties’ attitudes towards the child and their responsibilities of parenthood have been satisfactory.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The Court accepts the Father’s evidence in relation to previous AVOs made against him. The Court observes that these AVOs were some time ago.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court refers to its discussions above under the need to protect primary consideration; the ICL’s proposed Orders would be least likely to lead to the institution of further proceedings in relation to the child, as opposed to the Mother’s proposed Orders which would significantly increase the risk of there being further proceedings in relation to the child.
m) Any other fact or circumstance that the Court thinks is relevant
The ICL’s proposed restraining Orders will be orders in the best interests of the child; such proposed Orders will likely lead to consistency in the medical treatment of the child, minimise conflict between the parties, and minimise the risk of the child being exposed to denigratory behaviour by the parties or to discussions in relation to these proceedings.
The ICL’s proposed Order relating to the parties both completing the Tuning into Teens course will assist them both in managing the child’s behaviour as he grows older.
An Order was made by the Court on 8 April 2019 (Order 4 in Exhibit A of those Orders) that the Mother contribute the sum of $2,200 in relation to her share of the family report writer’s costs. The Father seeks an Order that these costs be paid within 14 days from the date of the Court’s Orders. The Court proposes to allow the Mother six months to pay these costs to the Father in light of her present full-time home duties occupation.
PARENTAL RESPONSIBILITY
The ICL and the Father join in seeking an Order that the Father have sole parental responsibility for the child; such proposed Order will be in the best interests of the child. The Mother seeks an Order that she have sole parental responsibility. The parties have a poor co-parenting relationship in relation to the child, there is a significant lack of trust between the parties in relation to the child, and their ability to communicate with each other positively in relation to the child is also poor. In these circumstances, there is a significant risk that the parties will be unable to agree upon major decisions in relation to the child in a timely fashion and without conflict. The Father has been a most satisfactory carer of the child, in particular over the last approximate three years, and it will be in the child’s best interests that he continue to live with the Father. The Father should have sole parental responsibility for the child and be required to communicate to the Mother in relation to the child as proposed by the ICL.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.That all previous Orders be discharged.
2.That the Father have sole parental responsibility for the child X born in 2008 (“the child”).
3.That the child live with the Father.
4.That the Father shall keep Ms Kidd (‘the Mother’) informed of details for the child’s General Practitioner and such other treating doctors or therapists that the child may see from time to time
5.That the Father is to notify the Mother in writing or email, as soon as practicable as to any serious illness or medical condition suffered by the child.
6.That the Father shall keep the Mother informed of address of the child’s school and home at all times.
7.The Mother shall have such authority as is necessary to obtain information from the children’s schools as would normally be available to a parent in relation to the children’s respective school reports and educational progress.
8.The Mother shall have such authority as is necessary to obtain information from the child’s treating medical practitioners as would normally be available to a parent.
9.To facilitate Order 7 and 8 the Father is to provide a copy of these Orders to the children’s respective schools.
10.That the child spend time with the Mother as follows:
(a)During school term at the 4th and 8th weekends from 6pm Friday to 6pm Sunday and if the Mothers time falls on a long weekend, then such time will conclude at 6pm on the Monday of the long weekend.
(b)During the April and October mid-term school holiday periods, from 2:00pm on the first Sunday until 6:00pm on the middle Sunday.
(c)During the July mid-term school holidays from 2:00pm on the first Sunday until 2:00pm on the middle Sunday;
(d)For half of the long summer holiday period such time commencing:
(i)In even numbered years at 6.00 pm on the day after school term concludes and concluding on the third Sunday after the conclusion of school term at 6.00 pm.
(ii)In odd numbered years from 6pm on the third Sunday after school concludes until 6pm on the Sunday prior to the commencement of the first term of the next school year.
11.That changeover shall take place as agreed and, failing agreement, at Suburb B McDonald’s.
12.That the Mother shall be at liberty to have telephone contact with the child each Tuesday and Thursday, Christmas Day, Easter, child’s birthday, mother’s birthday and Mother’s Day between 6:00pm and 7:00pm.
13.That during the child’s time with the Mother, the Father shall be at liberty to have telephone contact with the child on Tuesdays, Thursdays, Christmas Day, Easter, Father’s birthday between 6:00pm and 7:00pm.
14.In the event that Mother’s Day does not fall on a weekend when the child would otherwise be spending time with the Mother pursuant to these Orders from 10am to 5pm on the Mother’s Day.
15.At such other times and dates and for such other periods as agreed to by the parties in writing.
16.That the Father is to contact Dr C within 48 hours of the making of these Orders for the purpose of arranging an appointment for the child to review and assess X’s progress and management of his ADHD diagnosis.
17.That the Father and the Mother keep each other informed and update each other of their respective contact details including telephone numbers and email addresses.
18.That the Father and mother to each enrol in and participate in the online course Tuning into Teens.
19.That, other than in the event of a genuine emergency, the Mother is restrained from taking the child to any general practitioner or specialist without the Father’s prior written consent.
20.That the parties are restrained from denigrating the other parent or a member of the other parent’s household or family in the presence of the child and, further, shall immediately remove the child from the presence of any other person denigrating the other parent.
21.That the parties are restrained from discussing these proceedings or any allegation made by the Mother against the Father in the presence of the child and, further, shall immediately remove the child from the presence of any other person discussing these proceedings or any allegation made by the Mother against the Father.
22.That the Independent Children’s Lawyer be discharged.
23.That within 6 months of the date of these Orders, the Mother shall pay to the Father the sum of $2,200 in reimbursement to the Father of the Mother’s share of the family report writer’s costs, pursuant to Orders made on 8 April 2019.
24.That the ICL explain the above Orders to the child, and, for the purpose of giving effect to this Order, the ICL shall arrange to speak with the child within 7 days of the date of these Orders.
I certify that the preceding two hundred and ninety-three (293) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Dated: 27 January 2022
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