LEXOR & LEXOR

[2018] FamCA 917

FAMILY COURT OF AUSTRALIA

LEXOR & LEXOR [2018] FamCA 917

FAMILY LAW – CHILDREN – Parenting – Where there is one child of the relationship who is under 18 – Where the matter was adjourned part heard at the request of the parents in order for them and the child to attend family therapy – Where that therapy was unsuccessful – Where both parents initially sought sole parental responsibility and for the other parent to not spend any time with the child – Where there is a history of family violence – Where, at the conclusion of final submissions, the father significantly changed the orders which he sought– Where the father then agreed to orders that included that the mother have sole parental responsibility and that he only spend time with the child if it was in accordance with the child’s wishes –  Where the father is able to send cards and gifts to the child.

FAMILY LAW – INJUNCTION – Where the father is restrained from attending the child’s school, except in particular circumstances – Where the father is restrained from attending the child’s place of residence.

Family Law Act 1975 (Cth) ss 68B, 117

APPLICANT: Ms Lexor

RESPONDENT: Mr Lexor

INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

FILE NUMBER: ADC 129 of 2013

DATE DELIVERED: 12 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 – 22 November 2017;
9 - 12 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Stolier

SOLICITOR FOR THE APPLICANT: Kathryn Renshall Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cotter-Moroz

SOLICITOR FOR THE RESPONDENT: John Hertz & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Scarlett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

Orders

1. The mother have sole parental responsibility for the child;

2. The child live with the mother;

3. Subject to order 4, the child spend no time with the father;

4. The mother shall facilitate any request by the child to communicate with or spend time with the father on the condition that the mother has formed an opinion that any such face to face time or communication was safe for the child;

5. In accordance with s 68B of the Family Law Act 1975 (Cth), the father be prohibited from attending the child’s school and place of residence and/or study except to attend the child’s school once a term for the sole purpose of speaking to the child’s teachers about the child’s progress at school on the condition that it is a formal parent teacher night and that the father gave the mother proper notice of his intention to attend such a night and it be at a time that the child wasn’t there;

6. The mother cease working with Mr K of L Services;

7. The father is at liberty to send the child a card and gift on the occasion of his birthday and the mother shall ensure any such card/gift is given to the child;

8. In order to facilitate Order 7:

   (a)The father shall within 14 days obtain a post office box at M Street post office or such other post office the mother shall nominate to the father in writing from time to time, to which the said items can be sent;

   (b)The father pay for the cost of maintaining that post office box;

   (c)The father provide a key to the mother’s current lawyers and the lawyers forward the key to the mother; and

   (d)The mother is to check that post office box two weeks before the child’s birthday to see if the father has sent a gift or a card; 

9. The application by the Independent Children’s Lawyer that the father pay costs is dismissed;

10. It is noted that no order has been made in relation to the child’s international travel and the mother is at liberty to make such an application in the future; and

11. All other outstanding applications be dismissed and the matter is removed from the active pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC129/2013

Ms Lexor

Applicant

And

Mr Lexor

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties seek parenting orders for their child, F, born in 2007 (“the child”).

2. This matter has been in my docket since 2013. I discuss in these Reasons some of the history of the child’s life since that time. On 22 November 2017, the final hearing of the matter was adjourned part heard on the basis that the parties had agreed to attempt to engage in family therapy. This was unsuccessful and the parties returned to court to seek determination on what was to be in the best interests of the child on a final basis.

APPLICATIONS

1. At the commencement of final submissions the mother and the Independent Children’s Lawyer both sought identical orders (Exhibit 38) to the following effect:

   1)The mother have sole parental responsibility of the child;

   2)The child live with the mother;

   3)In accordance with s 68B of the Family Law Act 1975 (Cth), the father be prohibited from attending the child’s school and place of residency and/or study;

   4)The mother cease working with Mr K of L Services; and

   5)The father pay the whole of the costs of the Independent Children’s Lawyer, being $32,345.90.

2. During final submissions, counsel for the mother sought to make an oral application that the child’s name be removed from the Watchlist, presumably to facilitate her travelling outside of the jurisdiction with the child.

3. At the conclusion of final submissions, the father significantly changed his position and abandoned his initial application which had been to the following effect:

   1)The child to be moved to live with the father and there be a six month period where the child did not have face to face time or communication with the mother; and

   2)After this six month period, the father proposed that time be graduated, whereby after an additional five months the child would spend time with the mother on alternate weekends.

4. The orders that the father finally sought (Exhibit 39) read as follows:

   1)That the mother have sole parental responsibility except in relation to being able to move from the Sydney Metropolitan Area;

   2)That the child live with the mother;

   3)That the mother shall enrol the child in N School for his secondary education;

   4)That the mother be restrained from changing the child’s school unless the child is diagnosed with Autism Spectrum Disorder or another psychiatric disorder and as a result it is recommended that the child attend a special school in which case the mother shall forthwith inform the father in writing within 7 days of the full details of the child’s new school;

   5)That the father have liberty to attend the child’s school once a term for the sole purpose of speaking to the child’s teachers about the child’s progress at school;

   6)The mother be restrained from relocating the child’s residence outside the Sydney Metropolitan area;

   7)The mother be restrained from moving the child out of the Commonwealth of Australia;

   8)The child’s name remain on the Watchlist;

   9)The mother shall facilitate any request by the child to communicate with or spend time with his father;

   10)The father is at liberty to send the child a card and gift on the occasion of his birthday and the mother shall ensure such card/gift is given to the child; and

   11)For the purposes of order 10 above the mother shall within 14 days notify the father (in writing) of a post office box or other address to which the said items can be sent.

5. In relation to the father’s proposed minute of order, the mother consented to:

   1)Order 2, that the child live with the mother;

   2)Order 5, but only on the basis that it was limited to a formal parent teacher night and that the father gave the mother proper notice of his intention to attend such a night and it be at a time that the child wasn’t there; and

   3)Order 9, but subject to the condition that the mother had formed an opinion that any such face to face time or communication was “safe” for the child.

6. It can be observed that by the end of the hearing the issues in respect to which the parties were apart were quite narrow. The first issue is whether a condition should be placed upon a sole parental responsibility order in the mother’s favour which prevents her from moving outside the Sydney Metropolitan Area. A related issue is whether or not an order should be made that the child start high school at N School next year. The father seeks such an order. Whilst that is the mother’s current intention, the mother and the Independent Children’s Lawyer oppose that order being made. The father does not now seek any order that he spend time with the child unless the child requests his mother to have that time. The mother opposes any restraint upon the child’s movement within Australia. The mother, during final submissions, sought to raise the issue of the child’s international travel. The father opposed any such order and opposed the child’s name being removed from the Watchlist.

DOCUMENTS RELIED UPON

1. The mother relied upon a trial affidavit filed 20 October 2017, an updated affidavit filed 6 July 2018, an affidavit of Mr K filed 6 July 2018 and an affidavit of her daughter, Ms G, filed 12 December 2014.

2. The father relied upon his affidavit filed 17 November 2017 and the affidavit of his new wife, Ms O, filed 21 November 2017.

3. Dr C, the single expert, has provided three reports dated 20 August 2013, 28 April 2015 and 25 August 2017. In addition, the court also has before it an earlier child memorandum from Ms P dated 15 May 2013 and a report of Mr Q dated 13 June 2018.

CHRONOLOGY

1. The father was born in 1968.

2. The mother was born in 1973.

3. The parties were married in India in 1994.

4. The parties’ first child, Ms G, was born in 1995 and is currently 23 years of age.

5. The father came to Australia in 1998 and the mother and Ms G moved to Australia in 1999.

6. The parties’ second child, F (“the child”), was born in 2007 and is currently 11 years of age.

7. The parties initially lived in Sydney. In late 2007/early 2008, because of immigration requirements, the parties moved to Adelaide but the father continued to travel back to Sydney to work and live for substantial periods of time.

8. In January 2011, the family resumed living together in Sydney. The parties separated on 24 February 2011. There is a dispute about the circumstances surrounding the separation. It is agreed, however, that the mother left the two children with the father and returned to live with her parents in India for 21 months.

9. On 3 November 2011, the mother says the father assaulted Ms G. Police were called and an AVO was issued protecting Ms G against the father.

10. On 10 November 2012, the mother returned to Australia. Upon her return, she commenced living at a women’s refuge in Adelaide.  In February 2013, the mother moved to Sydney and commenced living at a women’s shelter. The mother began spending weekend time with the child but not overnight.

11. On 15 November 2013, the mother says she noticed bruising on the child’s right cheek, right outer elbow, upper arm and left ankle.  From this time, the child remained in the mother’s care and a provisional ADVO order was made against the father in favour of the child. The father was charged with common assault and was tried but not found not guilty in September 2014. The ADVO was also discharged at that time.

12. In 2013, the father married Ms O, his current wife, in India. 

13. Notwithstanding the result in the local court in September 2014, based upon the recommendations of the child’s treating therapist, the child only spent time with the father at the B Group for two hours on 26 September 2014, 10 October 2014, 24 October 2014, 7 November 2014, 21 November 2014 and 19 December 2014.

14. On 22 December 2014, orders were made for the child to spend further time with the father on a supervised basis at the B Group at Suburb J each week for a period of up to two hours. However, no face to face time occurred. The child was to communicate with the father by way of Skype for a period of 30 minutes three times per week. Those orders were suspended on 26 March 2015.

15. On 18 January 2015, the police attended the mother’s home as she was unable to control the child. The child was taken by police to Suburb J hospital.

16. On 18 February 2015, the child was taken to hospital by ambulance after he was hitting himself and the mother became highly distressed. The child was discharged from hospital on 23 February 2015. 

17. On 28 May 2015, the parties agreed on an interim basis for the mother to have sole parental responsibility for the child and family therapy be provided for the child and for the parents to be involved in that process. On 29 June 2015, the matter was adjourned for a period of six months to enable the parties to obtain a place in a therapy program at R Group. That therapy has not taken place.

18. In 2016 the father’s current wife moved to Australia.

19. On 22 November 2017, the matter went part heard on the basis that the parties had agreed again to attempt to enter into family therapy.

20. As at the date of the final part of this hearing, family therapy had been unsuccessful.

FAMILY VIOLENCE

1. Whilst the issues that require determination are of a relatively narrow compass, it is relevant to make some findings about the history of family violence which is the source of much of what has happened during the course of this case.

2. The mother asserts that the father was physically violent towards her throughout their marriage. She says that the father has head-butted her, twisted her leg which caused an injury to her knee, hit her with shoes and slapped her. On one occasion the mother asserts the father hit her head causing her eye to swell up. She says that the father would tear her clothes off and force her out of their home. The mother also says that the father was verbally abusive and would become angry over small matters and make derogatory comments towards her.

3. Counsel for the father, in final submissions, questioned why the mother did not seek medical attention when the father had allegedly hit her head and caused her eye to swell. The mother says that she was treated for her injuries a few days later when a medical practitioner happened to walk into her workplace. Counsel for the father submitted that this evidence is incredulous, especially in circumstances where the evidence had not been given before.

4. The mother also asserts that the father had repeatedly perpetrated sexual violence upon her.

5. When the mother left Australia for India in February 2011, she says the father had forced her out of the matrimonial home and threatened to kill her and her family members. The mother says she contacted her father in India for help.

6. The father denies that he has been violent or verbally abusive towards the mother. He does concede, however, that the parties argued and during some of those arguments the mother scratched at his shirt buttons and when she did so the father would push her away from him and say the Hindi word for “bitch”. 

The event on 3 November 2011

1. Evidence about one particular event, not involving the mother but the elder child, leads me to be cautious about accepting the father’s evidence about what happened during alleged incidences of family violence.

2. On 3 November 2011, Ms G left the family home. Ms G gave evidence that that evening she was home with the child and a woman named Ms S who was renting a room in their home. She believes Ms S was having an affair with her father and when Ms S made a comment about her mother, an argument broke out. Ms G went upstairs to her room and was there when, 10 or 15 minutes later, her father came home from work. She says that the father barged into her room, began hitting her, and then dragged her by the hair down the stairs. Downstairs, the father continued to kick and hit Ms G whilst she was on the floor, which she says, the child witnessed. Ms G says that her father then, whilst she was barefoot and in her pyjamas, pushed her out of the house. At that moment, she says she remembered all the times her father had done this to her mother and she then made the decision that she would not let this happen to her too. Ms G then says she ran down the street and asked the first person she saw to call the police. The police arrived and she says they were going to arrest her father but Ms S told the police that no violence had occurred. She left with the police and stayed with a friend that night. The next morning she flew to Adelaide but returned to Sydney and stayed at a woman’s shelter for AVO proceedings against her father in which orders were sought for her protection. After a few days, she moved to Adelaide where she has lived on her own ever since.

3. The father gave a different version of the November 2011 incident. He says he was at work when Ms S called him saying that the child and Ms G were fighting. The father says he arrived at home to find the child crying at Ms G’s closed bedroom door as Ms G had stolen his rabbit and would not return it. The father says he was frustrated at the constant fighting between the members of the household, especially Ms S and Ms G. He says he knocked on Ms G’s door a few times until she said he could enter and when he opened the door the rabbit ran out. Ms G started saying “sorry daddy” but he says he told both Ms G and Ms S to leave the house. The father denies physically assaulting Ms G, saying he only held the upper part of her arm for a few seconds before she ran out of the door in her night dress. He says that the child did not witness any of this as he was downstairs playing with his rabbit. The father says the police then arrived and when they told him that his daughter was sorry and wanted to return he refused to let her return as he was angry and insulted that she had called the police.

4. The police’s record of this event (Exhibit 35) reports that marks were observed on Ms G’s body which were inconsistent with the father’s version of what happened on this evening. Counsel for the father, in final submissions, conceded that the police records from that night were largely consistent with Ms G’s version of events and that what the father had done on that occasion was “appalling”.

5. I find that the father did assault Ms G on 3 November 2011 in the way described by her.

Alleged abuse of the child

1. The mother also asserts that the father has physically abused the child. On 15 November 2013, the mother says she noticed bruising to the child’s right cheek, right outer elbow, upper arm and left ankle. She says when she asked the child what happened he told her that his father had hit him. The mother took the child to Suburb J Police Station where the child was interviewed by a police officer. During the interview, the child told the police that he was slapped on the face and arm and nodded his head when asked if it was his father.

2. The father denies those allegations. The matter was referred to the child abuse squad. A provisional ADVO was made against the father on 15 November 2013 and an interim ADVO was made on 19 November 2013.

3. Since 15 November 2013, the mother says the child made certain disclosures to her including, “Dad pulls my hair”, “Dad hits me with a slipper”, “Dad hits me”, “Dad kicks me” and “Dad and … used to lock me up in the toilet and I was scared”. The mother says the child has also told her that the father would call him derogatory words in Hindi.

1. On 22 November 2013, the mother says the child held a knife and said he wanted to be dead. The mother obtained a mental health plan for the child.  On 9 January 2014, the child was interviewed by JIRT.

2. In the interviews for the single expert report, the child said that he last spoke to the father on Skype in March 2015. During this conversation, the child said his father “swore at him in both Hindi and English”. During the interviews, the child also recalled specific incidents when the father hit him with a toy car when he was “pretty little” and resulted in him bleeding and one occasion where the father yelled at him for not cutting a cake correctly on the family pet’s birthday when the child was three or four years old. When discussing these incidents, the single expert observed the child’s voice to remain monotone and the child not to present any visible signs of distress. The single expert opined that the child “only recounted relatively innocuous events that would be considered quite dated in terms of [the child’s] current age, but in turn raises possible doubt about the extent of ‘trauma’ that has been presumed to have occurred.”

3. Notwithstanding this, the single expert did opine that the mother, child and Ms G gave separate but consistent stories in relation to family violence and in a manner that did not appear to be coached.

Conclusion

1. I have formed the view that I am unable to rely upon the father’s evidence about the history of family violence. The father, for example, has not accurately recorded what happened on 3 November 2011. On balance, I generally accept that the father perpetrated family violence against the mother during the relationship and at times assaulted and swore at the child.

THE CHILD’S BEHAVIOUR AND THERAPY

1. It is also of some relevance to record the history of the disturbing behaviour displayed by the child and the treatment he has received.

2. The mother says that the child suffered nightmares about his father and attended upon Ms T to assist with his nightmares. In 2014 the mother says his nightmares settled down but still occurred and would increase when the child spent supervised time with the father or communicated with him on Skype. The child stopped attending on Ms T in May 2015.

3. On 18 January 2015, the mother says the child became aggressive and started hitting himself and herself. She says he took some scissors and said that he wanted to kill himself. The mother took the scissors from the child and the child then grabbed a pen and started scratching himself on the back of his hand. The mother took the pen away and says he then started scratching her and hitting her with a cricket bat. The mother called 000. Police attended and took them to the emergency department. The mother was advised that the child would be referred to Infant, Child and Adolescent Mental Health Services (“ICAMHS”). Since January 2015, the child has received individual therapy at ICAMHS. That therapy initially involved completing the Cool Kids anxiety program and then the child continued weekly sessions which provided Trauma Focused Cognitive Behaviour therapy.

4. On 18 February 2015, the child was taken to hospital by ambulance after becoming highly distressed and hitting himself and the mother. He was discharged from hospital on 23 February 2015. 

5. On 5 March 2015, the child was assessed by Dr U, a child and adolescent psychiatrist, who diagnosed with child with post-traumatic stress disorder and prescribed medication which the child took until about August 2015.

6. The child has undergone individual Trauma Focused Cognitive Behaviour Therapy since March 2015 as opposed to any form of family therapy.

7. In 2017 the mother called the police on one occasion because the child was hitting her and bruised her eye.

8. The single expert, in his updated report dated 25 August 2017, states that he:

   holds multiple concerns about the provision of individual therapy over such a prolonged time by so many therapists. Other concerns include but are not limited to the apparent absence of assessment (within a heavily conflicted Family Court matter) to establish whether any trauma existed, a lack of articulated therapy goals with an absence of progress and outcome measures employed, and that this therapy continues despite reports from [the mother] that it has also been associated with increased emotional and behaviour difficulties exhibited by [the child] following his sessions.

9. The child was unable to articulate to the single expert knowledge he had gained in terms of psycho-education or in terms of techniques learnt to assist in self-regulating his emotions.

10. The child told the single expert that he physically hits his mother and acknowledged that such behaviour was inappropriate.

11. Psychometric assessments undertaken by the single expert suggested that the child “has a slight tendency to perform harm avoidance behaviours which include behaviours such as checking for potential danger in his environment, doing things to please or obey others, and generally avoid things that may upset him”. The child’s psychological profile also indicated “some sub-clinical difficulty in relation to posttraumatic stress symptomology” which suggests that child may have “trouble with sensations and memories for past events, nightmares, and negative thoughts.” The child indicated that he had a mild fear of men and a slight fear that somebody would kill him.

12. While the single expert observed the child in his previous report dated 28 April 2015 to exhibit signs of anxiety and reported memory of historical family violence perpetrated by the father, the more recent assessment saw the child present as a “quiet and cooperative young man, who was able to readily and confidently speak about his father in neither an inhibited or avoidant manner.”

THE APPROACH IN CHILDREN’S CASES

1. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests but it is not necessary in determining this case to discuss them in detail.

STATUTORY CONSIDERATIONS

1. The father has accepted that the child would not currently benefit in any meaningful way by being forced to have a relationship with him.

2. I have discussed above the historical background of family violence and the child’s psychological history which I find, to a significant degree, has had its aetiology in the child being exposed to that family violence.

3. On 2 April 2015, in an interview of the child by the single expert, the child said that he did not wish to see his father. In a subsequent interview on 19 July 2017, the child said that he had “felt good” about his recent lack of contact with his father.

4. After being admitted to hospital in January 2015, the child wrote a letter to Ms V (his treating doctor’s assistant) in the following terms:

   I don’t want to meet him at all even if grow up. I don’t want to meet him because he hitted me if I drop something by accident. So I don’t want to meet him because he will swear at me in Indian language and then the lady over the contact centre won’t know what he is saying to me because she isn’t India. So she won’t understand what he is saying to me and I will not feel good so thats why if I don’t go  from now then he can’t hurt my feeling to if I say to him something but he can only hurt my feeling and he hurt my feeling by saying shit! to me what he already said to me on the skipe when I was talking to him last week on skipe and that’s the reason I don’t want to talk to him at skipe or in the contact centire or anywhere else to because he will swear at me again in skype.

   (Errors in the original)

1. On 19 April 2018, the child had a consultation with his treating doctor, Dr X. Dr X records, inter alia, the child saying that he “Doesn’t like having the front door open for fresh air, or his bedroom door – at all open… worries someone will take him away…  eg his dad” and that he “doesn’t want to see his dad.”

2. After the parties moved to Australia, the father worked full time while the mother was Ms G’s primary carer. The mother was the child’s primary carer from his birth until she travelled to India in February 2011. From February 2011 to November 2013 the father had primary care of the child. Whilst the child’s relationship with his mother has been problematic from time to time, she has been his sole carer for a significant period since late 2013.

3. The mother has demonstrated she has a functioning parenting capacity. The mother has recently commenced counselling at R Group. From March to June 2017 the mother had access to a support worker (Mr K) who attended the mother’s home in the mornings to help the child through his morning school routine and assist him in getting ready for school. The support worker recommenced assisting the mother on 21 December 2017. As referred to below, the single expert was not supportive of the support workers continued interventions.

1. The mother is currently unemployed and receives Centrelink payments to support herself and the child. She has not pursued child support from the father.

2. The events involving the elder child in 2011, give some insight into the father’s parenting capacity at that time. Ms G gave evidence that during 2011, at a time that her mother was in India, she had been diagnosed with depression; prescribed anti-depressants; took an overdose; had an ambulance called which took her to a hospital; was admitted to the psychiatric ward of that hospital and stayed at least overnight. She says that her father had picked her up from hospital, but only reluctantly. Tasha says, upon returning home, she cut herself. I accept Ms G’s evidence about these events.

3. The father gave evidence that he had not been aware of his daughter’s mental health and denied picking up his daughter from hospital. The father’s assertion that he had no knowledge of anything about this serious incident in his daughter’s life demonstrates an extraordinary lack of awareness of what was going on with his daughter who was only 16 at the time.

4. When commenting upon the incident involving Ms G that took place on 3 November 2011 (described above), the single expert described the father’s parenting capacity as:

   Clearly not emotionally attuned, extremely non-empathic and potentially high risk parenting given his actions with a, you know, 16 year old adolescent female, putting her out in the dark of night, clearly ill prepared herself for that eventuality, so at so many levels just wrong.

5. The father works part time and receives Centrelink benefits. He is currently undertaking a Certificate III and intends to enrol in a Certificate IV to enable him to obtain employment.

6. The child attends N School and is currently in year 5. The mother says that she has encountered difficulties in the child attending school and he is often late to school. The child has not performed well academically and is receiving tutoring. The mother says the child has experienced bullying by two of his peers. This is to be contrasted with the evidence from the single expert that the child told him that he enjoys going to school.

7. The mother told the single expert that she encounters problems with the child’s behaviour at home such as trouble “settling down”, “controlling his emotions” and aggression including hitting, throwing and swearing. The mother said that this behaviour is worse in instances of environmental change or after his therapy sessions.

PARENTAL RESPONSIBILITY

1. The presumption of equal shared parental responsibility does not apply to this case because I have found that the father has engaged in family violence.

2. The parties have agreed that there be an order that the mother have sole parental responsibility with the only controversy being the father’s application that it be fettered by attaching a condition that the mother not be able to move from the Sydney Metropolitan area. The mother is currently settled in Sydney in assisted accommodation. She has some knowledge of support services in the Suburb J area. She is likely to need them in the future.

3. I find it is unlikely that the mother shall move away from the Sydney Metropolitan area, at least in the short term. I note that it is the mother’s current intention to enrol the child in N School and for the child to spend his secondary education there. Whilst there may be some prospect in the longer term that the mother might want to relocate to Adelaide where Ms G lives, there is no basis (given the child is not to have any face to face time with his father unless he requests it) to restrict the mother’s movements by imposing the condition proposed by the father. Nor is it appropriate that the mother’s rights under a sole parental responsibility order be subject to:

   1)The mandatory requirement that she enrol the child in N School for the child’s secondary education; or

   2)A restraint from changing the child’s school unless the child is diagnosed with Autism Spectrum Disorder or another psychiatric disorder and as a result it is recommended that the child attend a special school in which case the mother shall forthwith inform the father in writing within 7 days of the full details of the child’s new school.

4. The child’s name is currently on the Watchlist. The father, in Exhibit 29, sought orders restraining the mother from moving the child out of the Commonwealth of Australia and for the child’s name to remain on the Watchlist. As indicated, counsel for the mother in final submissions, made an oral application for the child’s name to be removed from the Watchlist, although the issue of the mother taking the child out of Australia was not the subject of any focus during the hearing. Similarly, the father’s application for an order restraining the mother from moving the child out of Australia was not the subject of any evidence. In those circumstances, I do not intend to make any order one way or another about the mother moving or taking the child out of the jurisdiction or which affect the child’s current status on the Watchlist. If the mother wishes to do that in the future, the mother needs to make a further application.

PROPOSED ORDERS

1. Although the parents agreed that no order be made for the child to spend defined face to face time with the father or communicate with the father, the father sought an order that the mother facilitate any request by the child to communicate with or spend time with him. The mother agreed but subject to the condition that the mother had formed an opinion that any such face to face time or communication was “safe” for the child. I accept that an order in the form agreed to by the mother is an appropriate order in the best interests of the child.

2. Order 4 that is sought by the mother and the Independent Children’s Lawyer (Exhibit 38) is in the following terms:

   That the mother cease working with Mr K of L Services.

3. Everyone consented to that order. I think it is an appropriate order. Counsel for the mother described Mr K, the support worker, as a “well-meaning but misguided advisor.” The single expert gave evidence that the mother, regrettably, should not rely on visiting outsiders like Mr K for assistance, and needs to become more sophisticated in her own parenting strategy. The mother has to learn for herself how to create boundaries for the child and it doesn’t help to have a support worker come in of a morning and attempt to do it for her.

4. The mother resisted the order sought by the father that allowed the father to forward birthday cards and gifts to the child. I concluded that it was in the child’s best interests to allow that to happen.

5. During submissions, the father agreed that he would pay for the costs of any post office box and provide a key for the mother in respect of that post office box. The mother, in final submissions, indicated that if the court made such an order (which she opposed) the post office at which that box should be obtained was the post office at M Street. I intend to make that order and facilitate that by requiring the father to obtain a post office box at M Street or such other post office as the mother shall nominate to the father in writing from time to time; the father to provide a key to the mother’s current lawyer, who is to forward that key to the mother, and require the mother to check that post office box two weeks before the child’s birthday.

6. The mother and the Independent Children’s Lawyer also sought an order that, in accordance with s 68B of the Family Law Act 1975 (Cth), the father be prohibited from attending the child’s school and place of residency and/or study. Given the history of family violence, some restraint on the father’s attendance is appropriate. In the event that order was made, the father sought that the order provide that he be at liberty to attend the child’s school once a term for the sole purpose of speaking to the child’s teachers about the child’s progress at school. The mother agreed but only on the basis that it was limited to a formal parent teacher night, that the father gave the mother proper notice of his intention to attend such a night and it be at a time that the child wasn’t there. I find it in the child’s best interests to make an order in the terms sought by the mother.

THE INDEPENDENT CHILDREN’S LAWYER’S APPLICATION TO PAY THE INDEPENDENT CHILDREN’S LAWYER’S COSTS

1. It was an agreed fact that at times during these proceedings and certainly during the final days of the hearing the father’s legal costs were being covered by a grant of Legal Aid from the Legal Aid Commission. The Independent Children’s Lawyer makes an application for costs against the father pursuant to s 117(2) of the Act.

2. Section 117(4) is in the following terms:

   However, in proceedings in which an Independent Children’s Lawyer for a child has been appointed, if:

   a)party to proceedings has received Legal Aid in respect to the proceedings….

   the court must not make an order under subsection (2) against that party in relation to the costs of the Independent Children’s Lawyer

3. Given the mandatory nature of that subsection, the Independent Children’s Lawyer’s application that the father pay for the costs of the Independent Children’s Lawyer must fail and I will dismiss that application.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 November 2018.

Associate:

Date:  12 November 2018