Lewerenz & Dwight - [2024] FedCFamC1F 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lewerenz & Dwight [2024] FedCFamC1F 111

File number(s): BRC 13681 of 2020

Judgment of: BAUMANN J

Date of judgment: 4 March 2024

Catchwords: FAMILY LAW – PARENTING – Competing applications for residence – Where the child has been spending supervised time with the father since 2020 – Where the Court does not find the child is at unacceptable risk of harm in either parent’s care – Final orders made in the best interests of the child for the child to spend unsupervised time with the father

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode (2006) FLC 93-286

Jones & Dunkel (1959) 101 CLR 298

Keane & Keane (2021) 62 Fam LR 190

Russell & Close [1993] FamCA 62

Division: Division 1 First Instance

Number of paragraphs: 112

Date of last submission/s: 28 September 2022

Date of hearing: 18 – 20 July, 1, 8 and 28 September 2022

Place: Brisbane

Counsel for the Applicant: Ms S Downes

Solicitor for the Applicant: BGM Family Lawyers

Counsel for the Respondent: Mr J Todman

Solicitor for the Respondent: Clarity Legal Group

Counsel for the Independent Children’s Lawyer: Mr W Hodges

Solicitor for the Independent Children’s Lawyer: Barbara Fox Solicitor
ORDERS

BRC 13681 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LEWERENZ

Applicant

AND:
MR DWIGHT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

4 MARCH 2024

THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders be discharged.

Parental responsibility
2.That the child, X born 2014 (“the child”) live with the mother.
3.That save for any change to the child’s surname, and relocating the child’s residence outside the Region B local government area, the mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child, subject to consulting with the father as follows:
(a)Save in the case of an emergency, the mother shall give the father written notice of her intention to make a major long term decision before that decision is made, with details of the intended decision
(b)The father shall respond in writing to the mother as to his views about the intended decision within fourteen (14) days of receiving the mother’s notice; and
(c)The mother shall advise the father in writing of the decision she has made within seven (7) days of receiving the written response from the father.

4.That each parent be responsible for the child’s day-to-day care while in their respective care.

Child’s time with the father
5.That the child spend time with and communicate with the father at all times as agreed, but failing agreement in writing as follows:
(a)Commencing on Saturday, 16 March 2024, and each Saturday from 9.00am to 12.00pm for two (2) visits; thereafter
(b)Each Saturday from 9.00am to 4.00pm for four (4) visits; thereafter
(c)Subject only to the father’s compliance with Order 9 hereof, and after a weekend when the child remains in the mother’s care, each alternate weekend from 9.00am Saturday to 4.00pm Sunday for six (6) visits; thereafter
(d)Each alternate weekend from after school Friday to 4.00pm Sunday for six (6) visits; thereafter
(e)Each alternate weekend from after school Friday to before school Tuesday; and
(f)For Christmas 2024 from 2.00pm Christmas Eve to 12 noon Christmas Day and from 2.00pm Christmas Day to 2.00pm Boxing Day in 2025, and alternating thereafter.

6.That the child shall communicate with the father by telephone and electronic communication each Tuesday and Thursday between 4.00pm and 4.30pm.
7.That commencing from the end of term three (3) 2024 being the September school holidays, the child shall spend time with the father for one (1) half of the Easter, June/July and September/October school holidays as follows:
(a)For the first half in even numbered years; and
(b)For the second half in odd numbered years;

8.That the child shall spend special occasions with the parents as follows:
(a)On a week on/week off basis during the Christmas school holidays commencing December 2024;
(b)With the father on Father’s Day from 9.00am to 5.00pm if the child is not already in the father’s care;
(c)With the mother on Mother’s Day from 9.00am to 5.00pm if the child is not already in the mother’s care;
(d)On her birthday with the father:
(i)if a school day, from after school to 7.00pm; and
(ii)if not a school day, from 9.00am to 11.00am

9.That before the child commences spending overnight time with the father under these Orders, the father shall (at least seven (7) days prior to the scheduled first overnight visit) provide to the mother by notice in writing:
(a)the address where the father will be spending time with the child overnight;
(b)details of the nature and length of tenancy/right of occupation the father has secured for that address; and
(c)confirmation that no non-family member shall be living at that address whilst the child is spending time overnight with the father.

10.That all changeovers that do not occur at school shall occur at C Contact Centre unless as otherwise agreed between the parents in writing, with the cost of changeovers to be shared by the parents equally.
11.That the parents ensure the child continues to engage with her Psychologist Mr D.
12.That both parents have leave to provide the child’s counsellor with a copy of the family reports prepared by Ms E and the Reasons for Judgment delivered 4 March 2024.

Exchange of information and parental communication
13.That the parents use the parenting App Our Family Wizard (ourfamilywizard.com.au) for all communication in relation to all parenting issues for the child.
14.That each parent pay one (1) half of the fees associated with the use of the parenting app as provided for in Order 13 hereof.
15.That within seven (7) days of this Order and in writing:
(a)the mother shall inform the father of the current residential address of the child;
(b)the mother shall inform the father of the school the child is attending;
(c)the parents shall provide to each other details of an emergency telephone number that can be a point of contact; and
(d)each parent shall keep each other advised of any changes to these particulars, including the father keeping the mother informed of any changes to his place of residence, within seven (7) days of such change.

16.That the mother shall advise the father in writing of the child’s treating general medical practitioner and save for an emergency, both parents shall utilise that practitioner for the child’s medical consultations.
17.That each parent immediately advise the other via text message in the event the child requires emergency medical treatment whilst in their care.
18.That these Orders be sufficient authority for each parent, subject always to any directions from the school authority, to:
(a)attend the child’s school for extra-curricular activities and meetings, including parent teacher meetings that parents would normally attend; and
(b)obtain copies of the child school progress reports and school photographs at their own expense.

19.That these Orders be sufficient authority for each parent to attend the child’s treating and allied health professionals, including Mr D, and obtain information regarding the child’s health and wellbeing and obtain copies of any reports or assessments at their own expense.
20.That the mother and the father have leave to provide a copy of Orders made to the school at which the child attends.
21.That the mother and the father have leave to provide the Reasons for Judgment and Order dated 4 March 2024 to any therapist upon whom the mother and the father attend for the purpose of therapy.

Restraints
22.That neither parent be affected by alcohol greater than the legal driving limit while the child is in their care, unless the child is adequately supervised by a third person who is not under the influence of alcohol.
23.That neither parent consume illicit substances or be affected by illicit substances while the child is in their care or expose the child to any third person using or affected by illicit substances.
24.That neither parent shall physically discipline on the child.
25.That neither parent denigrate the other parent or their extended family and relatives to or in the presence or hearing of the child and shall use their best endeavour to ensure that no third person denigrates the other parent or their extended family and relatives to or in the presence or hearing of the child.
26.That neither parent discuss these proceedings with or in the presence or hearing of the child and shall use their best endeavours to ensure no third person discusses these proceedings with or in the presence or hearing of the child.

Overseas travel
27.That the mother be permitted to apply for and obtain an Australian passport to enable the child to travel to and from the Commonwealth of Australia.
28.That the requirement for the consent of the father for the issuing of such passport for the child be dispensed with and, if necessary, this Order constitutes sufficient special circumstances for the mother to seek, if deemed necessary, that the Minister administering the Australian Passports Act 2005 (Cth), give consideration to issuing an Australian passport pursuant to Section 11(2)(1) of the Australian Passports Act 2005 (Cth).
29.That the Independent Children’s Lawyer be discharged.

IT IS NOTED:
A.That the Independent Children’s Lawyer will arrange for Ms E to explain these Orders to the child.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewerenz & Dwight has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION

X (born 2014) is the only child of a relationship between the Applicant mother, Ms Lewerenz (“the mother”) and the Respondent father, Mr Dwight (“the father”).
After an unhappy relationship that ended in difficult circumstances associated with family violence in August 2020, the child’s time with the father has been regulated by Orders of the Court – essentially two hours supervised time a week. At the time of the hearing in July 2022, the father estimated he and X had over 100 visits.
The supervised visits were shaped by concerns raised by each parent as against the other parent, that needed to be examined and tested. These orders seek to identify the findings in respect of those asserted risks, which illuminate the pathway to the orders now made – which provide for X to spend unsupervised time with her father increasing over time.
COMPETEING PROPOSALS
As is often the case, some of the orders the parties sought as were identified in their respective case outlines, changed after the evidence was closed and further instructions receive by the advocates. I set out now what represents the final positions which the parties Counsel Mr Hodges (for the Independent Children’s Lawyer); Mr Todman (for the father) and Ms Downes (for the mother), ultimately contended would meet the best interests of the child X. I set them out below, in the order in which they were delivered, starting as is my usual practice, with the Independent Children’s Lawyer.
Independent Children’s Lawyer
The Independent Children’s Lawyer contended, for the reasons which were articulated, for an interim order in the terms of Appendix One to these Reasons. Although Mr Hodges indicated that the Independent Children’s Lawyer had considered whether a change of residence was in the best interests of X, the final submissions was for X to continue to live with the mother, but for the child’s time to occur unsupervised, initially for three hours weekly, but then gradually quickly to each alternate weekend from after school Friday to before school Tuesday. Further provision for the child to spend holiday time and special days was proposed.
A range of fairly standard specific issues orders were proposed. Importantly, the Independent Children’s Lawyer contended that it was in the best interests of X that the parents have equal shared parental responsibility.
Father
Although the father’s case outline filed 11 July 2022 sought orders for X to live with him, if the Court determines that she is not a risk to the child, his alternate proposal by final submissions was consistent broadly with the final proposal of the Independent Children’s Lawyer, save that his similar graduation in time ended with the child spending alternate weekend time from Thursday after school until Tuesday before school (see Exhibit 12). Mr Toddman adopted the cautious approach contended for by the Independent Children’s Lawyer (said to be shaped by concerns as to whether the mother would comply with orders and support the child’s relationship with the father), by seeking an interim order be made.
Mother
In circumstances, contrary to the final submission of the Independent Children’s Lawyer and father, where the mother seeks findings that the father represents an unacceptable risk to the child because of a combination of:
(a)family violence perpetrated towards the mother;
(b)the father’s unresolved mental health issues;
(c)the parenting style of the father; and
(d)the father’s lack of insight and inability to shield the child from adult issues including the view of the mother and her family.
The mother slightly changed her initial position (as set out in her amended case outline filed 12 July 2022) that X spend no time or communicate with the father, to a final position and prescribed by Exhibit 8, which for clarity I have incorporated in these Reasons as Appendix Two. The orders the mother proposed was to reduce the supervised time X was spending with the father, to 3 hours every two months (six times per year) with two further visits around the father’s birthday and Christmas. The mother did not support the father being permitted to send gifts or cards to the child.
It is abundantly clear that the polarised positions are, at least to a large extent, shaped by findings the mother says I should make about the father being an unacceptable risk.
In circumstances where the Independent Children’s Lawyer and the father at least on an interim basis, were not pressing for a finding that that the mother presents as an unacceptable risk, the option of a change of residence was not pressed at this time.
It will be helpful to provide some context to how this situation has developed, by setting out next a history. In doing so, it is not necessary or in my view helpful, to attempt to cover either in the history or more broadly the Reasons thereafter every disputed factual occurrence. The mother chose to file a lengthy affidavit containing 615 paragraphs – and whilst it was comprehensive (further expanded by 146 pages of annexures), as the transcript reveals, I did not require every specific paragraph to be put to the father. In my view, the mother’s affidavit included examples of over repetition and unhelpful detail. To the credit of Ms Downes, for the mother, she did her best to observe my ruling.
The father’s trial affidavit itself contained 173 paragraphs and 58 pages of annexures, and with each of the parent’s affidavits filed (in accordance with my trial directions) at the same time, they are therefore not in any sense a response to the other parent’s material.
A court is not required to deal with every factual controversy, or every submission made, but must adequately illuminate the pathway to the orders made by Reasons and necessary findings. I believe I have done so.
I must record my regret that these Reasons were not published more quickly.
CONTEXUAL HISTORY
The statements of fact which follow, should be construed as findings of fact.
The father is now 48 years old and the mother is 43 years old. When the parties commenced cohabitation in 2010, the mother’s daughters from a prior relationship who were primarily in her care, Ms F (born 2001) and Ms G (born 2006) were approximately nine years and four years old respectively.
The parties married in 2012 and the subject child X was born in 2014 and is now 10 years old.
The evidence offered to the Court included details of changes of family homes in 2011, 2013, 2015 and 2016 before the family unit (excluding Ms F and Ms G) spent approximately six weeks in the United States of America in 2017. When they returned in 2017, they resided in a property described as the “[H Property]” where they continued to live until 2019, when the parties and X (this time accompanied by Ms G) again spent some weeks in the United States of America.
Before that trip, Ms F (who at that time was 18 years of age) elected to leave the family home.
Around mid-2019, the father sought legal advice about a possible claim for the sexual abuse he suffered (at the hands of a staff member) when he was a student at school. In preparation for a claim, the father received a medico-legal report from psychiatrist Dr J. That evidence was tendered to the Court and is referred to later (Exhibit 3 dated 19 May 2020). Dr J was not a witness tested by cross-examination.
In late 2019, the parties moved into the K Street property where they remained for the rest of the relationship, with Ms G returning to the parties’ care after spending a few weeks living with her biological father. It is clear that tensions continued to arise in the relationship between the father and Ms G, such that in early 2020 Ms G went to live with her biological father during the week and returned to the family home on weekends. She was almost 14 years of age at that time.
The mother asserts that she had been the victim of family violence (in many forms) over many years and when, on 22 August 2020, she says the father threatened to kill her, the mother left the home and with the assistance of police, returned to recover the child X. The parties accept that 22 August 2020 was the date of separation.
X began counselling with Mr D around September 2020 and notes (and reports) from Mr E were tendered as Exhibit 5 and 7 as well as an affidavit
In late 2020, a protection order was made in the Magistrates Court (without admissions) in the presence of the father, which continues in force to late 2024 (Exhibit 4) although it was varied by expanding the conditions in late 2020.
The wife commenced proceedings, for parenting orders quickly – on 1 October 2020 although she did not fully particularise the orders sought. The father’s Response filed shortly thereafter sought an equal time (week about) arrangement.

Pursuant to Orders made by a Federal Circuit Court (as it was then known) Judge on 16 December 2020, the child X was to spend time with the father for two hours a week supervised at C Contact Centre, with telephone communication twice a week. Those Orders have remained essentially in place since that time, although as will be discussed, interruption to the visits occurred just before the trial was to commence on 18 July 2022.
The appointment of an experienced Independent Children’s Lawyer in December 2020 assisted the facilitation of psychiatric assessments of both the mother and father by Dr M arising from consultations/interviews on 1 July 20201 and 17 May 2021 respectively; and two family reports by Ms E (an experienced psychologist), arising from interviews and consultations on 22 May 2021 (report dated 1 July 2021) and 3 June 2022 (report dated 17 June 2022).
Regrettably, the trial process was also elongated to some extent. Although the trial began on 18 July 2022, it was necessary to adjourn the hearing until 8 September 2022 because the family report writer Ms E, had been given the father’s trial affidavit to read but not the mother’s trial affidavit. I accepted the submission of the mother, that it would potentially be unfair to have Ms E cross-examined without having had the opportunity to at least read the mother’s trial affidavit. As it transpired, the report writer was provided with not only the further trial material, but also Mr D’s counselling notes (Exhibit 7) and Exhibit 1, being an audio recording made 20 March 2021 and a video recording made 22 August 2020.
When the matter returned to my list on 8 September 2022, the Court was informed that the scheduled supervised visit on 7 September 2022 had not taken place. After taking the evidence of Ms E, and the Court being concerned about the cessation (again) of X’s time with the father, the Court decided to adjourn the date for final submissions until 28 September 2022, which were received orally by the Independent Children’s Lawyer and the father, and both orally and in writing by the mother.
Exhibit 10 was two reports tendered by consent, from the supervisor Ms L in respect of supervised visits that occurred on 14 September and 24 September 2022.
Although I accept the delay in publishing these Reasons has not assisted the parties (or the child), at the conclusion of the hearing on 28 September 2022, I made it clear that I expected the interim orders for weekly supervised time to continue. In the period since then, no application to reopen has been filed by any of the parties and although I did consider initiating a Court event to establish whether any party wishes to adduce further evidence, as a result of the delay in Judgment, I decided not to do so.
I regard it as helpful to identify the witnesses relied upon by the parties:
Applicant mother
Apart from herself, the mother relied upon evidence from her daughter Ms F; her partner since late 2020; the mother’s sister and Dr N, a clinical psychologist who the mother sought to rely upon as an expert other than a single expert.
In respect of the evidence of Dr N whilst on the first day of the trial I ruled that evidence from Dr N could be relied upon, after argument a number of paragraphs of her report dated 3 July 2022, were struck out. The report that was ultimately before me was tendered and marked Exhibit 2. The mother and all her witnesses were cross-examined, although some briefly.
Respondent father
The father was the only relied upon witness and the subject of extreme cross-examination.
Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the evidence of consultant psychiatrist Dr M, who was not required for cross-examination. Additionally, the Independent Children’s Lawyer called X’s treating psychologist Mr D whose notes were available and tendered, to supplement his most recent report dated 14 June 2022. Mr D had produced an earlier report on 3 December 2020. He was cross-examined, as was Ms L who undertook supervision of the child’s time with the father over 100 times, with many of her notes prepared around the time of supervision offered in evidence. The final witness in the case was Ms E, the family report writer.
As it is apparent from the Reasons to this point, critical to the decision of what is in the best interests of X, is the assessment of the risks the mother continues to assert against the father, if the time that has been supervised by Ms L was to move to unsupervised time as the father and Independent Children’s Lawyer contend. I will consider the evidence under some discrete headings, before explaining the findings within the matrix of the relevant primary and additional considerations.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and:
when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.
THE PARTIES’ MENTAL HEALTH
The mother
Whilst the father continued to submit that the mother is unwilling to support his relationship with X into the future, the unchallenged evidence of Dr M, in his report and assessment of the mother dated 19 July 2021, Dr M noted that:
(a)at paragraph 10, the mother does not have a past psychiatric history;
(b)at paragraph 35, that “there is no mental disorder or psychiatric diagnosis which creates an increased risk for parenting disfunction”;
(c)at paragraph 40, that “there are serious issues from her account of the personal relationship with the father that combine to create an increased risk of difficulties for the mother to participate in developing an implementing a stable post separation parenting plan with the father”; and
(d)the prognosis is “good” although she needs sessions of supportive counselling to develop her insight into her role in the processes that have led to her relationship history.
Dr M noted the mother was attending counselling now once every month to 6 weeks.
The evidence of Dr N was directed to providing an expert assessment of the mother about her psychological functioning. From the report, it is clear that Dr N had access to significant Court material (including the report of Ms E and Dr M). As would be expected, her report is largely based on the history provided by the mother, and was collected over three one hour sessions, during which Dr N says the mother “presented historical information regarding the relationship with [Mr Dwight] in a consistent, open and seemingly genuine manner”. The opinions expressed by Dr N inter alia included that:
(a)at page 37, the behaviour as described by the mother that was allegedly perpetrated by the father “is highly abusive in nature and would have had a traumatic impact on [Ms Lewerenz], her older children and [X]”;
(b)at page 40, the mother presented and indicated on formal assessment items, symptoms consistent with PTSD and MDD. “Trauma research clearly shows that exposure to the perpetrator of severe abuse in co-parenting relationships often because an extension of the abusive dynamic and further re-traumatises the victim. This will impact on [the mother’s] psychological functioning and ultimately her parenting capacity”;
(c)if there is a Court order for X to spend unsupervised time with her father, Dr N stated at page 41 she “would expect that [Ms Lewerenz’s] PTSD symptoms will intensify and impact her mental health functioning”;
(d)long term or indefinite unsupervised contact – more than once per school term – will impact on the mother’s mental health in a negative manner; and
(e)at page 42, a requirement for the mother to communicate with the father “in an ongoing direct manner will cause an increase in her PTSD symptoms and negatively impact her general functioning”.
Under cross-examination, Dr N conceded she was not a single expert; had only seen the mother and her opinions were shaped by her discussions with the mother’s treating psychologist Mr P (who did not provide evidence to the Court).
Dr N accepted that therapeutic counselling could assist the mother to deal with “trauma” responses and although currently the mother is functioning well, she is still likely to experience anxiety if she perceives X would be a risk in the father’s care. She opined the mother’s concerns were more a fear of emotional risk to the child rather than physical risk. Dr N explained the view that the mother’s beliefs would not easily “shift” although that is a question more for her treating psychologist.
The father
Again, I begin with the unchallenged evidence of Dr M. I note that Dr M had access to the report of Dr J dated 19 May 2020, which was procured by solicitors representing the father in 2020 in a common law damages claim for alleged sexual abuse of the father perpetrated by a school counsellor when he was an adolescent. Clearly the report by Dr J was prepared in a different context.
Dr M noted and opined that:
(a)he agreed with Dr J’s view that the experiential issues identified during the father’s development “have had a profound adverse impact on the father’s emotional and psychological functioning” and “continue to have an adverse impact on the father’s social skill functions, to enter into and maintain fulfilling interpersonal relationships” (see paragraphs 10 and 15);
(b)there is no support for the diagnosis of a psychotic disorder or mood disorder and the symptoms that arise from the identified mental health issues “concerning shame and humiliate, anxiety, depression and anger management create an increased risk of parenting disfunction”, Dr M explained in his report the effect of these mental health issues; and
(c)in describing the father’s prognosis as “guarded” and dependant on the outcome of any therapy the father might access, Dr M opined the father needs “ongoing careful long‑term mental health assessment and treatment” as such supportive counselling is likely to develop “and his insight into his role in the processes that have led to his relationship history and the post separation process of note”.
FAMILY VIOLENCE ISSUES
The most controversial factual dispute in this case, involves allegations of “family violence” which the mother alleges was perpetuated upon her and, at different times, also upon X and the mother’s children form her earlier relationships, Ms F and Ms G.
Section 4AB(1) of the Act defines family violence to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful”.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence, and s 4AB(3) provides that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”, with s 4AB(4) providing examples of situations that may constitute a child being exposed to family violence.
Before examining some of the evidence offered to the Court, especially the evidence of Ms F, it is fair to acknowledge that when the father commenced co-habitation with the mother in 2010, Ms F was approximately nine years of age and Ms G was approximately four years of age. These two children had different biological fathers, and generally Ms F had limited contact with her father whilst Ms G was spending regular time with her father. Accordingly, the father’s introduction into the mother’s household was always likely to require adjustments and create challenges. As I will explore, certainly before the birth of X the adjustments seemed to have been managed reasonably co-parenting and harmoniously.
The birth of X coincided with the entry of Ms F into the often-challenging development phase of “teenagerhood”. Although I accept that there is a degree of “burring” between behaviour that more clearly demonstrates “family violence” (if accepted by the Court) and what I would regard more likely to be a very different parenting style, I regard it is important to seek to analyse some of this past behaviour within these two different categories – at least so that suggestions of “situational” family violence can be considered and, as required, identifying whether ongoing parental styles of the parties, who have now been separated for over three and a half years present some risks to the child as the mother strenuously asserts.
At paragraph 7.22 to 7.39 of the mother’s final written submissions, the issue of “family violence” is raised and I deal specifically with some of those events:
(a)Although the father says the recorded incident on 22 August 202 was a “set up”, the fact remains that Exhibit 1 demonstrates the father’s lack of emotional control and the threats he made. I accept they were made in the heat of the moment, however the words and tenor were such as were likely to scare the mother, as she says she was.
(b)The “chocking” incident in the United States of America in 2019, I am satisfied occurred and that, as the father admitted, his hands “were in the neck region” of the mother. I accept that the context for the argument that led to this physical altercation was a dispute over whether Ms G should return to her father from the United States of America holiday (the father said she should go back to Australia; the mother though she should stay – as she did). The father gave evidence that he was merely defending himself from the mother’s behaviour, which involved her pushing him and scratching him. It was an incident that was serious; and further caused the relationship to deteriorate and one which, on the evidence, I find the father was the chief contributor. I regard it as more likely than not, that both Ms G and X witnessed some of the incident, with such exposure being distressing to them. That the couple, after returning to Australia, spent a further 12 months co-existing under the one roof until final separation is in many ways surprising;
(c)The father acknowledged, often again in the context of a verbal exchange, that he called the mother hurtful and denigrating names. He says he never used such words, directed to the mother, in the presence of the children. I am satisfied that the children may have heard such comments but accept most of them occurred privately between the parents. Nonetheless, the effect on the mother of such comments remains the same;
(d)The actions of the father in taking the mother to the place where Hannah Clarke and her children were murdered by her partner and the children’s father, is concerning. The mother says, and I accept, that the father said words to the effect, “that is what happens when women don’t listen”. I would characterise such a comment as threatening and intimidating;
(e)The mother’s evidence, supported by her submissions at paragraph 7.33, and the recording at Exhibit 1 of the telephone exchange and the singing of a tune by the father about “karma”, I do not find as significant as the mother contends. It does however, to some degree, demonstrate how the mother is capable of forming a very negative perception about the father’s conduct from her perspective. I find these two intelligent and articulate parents are capable of “pushing buttons” which had caused emotional flare ups at times;
(f)I accept the submission of the mother (at paragraph 7.38) that the father has little insight into his behaviour and its effect, in particular upon the mother. His denial in cross examination about family violence, might represent (at least) an antiquated view that only physical violence constitutes family violence; and
(g)I make a finding that the father has committed family violence upon the mother, and has exposed X to such violence. In making this finding, I do not ignore that in the verbal exchanges which increasingly occurred as the marital relationship began to deteriorate, there were occasions that the mother participated in such exchange. I do not assess her to be a “meek and mild” person – but, on balance, I find that generally the father initiated the conflict. It is however apparent that as some of the father’s parenting style attracted opposition from particularly Ms F and also Ms G, the mother became more strident in her criticisms of the father. I deal with this clash in parenting styles next.
DIFFERENT PARENTING STYLES
When the father in this case became a member of the mother’s household in 2010, the mother’s daughters Ms F and Ms G from two earlier relationships were age nine and four years respectively. Although Ms G had an ongoing relationship with her biological father, Ms F did not and as a result, the father became the father figure. I am satisfied he relished that opportunity, and on Ms F’s evidence the early years were fine.
I do find, as Ms F deposes, that when X was born, the father’s joy at having his own biological child created a shift in his focus and this occurred around the time that Ms F was turning 13 years old and seeking more independence.
Although the mother submits (at paragraph 7.35) that the Court would find Ms F to be a “compelling and truthful witness”, I did regard some of her evidence was exaggerated and given a “sinister” context because of at least her clear desire to support her mother and perhaps because on reflection she felt that the father’s relationship with her changed adversely after X was born.
It is not Ms F’s role to influence X’s relationship with her father, but Ms F’s entrenched dislike for the father, has potential to do so. I am not satisfied that the mother, who I find sees little value in X having a relationship with the father, would be either willing or necessarily capable of restraining Ms F from sharing her views about the father with X. Whilst my impression is that Ms F sees any actions by her in this respect as “protecting” X from what she described as the excess of the father’s parenting style, again, X’s journey with her father has been and is, as a result of Orders the Court has made, different.
I find that the father did not require the child Ms F to take out the wheelie bin naked; nor do I find that he required the children to go to the toilet with the door always open.
However, I am satisfied that the father exhibited a heightened, and obsessive fixation, on “germs” and “cleanliness”. Examples of him describing clothes as “home clothes” and “work clothes” and associating dirtiness with the wheelie bin, flies, chickens and grass all appeared odd to me. I accept that father, who claims to have been a professional athlete and worked in fitness (before becoming a professional), created strict rules in the household, but to a large extent, and for the majority of the relationship, I accept the father’s evidence that the mother did not express opposition.

The father is a vegan and as a result has different views about appropriate diets for the children. His views about not eating eggs (that contain baby chickens) or keeping a goldfish in a bowl as expressed by X, are likely to confuse her.
Both parents demonstrate a style of, in my view, oversharing their views about the other parent and some of the aspects of parenting by the other parent they disagree with, since separation. It is an increasingly difficult environment for X to navigate.
On balance, I found some of the strategies that the father tried to employ against Ms F by way of discipline, (he would say encouragement to do better) as bordering on extreme. Ms F ultimately had the choice to leave the home – and did so – returning after her mother separated.
I accept there is a risk, although I do not regard it as unacceptable, that X (now aged 10 years) could experience some of the father’s rather obsessive parenting traits as she gets older. However, I am not satisfied that these differences in style justify the child, of themselves, not enjoying the benefits that would flow from unsupervised time with the father.
Before leaving this topic, and for clarity, I do not find that the child is at risk of sexual abuse by the father. The mother sought no such finding, but that inference was at least raised through the mother’s concerns about the manner and times the father gave the children a “foot massage” and some of his, he would say, playful and childish comments around the child’s undies and colours etc. Again, I find that the mother’s attempt to give these issues a sinister quality, is more reflective of her negative view of the father, than the father being a risk.
EVIDENCE OF EFFECTS ON X
Although I do not ignore the concerns the mother raises throughout her affidavit, where I am satisfied the child X is well aware that the mother (her primary carer) and also Ms F think she should spend no time (or limited time) with her father, the Court would be cautious with accepting all the statements made by X to her mother about the father, particularly post separation. To try and better understand how X feels I will now refer to two sources of independent observation and assessment – the counselling by Mr D and the visits supervised by Ms L. After doing so, I will discuss the family report and opinions of Ms E.
The Independent Children’s Lawyer filed an affidavit by psychologist Mr D on 16 June 2022, attaching an updated report dated 14 June 2022. In that report Mr D referred to an earlier report dated 3 December 2020, which I infer was considered by Judge Cassidy before she made Orders on 16 December 2020 for X to spend supervised time with the father. Mr D began sessions with X on 21September 2020, and was the subject of cross-examination. His notes were tendered as Exhibit 5 and, relevantly, his notes for communications on 26 July 2022 and 8 August 2022 were also tendered (Exhibit 7).
I clearly got the impression from Mr D that:
(a)he did not agree with the Court ordering and maintaining supervised time for X. His comment that the Court made orders after his initial report and “despite my recommendations and concerns” suggests he thought the Court was, and is, bound to follow his recommendations. The Court is not; and
(b)as he has now seen, for the first time, the supervision notes which he correctly described as “extremely positive”, it caused Mr D to reflect on how X presents to him and the things she says to him, which often are in “completed contrast” to how she is recorded as presenting during supervised visits.
The cross-examination of Mr D adduced some further opinions as follows:
(a)It is unusual for a child to keep up a façade for two years of enjoying supervised visits;
(b)The child loves her father but gets anxious and confused by some of the “mixed messages” she is getting from her father;
(c)She also loves her mother and her sister and he agreed that if the child knew that the mother did not want her to see her father – which I find she does – then that could cause anxiety to X;
(d)X has presented to him as having a sense of her father’s “anger” and is careful not to “provoke” him;
(e)X is likely to be experiencing some anxiety associated with keeping normal information from her father, such as where she lives and where she goes to school; and
(f)There have been occasions during therapy, for example on 10 February 2021, where the child felt comfortable in expressing she was enjoying visits with her father, once her mother left the room. On reflection, Mr D indicated sometimes she presents differently when the mother is also present.
My assessment is that Mr D’s opinion that “phone contact should continue and supervised contact be suspended”, was not as strongly held after he had the benefit of reading the supervision notes. I find that his very direct and unequivocal opinion, which I accept the mother relied upon, was not shaped by the totality of the evidence that I have had the benefit of having. In short, I do not agree with Mr D’s conclusion.
It is not necessary to incorporate large proportions of the comprehensive notes of supervised visits, attached to the affidavit of Ms L filed 11 July 2022. The notes for visits between 21 April 2021 to 22 June 2022 speak volumes about the warm and joyful interactions between X and the father. Of further relevance is the notes of visits which occurred on 14 September 2022 and 21 September 2022 – the context being that these visits after the hearing was adjourned on 8 September 2022 and the Court was informed that the child was not delivered for the father’s visit on 7 September 2022. The parents were in no doubt that the Court expected the contact visits to be resumed – and they were.
The note of the visit on 14 September 2022 revealed the child “was very scared and told me that she did not want to come in, she was sobbing and shaking, she stood just inside the front door with her finger in her mouth, she told me she doesn’t want to see dad she just wants to stand there” the difficulty for the father to engage the child is obvious from the note, be he achieved a positive interaction eventually, with Ms L recording that “the last hour of the visit was like all the other visits she has had with her father. Mum arrived and Dad and [X] gave each other a cuddle and kisses. [X] happily went out to Mum”.
The note for the visit a week later on 21 September 2022, began with X happily coming inside for the visit. The interaction on that occasion was warm and engaging – and similar to the visits that had been occurring for over two years. The visit ended with the father and X kissing and hugging each other.
It was the cross-examination of Ms L on 1 September 2022 (and her evidence in the affidavit filed by leave on 24 August 2022) about the events after 27 July 2022 that persuaded me that the supervised visits needed to recommence as soon as possible. The resistance of the child to spend time for 5 visits during August 2022 was completely different to the earlier visits. The mother dutifully arrived, but the child would not leave her mother’s care. Whilst I accept that the mother did not give evidence after Ms L – I am comfortably satisfied that sometime after 27 July 2022, X got a clear message from the mother (possibly indirect) that she did not have to see her father, and most likely the mother would support her and not force her to go. The timing was, in my assessment, hardly co-incidental.
The happy visit on 27 July 2022 was a week after the first part of the hearing was completed. Mr D’s note of 8 August 2022 communication contained statements by the child that I regard as more likely than not to have been influenced by the proximate discussions in the mother’s household. Why after many years, the child (without prompting) volunteered a range of historical events – totally consistent with the mother’s version of the history – I regard as very concerning.
Whilst cautious to make an absolute finding when the mother had not been afforded a chance to explain what discussions she (or her household) had conducted with X before the 8 August 2022 session with Mr D, I am sadly concerned that the visit on 8 August 2022 was a likely attempt to gather evidence through Mr D to support the mother’s case and bolster Mr D’s recommendations. Involving the child in this exercise in this way reveals a lack of insight by the mother.
I will now consider the evidence of the family report writer Ms E, particularly as set out in her most recent report dated 17 June 2022 (arising from interviews and communications on 3 June 2022) and her cross-examination as the last witness in the trial before me.
FAMILY REPORT WRITER’S EVIDENCE
The Independent Children’s Lawyer facilitated the retention of experienced report writer Ms E who has published two reports:
(a)On 1 July 2021 (the first report) arising from interviews and observations on 24 May 2021; and
(b)On 17 June 2022 (the second report) arising from interviews and observations on 3 June 2022.
Ms E was the subject of cross-examination, and as might be expected, the second report built on the foundation created by the first report. However, by the time of the second report, some of the following opinions were expressed:
(a)The mother explained she had a better understanding of the “domestic violence cycle” and how it impacted on her and her children and is now much more capable of parenting and she has a support network (paragraph 3.4);
(b)At paragraph 3.9 the mother referred to the child’s sleep difficulties and X’s desire to sleep with the mother or her sister. The mother confirmed that she was seeking a no contact order. In support of that position, the mother, as she deposed in her affidavit, reported that X had seen the father hurt both Ms F and Ms G as well as herself and that X “is worried about being hurt in the future” (paragraph 3.15). The report writer observed the child to have “a close relationship with [Ms Lewerenz] and her sisters” with no anxiety or distress observed;
(c)When the father was interviewed, he is recorded as stating “I have been alienated from” X and that his lack of time with her “is hurting her” (paragraph 5.3). The father alleged X has seen family violence and the mother “being violent to the children he had to stop” as well as him being “the victim of violence” (paragraph 5.4;
(d)The father confirmed he was “seeking full custody” of X based on how violent the mother has been in the past and what he described as her “undiagnosed depression that caused her to be violent towards the children” (paragraph 5.13). The father felt that X would “adjust” to a change of residence. When asked by the report writer what he would seek if the Court did not accept that a change of residency for X was in her best interests, the father (at paragraph 5.15) is recorded as saying “I’m entitled to custody of my child. As a father, I am entitled to custody of [X] and the best interests of [X] are in the forefront of my mind, I don’t want to exclude the mother”;
(e)In the observation, the report writer noted the interactions between X and the father appeared “positive and unforced. I saw no anxiety or distress from [X]… there was an exchange of physical affection both on greeting and on ending the observation period and [X] appeared at ease” with her father (paragraph 6.4);
(f)The interview of X on 3 June 2022 is set out at paragraphs 7.1 to 7.9 of the second report. She expressed a clear preference to live with her mother. She expressed a belief the father “doesn’t tell the truth”, referring to his denials he has “done nothing wrong but he hurt mum and he used to hurt my sisters” which X said she had seen herself (paragraph 7.3). At paragraph 7.5, X is recorded as saying “I like seeing dad a bit but I don’t want to live with him because mum would be sad”. She further expressed that if Ms L was not present when she spends time with the father, “he might not give me back”. She expressed that “it wouldn’t be nice if I didn’t ever see him at all” (referring to her father). At paragraph 7.9, X explained how her father doesn’t like pets that are kept in cages;
(g)In a detailed assessment between paragraphs 9.1 to 9.20, the report writer identified that:
(i)neither parent has a positive view of the other and each has a different view of the relationship history;
(ii)her observations are that X has a meaningful relationship with both parents;
(iii)X may have seen family violence between the parents;
(iv)an equal and shared care arrangement would not be in X’s best interests and X “needs to have a primary parent with who she lives”;
(v)if the Court does not accept that there is future risk of family violence then the Court may feel more confident in making parenting orders in the future. However, she expressed (at paragraph 9.15) a concern about how some of the father’s beliefs, described as “obscure views regarding hygiene of [X], him being insistent on [X] following a specific diet and also on [X’s] views about wanting pets in the future” are factors to be considered;
(vi)if the Court accepts that the father’s mental health is stable and would not be a significant risk factor for X in the future, contact could progress to unsupervised time in a graduated way and during that transition, it will be important for there to be a clear plan to this occurring;
(vii)if the Court accepts that there is an unacceptable risk to X from the father, the Court will need to consider continuation of long term supervised time (which can be problematic) or a no time order;
(viii)in view of the views expressed by X and the positive interaction during the extensive supervised visits, an order preventing time “is not an easy decision to make” but if made, the father having the option to send a gift and letters might be considered; and
(ix)the report writer’s recommendations at paragraph 10.1 to 10.8 are properly shaped by the Court’s determination on risk factors, with the graduation to unsupervised time set out at paragraph 10.2 of the second report.
As would be expected, Ms E was the subject of focused cross-examination by Counsel, from which emerged the following additional evidence and opinions:
(a)X is under great pressure trying to please both parents and is very much caught in the middle and demonstrates a “divided loyalty” which she struggles with;
(b)She agreed with Counsel for the mother that there could be an adverse psychological impact on X from some of the father’s parenting styles (including alleged Obsessive Compulsive Disorder and Germophobia);
(c)If the mother is required to support an order for unsupervised time, she “will struggle and will need to get some support”;
(d)She accepted that predicting the future is difficult because of the father’s “quirkiness” and the uncertainty of how the mother will respond and whether the father has developed an insight into the effect of his past behaviour on the children;
(e)In answer to questions from Counsel for the father, Ms E said she did not get a sense that X feared the father, and even her comments about the “choking” incident in the United States of America, she acknowledged happened a long time ago when she was younger;
(f)The mother has very strong negative views about the father, and it would be unrealistic to think that she could disguise those views from the child. As a result, if the child was to spend more time (unsupervised) with the father, then the child should continue to have therapy (as recommended at paragraph 10.6); and
(g)The report writer does not believe a change of residence is in the child’s best interests.
I have carefully considered the evidence of Ms E, and although the Court is not bound by such evidence, in this case I do give her opinions some weight. The way in which those opinions shape my assessment of risk is fundamental to the outcome of this strenuously fought litigation and what future orders are in the best interests of X. I now will make some findings on all the evidence, within the matrix of the primary and additional considerations prescribed by the Act. In doing so, in a narrative style, I do not always repeat, but I do rely, on findings already set out in these Reasons.
PRIMARY CONSIDERATIONS
I am satisfied that X will benefit from having a meaningful relationship with both parents. The fact that Ms L opines she has such a relationship with the father now, which I accept, when his time has been so limited, speaks volumes as to how the child derives a benefit from the father – whilst primarily (almost exclusively) living with the mother.
I accept however that s 60CC(2)(a) requires greater weight to be given to s 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – than to the benefit to the child of a meaningful relationship
My ultimate conclusion is that X is likely to be exposed to some risks in both the father and the mother’s households arising principally from the parents’ behaviour, but that the risks are not so grave or “unacceptable” so as to outweigh the benefit of the continuing development of a meaningful relationship. In this regard, I find that:
Father
The father is quirky – odd at times – not explained by his cultural background as he suggests, but more by his personality. He does have a heightened alertness to “germs” or dust; he did in the pursuit of performance use inappropriate strategies upon Ms F and Ms G; he has anger issues at times which I find towards the end of the relationship the mother (by standing up for herself) provoked and recorded for forensic purposes. He was a perpetrator of family violence. His behaviour, which I find in the early parts of the relationship the mother did not oppose, did not sit well particularly with Ms F. Ms F impressed as a now confident and articulate woman, highly supportive of her mother but I felt at times exaggerated some events. Whilst Ms F is a strong and excellent female role model for X, her views of the father (which she is entitled to hold if she wishes to do so) reflect her journey. I am not satisfied that will be the journey for X.
Mother
My view is that, at times, the mother did allow the father’s parenting style to shape her household. I am satisfied that the father was heavily involved with X’s first six years of her life – although not to the level of primary carer as the father asserts. Certainly however, the mother who, post X’s birth, returned to significant work duties, permitted the father to be significantly involved in the day-to-day care of X. Whilst I accept the father did perpetrate domestic violence on the mother, her failure to call her treating psychologist Mr P (as a tactical decision it seems) but to instead rely on the expert evidence of Dr N, did not in my assessment discharge the evidentiary onus that the mother held, in accordance with the principles enunciated in such cases as Russell & Close [1993] FamCA 62 and Keane & Keane (2021) 62 Fam LR 190.
I do not make a Jones & Dunkel (1959) 101 CLR 298 inference in respect of the mother’s decision not to call Mr P. Merely, she has not convinced me (to the requisite standard) that she will not cope, or that her parenting of X will be adversely affected, if the father spends unsupervised time with X. I accept she may need support to adjust, as will X (but for different reasons).
The main difficulty that I find does present an adjustment for X, is the mother’s clear resistance to the child developing a relationship with the father. Her actions and comments to the child make that clear. Even if I accept (as I do) that the mother experienced an unhappy relationship and further that she felt she had let her older children, Ms F and Ms G, down in some way, by allowing the father into her household and to play the role as their father figure that he did, she has not supported genuinely X’s relationship with her father.

It can be said that she has complied for some years (at least until July 2022) with the regime of supervised time. However, by requiring the child to keep secrets about where she lives and where she goes to school, has in my assessment compounded the child’s sense of a “divided loyalty”. The State protection orders have not been contravened and I am firmly of the view that X, as we move forward, should be able to reveal where she lives and where she goes to school.
In short, although I do not find that the child is at risk of physical harm in the care of either parent, she is at risk of emotional harm because of the individual behaviour and views of each parent about the other parent.
These parents are both experienced parents; intelligent and articulate. They have the capacity, in my assessment, to keep their negative comments to themselves, rather than exposing this delightful little girl to a continuing demonstration of parental disharmony. Although I accept X will benefit from having counselling, both parents need to develop greater insight into how their behaviour has caused hurdles for X – and not just focus on the other parent as the cause of every sad outcome. If they, having heard all the evidence and read these Reasons, have the capacity to reflect on what they can do better (as I believe both do), then individual therapy may support them.
It is going to be difficult for the mother to modify the desire of Ms F (and also perhaps Ms G) to share their views of X’s father with X – but the mother must attempt to do so, in the best interests of X.
ADDITIONAL CONSIDERATIONS
Caution is required in attaching too much weight to what X has told her parents as her “divided loyalty” and her awareness of the parental conflict are likely to lead her to tell things to her parents that she may think they wish to hear. The clear disparity in what she told her counsellor from time to time and the supervision notes cause me to be concerned about the weight to be applied to what she told Mr D. In my assessment, I find X is happy residing with her mother and sisters (when they are there), but clearly wishes to maintain a relationship with her father and, I find after over two years, is able to accept spending time away from C Contact Centre to spend time with her father. I am not satisfied she is in fear of her father, although it will take time to adjust to spending more time with him because of the way in which, I find, her mother has portrayed the father. I also accept that the child’s anxiousness is likely also to arise from things she has recalled, but probably more she has heard from her mother and Ms F. I am confident she would be upset if time stopped or significantly reduced, as the mother proposes.
There is no doubt that X’s relationship now is strongest with her mother, who has provided excellent care of her and, with the limited (although regular) time with her father, her relationship has been preserved to some extent – but, in my assessment, not developed as it would have from the firm foundation at separation. Not being able to share with her father her school life and interests post separation, largely based on the mother’s need to keep those activities secret, have likely inhibited the growth of the father/daughter bond. I accept that X enjoys time she is able to spend with Ms F and also Ms G. The mother’s extended family seemed to have maintained contact. However, the most important relationships, for the reasons identified by Ms E, are with her mother and father, from home her sense of identity and history are derived.
Since separation, the father has been denied the opportunity to be involved in decision making for X, a matter of some frustration for the father. Having said that, the evidence does not demonstrate any poor decision making by the mother.
I will deal with the critical factor (s 60CC(3)(d)), namely the effect of changes in the child’s circumstances when discussing the orders the Court has decided are in X’s best interests.
I am not aware, on the evidence, of any practical difficulties or expenses that relate to the child spending time with the father –although as the Court does not know exactly where the child lives or goes to school, there is a degree or uncertainty. It is reasonable to infer, that as the child has regularly attended supervised visits in Region B, her home and school would be proximate and in that region.
I have earlier made findings about the parents’ capacity (which on the evidence at least to separation) was reflected in a substantial sharing of care around work obligations, when the mother and father were an intact couple – although clearly not always happy. I repeat my earlier finding about the likelihood the mother will need to adjust to the reality of orders for X to spend time with her father, unsupervised – and also that the father will become aware of where the child lives and goes to school. I am not satisfied that the mother will be unable to parent X or that she will not work with her counsellor to enable continued good care in her home to be offered to X – as the primary carer.
The attitude of parenting and the style of parenting are quite different. Even Ms F was able to acknowledge the father’s care (until X was born and started to be the main focus of the father, as I find it was), was supportive and caring. I have, on balance, formed the view that the father will understand where X will be living the majority of the time with the mother, under the orders I propose to make, it is only likely to upset and confuse X if he attempts to impose upon her a significantly different diet or regime of discipline. X should not be required to perform multiple push-ups, for example. Whilst the father’s fixation on germs and cleanliness is obsessive, the mother has had nearly three years to imbibe in X her values and principles and it is not likely the father’s time will change those behaviours. If he attempted to do so, I would think the father might encounter the same rejection and opposition exhibited by Ms F and Ms G as they moved through their teenage years. I believe the father will be assisted by therapeutic support which explains to him how compatible practices, within range, are best for X.
I have already made findings about the existence of a family violence order, which has not been the subject of any allegations of contravention. At her age now, X is old enough to move from one parent to another without her parents needing to engage with each other. Ultimately, changeovers at school will be a better option. I am not able to be certain that these parents, who both had exhibited a lack of insight; a failure to separate their feelings from the best interests of X and were involved prior to separation in events of family violence, will never erupt in some way. They are however intelligent parents who have different skills and interests which will likely enrich this child’s life and help them reach her potential – if the parents allow her to do so.
The Independent Children’s Lawyer submitted that an interim order should be made because of concerns how the mother will respond to any orders for X to spend time with the father, expedited to unsupervised time and block time over holidays. However, these parents need finality and X will need to see her parents complying with the orders, I am proposing to make in her best interests. If the parents have learnt nothing from the litigation and the need to be less “competitive” in terms of trying to establish only they can provide a form of quality care for X, then sadly no orders, be that interim or final, will protect this precious child from the worst aspects of her parent’s behaviour and returning to litigation may be inevitable. I certainly hope that is not the case.
When considering “any other circumstance” that is relevant to the evidence at the trial is that the father, if he was successful in his initial application for a change of residence, would secure more suitable accommodation when he had X for extended or overnight time – not the form of shared housing at the time of the hearing. The orders I make will be the trigger for the father to secure such accommodation, and he, like the mother, will be ordered to tell the other parent the address. The father said he could afford to secure accommodation without having to share with another adult. He must do so – noting the father gave no evidence of being in a relationship at the time of the final hearing.
PARENTAL RESPONSIBILITY
I find it is in the best interests of the X for the mother to exercise sole parental responsibility, but with an obligation to consult the father before she makes a major long-term decision, save for in an emergency. Although it was not asserted the mother would use any “powers” to change the child’s surname or to relocate, the orders will be clear that those issues are issues where the parties will share parental responsibility equally.
In making this decision about parental responsibility, I do so aware of the need to have a principled reason to depart from the statutory presumption of equal shared parental responsibility. However, since separation, by interim order, the mother has exercised sole parental responsibility – but with little or no consultation with the father. The level of ineffective communication and lack of natural respect and trust between the parents is such that I hold concerns about no timely decision being made, if the mother had to meet the at times different parenting demands of the father. I accept the father may find that an order for sole parental responsibility for major long-term issues in the mother’s favour, excludes him. I take that concern into account, but in the best interests of X I am satisfied that the mother will responsibly make long-term decisions solely in X’s best interests. Hopefully, as she appears to be a healthy child and where faith issues do not loom large in this case, the major issue relates to schooling. The father will be considered, but ultimately the mother will have the final say.
FORM OF FINAL ORDERS
I have concluded that it is in X’s best interests to continue to live predominantly with the mother, but to commence unsupervised time with the father, graduating more slowly than proposed by the Independent Children’s Lawyer. I accept the father seeks more time, and for it to graduate more quickly, but my assessment is it is more appropriate with the history in this matter and the need for the mother to find ways (with I expect some supportive therapy), to adjust to the new regime. It is to be hoped that if X is able to share the enjoyment she derives from increased time with her father, as I find it will be, this might allow for the mother to accept her daughter is safe in the care of a loving, caring and devoted father – for that is how I assess him.
In short, there are risks I have identified in these Reasons if the mother, father and even Ms F are not able to change the way they have all tried to shape X’s feelings and views. But those risks (even when given greater weight) both singularly and collectively, do not outweigh the benefit to X of having a meaningful relationship with both her mother and father.
As to the form of order, the Court regards it as in the best interests of the child to reduce the pace of graduation of unsupervised time in the manner ordered.
The mother will be ordered to provide the father with details of the child’s usual place of residence and her school as well as her current treating general medical practitioner. It is important that the child no longer be burdened from keeping a secret from the father as to where she lives and goes to school. The need for the father to be informed of the child’s treating general medical practitioner is to ensure continuity of care for the child and to avoid any attempts at “doctor shopping”.
The child will not commence spending overnight time for at least eight weeks which will be sufficient time for the father to secure suitable accommodation (as he testified he would) and give notice to the mother under Order 9.
In circumstances where the Court does not support the mother’s proposal for limited long term supervised time, I am not satisfied that the extensive restraints sought by the mother pursuant to s 68B should be made or are in the best interests of the child. To the extent that the mother feels she needs further personal protection, the current protection order remains in force and if there are grounds for the mother to seek an extension of the current order, or to have a new order made, then no doubt she will make such application to the appropriate local court. The mother sought orders for overseas travel but without any evidence that either party intends to travel overseas in the foreseeable future, and where no specific submissions were made as to overseas travel, the Court has decided to make no specific orders. I accept that X experienced travel to the United States of America on at least two occasions in the past when the parties were an intact couple. In my view, s 65Y of the Family Law Act 1975 (Cth) which restricts overseas travel for the child without consent (or order of the Court) should apply. I have no concerns about the mother obtaining a passport for the child in readiness perhaps for some future agreed overseas travel.
The orders which appear at the commencement of these Reasons are, in the opinion of the Court, in X’s best interests, which is the paramount consideration.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.
Associate:
Dated: 4 March 2024
APPENDIX ONE
IT IS ORDERED UNTIL FURTHER ORDER:
1.That all previous parenting Orders be discharged.
2.That the child X born 2014 live with the Mother.
3.That the Parties have equal shared parental responsibility for the child's long term welfare care and development.
4.That each Parent be responsible for the child's day to day care while in their respective care.
5.That the child spend time with and communicate with the Father at all times as agreed but failing agreement in writing as follows:
(a)Each Saturday from 9am to 12pm commencing the first Saturday following the making of Final Orders for 2 visits; thereafter
(b)Each Saturday from 9am to 4pm for 2 visits; thereafter
(c)Each alternate weekend from 9am Saturday to 4pm Sunday for 3 visits; thereafter
(d)Each alternate weekend from after school Friday to 4pm Sunday for 3 visits; thereafter
(e)Each alternate weekend from afterschool on Friday to before school on Tuesday
(f)Christmas 2022 from 2pm Christmas Eve to 12 noon Christmas Day and from 2pm Christmas Day to 2pm Boxing Day in 2023 and alternating thereafter.

6.Commencing 2023 one half of the Easter, June/July and September/October school holidays with the Father to have the first half in even numbered years: and
(a)The second half of all school holidays in odd numbered years
(b)On a week on/week off basis during the Christmas school holidays
(c)Telephone and electronic communication each Tuesday and Thursday between 4pm and 4.30pm
(d)Father’s Day the child will be with the Father from 9am to 5pm
(e)Mother’s Day the child will be with the Mother from 9am to 5pm
(f)The child will spend time on her birthday with each Parent:
(i)If a school day with her non primary carer from after school to 7pm; and
(ii)If not a school day and the child is not spending time with her non primary carer from 9am to 11am

7.That all changeovers that do not occur at school are to occur at C Contact Centre unless as otherwise agreed to between the Parents in writing.
8.That the Parent us the parenting App Our Family Wizard ourfamilywizard.com.au for all communication in relation to all parenting issues for the child.
9.That each Parent is to pay one half of the fees associated with the use of the parenting App as provided for in Order 7 herein.
10.That the Parties are to ensure that the child continue to engage with her Psychologist Mr D.
11.That neither Parent is to discuss with the child or elicit information from the child with respect to the child's time with the other Parent.
12.That neither Parent is to denigrate the other to or in the presence or hearing of the child and use their best endeavour to ensure that no third party denigrate the other Parent to or in the presence or hearing of the child.
13.That each Parent is to advise the other as soon as reasonably practicable should the child require any emergency medical treatment while in their respective care.
14.That neither Parent is to discuss these proceedings to or in the presence or hearing of the child and use their best endeavours to ensure that no third party discuss these proceedings to or in the presence or hearing of the child.
15.That these Orders be sufficient authority for each Parent, subject always to any directions from the school authority, to:
(a)Attend the child's school for extracurricular activities and meetings, including parent teacher meeting that Parents would normally attend;
(b)Obtain copies of the child school progress reports and school photographs at their own expense

16.That these Orders be sufficient authority for each Parent to attend the child's treating and allied health professionals, including Mr D, and obtain information regarding the child’s health and wellbeing and obtain copies of any reports or assessments at their own expense.
17.That within seven (7) days of the date of Order each Parent is to:
(a)Make available to the other Parent photographs of the child's maternal and/or paternal extended family; and Ensure that the photographs are displayed in the child's bedroom in their respective homes.

18.That each Parent is to keep the other apprised of the current residential address and contact telephone numbers and advise of any change within 48 hours of such change.
19.That the Independent Children's Lawyer be granted liberty to have the matter relisted for Mention before the Honourable Justice Baumann should the time as provided for in Order 5 herein not occur.

NOTATIONS
A.It is intended at the next Mention date to make these interim Orders final orders if after a period of six (6) months the child has spent time with the Father in terms of Order 5 herein.
B.That the Independent Children's Lawyer will arrange for Ms E to explain the Orders to the child.

APPENDIX TWO
1.That all previous Parenting Orders be discharged.

Parental Responsibility
2.That the child X born 2014 (‘the child’) live with the Mother.
3.That save for any change to the child’s surname, the Mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child.

Child’s time with the Father
4.That the child spend supervised time with the Father for three consecutive hours supervised by C Contact Centre, with such time to occur, subject to the availability of C Contact Centre and in order to give effect to same:
(a)unless otherwise agreed, the Father’s time with the child shall occur:
(i)On the first Sunday in January, March, May, July, September, November;
(ii)On or about the Sunday immediately before the Father’s birthday;
(iii)On or about the Sunday immediately before Christmas the Father shall be solely responsible for the costs of supervised time at C Contact Centre.

(b)that the parties have leave to provide a copy of the Reasons for Judgment and Orders to C Contact Centre.

(c)In the event that C Contact Centre is not available to offer time in accordance with these Orders then time shall take place at Q Family Services, Suburb R or such other contact centre as recommended by Ms E.

Restraints
5.That pursuant to section 68B of the Family Law Act 1975 (Cth), the Father be and is hereby restrained, by injunction, from:
(a)contacting, attempting to contact or asking anyone else to contact the Mother or the child in any way other than as provided for in these Orders.
(b)locating, attempting to locate, or asking anyone else to locate the Mother or the child.
(c)following, remaining or approaching within 100 metres of the Mother or the child.
(d)entering, attempting to enter or approaching within 100 metres of the Mother’s place of residence or place of employment.
(e)attending the child’s school in any way other than as provided for in these Orders;
(f)denigrating or making adverse comments in relation to the Mother using the internet, including on any social networking sites, or
(g)threatening to do any of the above.

6.That pursuant to Section 68C of the Family Law Act 1975 (Cth), Order 5 is an injunction for the personal protection of the Mother and the child.

Leave to Provide Reasons and Orders
7.The Mother be given leave to provide a copy of Orders made to the school at which the child attends and any Reasons for Judgment and Order to any therapist upon whom the Mother and/or the child attend for the purpose of therapy.

Overseas Travel
8.The Mother shall be at liberty to take the child, out of the Commonwealth of Australia for holidays from time to time notwithstanding the fact that the consent of the Father has not be obtained.
9.For the avoidance of doubt, Order 8 of these Orders will not see the Mother in breach of Section 65Y of the Family Law Act 1975 (Cth).
10.That the Mother be permitted to apply for and obtain an Australian passport to enable the child to travel to and from the Commonwealth of Australia.
11.That the requirement for the consent of the Father for the issuing of such passport for the child be dispensed with and, if necessary, this order constitutes sufficient special circumstances for the Mother to seek, if deemed necessary, that the Minister administering the Australian Passports Act 2005 (Cth), give consideration to issuing an Australian Passport (travel document) pursuant to Section 11(2)(1) of the Australian Passports Act 2005 (Cth).

Specific Issues
12.That neither party is to be affected by alcohol greater than the legal driving limit while the child is in their care unless the child is adequately supervised by a third party who is not under the influence of alcohol.
13.That neither part consume illicit substances or be affected by illicit substances while the child is in their care or expose the child to any third party using or affected by illicit substances.
14.That the Mother and the Father shall refrain from any form of denigrating of the other party, or their extended family and relatives, in the presence or hearing of the child, and use their best endeavours to ensure that others do not denigrate or insult the other party or their extended family and relatives in the hearing or presence of the child.
15.Neither party shall use physical discipline on the child.
16.Neither party shall discuss these proceedings in the presence or hearing of the child and shall use their best endeavours to ensure that others do not discuss these proceedings in the presence or hearing of the child.
17.That the Mother and Father shall advise the other of any change of telephone number within 24 hours of such change occurring.
18.Each parent is to immediately advise the other via text in the event that the child requires emergency medical treatment whilst in their care.

File number(s):	BRC 13681 of 2020
Judgment of:	BAUMANN J
Date of judgment:	4 March 2024
Catchwords:	FAMILY LAW – PARENTING – Competing applications for residence – Where the child has been spending supervised time with the father since 2020 – Where the Court does not find the child is at unacceptable risk of harm in either parent’s care – Final orders made in the best interests of the child for the child to spend unsupervised time with the father
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA
Cases cited:	Goode & Goode (2006) FLC 93-286 Jones & Dunkel (1959) 101 CLR 298 Keane & Keane (2021) 62 Fam LR 190 Russell & Close [1993] FamCA 62
Division:	Division 1 First Instance
Number of paragraphs:	112
Date of last submission/s:	28 September 2022
Date of hearing:	18 – 20 July, 1, 8 and 28 September 2022
Place:	Brisbane
Counsel for the Applicant:	Ms S Downes
Solicitor for the Applicant:	BGM Family Lawyers
Counsel for the Respondent:	Mr J Todman
Solicitor for the Respondent:	Clarity Legal Group
Counsel for the Independent Children’s Lawyer:	Mr W Hodges
Solicitor for the Independent Children’s Lawyer:	Barbara Fox Solicitor

BRC 13681 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LEWERENZ Applicant
AND:	MR DWIGHT Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 MARCH 2024