Lentner & Anor and Ablett

FAMILY COURT OF AUSTRALIA

LENTNER AND ANOR & ABLETT

[2015] FamCA 251

FAMILY LAW – CHILDREN – Where the child, aged 12, is morbidly obese and has serious long term issues with her health – Where the father discovered during these proceedings that the child is not his biological child – Where the child currently lives in the household with the mother during the school week and the household of the father and the paternal aunt during weekends – Where it was in the best interests of the child to live in her father’s household with time in her mother’s household to be limited initially and for the paternal aunt to have parental responsibility for the management of issues in respect of the child’s health – Where orders were made to facilitate the child being informed about her paternity

Family Law Act 1975 (Cth)

APPLICANTS:

Mr Lentner and Ms Lentner

RESPONDENT:

Ms Ablett

INDEPENDENT CHILDREN’S LAWYER:

Ms Youssef

FILE NUMBER:

SYC

4775

2012

DATE DELIVERED:

2 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 - 27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Spain

SOLICITOR FOR THE APPLICANT:

Swifte Law

COUNSEL FOR THE RESPONDENT:

Ms O'Rourke

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cairne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

Mr Lentner (“the father”) and Ms Lentner (“the paternal aunt”) shall have shared parental responsibility for B, born … 2003 (“the child”), except for:
1.1.Decisions referred to in order 2.
1.2.Responsibility for applying for and holding a passport for the child for which the father shall have parental responsibility.
The paternal aunt shall have parental responsibility for decisions about the child’s health, medical treatment, counselling, including specialist medical treatment decisions about operations, medical treatment, dental treatment, and alternate medical treatment of the child.
The paternal aunt shall communicate with and advise the father and mother in relation to health and medical decisions concerning the child as follows:
3.1.The paternal aunt shall forthwith advise Ms Ablett (“the mother”) and father of any upcoming appointments with any medical practitioners and tests or other medical procedures as soon as such appointments are booked. The paternal aunt is to decide whether, in relation to any particular appointment, the mother and/or the father may attend and the paternal aunt is to inform the mother and/or the father of that decision in a timely manner.
3.2.In the event of a last minute or short notice appointment being offered and accepted on behalf of the child by the paternal aunt, the paternal aunt shall communicate the details of such appointment as soon as is practicable to the mother via telephone and also text message, and also advise the father.
3.3.The paternal aunt shall as soon as is practicable keep the mother and father informed of the following:
3.3.1.Advice and recommendations provided by any medical practitioners;
3.3.2.Results of any medical tests undertaken with respect to the child;
3.3.3.Provide copies of any medical reports, test results and any other material provided to the paternal aunt;
3.3.4.Details as to the child’s current recommended medication regime and prescribed medication and any changes to same.
No party shall change the child’s name or cause or permit her to be known by any other name than the name appearing on her birth certificate.
The child live with the applicant father and applicant paternal aunt.
From the commencement of Term 2, 2015 the child be enrolled at and attend C School.
From the date of these orders until Term 2, 2016:
7.1.The child shall spend time with the mother during school terms each alternate weekend from after school on Friday to 5.00pm on Sunday night commencing from the first Friday to be 24 April 2015.
7.2.The child shall spend time with the mother during school holidays each alternate weekend from 5.00pm on Friday to 5.00pm on Sunday night, the first Friday to be 10 April 2015.
7.3.The child shall spend time with the mother on Mother’s Day from 9.00am to 5.00pm if mother’s Day does not fall on the Mother’s usual weekend.
7.4.The child shall spend time with the mother on the child’s birthday from after school to 6.00pm or otherwise as agreed between the parties.
7.5.For the Christmas period in 2015 the child shall spend time with the mother from 1.30pm on Christmas Day to 5.00pm on Boxing Day.
7.6.For the Easter period in 2016 the child shall spend time with the mother from after school on Easter Thursday to 5.00pm on Easter Monday.
7.7.The mother may spend additional time with the child for such other periods as the parties may agree from time to time.
From Term 2, 2016 the child spend time and communicate with the mother as follows:
8.1.During school terms:
8.1.1.Every second weekend, commencing on the first weekend following the commencement of Term 2, 2016 from the conclusion of school Friday or 3.30pm if Friday is a non-school day, to the commencement of school Monday, or the commencement of school Tuesday if Monday is a non-school day.
8.1.2.On each other week from the conclusion of school Friday until 5.00pm Saturday.
8.1.3.In the event the child is late to school on more than two occasions in any school term order 8.1.1 is varied to conclude at 6.00pm Sunday.
8.2.For one half of each term school holiday period being term 2, term 3 and term 1 school holidays for the first week in even years and the second week in odd years.
8.3.For one half of the December/January school holidays for the first half in even numbered years and for the second half in odd numbered years, save for the Christmas arrangements as set out herein.
8.4.If Mother’s day falls on a weekend when the child is not already spending time with the mother, from 5.00pm on the Saturday before Mother’s day until 5.00pm on Mother’s day.
8.5.At Christmas in odd numbered years, from 12.00 noon Christmas day until 5.00pm Boxing day.
8.6.If the child’s birthday falls on a school day, the child shall spend time with the mother on the child’s birthday from after school to 6.00pm or otherwise as agreed between the parties.
8.7.If the child’s birthday falls on a non-school day the child shall spend time with the mother on the child’s birthday from 12.00pm to 5.00pm or otherwise as agreed between the parties.
8.8.Such further and other times as may be agreed between the parties.
Notwithstanding any other order, the child is to spend time with the father and paternal aunt:
9.1.In even numbered years from 12.00pm Christmas Day until 5.00pm Boxing Day;
9.2.If Father’s day falls on a weekend when the child is to be spending time with the father from 5.00pm on the Saturday before Father’s day until 5.00pm Father’s day;
Changeovers shall occur as follows:
10.1.If time with the mother is to commence after school and/or end before school, the mother shall collect the child from school at the start of her time and the mother shall return the child to school prior to the commencement of school at the end of her time.
10.2.For all other occasions of time which fall on non-school days the mother shall meet the father and/or the paternal aunt at Supermarket, Suburb D.
The child have telephone communication with the mother on Wednesdays between 5.00pm and 8.00pm with the paternal aunt to initiate the call to the mother.
The father, paternal aunt and mother also encourage and facilitate telephone communication between the child and the other parties whilst the child is in their care as requested by the child and shall ensure the child is provided privacy during such communication.
For the purposes of communicating about matters relating to the child’s care, welfare and development the parties will communicate with each other directly using the following methods of communication:
13.1.For non-urgent matters the parties will use email;
13.2.For urgent matters or emergencies the parties will use text message.
Each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other party of any change thereto within seven days of such change.
In the event of childhood illness or emergency the person(s) with whom the child is with, contact the other party forthwith to inform them.
Each of the parties, their servants and agents be hereby restrained by injunction from:
16.1.Abusing, insulting, belittling, rebuking or otherwise denigrating the other party and
16.2.Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings including copies of any court orders, and any documentation relating to the parentage procedure with or in the presence or hearing of the child and from permitting any other person to do so.
16.3.Discussing the results of the parentage testing with the child save for as set out in these orders pursuant to order 31 below.
The father, paternal aunt and mother be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child’s progress.
Each party is at liberty to attend at the child’s school for the purposes of any function or activity normally attended by parents.
The mother and father are restrained from consuming illicit drugs whilst the child is in either party’s care and for 12 hours prior to the child coming into their care.
The father, paternal aunt and mother are restrained from physically disciplining the child.
The child shall have her own room whilst in the care of either party.
The father is restrained from introducing his fiancé, Ms E into the household for the first 12 months following the date of these orders.
Dr F, paediatrician, or any other substitute paediatrician she nominates, shall remain the primary medical specialist responsible for overseeing the child’s ongoing medical treatment and is at liberty to discuss the child’s clinical management with each party.
The paternal aunt is required to regularly consult with Dr F.
The paternal aunt is to do all things and sign all necessary documents to implement referrals and recommendations made by Dr F.
The paternal aunt is to fill all scripts provided by Dr F for the child and provide a sufficient quantity of those medications to the mother to satisfy the child’s needs when the child is with the mother.
Each party shall use their best endeavours to ensure that the child takes or uses all medications at the frequency prescribed for her.
The Independent Children’s Lawyer is to send a copy of these Orders and Reasons for Judgment to Dr F and Ms G.
Each party is to follow the recommendations of Dr F in relation to the child’s diet and exercise programme.
The child shall continue to attend upon her counsellor Ms G, from H Psychology for the purposes of confidential individual therapy for such time and with such frequency as is recommenced by Ms G and in the event that Ms G is no longer available to provide therapy for the child, the child shall attend upon an alternative therapist as recommended by Ms G.
As soon as practicable after the commencement of Term 4, 2015 and in accordance with the recommendations by Ms I and the family consultant, the child shall be informed of the results of the parentage testing as follows:
31.1.The mother, father and paternal aunt shall each arrange to speak with Ms G or her nominee prior to the child being told in order to obtain specific advice as to:
31.1.1.How the child is to be told;
31.1.2.The wording and phrases to be used by the parties;
31.1.3.How to answer questions that are anticipated to be raised by the child;
and it is noted that the father, mother and the paternal aunt are to be informed of a similar manner of answering anticipated questions by the child to ensure consistency for the child.
31.2.The child shall be informed by the father in a therapeutic setting and the child shall have access to both the mother and her therapist Ms G after being told.
The Father be permitted to remove the child from the Commonwealth of Australia for no more than three weeks on any one occasion.
In order to facilitate order 32, the father shall provide the mother with not less than 28 days’ notice of the intended trip and shall provide the proposed itinerary, including departure and return flights, accompanying passengers and land line telephone numbers.
The parties and the Independent Children's Lawyer be at liberty to provide copies of any court orders in these proceedings to the child’s teachers or her treating medical practitioners.
An anonymised version of the Reasons for Judgment dated today not be published for a period of twelve months.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

. IT IS NOTED that publication of this judgment by this Court under the pseudonym Lentner and Anor & Ablett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4775 of 2012

Mr Lentner and Ms Lentner

Applicants

And

Ms Ablett

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter involves parenting proceedings between Ms Ablett (“the mother”), Mr Lentner (“the father”) and Ms Lentner (“the paternal aunt”) who is father’s sister and has become a joint applicant to the proceedings. The parties are in dispute about parental responsibility and with whom and when B, who was born in 2003 (“the child”), will spend her time.
The child has just turned 12 years old. She is morbidly obese (98 kilograms), has mild sleep apnoea, reflux and difficulties with her digestive system. Her treating paediatrician, Dr F, says that her weight should be about 70 kilograms and that there is a significant risk she could suffer from congenital heart disease and diabetes by the age of 30 years old.
Recommendations and referrals made by the treating paediatrician as far back as 2010 have not been effectively implemented because the mother, the father and the paternal aunt cannot genuinely consult and communicate with one another about the child’s medical treatment. In the last four years the management of the child’s medical problems by the responsible adults has been chaotic.
There is also an issue before the court as to whether the child should be told the result of a parentage test that was undertaken in August 2014. The father is not the child’s biological father. The father was first informed of this on 30 August 2013 when the mother’s lawyer announced it in my court room. This was a bitter shock to the father after thinking otherwise for over ten years and he is still having difficulty accepting the results of the scientific testing. Parentage testing was ordered by the Court and conducted in the middle of 2014. The testing results confirmed that the father is not the child’s biological father. The child is however unaware that the father is not her biological father. The father, the paternal aunt, and the mother were referred to a psychologist for the purpose of engaging in counselling in relation to whether, when and how the child should be informed about the parentage testing result and whether the child should be involved in counselling herself. The father, the paternal aunt and the mother have been unable to reach agreement about when the child should be told.
The father and the paternal aunt do not see any good coming from telling the child that the father is not her biological parent and they oppose that information being given to her now. The expert opinion says that the child should be told of her parentage in a controlled therapeutic setting in the next six months.
The father met the mother when he paid her for her sexual services as a sex worker. The mother found out that she was pregnant with the child shortly before the child’s birth. She told the father that the child was his. The mother and the father lived together for about four months after the child’s birth. The mother then left the father, taking the child with her, and commenced a lesbian relationship with Ms J, another sex worker who financed the mother’s drug addiction. The mother and child had a close relationship with Ms J until she was murdered in 2008. The mother subsequently had a relationship with a man who was killed in a fire in 2011. Shortly after that time, the mother formed a relationship with Mr K. That was three years ago. They are now engaged but disagree about where they should live and will probably not be living under the one roof any time soon.
The child’s birth was a life changing event for the mother. Her life has been more stable in recent times. Dr L opines that the mother’s personality traits do not disentitle her from continuing to be the child’s main carer but that her parenting capacity remains fragile.
The child expresses a wish to continue to live with her mother and in the most recent interview with the family consultant, expressed negative views about the father, the paternal aunt and the treating paediatrician. There is a disconnect however between the child’s expressed negative views and the family consultant’s observations of the positive relationship between the child, the father and the paternal aunt.
The father and the paternal aunt have negative views about the mother. These attitudes arise from their perception that the mother is responsible for the child’s current serious medical problems and that she has lied to them about the child’s paternity. The father and the paternal aunt also dwell on the mother’s past history as a drug addict and sex worker. The mother does not overtly express strong negative views about the father and the paternal aunt. All parties say that they will abide by court orders, and history would suggest that that is probably so.
It is the mother’s case that family violence is a significant consideration, but there was little emphasis upon it during the course of the hearing. I am unable to make any findings in relation to alleged and isolated acts of physical violence. I do find that the father has unfortunately used derogatory taunts to the mother on occasions in the presence of the child. There is a need to protect the child from psychological harm from being exposed to this behaviour by the father and there was an agreement for an order to be made directed at that purpose. Whilst family violence is one of the two primary considerations and the consideration to be given the greater weight, given the nature of the family violence, considerations in relation to the respective parenting capacities of the parties are a consideration of far greater weight in this case, particularly given that the child faces profound medical issues.

SHORT HISTORY

In 1969 the father was born and is currently aged 46 years old.
In 1973 the mother was born and is currently aged 41 years old.
In 2002 the mother and father commenced a relationship.
In 2003 the child was born and is currently aged 12 years old.

APPLICATIONS

As indicated, the father and the paternal aunt propose that the child live with them and spend time with the mother each alternate weekend from after school on Friday until 5.00 pm on Sunday. The father and the paternal aunt propose that they have equal shared parental responsibility (with the mother not having any parental responsibility for the child) and in the alternative, the paternal aunt have parental responsibility for decisions about the child’s health.

The mother seeks that the child live with her and spend time with the father and the paternal aunt each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, and every alternate week from after school on Tuesday to before school on Wednesday. The mother proposes that an order be made that she consult with the father and the paternal aunt and make a genuine attempt to come to a joint decision with one or both of them about major long term issues regarding the child, but that in the event there is no agreement then the mother have sole parental responsibility.

DOCUMENTS RELIED UPON

The documents each party and the Independent Children's Lawyer rely upon are set out in Schedule 1.

CREDIT

Had I needed to do so in order to reach my ultimate conclusions in this case, I would have had difficulty relying upon the evidence of both the mother and the father. I do not accept the story which the mother tells relating to her realisation that the father may not have been the biological father of the child nor do I believe, for reasons set out below, the mother’s assertion that she left referral letters written by Dr F in the father’s motor vehicle. There are other unsatisfactory parts of the mother’s evidence. The father gave inconsistent evidence about his past use of marijuana and has not told the full story relating to at least two of the entries that are contained in the COPS records in respect of his drug use. He also gave inconsistent evidence about using derogatory terms about the mother.
The paternal aunt gave evidence in a relatively straight forward manner and her credit was not substantially impugned.

DETAILED CHRONOLOGY

In 1969 the father was born.
In 1972 the mother’s partner, Mr K, was born and is currently aged 42 years old.
In 1973 the mother was born.
The mother commenced a relationship with Ms J in 1994.
In 2002 the mother and father commenced a relationship. The father had previously been a client of the mother’s.
In 2003 the child was born.
After the child was born, the mother and the child lived with the father, paternal grandfather and the paternal aunt at their home.
In about July 2003 the mother and the child moved in with Ms J at Suburb M.
On 22 September 2003 the mother and the paternal aunt had an argument.
The mother and father separated in approximately November 2003.
In June 2004 the child commenced attending child care.
The mother asserts that the paternal aunt took out an AVO against her in 2005. The paternal aunt makes no mention of this in her affidavit or oral evidence. The father says in his affidavit that he asked the paternal aunt whether she had taken out an AVO against the mother to which the paternal aunt answered “No”.
The mother took out an AVO against the paternal aunt in January 2006.
In January 2006 the parties entered into an agreement regarding the father’s time with the child. The father spent almost every day with the child but no overnight time.
In January 2008 the child commenced Kindergarten.
In 2008 the mother’s partner Ms J was killed.
Following Ms J’s death, in September 2008, the father began spending substantial overnight time with the child. The paternal aunt weighed the child at this time and she weighed 45 kilograms.
In February 2009, when the child was residing with the mother, the mother allowed a male friend from the methadone program, and his partner, stay at her house until their priority housing was granted. Two other patients from the methadone program also asked to stay at the mother’s house. The male became intoxicated. The mother ordered pizza for dinner and when she went out to pick up the pizza an incident occurred between the two females and the male resulting in one of the females being badly beaten in the face. The mother arrived home to find police surrounding her home. The police officers notified the mother they would need to put in a DoCS Risk of Harm Form as the child was present in the home and witnessed the violent event.
In December 2009 two methadone patients continued to reside with the mother and the child at their home. One of the patients contacted the mother saying she felt like she would harm herself and that she was burning her mother’s, and her own, belongings. That person lit a fire in the mother’s wardrobe in the home in which the child was residing. The mother did not allow those two people to continue residing with her.
Throughout 2010 the child was bullied/teased at school.
On 16 August 2010 the child was taken by the father and mother to consult with Dr F for the first time. Dr F weighed the child at 64.4 kilograms. Dr F provided the father and mother with referrals to other specialists for the child to attend upon. Neither followed up on the referrals provided to them by Dr F. The mother says that the parties had an argument in the father’s car after the appointment and she left the referrals in his car. The father denies this. He said in oral evidence the mother would have put the referrals in her bag. I do not accept that the mother, who had the referrals, left them in the father’s car.
In September 2010 the mother obtained a referral for the child to attend Ms N, at the O Centre, in relation to her weight and learning difficulties. On a number of occasions, the mother referred to Ms N as a doctor but I am unclear as to whether or not she was. The father, mother and the child attended the first appointment with Ms N. The mother contends she attended two appointments with Ms N. The child’s school followed up with the O Institute and were informed that the child had only attended one appointment (Exhibit 30).
In December 2010 the mother took the child to be examined by a general practitioner, Dr P. Her general organ functions, blood sugar, kidney, liver and thyroids were all checked.
In Term 2, 2011 the child participated in the MEND program “Fit for Go”
In late 2011 the mother’s then partner, Mr Q, died in a house fire. From this date, the mother asked the father to care for the child for about eight weeks. Over the next few months the mother stayed with the Q family.
On 30 November 2011 the child was weighed by Dr F at 75 kilograms.
In early 2012 the mother and Mr K commenced their relationship.
On 12 January 2012 Dr F weighed the child at 69.9 kilograms.
In February 2012 the mother alleges she saw the father sitting outside her house on six to eight occasions.
In February 2012 the mother stopped allowing the father to spend time with the child.
On 11 March 2012 the mother commenced AVO proceedings against the father and an interim AVO was made. The mother complained to Suburb D Police about the father stalking and abusing her. She says she suffered verbal abuse by the father, including statements such as “Don’t kiss my daughter on the lips cause you’re a cocksucker” and “Look at you, you fat whore. No-one would want you”. I do not accept the father was stalking the mother at this time. The father concedes that at times he used offensive language directed to the mother.
On 16 March 2012 the mother asserts that the paternal aunt attended Suburb D Police Station and complained about the mother being a registered sex worker and conducting work from her residence.
In 2012 a birthday party was arranged for the child by the paternal family. The mother did not allow the child to attend this party even though 47 guests (mostly from the child’s class) were invited to attend. The child later watched a video of her birthday party.
In April 2012 the father recommenced spending time with the child.
The mother asserts in her affidavit that on 7 April 2012 during changeover, the father stood over the mother and abused her in front of the child. The mother says this again occurred on other occasions.
In May 2012 the child and the mother moved out of their home in order for repairs to be done. Until 29 October 2012 they resided with the mother’s late partner’s (Mr Q’s) family in Suburb R.
On 30 May 2012 the child was referred to an obesity clinic at the EE Hospital. The mother says she faxed the referral to the hospital but the fax went astray and she did not follow up to make an appointment for the child.
On 25 June 2012 the child’s GP, Dr S, weighed the child weighed at 88 kilograms.
On 27 June 2012 the AVO proceedings against the father were dismissed.
In June 2012 the father and mother agreed for the child to spend more time with the father each Monday afternoon to Friday morning.
On 31 July 2012 Dr F weighed the child at 91.5 kilograms.
On 22 August 2012 Dr F weighed the child at 91 kilograms.
In August 2012 the mother obtained a referral to an alternate paediatrician, Dr T. The mother and the child attended on Dr T on 10 August 2012. The mother asserted she did not know at this stage that the child had recommenced seeing Dr F. Dr T decided not to conduct further tests on the child as he was made aware that Dr F was the child’s treating paediatrician.
In Term 3, 2012, the child commenced attending the PP Literacy program.
On 6 October 2012 the child underwent a sleep study at U Hospital. She was diagnosed with obstructive sleep apnoea.
On 11 October 2012 the child attended counselling for the first time with Ms V. This continued until November 2013.
On 30 October 2012 the child had her first appointment with dietician, Ms W.
On 1 November 2012 the child was weighed by Dr F at 88.8 kilograms.
The child underwent adenotonsillectomy surgery on 12 November 2012. On that day the mother completed the “Talking with your Kids” course.
On 10 December 2012 the mother asserts the child told her that the paternal aunt told the child she was a liar just like her mother. The child also told the mother the paternal aunt pushed the child on the lower back.
In early 2013 the mother attended the “After Separation” course.
In May/June 2013 Mr K’s daughters X and Y commenced residing with the mother.
On 30 August 2013, in court on the first day of the less adversarial trial, the mother raised for the first time her belief that the father was not the child’s biological parent. The child was then 10 and a half years old. Orders were made restraining both parties in relation to DNA testing.
In October 2013 Mr K’s daughter Y returned to live with her mother.
On 23 June 2014 orders were made for DNA parentage testing. The results of this test were released on 22 August 2014. The testing conclusively indicated that the father was not the child’s biological parent.
On 10 September 2014 orders were made for the parties to attend upon Dr I, clinical psychologist, to discuss about if the child might be informed about her parentage and what strategies might be used if the decision was taken to inform the child.
On 7 November 2014 the child attended orientation day at Z School and made new friends. The child currently attends Z School.
On 19 December 2014 Dr F weighed the child at 96 kilograms.
On 14 January 2015 the child attended Z Medical Centre for a GP Mental Health Plan. The child was weighed at 98 kilograms.
On 15 January 2015 the child attended her new therapist, Ms G, for the first time.
On 30 January 2015 Dr F weighed the child at 97.1 kilograms.
On 22 February 2015 Dr AA weighed the child at 98 kilograms.

MAJOR ISSUES

The child’s attendances on medical practitioners

In September 2008 the child weighed 45 kilograms. On 22 February 2015 she weighed 98 kilograms. As indicated in paragraph 2 above, the child is morbidly obese, has mild sleep apnoea, reflux and difficulties with her digestive system. Her treating paediatrician, Dr F, says her weight should be about 70 kilograms and that there is a significant risk she could suffer from congenital heart disease and diabetes by the age of 30 years old.
As I have said, in the last four years the management of the child’s medical problems by the responsible adults has been chaotic.
For the first few years of the child’s life the mother says she took the child to Dr BB at Suburb CC for check-ups and regular treatments.
The mother says that Dr P was the child’s general practitioner since about four or five years of age.
In 2008 after Ms J’s death, the mother says that the child attended about four counselling sessions, but I do not have any confirmation that that happened.
In August 2010 the father organised for the child to undergo allergy testing with Dr DD. The father did not inform the mother of this appointment. The mother says in her affidavit she found results in the father’s car.
In August 2010 the father and the paternal aunt arranged for a general practitioner, Dr S, to refer the child to a paediatrician, Dr F. The mother attended the first appointment with the father and the paternal aunt. The parties spoke to Dr F about the family history and the child’s diet. Dr F gave two referrals for blood tests and gene testing. The mother asserts she left those referrals in the father’s car after an argument. She says she asked the father for the referrals on three occasions. The mother did not then follow up on the referrals. I find that in all probability the mother did not do that. I form this view because firstly the mother conceded that even had she lost the referrals in the father’s car she could have approached Dr F to provide alternate referrals and secondly because in September 2010 (the following month) the mother obtained a referral from her general practitioner, Dr P, for the child to attend the O Centre. The father attended the first appointment. The parties met with Ms N. The mother says in oral evidence she went to two appointments but I find she did not. No follow-up appointments were made with Ms N. The mother says she attempted to make appointments but was told by the receptionist that no more appointments were being taken. On 1 March 2011 the mother had a meeting at the child’s school with the principal, counsellor, teacher, associate principle and the father. The principal did not believe the mother’s version of events in respect of appointments at the O Institute so he telephoned the institute and was made aware that the mother had only attended once (Exhibit 30).
In December 2010 the mother took the child to see Dr P. The child underwent testing of her organ function, blood count, kidney and liver and thyroid. Dr P gave the mother a referral to the EE Hospital. The mother did not follow this up.
The father and the paternal aunt were frustrated by the mother’s lack of attention to the child’s needs. On 7 February 2011, and without reference to the mother, the father and the paternal aunt arranged for Dr S to refer the child again to Dr F. There was a period of many months before being able to obtain an appointment with Dr F.
On 30 November 2011 the father and the paternal aunt attended on Dr F. At that appointment Dr F recommended that the child have a trampoline.
On 12 January 2012 the father and the paternal aunt attended on Dr F.
In May 2012 the mother obtained a referral from Dr P to take the child to the EE Hospital clinic. As I said above, the mother says she faxed the referral to make an appointment but there was a delay and the fax went astray and she did not follow this up.
In August 2012 the father and the paternal aunt again took the child to Dr DD for allergy testing. The paternal aunt says in her affidavit that Dr DD reported back to Dr S who then referred the child back to Dr F.
As indicated above, in August 2012 the mother says she obtained a referral for the child to see Dr T, a paediatrician, and the mother and the child attended on Dr T on 10 August 2012 (these proceedings commenced in August 2012 but the mother made the appointment to see Dr T before she was served with the father’s application). The mother had not sought specialist treatment for the child’s medical condition since September 2010. At this time the mother says she did not know the child had been seeing Dr F. The child told the mother in Dr T’s waiting room she had seen Dr F recently. The mother says that she was unable to give Dr T a full history of the child’s medical conditions as she did not know what was going on. The child told the mother she had had blood tests the day prior with the father.
On 13 September 2012 the father, the paternal aunt and the child attended on Dr F at her Suburb FF surgery. The mother says that she had gone to collect the child from school and was told she had been picked up earlier from her father. The mother made several phone calls to Suburb FF Medical Centre who would not tell the mother whether or not the child was there. The mother abused staff at the centre. The mother then went to the Police. The Police contacted the paternal aunt who confirmed that the child had an appointment with Dr F. After this occasion, the parties were banned from attending Dr F at her rooms at Suburb FF Medical Centre and had to take the child to her rooms at Suburb GG.
In October 2012 Dr F referred the child to Dr HH, Ear Nose and Throat specialist. The father and the paternal aunt took the child to the first consultation. The child was diagnosed with enlarged tonsils and severe sleep apnoea. Dr HH referred the child to Dr II, sleep specialist.
In September/October 2013 the mother says in her affidavit that she left two messages with the dietics unit at JJ Hospital requesting an appointment for the child but did not hear back. She says she also left a message with the sleep study team at the EE Hospital. She did not hear back so she contacted Dr T who informed her that Dr F had contacted him to say that the father was arranging a sleep study privately.
In October 2012 the mother attended on Dr F alone. The mother formed the view that Dr F was very critical of her. Dr F informed the mother of the child’s medications.
On 6 October 2012 the father and the paternal aunt took the child to her first overnight sleep study.
On 22 October 2012 the child was booked in for an MRI at the EE Hospital. The mother says that the father was supposed to take the child to the hospital. The mother arrived and was informed by the Unit Nurse that the father had cancelled the appointment. The paternal aunt later sent a text message to the mother informing her of the cancelled appointment. Dr F gave oral evidence that the mother caused “mayhem” at the hospital because she did not want the child to undergo an MRI. She said she was told the mother felt the child could not handle going in the MRI machine without a play therapist. Dr F’s evidence was that she had never had so many calls about the cancellation of one appointment for one procedure as she did with the MRI for the child. The number of telephone calls made by the EE Hospital to Dr F on this occasion is a testament to the chaotic nature of the parties’ ability to cooperate in relation to the management of the child’s health needs.
At the end of October 2012 the mother made an appointment for the child with a dietician, Ms W, at KK Sanitarium. The child continued to see Ms W until mid-2014 when Ms W left KK Sanitarium. Since that time, the mother contends the parties have not been able to come to an agreement on a new dietician for the child. The father and the paternal aunt attended on Ms W on one occasion in early 2013. The mother and the child were not present for that appointment.
The child commenced counselling with Ms V in October 2012. She ceased this counselling in November 2013.
On 6 November 2012 the mother attended on Dr F and learned for the first time that the child had an asthma management plan and was on puffers.
On 12 November 2012 the father and the paternal aunt met the mother at the hospital. The child underwent adenotonsillectomy performed by Dr HH.
On 14 November 2012 the mother consulted with both Dr HH and Dr II.
On 21 December 2012 the father took the child to Dr F. The mother could not attend the appointment and says she called the medical centre and left a message to be connected via conference call during the appointment but was never called. I am not satisfied that the mother made sufficient effort to ensure she was involved in this appointment.
In late 2012 the mother, father and the child attended on Dr F. The paternal aunt also attended but the mother caused a scene and did not want the paternal aunt to attend the appointment. Dr F allowed the paternal aunt to be present but not speak. Dr F recommended that the child see a paediatric gastroenterologist or an endocrine clinic. This has not happened.

The mother says in her affidavit that in 2012 and 2013 the child attended on Mr LL, a sports physiotherapist, who designed an exercise program for the child. The father and the paternal aunt met with Mr LL once in order to find out about the appropriate exercises for the child.
In March 2013 the mother, father, the paternal aunt and the child attended on Dr F to follow up after the adenotonsillectomy procedure.
The child had an appointment for a second sleep study at U Hospital on 30 June 2013. The child did not attend. The mother asserts the child had chicken pox and she cancelled the appointment, informing the father via her solicitor.
The mother had an appointment with Dr F on 21 June 2013 but cancelled and did not reschedule.
The father and the child attended on Dr F on 25 July 2013. The mother did not attend. She asserts she did not read the email from the father informing her of the appointment.
On 2 August 2013 the child was extremely sick. She had been home sick from school for three days. The mother had taken the child to a doctor at KK Sanitarium. The father and the paternal aunt took the child to Dr F that night.
On 22 September 2013 the child underwent a second sleep study. The father delivered the child to the hospital but the mother stayed overnight with her.
An appointment was initially made for the child to see Ms G on 20 November 2014. The mother asserts in her affidavit that this was subsequently changed.
In her affidavit the mother says a follow up appointment was made with Dr II for 29 October 2013 following the sleep study. She says she emailed the father with the details of the appointment and also send a text message to the paternal aunt confirming the date and time. On 5 October 2013 Dr II changed the appointment to 6 November 2013. The mother again sent a text message to the paternal aunt confirming the new date.
On 6 November 2013 the mother attended the appointment with Dr II. The father and the paternal aunt did not attend. Dr II gave the results of the sleep study which showed airflow and oxygen saturation was a lot better with less interruptions. He recommended that the child see Professor MM at the NN Hospital. The mother says that Dr II said to her that he would post the referral to the father. The mother says she also received a copy of the referral in the mail. The mother arranged an appointment with Professor MM to follow up on the referral.
Professor MM saw the child on 2 January 2014 and informed the mother that two of the child’s baby roots in her upper jaw needed to be removed so that her jaw could be widened to improve her breathing. The mother made an appointment at the NN Hospital on 13 March 2014 for the procedure to be conducted.
The mother informed the father and the paternal aunt on 24 February 2014 about the child’s appointment with Professor MM. The mother’s solicitor received a letter from the father’s solicitor on about 26 February 2015 indicating that the father did not agree to the extraction of the child’s teeth at the hospital.
The mother and the child attended the NN Hospital on 13 March 2014. The father and the paternal aunt were waiting at the hospital. The father did not consent to the procedure.
The mother’s solicitor wrote to the father’s solicitor on 20 June 2014, 7 August 2014 and 31 October 2014 about the procedure but the father has failed to agree.
The mother asserts in her affidavit that the father and the paternal aunt had an appointment with their dentist, Dr OO on 12 December 2014 but this was then cancelled and rescheduled for 6 February 2015.
The mother made an appointment for the child with Dr OO on 22 December 2014. The mother informed the paternal aunt of this appointment but asserts that the paternal aunt did not reply or attend. No one took the child to this appointment.
The mother attended on Dr F with the child on 16 December 2014. On that occasion, the mother says that she gave Dr F documents including the child’s school report and IQ tests. Dr F was critical of the fact that the child had only been brought back to see her as a result of the Independent Children’s Lawyer requesting a new report for these proceedings. At this point Dr F had not seen the child for one year. During this appointment the mother asked for scripts for Singular and Zoton. The mother says that during this appointment the child said “I don’t have my medication at my Dad’s they don’t give it to me”, but that was not the effect of Dr F’s evidence.
The mother had arranged a blood test for the child on the morning of 19 December 2014 (following a referral from Dr F). The child ate breakfast that morning and was unable to have the blood test. The father subsequently took her for a blood test on 24 December 2014.
The father and the paternal aunt attended on Dr F on 19 December 2014.
The child commenced seeing Ms G on 15 January 2015.
Dr F expressed very negative views about the nature of the mother’s attendance to the child’s medical needs in her first report. Dr F was in part relying upon history provided to her by the father and the paternal aunt (for example, that the mother gave coca cola to the child in a baby bottle which the mother denies, saying that it was half strength fruit juice). Dr F however was also relying upon her interactions with the mother and reports to Dr F from third parties as to the mother’s behaviour. Dr F did not have Dr P’s notes. I also do not have Dr P’s notes. Nor did Dr F have any dentistry notes. I accept that Dr F’s first report was without the benefit of a full history from the mother (although Dr F had seen the mother) and other positive objective evidence favourable to the mother. I approach the negative opinions about the mother, as expressed by Dr F in the first report, with those reservations in mind. Nonetheless, much of what is in the report is independently corroborated by other objective evidence.
There is no doubt that Dr F’s initial recommendations in 2010 were not implemented or actioned by the mother and that the mother sought other medical advice shortly after she had a consultation with Dr F. It is also my finding that the mother then misrepresented to the school her involvement with the O Institute.
I acknowledge that Dr F’s first report was an influential matter when the family consultant wrote her reports and made recommendations and I take that into account when considering the recommendations of the family consultant.
There was an unfortunate breakdown in parental communication. It led to the father and the paternal aunt reaching the conclusion that the mother was not properly attending to the child’s urgent medical needs.
When the mother decided not to continue with Dr F after the first consultation, the mother eventually sought the advice of an alternate paediatrician. As set out above, the mother took the child to Dr T on a few occasions but Dr T ultimately decided not to continue to treat the child after speaking with Dr F and noting Dr F was the primary paediatrician who had already ordered several tests.
The mother points, with some justification, to her better performance, when compared with the father and the paternal aunt, in relation to following up recommendations relating to treatment of the child’s sleep apnoea. Dr F made a referral to Dr II who carried out a second sleep study after the child had had her adenotonsillectomy. The second sleep study indicated that the child had mild sleep apnoea. An issue that was identified by Dr II was the fact that the child has a narrow pallet. The child was then referred to the NN Hospital (Exhibit 42).
The mother also can justifiably claim that she took the more appropriate approach to arrangements for the child to undergo the dental work in March 2014. The mother submits that the father and the paternal aunt have, over the last 12 months, failed to attend the child’s medical needs and treatment being recommended by specialists (dental). As set out above, the father refused to give his consent. On that same day a letter was sent to the father stressing the importance of that dental work (Exhibit 42). Unfortunately this letter only emerged at a late stage in the hearing after the father had given his evidence. There is no evidence that the father received the letter nor that his lawyers saw the letter. The letter explains the purpose of getting the baby teeth removed. If the father did read the letter, it is probable that the importance for doing so (that is, it was connected with the widening of the child’s pallet with the aim of improving her sleep apnoea) was not fully understood by the father and the paternal aunt. It was inappropriate for the father not to respond to requests by the mother’s lawyers in relation to the dental work. The unfortunate result has been that 12 months have passed and nothing has happened. Dr F opined that maybe it is now too late and that Prof MM will not go ahead with the work to widen the child’s upper jaw. This inability of the parties to agree upon an appropriate course of treatment in respect of dental work is symptomatic of the overall parental conflict. It was unfortunate that the father and paternal aunt turned up at the hospital to call off the work. It was remiss of the father and paternal aunt not to properly involve themselves in the process of consultation in relation to the child’s dental work.
Dr F seemed unaware when giving her evidence that the mother had not been informed about some of the appointments the father had made based on her recommendations. I also note that Dr F significantly moderated her views in her updated report. The family consultant read the updated report but still maintained her recommendations which I refer to below.
The above discussion amply demonstrates why I have reached the conclusion that the parties have demonstrated, over a protracted period, a spectacular history of being unable to work together to consistently achieve the implementation of recommendations made by the child’s health professionals. Someone needs to be put in charge in the hope that a more coordinated approach can be achieved.

The child’s diet and weight

The objective evidence in relation to the child’s weight loss and gain in late 2011 and early 2012 points to good diet control in the father’s household and poor diet control in the mother’s household. The child lost 6 kilograms between 30 November 2011 and 12 February 2012 when in the father’s care and then put on more than 20 kilograms (69.6 kilograms to 91.5 kilograms) in the period up to July 2012 when the child was predominately with the mother. The lawyer for the mother asks me to take into account that the 6 kilograms weight loss was during school holidays when the father had the ability to involve the child more regularly in physical activity and that it cannot be found that the mother was entirely responsible for the 20 kilograms weight gain. The child recommenced time with the father most likely on 14 April 2012, and by May 2012 was again spending three days a week with her father. I do not accept the submission by the mother’s lawyer that the exponential weight gain by the child in this period was a shared responsibility by all parties. Primary responsibility lay with the mother.
There was considerable focus during the hearing on the child’s diet in the mother’s household. The mother has given extensive evidence about her efforts in relation to the child’s diet, including her involvement with dietician Ms W.
The child’s weight gain has been contributed to by the child’s sleep apnoea but it has also been contributed to by poor diet and poor exercise.
In 2010 the mother said the child was having McDonalds or pizza whilst in her care on two occasions a week. In 2012 after medical attention, the mother was allowing two takeaway meals a week, one of them was McDonalds. The child told the family consultant in 2014 that she has McDonalds at her mother’s home once a fortnight. In her oral evidence the mother said that the child was only allowed two things from McDonalds; a mini chicken snack wrap and a cheeseburger meal with apple juice. It is implied that chips are a part of a cheese burger meal. The mother also said that the child has McDonalds less now, not even once a fortnight. She said the family would get McDonalds if Mr K’s children were over as a treat for dinner because they do not like pizza.
There is an issue between the parties as to whether or not a continuing involvement with a dietician is needed. Dr F can give some direction about that. Dr F indicated that given the advice that the parties had been given about diet to date, they should know what needs to happen. Dr F made the point that diet is about lifestyle and losing weight or maintaining weight over time and not about quick fixes. Dr F’s opinion is that ideally the child should get down to 70 kilograms but she doubted whether or not that is now achievable.
Dr F made the point that the child’s diet needed consistency and that a person cannot have a good diet three days per week. This is the fundamental reason why the family consultant recommends the child spends 12 nights with her father and paternal aunt even in holidays because of the need for consistency. That is not to say that in 12 months it should not morph into something else.
I accept that the mother has in recent times been diligent in trying to create a menu for the child and has kept a food diary in a far more detailed way than has happened in the father’s household. The mother’s involvement of the child in counselling with Ms V is laudable (although it initially came about in the context of a victim’s compensation claim). From those appointments, the mother commenced and retained a relationship with Ms W for a period after the conclusion of the set of appointments for counselling that were made in relation to the victims compensation claim. I accept the criticism made by the mother’s lawyer of the evidence of the father in relation to the child’s diet in his household. An assertion is simply made, particularly by the paternal aunt, that they serve the child good food at home. That having been said however, I put greater weight on the objective evidence referred to above relating to weight loss and weight gain during periods where the child was primarily with one of the parents.
I find that the mother has a permissive attitude generally towards what the child wants from time to time. Diet is of course not just about what the child is eating but how much she is eating. The general ability to place limits on what the child does in all areas is greater in the father’s household.

Medication

The parental supervision of the child’s medication has also been chaotic. I have no confidence there is any parental control in relation to the child’s medication in the mother’s household. I accept from what Dr F has said, that it is likely that medication is more regularly and properly administered in the father’s and paternal aunt’s household.
In her most recent report, Dr F states that in the year that passed since she had last seen the family (2013-2014) “almost certainly medications were not being given”. Dr F also noted that the child apparently disliked the medication Zoton, so refused to take it. There was also complete confusion about the asthma puffers. The mother at her appointment with Dr F in December 2014 was unable to itemise the medications given. The child told Dr F that she administered medications herself with the mother. The mother gave oral evidence that she would tell the child to take her medication and encourage her to take it. Dr F however formed the view it was unlikely any medication was being taken at the mother’s home.
A disturbing part of the evidence was the mother’s concession that she sourced the child’s medication by buying those medications online without scripts. Dr F said that that would had to have happened from an overseas online website, as Australian online websites require Australian scripts. The mother conceded that she at some point reached an understanding as to the dangers involved in what she was doing which included receiving medications that were advertised to be generic versions of what had been prescribed for the child. Of concern the mother conceded that she continued to provide the child with medications for six weeks after she realised that it was dangerous.
At the appointment with Dr F on 19 December 2014 the paternal aunt did not know which medications the child was taking. Dr F also had difficulty believing the child as to her medication compliance at the father’s home. Dr F thus formed the view that the child was probably not properly taking her medicine in the father’s home either.
Overall however, I conclude that the history of compliance in respect of the administration of prescribed medication to the child is superior in the father’s household.

The child’s physical activity

In respect of physical activity, the mother engaged the child in an exercise program at KK Sanitarium. She has also in the past taken the child to the gym for personal training, as well as swimming. The mother has provided the child with a scooter to ride in the afternoons and intends to enrol the child in Oztag. She also asserts that she and the child often take the family dog for walks and the child uses the treadmill at home.
The father has regularly taken the child to swimming lessons and has encouraged the child to use the trampoline in his yard. The child has also been engaged in the MEND program at Suburb QQ.
The mother indicated in oral evidence that her future plan to control the child’s weight would be to get her back to the gym. However, in her affidavit, the mother says that the child stopped enjoying the gym and personal training so she had commenced other activities such as riding her scooter and dancing. I accept the submission that if the child does not want to do something then there is little chance it is going to happen in the mother’s household.

The child’s education

In 2010 the school counsellor had concerns about the child’s learning. As a result the mother took the child to the O Institute (as discussed above).
On 21 March 2012 the mother had an argument with another mother at the child’s school. As a result of this incident the mother received a letter from the principal advising the mother to reduce the likelihood of interaction with the other mother. In that letter the principal also informed the mother that her issues were taking up a considerable amount of his time and he advised her to address future issues by email rather than telephone (Exhibit 25).
The mother said there was an error in Dr F’s first report saying that the mother had failed to facilitate the completion of the PP Literacy program but that it was not in dispute that the child had in fact attended and completed that program. The principal of the child’s school did not indicate otherwise to the family consultant.
The child’s 2014 school reports indicate that she is still “progressing” in mathematics and English. Her teacher records that she “finds it challenging when applying her knowledge and skills to new situations”. The child consistently accepts responsibility for her own behaviour and demonstrates self-control. She also consistently follows instructions but only usually listens attentively and sometimes asks for help when needed. This is however an improvement from her 2013 report.
In a questionnaire filled out by the child’s year 6 teacher in 2014, it was recorded that the child performs far below grade level in mathematics and somewhat below the grade level in English. It was also recorded that the child is working somewhat less hard compared to typical pupils of the same age and learning somewhat less compared to typical pupils of the same age. The teacher reported that the child is “above average” in respect of happiness and how appropriately she is behaving compared to typical pupils.
The teacher reported that the child finds it hard to concentrate on tasks, but in a passive way.

Also, it is stated that the child loves helping other students, especially in the younger grades and is organised with her belongings.
In another questionnaire, the teacher recorded that the child sometimes cannot concentrate and cannot pay attention for too long. She also sometimes daydreams and gets lost in her thoughts. Further, she sometimes feels she has to be perfect. The teacher recorded that it is very true that the child has poor school work and is underachieving.
I acknowledge that it is probable that there has been some important effect on the child’s intellectual functioning particularly relating to her attentiveness in class that is in turn related to her history of previously severe and now currently mild sleep apnoea.
The father has indicated that he would intend to obtain some tutoring for the child. He has the capacity to do that.
There have also historically been issues of punctuality and attendance in relation to schooling whilst the child has been in her mother’s care.
During Ms J’s murder trial in 2010 (11 day trial) the mother agreed she kept the child home from school for much of that time (although she did not agree to the whole time) because the child was upset or distressed.
In August 2010 the child was either sick or late on 18 occasions. The mother said in oral evidence that at this time the child had chest infections. The mother also admitted that she was more “lax” in her approach to getting the child to school on time during this period. She said she did not force the child to hurry and would let her stop along the way to school. She also admitted that getting the child to school on time was not a priority.
The child was also kept home from school for about ten days (29 February 2012 until 10 March 2012) prior to the mother making the application for the AVO in 2012. The mother says she went to the school to obtain the child’s homework at that time. The school recorded this absenteeism as unjustified. The mother said she did not apply for special leave.
After this period the mother received a letter from the school principal and also from the Department of Education in relation to the child’s attendance. Despite these letters, the mother kept the child home from school from 1 to 4 May 2012, and also on 10 and 15 May 2012. The excuses made by the mother in letters written to the school in relation to the child’s school attendance were not satisfactory.
I do not accept the mother’s evidence that there was an improvement in the child’s punctuality and absenteeism in Term 1 and Term 2, 2012.
The family consultant noted correctly in her second report that the mother did not trust or respect of the child’s primary school.
However, in the last two years, during the currency of these proceedings, there has been a significant improvement in the child’s attendance and punctuality at school.
There has been one occasion since the child started high school in 2015 where she was late for school. The mother said it was because she wished to have her school uniform looking perfect. Although it is a minor example, it does illustrate the point that the mother does not have sufficient control to simply tell the child that they were then leaving for school even though her uniform was not perfect.
At [65] of the second report, the family consultant records a conversation with the child’s primary school principal in which he assessed the paternal aunt as more reliable than the mother and more easily accessible.

The mother’s mental health issues

Dr L has provided an opinion in relation to the mother’s mental health in his report dated 24 April 2014. He says that the mother displays concurrent mental health issues which include features consistent with a personality disorder, a probable chronic low grade depression or dysthymia, and Post Traumatic Stress Disorder. In his addendum dated 19 February 2015 Dr L has not changed his opinion. He states that the mother has suffered “enormous adversity in her life”. Dr L opines that in order for the mother to cope with her life and provide for herself she has needed to resort to using life threatening drugs such as heroin and needed to support herself through the sex industry which, in his view, is highly volatile and dangerous.
Dr L suggests that the mother would be able to parent her child and it is possible that her personality has improved. He notes however that persons which personality disorders normally resort at times of stress to previous coping strategies that have not been helpful or affective. He notes that parenting this child requires enormous emotional resources in order to cope. Dr L also opined that the mother has displayed features of resilience, is of normal to above average intelligence and is very dedicated to her child.
Ms V, a clinical psychologist, has provided both the mother and the child with counselling. In her report dated 8 January 2015, she opined that the mother does not have a personality disorder. During the testing undertaken by Ms V, the mother indicated she was experiencing a discomforting level of anxiety and tension. The mother’s attitudes about herself varied from states of pessimism and self-doubt to periods of relative self-confidence and self-satisfaction.
Ms V notes in her report that the mother suffered from post-traumatic stress after the loss of her partner. She notes that she has not seen symptoms of impulsivity, affective instability, inappropriate angry outbursts, irresponsibility, lack of self-awareness of the inability to form stable awareness, in the mother. She also records that after observation of interaction between the mother and the child, the mother is a very effective parent and appears to be caring, compassionate and motivated to assist the child.
In oral evidence, Dr L acknowledged the improvement in the mother’s personality in recent times and particularly her improvement during the course of these proceedings.
It has to be acknowledged that the mother has had a high motivation to be attentive to her parenting during the course of these proceedings, but to her credit, she has done so. There has been a measurable and significant improvement in the child’s attendance at school in the last two years.
Dr L explained that borderline personality disorder is no longer treated in the DSM V in the same way as it was in the DSM IV. He stated in oral evidence that it is recognised that with appropriate treatment and intervention personality disorder can improve. Studies now show that over a substantial period of therapeutic involvement, that being over one or two years, people with personality disorder can overcome problems to enough of an extent that they no longer have a personality disorder. Dr L also explained that there is no longer an axis for personality disorder in DSM V, rather it includes personality disorder under psychiatric symptoms that can be treated.
The lawyer for the mother submitted that I should simply focus on the last couple of years of the mother’s parenting and not look back too far. Whilst the most recent period is the most important period to concentrate on, Dr L noted in his report that there are dangers and potential pitfalls that the mother could have difficulties with, as well as relapse. He further states in the addendum to his report that the mother still has an enormous struggle in being able to manage and her ability to cope under stress and pressure in the past has caused her to revert to heroin use and the sex industry.
I find that the mother still has significant personality vulnerabilities and those vulnerabilities represent a risk to the mother’s parenting capacity in the future.

The mother’s drug use

The mother has a history of heroin use. The mother started using heroin in 1998/1999. She initially would use daily but stopped using in August 2002 when she knew she was pregnant. The mother again commenced using when the child was about 18 months old.
In 2006 the mother commenced a methadone program with Ms J.
Until the child was five years old the mother would take her to the hospital to get her daily methadone dose.
In 2008 the mother ceased the methadone program but without fully completing the program. When Ms J died the mother recommenced the methadone program.
In 2010 the mother started a reduction scheme in which she received suboxone. The mother stopped taking suboxone at Christmas 2012. She was on suboxone film until August 2013.
The mother finished the program on 29 August 2013. She says she is now clean and I accept that is currently the case. She has however had relapses of heroin use since Ms J’s death.
The mother has also used marijuana and ecstasy in the past.
The mother says she is now aware how drug use can impact on parenting capacity. She says she tried to shield the child from her drug use, and ensured the child did not see her take drugs or see the effect of her being under the influence.

The father’s involvement with the use of drugs

The mother contends that the father has used marijuana regularly since she has known him. She asserts the father told her he had been smoking since he was 16 years old.
The mother also asserts that in 2010 the child returned home from spending time with the father and said to the mother “Daddy took me to Aunty [RR’s] house. I saw green and brown herbs sitting on the stove. I could smell ‘ciggirettes’”.
In her affidavit the mother says there were many occasions in the past when the father disappeared for weeks or months at a time. In 2006 she says the father did not return for six weeks and was unable to be contacted. He missed the child’s birthday. When the mother asked him to have a phone, she asserts he said to her “I can’t have a fucking phone. My house got raided by Customs and the Federal Police. They took my dad’s fucking money out of the roof. People are listening and watching. I can’t have a fucking phone”.
The mother says that there is an Australian Federal Police intelligence report which names the father as part of a scheme to import Drugs into Australia. In 2004 he was the subject to a criminal investigation in relation to a drug importation ring. The father’s oral evidence is that the police asked him questions about whether or not he knew particular people whom he had never heard of. Given the length of time that has passed since the father was questioned by the police in 2004, it is unlikely that the police hold any information which could lead to charges being brought against the father.
The father gave inconsistent evidence about his personal use of drugs.
At [146] of his affidavit filed 31 October 2013 the father says that he stopped smoking marijuana on a regular basis about 15 years ago. He goes on to say that he has since used marijuana occasionally (less than five times a year since then). At his first interview with the family consultant (noted in the report dated 28 May 2013) the father told the family consultant that he had last used cannabis 15 years ago. In oral evidence the father said that his affidavit may have been incorrect. He said he had not smoked marijuana for a long time, but he did not know how many years. He said definitely not in 2013 or 2014. He indicated that when he said he was smoking marijuana less than five times a year, that was about ten years ago.
The objective evidence contained in the COPS entries is as follows:
197.1.On 15 May 2008 the police were patrolling Suburb SS and noticed that the rear taillights of the car the father was in, were defective, The father told police he was in the area to buy fried rice. The police “upon looking inside the vehicle could see a water bottle on the rear seat with two holes burnt in the side which is consistent with a ‘bong’ which is used for smoking marijuana”. The vehicle was searched but no drugs were found (Exhibit 13).
197.2.On 27 November 2010 police were conducting mobile patrols at Suburb TT. The police observed the father to be travelling at a fast speed. Checks were conducted indicating warnings relating to drug secretion and several intel relating to drug supply/use. The father was occupying the driver’s seat of the car and as “he wound down the window a strong scent of cannabis came from the VOI”. The father told police the smell must have been someone walking past. The police conducted checks on the father “which indicated an extensive history relating to drugs and recent intel to drugs”. No drugs were found in the car or on the father (Exhibit 14).
197.3.On 13 April 2009 the father and a friend were sitting in a car parked in a car park at the UU Park. It was about 1.10am on a Monday. A strong smell of cannabis emanated from the vehicle and a “bong containing water and remnants of cannabis were secreted” in the car and remnants of cannabis were located on the floor of the vehicle. When police questioned the father and his friend they admitted to sharing a bong between them. The police recorded that both the father and his friend “have extensive histories for drug possession and use and have a history of parking in different locations to engage in smoking cannabis.”

The father’s criminal history

I have no doubt that I do not know the full story about the father’s involvement with drugs. The father’s entire criminal record was not tendered in evidence. When I inquired, it was indicated that there was a record but it had no relevant entries upon it. I take it therefore that notwithstanding what is in the COPS entries or any “intel” reports that may exist (which are not in evidence), the father has not been charged with any offence relating to drugs.
One piece of concerning objective evidence is set out at Exhibit 12 in a COPS entry which states that the father was in VV Street, Suburb SS, an “area well known to police for drug, robbery and prostitution offences” at 10.45pm on 2 March 2011 (a school night). The police stopped the father’s vehicle stating they knew the father was possibly involved in the supply of prohibited drugs. The father told police “he was dropping a prostitute off to work on [WW Street]”. The police formed the opinion the father may have had drugs in his car, but there was none found. The police note that the child was asleep in the front seat of the vehicle. In oral evidence the father remembered the event and said he did not think it was that late. He said he did not remember telling police he was dropping a prostitute off at work. He later said he was dropping a friend to work at Suburb XX. I do not know why the father was there but he probably has not told me the truth about that night.

Family violence

The mother submits that she has been subject to controlling and coercive violence and primarily in the form of frequent verbal abuse.
The mother applied for the second AVO in February 2012. In her application she stated that she held fears due to the father’s stalking behaviours and abusive behaviour and was worried what he might do. She stated she was concerned about the psychological effect this might have on the child. The incident referred to in the application is one of stalking (the father was sitting in his vehicle outside the mother’s house). The police held concerns the father was telling child inappropriate things about the mother that she would not understand at her age. The surprising thing about the timing of that AVO was it was after an eight week period where the mother had asked the applicants to care for the child following the death of her partner Mr Q. I infer the mother was not particularly fearful for the child’s safety in the period where she left the child with the applicants for eight weeks.
Family violence is defined in s 4AB Family Law Act 1975 (Cth) (“the Act”) as meaning “violent, threatening or other behaviour by a person that coerces or controls a member of a person’s family (the family member), or causes the family member to be fearful”. Subsection 4AB(2) sets out the following examples of behaviour that may constitute family violence as including:
(a) an assault; or
....
(c) stalking; or
(d) repeated derogatory taunts;
....

Assault

On one occasion in 2008 the mother asserts she and the father were in a heated argument and the father grabbed her wrist and back of her neck. The mother does not allege that the father struck her or that his holding of her caused her any injury. In oral evidence counsel for the father asked the mother why she did not report this incident to police. The mother said she did not go to the police about any of the acts of physical violence. Counsel for the father put to the mother that there were no other acts of physical violence because the mother had not included them in her affidavit. The mother disagreed and indicated her lawyers asked her to only set out a few incidents. It is unlikely the mother would not have included other details about other incidents of physical family violence in her written evidence had such other incidents taken place. The mother did not tender the AVO summons. The mother did not assert that she raised the 2008 incident in the 2012 AVO proceedings. I do not accept the mother’s evidence that there was physical family violence. I am unable to find that the father has perpetrated an assault on the mother.
The mother told the family consultant (at [23] of the family report dated 22 January 2014) she was fearful of what the father might do to her if he found out through parentage testing that he was not the father. The mother admitted that the father had not done anything after he had found out about the results of the parenting testing to cause her to have any basis for fear for her own safety.
The mother alleges that the paternal aunt has used inappropriate discipline on the child involving a push from the paternal aunt and the removal of a toy. I am unable on the evidence to find that the father or paternal aunt have been violent towards the child.

Stalking

In her affidavit the mother also sets out several occasions when the father would show up at places she was and ask her to be together. She also says the father would constantly check up on her and sit outside her house.
As set out above, in 2012 the mother reported the father’s behaviour to the police and an interim AVO was taken out protecting the mother and the child from the father. At one of the court dates in respect of the AVO, a duty barrister at the court drafted a parenting agreement between the father and mother which the parents both signed. The AVO was ultimately dismissed.
I am unable to find that the father stalked the mother.

Repeated derogatory taunts

The mother complained to the family consultant (at [27] of the family report dated 28 May 2013) that the father was verbally abusive towards her in the child’s presence and in public places.
The mother alleges she has experienced sustained verbal abuse, threats and intimidation from the father. The mother says that before the child was born, the father was not violent or abusive towards her. When she moved out of the father’s home he became verbally abusive and threatened her on a regular basis. This occurred until mid-2012 when the parties stopped seeing or speaking to one another.
The mother says the father would verbally abuse her by saying things such as “You’re a fat cunt”, “What man would want you?”, “You’re a cock sucker” and “You’re a whore”. She asserts the father would say this regularly in front of the child or to strangers or parents at the child’s school. The mother asserts the father has said to the child things such as “Don’t kiss your mother, she’s a cock sucker” and “You’re (sic) mothers (sic) a whore”. The father admitted in oral evidence that he had called the mother a “cock sucker” and that he may have called her a “whore” and “prostitute”. He was not asked about the context in which this happened. This contradicts his affidavit evidence where he says “I have not called the Respondent any derogatory names or used expletives to describe her”. I accept the father’s oral evidence.
In oral evidence the father also said that it made him “frustrated”, “angry” and “crazy” that the mother and Ms J would kiss the child on her lips. His evidence indicated he had a problem with the mother kissing the child on her lips due to the nature of her work (as a sex worker). In his first interview with the family consultant the father told the family consultant that the mother and Ms J used to kiss the child on the lips and “that this concerned him because they had cold sores”.

The family consultant opined that for either party to believe the child is happy and stable is mistaken.
Counsel for the father submits that given the severity of the child’s health and education issues, precedence should be given to the arrangement that address those issues even if different from any view expressed by her.
There is a disconnect in the child’s views. The mother accepts that the child has a good relationship with both her father and paternal aunt. That is consistent with the family consultant’s observations of the interaction between the child and the father and paternal aunt. I find that the child is very mindful of the mother’s vulnerabilities and is protective of the mother. She is sufficiently emotionally connected with the mother to pick up on her mother’s emotional apprehension arising from the possibility that the child will not ordinarily live with her. This has led the child to express a strong view that she wants to stay with her mother and to exaggerate complaints in relation to her father and paternal aunt.
The emotional connection between the child and her mother is evidenced by her comment to the family consultant that she does not want “another Mum because I have the best Mum”.
There is a risk in this case that an order moving the child against her wishes will lead to her being angry and that that will have a negative impact on her medical issues, particularly if she becomes depressed or anxious. It is a risk that I need to weigh in this case.
I am also mindful of the fact that if the expert advice is followed, there will be another major psychological challenge for the child when she is informed about her parentage, possibly within six months.

Relationships of the children with the parents and other persons (s 60CC(3)(b))

In relation to the child’s relationship with her father it was observed in the first family report (28 May 2013) that the child was jovial and enthusiastic as she actively engaged in activities and banter with her father. The child was also excited about the prospect of spending time alone with her paternal aunt.
The family consultant has also observed the relationship between the child and the mother as cheerful and jovial.
The child told the family consultant she wanted the father’s fiancé Ms E to come to Sydney so she could meet her. She described her as “nice”.
The father asserts that the child is also is very close to the paternal grandfather and all paternal cousins.
The child has a close relationship with Mr K and his daughters.
I accept the paternal aunt’s evidence that although she does not have positive attitudes towards the mother, she would never stop the child seeing her mother nor do anything overtly to disrupt the relationship between the child and the mother. I accept that the paternal aunt and father both understand that the child needs time with her mother. There is no evidence of any past behaviour that would indicate that it is unlikely that the father and the paternal aunt will facilitate a relationship between the child and her mother.

Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the child (s 60CC(3)(c))

As has already been explained, the mother on the one hand, and the father and the paternal aunt on the other, have not been able to successfully manage between them significant decisions relating to the child’s major long term issues. Apart for the period at the beginning of 2012, there has been no issue between the parties as to making arrangements for the child to spend time with the other or to otherwise comply with orders for the child to spend time with the other.

Extent to which each parent has fulfilled their obligation to maintain the child (s 60CC(3)(ca))

So far as I am aware, there is no arrangement as between the parties in relation to the payment of child support. It has been the arrangement for some time that the mother has paid for the child’s needs during the school week and the father has paid for the child’s needs on weekends.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

The child has spent block periods with both the father and the paternal aunt and also the mother. For the last two years however, the child has lived predominantly with her mother.
The mother submits that the child would experience loss psychologically if separated from her. The mother also submits that that loss will be greater when the child is made aware that the father is not her biological father.
The family consultant gave oral evidence that although she had not focused in her reports on the emotional effects on the child of change of where she lived, she was mindful of that when making her recommendations.
The child will be emotionally affected by the change. That is one of the risks I have to weigh. It is possible she will have such a negative reaction that the hopes that there might be more controls and boundaries if placed in the father’s household will not be realised. There is no evidence that the child is yet an overtly rebellious child. The family consultant’s opinion is that if she moves to primarily live with her father and paternal aunt, she will settle in a 12 month period.
I acknowledge that the child’s needs for individuation in the next few years needs to be carefully managed as it is likely to clash with attempts to impose limits that attend to the child’s medical and educational needs. I acknowledge that there is a risk in the next few years that the child will rebel against attempts to place limits on her behaviour generally.
Dr F’s evidence is that it may be already too late for an improvement in the child’s medical and education needs, now that she has reached puberty, and the ability to effect significant weight loss will be difficult.
The child has spent significant periods of time, including block periods of time, with her father and paternal aunt. It is not the circumstance that the change proposed will be a completely new experience, but having said that I do not underestimate that this will be an important change for the child.
The child has at least one good friend who lives nearby to the father’s home who goes to the high school that the child will be enrolled in if she moves to be with her father. She consequently will not be totally isolated at the new school on day one. The family consultant says that if a change of high school is to be made, it should be made sooner rather than later, given that she has only just commenced at the high school from which she will be moved.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

The father and paternal aunt live in Suburb C. The mother resides in Suburb AB. There is not a great distance for the parties to travel for changeover (either at Suburb C before or after school or Suburb D on other occasions).

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f))

I have discussed at length the profound difficulties with the child’s health and difficulties with her educational progression.
It is the case of the paternal aunt and the father that the mother has been primarily responsible for the deficiencies in the management of these essential needs for the child. The mother in her case however, points to failings on behalf of the father and the paternal aunt in their management of the child’s health needs in particular. She also points to her improved performance during the currency of these court proceedings in relation to the management of both the child’s health and educational needs.
In the end I conclude that Dr F was correct in making an assessment that the paternal aunt is best placed to implement a coherent regime of health management for the child and would be competently able in conjunction with the father to manage the child’s educational needs.
I reach that conclusion mindful of the fact that it may well be that the mother has a better capacity to provide for the child’s emotional needs. She does so however, to some degree, by allowing the child to manage her own health and educational needs. I have already indicated that I am aware of the risk that at the child’s age, her emotional management may be a difficulty for the paternal aunt in implementing any management strategy for her health and educational needs. As Dr F indicated, this all should have been properly attended to four years ago.
Dr L said that the mother has suffered a number of traumatic events in the past. He also said that unfortunately it was a usual tendency for people who suffered multiple traumatic events in the past to be more at risk of suffering traumatic events in the future.
Dr L indicated that the mother needed to now extend herself and develop a vocation and become productive and that it would be good for the child to see her doing that. The mother expressed interest in learning something about being a florist and aged care worker.
The three year relationship between Mr K and the mother has been reasonably stable but they have different views as to the future of the relationship. Mr K hopes to move in with the mother. If he did so, the mother would lose her Government assisted accommodation. There is no ability for Mr K to finance rental in the area where the mother lives. His support network is in the Suburb R region and he would like to move there. In contrast, the mother seemed to be happy with the way things were. If she moved in with Mr K but they could not afford to be where she was, she would prefer to move somewhere like Suburb Z. The future of their living together is reasonably problematic at the current time.
Mr K’s daughters X and Y commenced to live with the mother in about May or June 2013. Y has since moved out. There was some conflict between the girls. It is reasonable to assume that their presence in the household has had some impact upon the child, although it was not the focus of any consideration at the hearing.
The child has been taken out of school for block periods and the mother has failed to ensure the child’s punctuality at school.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

The mother believes that the child should attend counselling to assist her with issues including puberty, high school, friendships, family stability, the loss of Ms J, and self-worth.
The mother is a former heroin user. She commenced a methadone program in 2006 but has relapsed on occasions since then.
The mother is a former sex worker.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))

The mother expressed to the family consultant that she wishes the father would listen to the child more. She believes the father is not an emotional person. She expressed a desire that the father have a “better bond” and understanding of the child so that she does not have to “modify her behaviour” around him.
Counsel for the father submits that the mother has demonstrated a lack of insight into the responsibilities of parenthood.
There have been some occasions in the past where the child has been at risk in her mother’s care. The most dramatic of those occasions was when the mother left the child in a unit while she went out for pizza in circumstances where two people in the unit were intoxicated. Whilst the mother was out the child witnessed a vicious assault.
As discussed above, there was a further incident involving two of the same people, one of whom was threatening self-harm and who set fire to the mother’s wardrobe in the mother’s home. This occurred when those people were residing with the mother and the child.
There have been issues with the child being on Facebook. The child set herself up a Facebook account in July 2012. The mother says she was not aware of the account and did not give permission until she became aware in 2013 (some six months later). The mother says she initially allowed and monitored the child’s use of Facebook but has since deactivated the account about three times in 2013 and twice in 2014. The father’s solicitor wrote to the mother’s solicitor on 11 June 2014 raising the issue of the child having a Facebook account. The father and paternal aunt have concerns that in photos on Facebook the child appeared more adult like. The mother said that posting “selfies” and wearing nail polish did not make her look adult like. In oral evidence the mother said that the child was using Mr K’s 15 year old daughter X’s phone or iPod to use Facebook and that her friends had encouraged her to reactivate her account on several occasions.
In the most recent interviews with the family consultant, the child told the family consultant she cannot talk to her father because her father will not let her have access to social media (Snapchat, Instagram or Facebook). She said this upsets her as she cannot communicate with her friends. The child told the family consultant her mother lets her have those programmes but the father does not.
The mother has chosen to keep details of the way Ms J died from the child whilst at the same time in a way the mother could not explain, putting the victim impact statement into the child’s school bag in June 2010. Whilst the mother acknowledged inappropriateness of having done so, she made light of it by saying the child would not have understand what it said if she had read it.
Part of the mother’s case is that the family consultant, who recommends change, had not focused upon the child’s emotional needs until being asked about it during cross examination.
Following Ms J’s death, the mother did receive approval for counselling in 2008 for four sessions but there is no evidence about that counselling, if it took place. She asked about counselling again in February 2010 but did not do anything about undertaking counselling until September 2012, one month after these proceedings had commenced and four years after Ms J had died.
The child consulted with Ms V for about one year and has now engaged counselling with Ms G.
The mother is probably more emotionally capable of supporting the relationship between the father, the paternal aunt and the child when that is compared with the ability of the paternal aunt and the father to support the relationship between the mother and the child.
The child would have some sense of the attitudes of the father and paternal aunt towards the mother.
I accept the paternal aunt’s evidence that she does not say anything negative about the mother to the child. At this point in time however the paternal aunt cannot bring herself to say anything positive about the mother to the child. The child is in a difficult situation.
The paternal aunt and father have good reason not to trust the mother, but it does reflect upon them poorly that they are not able to identify that there was anything good about her parenting capacity.
I accept it is likely that the paternal aunt and father will take a legalistic approach to the orders and do what they are required to do. This will not initially extend to them being able to give positive messages to the child about the mother. The mother had sought in her proposed orders that the father enrol in and complete the first available post separation parenting course. In final submissions the mother’s lawyer appeared to extend this order to also apply to the paternal aunt.
Dr F refers in her first report to a poor judgment call by the mother where she did not allow the child to go to her 10^th birthday party which had been organised by the father with 47 persons attending, mostly from the child’s school. The party went ahead without her. The child subsequently watched the video of her own party. The mother’s decision undoubtedly caused the child considerable embarrassment.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

The discussion and conclusions in respect of family violence are set out above.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

It might be argued that leaving the child where she is would lead to there being less likelihood of further proceedings than if an order is made changing where she lives. Given the issues in this case however, this consideration is of little weight.

Any other relevant fact or circumstance (s 60CC(3)(m))

The father is engaged to Ms E who he met in 2009 in Country BC. Ms E lives in Country CD. The father has plans to apply for a visa to bring Ms E to Australia.
The child has her own room in her mother’s household. She shares a room with her paternal aunt in the father’s household. The father and the paternal aunt have agreed, having heard the family consultant’s strong recommendation, that the child be given her own room. It is unclear as to logistically exactly how that will happen but I find that the adults in the father’s household would have the capacity to achieve that.

PARENTAL RESPONSIBILITY

The mother has difficulty communicating with the father’s family. She said the father refers to her as a “thing” and gives her “revolting looks”. She expressed to the family consultant that the parties should all talk openly and she has wanted to talk to them “forever”. She also expressed that she has forgiven the father and wants to “move forward” “for the three of us” to focus on raising the child.
The father told the family consultant he does not talk to the mother as she has “lied since the day I met her, she’s lied about everything”.
The paternal aunt has become distant from the mother.
The family consultant opined that the issues raised in previous interviews remain salient, and there is still intractable hostility between the families that is not going to abate. The family consultant stated that the hostility has increased due to the parentage issues which has led to a complete breakdown in the parental relationship and an absolute lack of trust by the paternal family in the mother.
The family consultant opines that now that the paternal aunt has joined the proceedings, it would be appropriate that the father and the paternal aunt be granted parental responsibility for the child, so that she can also make decisions about the child.
Counsel for the applicants submits that the high levels of conflict between the applicants and the mother means that there has been great difficulty in effectively managing the child’s health and medical needs. It is submitted that those needs will only be effectively managed if the applicants have sole parental responsibility.
Initially Dr F and the child’s school principal promoted the idea that the mother was principally responsible for the chaotic management of the child’s medical treatment. The mother says an analysis of the evidence indicates that that notion is misconceived. As detailed above, the claim that the mother has failed to manage the child’s medical and education needs has substance, although in recent times, the father and the paternal aunt have also failed in their responsibility to properly attend to the child’s medical needs.
Overall I find an order for parental responsibility (although not equal responsibility) in favour of the applicants, would be in the child’s best interests and increase the influence of the father and particularly the paternal aunt in the management of the child’s medical and educational needs. The mother fears that the negative attitudes that the paternal aunt and father have towards her will then impact upon the child’s currently strong relationship with the mother. Whilst I acknowledge that that is a potential risk, it is one to be weighed with all other risks in this case. There is perhaps equally a risk the other way that if the mother has sole parental responsibility and the child has less time with the father and paternal aunt, that their relationship will be affected, particularly in circumstances where the child finds out that the father is not her biological father.

The mother has sought an order for sole parental responsibility in relation to emotional issues. That is an unusual order to seek. It is not within the genre of major long term issues identified in s 4 of the Act. What the mother means by that application is that she should have sole final decision making in relation to the child’s psychological counselling. The mother points to the fact that as a part of the victims compensation process and additional to it the mother has ensured that the child attend eight sessions with Ms V and has been proactive in establishing a new therapeutic relationship for the child with Ms G which all parties agree is to be a continuing relationship.
The mother submits that the father and the paternal aunt are not enthusiastic about counselling and managing the child’s counselling is more than just picking up and dropping off the child from the counsellor but also engaging with the counsellor.
I agree that in order for it to be effective, the person or persons with whom a child ordinarily lives needs to be available to the counsellor so that the therapist can interact with that parent as that therapist sees fit.
The bigger picture however is the child’s holistic management. Dr F has agreed to overview that management. The parent who is given the overall decision making in relation to Dr F’s recommendations (and there will be an order that unless there is agreement of all parents or further court order that parent implement Dr F’s recommendations expeditiously and without the option of “getting a second opinion”), then it is important to not dislocate counselling from that holistic approach. I am unable to find that it would be in the child’s best interests to split up parental responsibility in the way suggested by the mother.
Although the father applied for sole parental responsibility in relation to education and medical decisions, he conceded that he would have no objection if an order for sole parental responsibility was made in favour of the paternal aunt.
Dr F described the paternal aunt as the driving force in terms of implementing recommendations and when asked Dr F, having considered it for a short time, indicated that if she had to pick one of the three adults to have parental responsibility for major decisions in respect of the child’s medical needs, she would pick the paternal aunt.
There is some evidence that the child is prone to being bullied. The use of social media (Facebook, Snapchat, Instagram) by the child will be an issue that the father and paternal aunt will need to contend with and they should seek the advice of the child’s psychologist about how to set and enforce appropriate boundaries.
The family consultant opines that the child must be told about the parentage results as she has a right to know and it is unfair for the family to be living a lie. The family consultant opined that the issue is “when” and not “if” the child should find out, as it is unrealistic to believe that the child will not inadvertently find out from either parent.
The family consultant is of the view that it is in the child’s best interest that the parentage results be disclosed to her in the context of a controlled therapeutic environment, rather than leaving the parties to handle this independently. She also opines this would be best done once the dispute in Court is finalised and the child is settled into the arrangements put in place for her following the court hearing.
It is recommended by the family consultant that the child be told approximately six months from the time the child starts living under the arrangements to be established by court orders.
Ms I was requested to make comment on whether the child should be told about her parentage, and if so, the timing of when she is told. Ms I had consultations with the parties and read the family reports and the report of Dr L.
Ms I opined that disclosing the child’s parentage will be traumatic either way. Ms I recommends that the child access independent psychological intervention with a qualified clinician in order to offer the child the space to process adjustment difficulties, transition into secondary school and health issues. Once that relationship is formed, the child should be allowed to process issues relating to parentage with the therapist’s support.
Ms I notes in her report that research indicates that children are usually told about their parentage between 11 to 13 years of age. She notes that the child is currently transitioning into early adolescence and high school and going through puberty. Ms I opines that informing the child at present would create further loss to the child and destabilise her psychologically. She recommends that the child be told when the Court proceedings are finalised. She also recommends that the child be advised by her father and the child then have access to her mother immediately afterwards in order to offer her the emotional space to ask her mother questions. The child should also have a session with her psychologist the same day or within one day to begin processing the information.
It is recommended by Ms I that the court consider making orders for the parents not to disclose the child’s parentage to her without the professional advice of the child’s treating psychologist and once her mental health and circumstances are stabilised.
The paternal aunt and father argue that the only other people who know that the father is not the child’s biological parent are the mother and Mr K. They submit that there is minimal chance of there being a leak of the information if a decision is made by the court that the child not be told until she is an adult. I cannot be confident that that is so. The information could come to the child either deliberately or inadvertently in a number of easily foreseeable circumstances. Accidental disclosure is not a risk that should be taken.
Dr L explained that giving information to the child about her parentage will be an evolutionary process and best done with the assistance of the child’s current psychologist. I do not accept the father and paternal aunt’s concern that it will lead to the child asking questions more generally about the mother’s past. That does not need to be the outcome nor the response to any general question that the child has asked at her current age. It is important that all parties meet with the child’s therapist prior to the father telling the child the news in circumstances where she after has access to her mother and to the counsellor. The parties should meet with the counsellor first so they are all on the same page in relation to questions that could be anticipated and how answers should be formulated.
Dr L expressed the view during cross examination that the child does not need to be told straight away anything about who the biological father may or may not be.
As indicated, Dr F says it might already be too late to save the child from her chronic problems. The breakdown of any effective ability of the parents to work together has meant that Dr F’s recommendations have significantly been ignored. She has had difficulty managing the conflict between the parents. She has however reluctantly agreed to be responsible for the overview of the child’s treatment plan.
I conclude that it is in the child’s best interests to make an order that the father and the paternal aunt have shared parental responsibility for the child except for decisions in relation to health, medical matters and counselling. The paternal aunt will be put in charge of decision making in relation to matters relating to the child’s health, however she is to conscientiously follow the recommendations of Dr F and any doctor to whom Dr F refers the paternal aunt. The paternal aunt is required to regularly consult with Dr F and do all things and sign all necessary documents to implement referrals and recommendations made by Dr F. The paternal aunt is to fill all scripts provided by Dr F for the child and provide a sufficient quantity of those medications to the mother to satisfy the child’s needs when the child is with the mother. Each party shall use their best endeavours to ensure that the child takes or uses all medications prescribed for her. Each party is to follow the recommendations of Dr F in relation to the child’s diet and exercise program. The child shall continue to attend upon her counsellor, Ms G, for the purposes of confidential individual therapy for such a time and for such frequency as is recommended by Ms G and in the event that Ms G is no longer able to provide that therapy, the child shall attend upon an alternate therapist as recommended by Ms G. The Independent Children's Lawyer is to be at liberty to provide copies of court orders and this judgment to Dr F and Ms G, and at the Independent Children's Lawyer’s discretion, to the child’s teachers or any other treating medical practitioners. The father should be at liberty to apply for and hold a passport for the child and the only person with parental responsibility for the purpose.
I am mindful of the overall level of difficulty of communication between the parties and occasions already referred to in these reasons where difficulties have occurred in consulting rooms or a hospital. The paternal aunt is to decide whether, in relation to any particular medical appointment, the mother may attend and the paternal aunt is to inform the mother of that decision in a timely manner. The paternal aunt is however to keep the mother fully informed as to what appointments are booked and in the event of a last minute or short notice appointment, she shall inform the mother by telephone or text message as soon as is practicable. Orders will be made also for the paternal aunt, as soon as is practicable, to report to the mother and father in relation to advice and recommendations provided by medical practitioners, results of medical tests, providing copies of medical reports and details of recommended medication.
I intend to make orders consistent with the recommendations of the experts in respect of the child being informed about her paternity.
There is no issue about the surname by which the child is to be known.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

The order to be made in this case is that the paternal aunt have sole parental responsibility in relation to matters in respect of the child’s health, that the father have sole parental responsibility in relation to the child’s passport and that the father and the paternal aunt otherwise have shared parental responsibility for decisions about other major long term issues in respect of the child.
Accordingly, there is no statutory requirement to consider s 65DAA of the Act.

CONCLUSION ABOUT BEST INTERESTS

In her report dated 24 April 2014, the child’s paediatrician, Dr F, opines that the child should live predominantly with the father to enable compliance with medical, exercise and learning needs. Dr F says that the father has demonstrated an ability to meet those needs. She also recommends that the child have regular short day time contact with the mother and overnight time be limited to alternate weekends with requirements that the mother comply with all medical treatment.
The family consultant observed the child to express confusing views in respect of her father. She reports that the child’s conflicting views are likely expressed in the context of wanting ongoing litigation to be over. Also, the father and the paternal aunt have been the carers who have implemented boundaries and limits that the child does not like. The family consultant records that this is also likely true of the child’s harsh view of Dr F who is imposing harsh treatment recommendations on her.
The family consultant is of the view that the child be connected with a psychologist who she can develop a close relationship with and be able to discuss ongoing difficulties in relation to family circumstances.
The family consultant expressed that the father needs to address issues including attending to his hygiene, being able to accommodate the child in her own room rather than sharing a room with the paternal aunt, and delaying bringing his fiancé to Australia until the child is settled in her future care arrangements.
The family consultant opines that the child live in the primary care of the party who has demonstrated the ability to more effectively attend to her medical needs, apply and maintain limits for the child and remain firm with the child as she enters adolescence. I have found that to be in the father’s household. The family consultant was of the same opinion. The family consultant thus recommends the child live with the father and spend time with the mother each alternate weekend from after school on Friday to Sunday evening.
I am realistic enough to understand that the orders that are made may only be effective for a limited period of time. There is probably only a limited period left in which the paternal aunt and father will have the ability to insist that the child behave in certain ways (being compliant with diet, medication, exercise, schooling requirements and the like). The lawyer for the mother submitted that the child had a greater emotional connection to the mother and consequently the mother was better placed, given that the child was moving into adolescence, to encourage the child in appropriate behaviour and that she might rebel if she was not allowed to have he views implemented. Whilst there might be some basis for that submission, it is in fact the case that it is unlikely the mother would place any pressure on the child to persuade her to do something that was objectively in her interests but which the child was resisting doing.
I find that it is in the child’s best interests for the child to live with the father and the paternal aunt forthwith. The arrangements for alternate week about time will remain in place for twelve months to enable a period for the child to settle into the new arrangements. The child’s time with the mother shall be slightly extended after twelve months.
If the child is to move high schools, then the mother proposes that it happen at the beginning of 2016. The Independent Children's Lawyer proposes that it happen at the commencement of second term 2015 and the paternal aunt and father proposed that it happen as soon as possible. The child be enrolled at and attend Suburb C High School as soon as is practicable.
I am of the view that the change should happen straight away given that the longer things remain unchanged the less chance there is of change producing a positive improvement for the child.

OTHER PROPOSED ORDERS

The mother made an application in respect of Easter but no submissions were made and given my other conclusions in this matter, I have confined the order that I have made to the ordinary Easter period.
The accommodation of the father and the paternal aunt is cramped. They live in their father’s three bedroom home. The paternal grandfather and the father each have their own bedrooms. The paternal aunt and the child share a bedroom (and sometime a bed). It is agreed that the child shall have her own room, although I am unable to make any finding as to how that will actually be achieved.
As discussed above, the father is engaged to a woman who currently lives in Country CD. The father agreed to an order proposed by the Independent Children’s Lawyer in relation to deferring making his fiancé a member of his household for a period of 12 months.
The family consultant predicted that although the child will experience emotional difficulties with the change, those problems should stabilise in 12 months. All parties now agree that the child should be supported by therapeutic counselling. It is the mother’s case that should there be change, the child’s emotional needs need to be recognised by making orders that would enable the child to spend substantial and significant time with the mother. I accept the view however that the paternal aunt and the father should be given the greatest chance to put the child on a new path.
The mother suggests that the father and the paternal aunt enrol in a post separation parenting course and that an order be made that they do so. Whilst voluntarily attendance of any such course would be an advantage to the paternal aunt and the father, it is not something that I intend to include in the final orders.
In the end, the question is whether the pain and risks associated with the change proposed by the father and the paternal aunt are worth the potential gains for the child, notwithstanding some stabilisation during the time taken for the preparation of this hearing. I find that it is in the child’s best interests not to give up. What has been happening in recent years has not been working for the child. Although it may turn out to be too late, there should be an attempt made to turn things around.
Given the arrangements in relation to the child being told about her paternity, I will order that an anonymised version of this judgment not be published for a period of twelve months.

I certify that the preceding three hundred and seventy (370) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 April 2015.

Associate:

Date: 2 April 2015

SCHEDULE 1

Documents relied upon

The applicants rely on the following:
1.1.Affidavit of the father filed 31 October 2013;
1.2.Affidavit of the father filed 3 February 2015;
1.3.Affidavit of the paternal aunt filed 28 September 2014;
1.4.Affidavit of the paternal aunt filed 21 January 2015.
The respondent mother relies on the following:
2.1.Affidavit of mother affirmed 22 January 2015.
2.2.Affidavit of Mr K affirmed 21 January 2015.
2.3.Affidavit of Ms YY sworn 25 October 2013.
2.4.Affidavit of Ms V sworn 22 January 2015.
The Independent Children’s Lawyer relies on the following:
3.1.Reports of the Family Consultant, Ms DE, dated 28 May 2013, 22 January 2014 and 10 February 2015.
3.2.Report of Dr F dated 24 January 2015
3.3.Report of Dr L dated 24 April 2014 and addendum dated 19 February 2015.
3.4.Affidavit of Ms V dated 22 January 2015.
3.5.Affidavit of Ms I dated 18 December 2015.

[2015] FamCA 251

2 April 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction