Lodge & Tiller (No 2) - [2023] FedCFamC1F 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lodge & Tiller (No 2) [2023] FedCFamC1F 21

File number(s): MLC 9308 of 2009

Judgment of: CARTER J

Date of judgment: 27 January 2023

Catchwords: FAMILY LAW – CHILD – final parenting orders – undefended hearing – protracted litigation – orders made by consent between the father and Independent Children’s Lawyer – where the mother declined to participate in proceedings – where the mother relinquished care of the child – relocation – father to have sole parental responsibility – father permitted to relocate with the child – where the child continues to exhibit challenging behaviours – mother restrained from communicating with the child – child at liberty to communicate with his step-sister – concerns regarding the mother’s capacity to meet the child’s needs, best interests of the child.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA, 69ZX 91B, 102NA

Cases cited:
A & A: Relocation Approach [2000] FamCA 751

AMS v AIF [1999] HCA 26

Cotton & Cotton (1983) FLC 91-330

KB & TC [2005] FamCA 458

Morgan & Miles [2007] FamCA 1230

Taylor v Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 241

Date of last submissions: 19 January 2023

Date of hearing: 19 January 2023

Place: Melbourne

Counsel for the Applicant: Andrew Combes

Solicitor for the Applicant: Wightons Lawyers

The Respondent: Litigant in person (did not participate)

Counsel for the Independent Children's Lawyer: Sarah Mansfield

Independent Children's Lawyer: Southern Family Law
ORDERS

MLC 9308 of 2009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LODGE

Applicant

AND:
MS TILLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CARTER J

DATE OF ORDER:

19 January 2023

THE COURT ORDERS BY CONSENT BETWEEN THE INDEPENDENT CHILDREN’S LAWYER AND THE APPLICANT FATHER THAT:
1.All previous Orders relating to the child X born 2008 (“the child”) be discharged.
2.The father have sole parental responsibility for the child.
3.The father shall notify the mother in writing, by text or email, of any major decisions made by him in the exercise of his parental responsibility within 24 hours of exercising such responsibility.
4.The child live with the father.
5.The father be at liberty to relocate with the child to the Brisbane region of Queensland.
6.The mother be and is hereby restrained from initiating any communication directly with X or doing so through a third party, including her daughter Y, unless with the written consent of the father, which consent shall take into consideration the wishes of the child.
7.The child be at liberty to communicate with his step-sister, Y, on such days and times as agreed between the parties upon the child expressing a desire for such communication.
8.Upon X relocating to the Brisbane region, and no later than 60 days from the date of such move, the father shall attend upon a general practitioner to discuss and, where appropriate, obtain a mental health care plan or other referral to a suitable child and adolescent mental health practitioner or service and thereafter make an appointment for the child, and the father shall follow all reasonable directions as to X’s treatment.
9.The father shall be permitted to provide to X’s treating mental health practitioner, or service, a copy of these Orders and the Judgment of Her Honour Justice Carter in respect of Orders made on 12 August 2022.
10.Each parent keep the other advised as to their residential address, landline and mobile telephone numbers, skype and email addresses and notify the other of any change to such details within 24 hours of such change.
11.The father advise the mother, as soon as practicable, by email, text message or in the case of emergency by telephone, upon becoming aware of:
(a)any significant injury or illness effecting X; and
(b)any hospital admissions by X.

12.Save for cases of bona fide emergency, neither party contact the other by any means between 8.00 p.m. and 9.00 a.m. in relation to matters concerning the child.
13.The father shall provide a copy of these Orders to any school which X is enrolled and attends and to his treating medical and allied health practitioners.
14.The mother be and is hereby restrained by injunction from taking the child without the express written consent of the father to any:
(a)medical practitioner or allied health practitioner (such as a chiropractor, nutritionist or physiotherapist) save for cases of bona fide emergency;
(b)psychologist, counsellor or other mental health professional;
(c)any counselling or support services (including but not limited to UU Program or VV Program) being attended by her.

15.The mother be and is hereby restrained from requesting any medical reports about the child or medical referrals for the child without the express written consent of the father.
16.In the event that the father wishes to travel overseas with the child, he will:
(a)provide not less than 21 days notice (unless in the case of an emergency) to the other the details of their intended travel, including copies of return airfares, location, travel itinerary and contact details for the child;
(b)if a passport is required both parties will do all such things and sign such documents to procure same noting the passport will be held by the father.

17.In the event that the mother fails to execute any passport application for the child within 30 days of a written request by the father, then pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the father be authorised to execute all documents necessary to apply for (including a renewal of) and maintain Passports for and on behalf of the child X born 2008, and it is requested that the Department of Foreign Affairs and Trade issue Passports for the said child and the father shall be at liberty to travel (but not relocate) with the child internationally.
18.In the event that the child spends time with the mother in the City P region, changeover is to occur at either the Q Airport or R Airport or such other alternate venue as may be mutually agreed in writing from time to time at the commencement of the mother’s time and to occur at the Brisbane or S Airport airports or such other alternate venue as may be mutually, in writing, agreed from time to time at the conclusion of the mother’s time.
19.The mother and father, together with their servants and agents, be and are hereby restrained from:
(a)denigrating the other, and the parties’ family and friends, to and in the hearing of the child or allowing another to engage in such conduct; and
(b)discussing family law matters with or in the hearing of the children including the contents of any affidavit material or reports filed in these proceedings or allegations of family violence or drug and alcohol use alleged in these proceedings.

20.All extant applications be dismissed.
21.The Independent Children’s Lawyer appointed pursuant to Orders made on 19 April 2021 be discharged.

THE COURT ORDERS THAT:
22.Forthwith the respondent mother be served a copy of these orders by email.
23.Judgment in relation to costs be and is hereby reserved.

AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court may vary or set aside a judgment or order made in the absence of a party.
B.As soon as practicable, the parties will be provided with reasons in relation to these final orders and any orders made in relation to costs.
C.Pursuant to Sections 65DA(2) and 62(B) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in attached Fact Sheet and those particulars are included in these Orders.
D.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
E.The mother did not attend court today. The mother is aware of the listing of the continuation of the final hearing on 19 and 20 January 2023 and has not attended.

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 Lodge & Tiller has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

These proceedings concern the appropriate care arrangements for X born 2008 (“X”). X is currently 14 years old. He now lives with the father in Queensland, having relocated there in around late 2022. I made final orders on 19 January 2023 as sought by the father, and supported by the Independent Children’s Lawyer to that effect. The final orders made that day also provided the father with sole parental responsibility for X, together with a raft of additional orders relating to X’s care, welfare and development.
These orders were made in the mother’s absence, as she did not attend court on 19 January 2023, when the part heard final hearing was to resume. However, I was satisfied she was well aware of the matter being listed, but for her own reasons she declined to participate. She was provided with the Microsoft Teams link, and did not join. She had indicated to the other parties in writing that she did not intend to participate. She did not answer her telephone when the court attempted to call her on the morning of 19 January 2023.
There appeared to me to be no utility in further adjourning the matter which, in X’s best interests, must come to a final conclusion. I note there have been other occasions when the mother simply determined she did not want to attend court, which has resulted in unnecessary delays in the resolution of this matter.
These are the reasons for the making of the final orders on 19 January 2023. Whilst orders are ordinarily made contemporaneously with the reasons given for those orders, the unique circumstances of this particular case required me to depart from that usual process. It was, in my view, necessary for X’s wellbeing that final orders be made on 19 January 2023 rather than waiting for the production of these reasons.
DOCUMENTS RELIED UPON
I have had the benefit of hearing evidence from the parties and the Family Consultant over the course of three days, in December 2021. The transcript from those proceedings were admitted into evidence in these proceedings pursuant to s69ZX(3)of the Family Law Act 1975 (Cth) (“the Act”). I also had the benefit of hearing evidence from the father and his wife in August 2022.
At the trial in December 2021, The father relied on:
(a)his trial affidavit filed 23 September 2021;
(b)a short updated trial affidavit filed 25 November 2021; and
(c)an affidavit of his wife, Ms A (“Ms A”), filed 25 November 2021.
According to the mother’s case outline, she relied on:
(d)her affidavit filed 20 September 2021, which was prepared by the mother herself;
(e)her affidavit filed 10 November 2021; and
(f)her affidavit filed 2 December 2021.
In addition, the Independent Children’s Lawyer relied upon the affidavit of Dr T (“Dr T”) filed 29 October 2021 and the Family Report dated 3 September 2021 prepared by Ms U.
Since that time, the mother has filed a plethora of affidavits. The updated Outline of Case filed on behalf of the mother on 1 August 2022 did not articulate the documents she sought to rely upon when the matter was listed for final hearing before me commencing that day. When she was sworn in on 11 August 2022, she adopted her affidavits filed 12 July, 27 July and 1 August 2022.
The cross examination of the mother was not completed at that time, as the mother did not return to court. Since that time, the mother has filed further affidavit material. I have read and had regard to the mother’s material, as best I can.
According to the Outline of Case filed on behalf of the father on 26 July 2022, in addition to the documents to which I have already referred, the father relied on affidavits affirmed by him and filed on 28 June and 19 July 2022, and an affidavit affirmed by his wife filed 19 July 2022. Most recently he has filed affidavits on 10 October 2022 and 5 January 2023.
In addition, I have had regard to the Specific Issues Report dated 6 May 2022. The Department of Families Fairness and Housing (“the Department”) have also provided reports, to which I have also had regard.
BACKGROUND AND PROCEDURAL HISTORY
I am setting out at length the background and history of this matter, much of which has already been articulated in my earlier reasons given 28 March 2022, when I sat in Division 2 of this Court, and my reasons delivered on 12 August 2022, and replicated here. This is in my view a matter where the current issues X faces have their genesis in the chronic parental conflict, and his behaviours and struggles need to be seen in the broader context to better understand how his best interests may be met.
The father now lives in Brisbane with his wife Ms A. He is currently studying a degree at V University. Ms A is a health professional. I understand she is working in Brisbane, and assisting in caring for her elderly parents.
The mother lives in the City P area. My understanding is she is engaged in home duties.
The parties commenced their relationship in early 2008. At that time, they were both engaged in treatment and counselling with UU Program. The parties were together for a few short months, separating in mid-2008. X was born 2008.
The mother asserts that the father was violent and abusive to her during their short relationship. That is denied by the father. The father asserts that the mother was abusive and violent towards him. The mother acknowledged that in 2008 she did push and kick the father, pick up a vase and “knocked him on the shoulder”. She said she did not use much force and the father did not require medical treatment. She said that is the only time she was violent towards him. The father sought and obtained an Intervention Order against the mother at that time which she did not contest.
The father initiated proceedings seeking time with X in October 2009. Final orders were made on 25 March 2011 which provided for X to spend alternate Monday evenings and each Wednesday evening with the father. Additional orders were made for X to have time with the father during the summer holidays as well as on special occasions.
By agreement in July 2012 and January 2013, the parties increased X’s time with the father, such that he was by early 2013 spending 4 nights per fortnight with the father.
In 2013, the mother gave birth to her second child Y (“Y”). Y is now 8 years old. Her father plays no real role in her life, and she lives full time with the mother.
In mid-2013, the father commenced a relationship with Ms A.
In 2014, X commenced school at W School.
In early 2015, the father married Ms A. Shortly after their marriage, the mother withheld X from spending time with the father. The mother said she did so as the father had moved an hour away and that X was struggling with the additional travel.
The father brought further proceedings in June 2015 in which he sought that X reside with him. The parties entered into final orders by consent on 2 June 2016 pursuant to which X would remain living with his mother, and spend five nights per fortnight with his father together with half of the holidays. Those detailed orders also included a number of restraints on the mother’s ability to take X to any doctor, allied health practitioner, psychologist, counsellor, counselling support service or mental health professional without the father’s express written consent, or in the case of a genuine emergency. Both parties were restrained from “requesting any medical reports or medical referrals for the child without the express written consent of the other party”.
In June 2017, the mother filed a further application at court seeking to change X’s surname.
In 2017, there were ongoing issues with medical treatment and interventions for X. In particular there was an appointment at the Z Clinic in late 2017 after the mother said X had allegedly been soiling his underwear and told her he wanted toharm himself. The mother said that the father interfered with X speaking with the doctor, raised his voice at X and removed him from the room. The mother characterised this as an incident of family violence.
The mother’s Application filed in June 2017 was heard and finally disposed of on 29 January 2018. The application to change X’s surname was dismissed and the application was otherwise withdrawn. The mother was ordered to pay the father’s legal costs of $1,560 within two years.
In late 2017, the mother reported to X’s general practitioner – Dr BB (“Dr BB”) – that he had said he wanted to “[harm himself]”. I understand that both of the parents were present at the medical appointment, along with X. The mother said the father did not agree for X to be referred to a child psychologist, which the mother said constituted family violence. At that medical appointment the mother discussed X’s mental health and her concerns about him in front of X. The father sought to remove X from Dr BB’s room, on the basis he did not think it was appropriate for X – who was nearly nine at that time - to be engaged in the discussion. The mother characterised the father’s removal of X from both the room and the discussion as an act of family violence. She said she felt it was in X’s best interests to fully disclose all his behaviours.
The mother then sought – but was not granted – an Intervention Order against the father in late 2017. In that application she said X was fearful of the father, and that the father had hit X with a belt and locked him outside. The mother included in her material the referral from X’s general practitioner to a psychologist dated late 2017. X’s presenting issue was described as “anxiety reflective of tension related to parental separation”. There is no reference to any abuse by the father or thoughts of self-harm.
In late 2017, the mother called the police to assist her to manage X’s behaviour. He was bouncing a ball in the backyard, despite the mother requesting him to stop. At trial in December 2021, the mother maintained calling the police was an appropriate response, as X was making a lot of noise which may have been disturbing the neighbour’s young child who was sick. In her oral evidence, she said she did not understand the stigma around involving the police as she has always found them to be sympathetic and caring people. She said she called them to calm the situation down.

In late 2017, the mother said X expressed a view that he did not want to stay at the father’s home. She took X to the police and he was interviewed by them. She said X was being subjected to psychological harm. She reported the matter to Child Protection as well. There is no evidence that the police or Child Protection took any action at all.
In early 2018 the parties attended upon Dr CC (“Dr CC”), clinical psychologist following the referral from Dr BB. Dr CC spoke with the parents, X and with X’s teacher. Dr CC prepared a brief letter dated 24 February 2018 in which he observed:
Overall I thought that despite the at times acute acrimonious parental relationship, [X] was doing well – his teacher gave a very positive report about his general mood and peer relationships; his material with me did not reveal serious disturbance. However I felt [X’s] symptoms (as described by [the mother]) could be understood as him being was [sic] distressed and confused by the parental conflict which he was the centre. In my view some form of structured communication between the parents that minimized this conflict would be important.
Further Dr CC recorded that the mother sought that X undertake individual cognitive behavioural therapy which Dr CC assessed as being “unlikely to help” in circumstances where the parental conflict continued unabated.
In her affidavit material filed in preparation for the hearing in December 2021, the mother set out a litany of complaints regarding the father’s allegedly poor parenting in 2018 and 2019, including her belief that the father did not obtain proper medical intervention regarding X’s asthma, that he forced soap into his mouth, that he arranged medical appointments without informing the mother, that he removed the side bars from X’s bunk bed which resulted in X harming himself when he fell off, that the father did not properly supervise X and that the father had exposed X to family violence between himself and his wife. She deposed that she reported all these matters to various authorities including Child Protection, her general practitioner, and various legal and support services.
In late 2019, the mother informed the father she had been diagnosed with a mental health condition.
There were significant disruptions to the arrangements for X beginning in early 2020. According to the mother, the father continued to expose X to family violence, including hitting him with force on his head and calling him an idiot in early 2020. The mother reported this to Child Protection. She said X had nightmares after that, struggled to sleep, and was becoming resistant to spending time with the father. The father denied these allegations. He said he playfully clipped X on the head to get his attention, and X playfully clipped the father on the head in response. The father said that this was a light hearted exchange. In her oral evidence in December 2021, the mother maintained that X had been struck on the head, with force.
In early 2020, the mother said that at a medical appointment for X, the father “tried to silence me” and that he yelled at her afterwards. The mother did not make X available for school holiday time with the father in the school holidays. She retained him in her care for 40 days.
After having retained X for a protracted period, in early 2020, the mother sent the father an email informing him that the father was to retain X’s care until the Victorian State of Emergency put in place in response to the COVID-19 pandemic had ended. X then remained in the father’s care until mid- 2020.
In mid-2020, the mother asserted again that X said the father hit him in the back of the head again and engaged in excessive discipline, including threatening to sell his possessions. The mother said X told her the father’s wife was calling him a smelly child. X ran away from the father’s care and arrived at his mother’s home. The mother reported X’s complaints to Child Protection, and to DD Family Services who she said provided X with a safety plan for when he was in his father’s care.
The father denied any physical altercations, but acknowledged that X had been defiant and rude that morning. The father also acknowledged he told X that his sports equipment could be sold as a consequence of him failing to do his school work.
In mid-2020, the mother advised the father X had been bullying his sister, swearing at her and being aggressive. The mother said that Y had been placed on a mental health plan as a result of the bullying. The mother again reported this to Child Protection.
The mother said that in late 2020 X told her he was being repeatedly physically and verbally abused by the father, and that he had again been struck around the head and pinned down. X again ran away from his father’s care on that occasion. Around that time, X’s behaviour in the school yard deteriorated.
In late 2020, the mother said there was an altercation between X and his sister in which he threatened Y. In her affidavit filed 10 November 2021 the mother said Y “disclosed to me that X had […]”.
At trial in December 2021, the mother said she was not present during the altercation and she has since come to understand that X was holding a kitchen implement, and Y was on the other side of a window when he held up that implement. She said Y did not provide that detail to her at the time. X’s version is that his sister held up a middle finger to him on the other side of the window, and he held up the kitchen implement he was using. It is unclear why the mother did not question Y and X at the time about the details of their argument.
At trial in December 2021, the mother would not concede that there was no real threat made to Y as the children were arguing with each other through a window. In her oral evidence she described being outside at the time of the alleged incident, and that Y came to her, in an agitated and heightened state and said X had pointed a kitchen implement at her.
The mother did not accept that the exchange was an ordinary and normal sibling dispute. She said in her oral evidence that she relied on the fact that her daughter was very heightened and very frightened when she reported it, and that as she was not there, she did not know “the look in his eye” when he held up the kitchen implement or “how aggressively he did it”.
In late 2020, being the morning following the kitchen implement incident, the mother said there was a further altercation between X and his sister. In her evidence in December 2021, the mother said X was in the bathroom with Y and had placed her “in a […] hold”. She said she “had to drag [X] off his sister, who was frightened”. The mother was able to get Y away from X and she and Y shut themselves in Y’s bedroom. She said she sat down with her back against the door to keep it shut. X was pushing on the door and then “proceeded to kick into the door multiple times”. She said “my back suffered the impact”.
The mother called the police, who sought and obtained an intervention order against X. She said she did this “as a last resort”.
According to the police report made by the mother at that time, she said X kicked her in the stomach. As at December 2021, the mother said, variously, that the kick was recorded in error, that she had told the police there was no kick to her stomach, that she could not recall having told the police that she was kicked, and that she could not recall having been kicked by X in the stomach. In her affidavit filed 20 September 2021 the mother apparently accepted that police officer did record her complaint accurately, but that “due to the trauma I experienced that morning I must have blacked out being kicked in the stomach”. She said she has been informed by family violence workers that blacking out parts of traumatic memories does happen.
Under cross examination in December 2021 regarding the reference in the police report to her having been kicked in the stomach, the mother acknowledged she must have told the police that. She repeated that she has “dissociated from that trauma incident” and have “a blank in my memory”.
There were a flurry of emails between the parties in late 2020 in which the father was critical of the mother having obtained a safety plan for X, as that undermined the father’s parenting. The mother remained adamant that a safety plan was necessary to protected X as she said he did not always feel safe in the father’s care. She said the plan was devised by a worker at DD Family Services. The father maintained that he had never been violent, and was critical that the mother was characterising typical parent/child confrontations between X and his parents as abusive or unsafe. The mother’s response was to say the father was gas lighting her, and that she was in excellent mental health and demonstrated “exceptional” parenting.
X was interviewed by Child Protection in late 2020. At that time, X said he would like an arrangement of equal time. The mother did not agree.
X was interviewed by the police a short time later, in 2020. The allegations he was asked about included that he had held a kitchen implement to his sister, and that he had kicked the mother in the stomach. He was, understandably, significantly distressed about the interview process.
In her oral evidence in December 2021 the mother was asked to reflect on X’s experience of being interviewed by the police. She acknowledged it was not a positive experience for him but maintained that there needed to be “consequences for any child who displays such shocking and aggressive behaviours” and family violence. She said it was also upsetting for her, and that it was as distressing for her as it was for X, but her “hands are tied” as the father would not let her obtain the psychological assessments she said X’s behaviour warranted. She did not resile at all from her characterisation that X’s behaviours constituted family violence to the extent that police intervention was justified.
The mother’s intervention order application was listed before the City P Magistrates Court in late 2020, and on two dates in early 2021. X spoke with the duty lawyer and, much to his distress, was required to attend court on all three occasions. The father accompanied him there.
Under the then operative orders, X was to be returned to the mother’s care in early 2021, being one of the dates X was required at court as a respondent to the mother’s intervention order application. In those circumstances, it is not surprising that X was reluctant to return to the mother’s care. The father said that X agreed to return to the mother’s care the next day, in 2021 on the basis that the mother correct her police statement. He was then returned to the mother’s care on that day in early 2021.
Remarkably, the mother regarded this one day delay as a breach of the family law orders and reported this to the police and Child Protection.
X commenced at EE School in Year 7 at the conclusion of the January 2021 long summer holidays.
In early 2021, the mother attended at DD Family Services, having been referred there in late 2020. She attended weekly sessions there in early 2021. She sought that X engage with their FF Program but that did not occur. The mother deposed that their involvement ended on the basis that the mother made an application for an intervention order, and the program policy was that they would not provide assistance if an intervention order has been sought by either party. However, according to the letter from Ms HH, Senior Caseworker for the FF Program, their involvement ended as X said he did not want to access supports through their services. The mother was not satisfied that the worker had properly conducted the interview with X and she sent emails to the worker to that effect.
In early 2021 – being the third occasion X had attended court in relation to his mother’s application for an intervention order against him – that application was withdrawn. The mother said she spoke with the police prosecutors on that day, and told them that X’s behaviour had improved and she wanted the application withdrawn. The father commenced these proceedings on that same day, seeking an equal time arrangement be put in place for X.
In early 2021, X injured himself whilst playing with a friend on a trampoline. He was in the father’s care at that time. Initially, the father said X was okay. However, the next morning he woke up feeling a bit stiff and sore. The parties took him to a doctor, but the parties could not agree on the circumstances that had led to X hurting himself. Nor could they agree as to the appropriate course of investigation or treatment of the injury.
The mother was of the view that the injury was caused by the father instructing X to perform tricks on his bike, that the injury was serious and that a spinal x-ray was warranted. In her oral evidence in December 2021, the mother said she was concerned at the medical appointment that the full extent of X’s injuries were not understood by the doctor as X had taken pain medication that morning which could have impacted the diagnosis. She told the Court that her concerns were justified as she had done some investigation, and her research suggested there could be injuries to X’s spine. It is the mother’s case that the father sought to “shut [her] down” and “control” her at that medical appointment, which she characterised as family violence.
The father denied having instructed X to perform tricks on his bike. Neither he nor the doctor were of the view that the injury required a spinal x-ray. The father denied having subjected the mother to family violence.
The father said that following that appointment in the car park the mother came up close to his car and stood close to him. The mother said the father yelled at her, and used “abusive language” which he denied. The mother said she reported this to various support services and child protection.
In early 2021, the mother sought an interim intervention order against the father on an ex parte basis. No interim order was made.
In early 2021, the father took X to a doctor as he was suffering some knee pain. The doctor recommended some stretching be undertaken, and no other referral was made.
The matter first came before what is now Division 2 of this Court on 19 April 2021. On that day orders were made listing the matter for a directions hearing on 19 July 2021. An Independent Children’s Lawyer was appointed.
The mother arranged for X to attend at GG counselling on in early 2021. She had not sought the father’s prior agreement for that counselling. The father cancelled that appointment.
The mother acknowledged that from in early 2021 she “suffered a severe deterioration in [her] mental health”. She did not depose to her symptoms or the impact this had on her parenting or on the children. She said the deterioration was caused by “family violence stressors”. She sought the assistance of Organisation L at that time, who recorded that the mother said she made the “difficult decision [to] [sic] hand over her son to [the father] in order for [the mother] to get some regular sleep and regain her mental health and wellbeing”. They also recorded that at that time the mother stated “she is experiencing [mental health symptoms] at the moment” and that she experienced “[…] every couple of days”. The detailed assessment from Organisation L was annexed to the mother’s affidavit filed on 20 September 2021.
In early 2021, the mother did not attend at X’s school to collect him for the start of her time with him. At around 4.00 pm the father said he was contacted by the school counsellor who advised he had been informed by child protection that the mother would not be collecting X from school due to bullying. The father said X had been well behaved and engaging well at school when he was in his care. The mother did not notify the father of her decision not to collect X that day.
The mother sent an email to the father in early 2021 at 9.35 am saying that she had been “severely impacted by Family Violence stressors” regarding which she had contacted many agencies and support services. She said the father’s “ongoing coercive behaviour” continued to affect her, and that she had had to withdraw from her studies “due to extreme emotional and physical exhaustion”. She described X as “being impacted by family violence”. She said she was experiencing “severe insomnia” and that she would be attending the Magistrates Court to seek an Intervention Order against the father “to protect me from ongoing family violence”. The mother described that X “had shown an increase in aggressive behaviours at my home from [early] 2021”. She said those behaviours “were not extreme” but given her emotional and physical exhaustion she was not able to manage him. She proposed that X remain with the father until mid- 2021 by which time she anticipated having an Intervention Order against the father. She said that would enable her to “catch up on my sleep” and engage with her psychologist.
The mother sent another email to the father at 1.20 pm that day – less than four hours later – saying she was “feeling much better” and that she had “3 months off to recuperate” and was taking medication to improve her sleep cycles. She said she would be collecting X at the conclusion of school the next day, in early 2021. X was returned to the mother’s care as requested.
There was a further hearing in the Magistrates Court in mid-2021 in relation to the mother’s Intervention Order sought against the father. As I understand it, no interim order was made, and the matter was adjourned to a later date in 2021.
In mid-2021, the mother took X to a new GP to obtain a referral to a physiotherapist after he continued to complain of knee pain. This was not with the father’s consent. The mother had formed a view that the stretching regime provided by X's GP regarding his knee pain (diagnosed as a medical disease) was inadequate.
In mid-2021, the Magistrates Court at City P listed the mother’s Intervention Order for a contested hearing in early 2022. Again, no interim order was made.
On 21 July 2021, the matter returned to what is now Division 2 of this Court. I made interim orders that day for X to live on a week about basis with each of his parents. The parties were to undergo a psychiatric assessment and the matter was listed for final hearing to commence on 19 October 2021 with a Family Report to be prepared shortly prior to the final hearing.
The parties then implemented the week about arrangement. However, the mother said there were further violent and dangerous incidents involving X, and by the end of August 2021 the mother determined she could only have X for day time visits.
The mother said X threated self-harm in mid-2021. She said that a short time later, he punched his sister on the arm twice, leaving a welt, and subjected her to verbal and emotional abuse. The mother sent the father an email dated mid-2021, in which she said X’s behaviour was disruptive at school and “escalating again towards his sister”. The mother contacted JJ Service, and a notification was made to Child Protection. The mother sought the father’s agreement for X to be referred to a psychologist.
On 16 August 2021, the mother filed a further Notice of Child Abuse, Family Violence or Risk. In that she outlined her concerns including that X had assaulted his sister. It was apparent from the mother’s evidence that she regarded X’s poor behaviour as being a consequence of time with the father having been increased and her belief that he is being exposed to family violence whilst in the father’s care. That is a view she continued to express to the court throughout the course of the proceedings.
In around mid-2021, the mother said X was again verbally and physically abusive to Y. In an email to the father dated mid-2021 she described him as also being obstructive and defiant when she tried to remove his mobile phone from him. She asserted he assaulted his sister, damaged property and verbally abused the mother and his sister. The mother again contacted the police and Organisation L regarding X’s behaviour.

The father said X was not behaving poorly or aggressively in his care. The father said he implements consistent routines, and maintains clear and consistent boundaries in his home regarding routines and device usage. The father said he spoke with the school at this time, who did not share the mother’s concerns about X being violent or aggressive. I note that there was no evidence put before me from the school that supported the mother’s assertion that X’s behaviour at school at that time was disruptive or difficult. The school did identify that X was struggling in the classroom, and offered separate meetings and a joint meeting with the parents to occur in mid-2021, to discuss whether X required any form of assessment. In those circumstances, the father did not agree to X being referred for mental health treatment. However he did arrange for X to commence additional tuition in two subjects, as recommended by the school.
In mid-2021, the mother sent the father and all of the lawyers an email in which she said a safety plan had to be immediately created to keep Y safe. In that email, the mother said X could not return to her home in mid-2021 unless the plan was finalised and signed by each parent prior to his return. She wrote “it is important that a plan be created immediately to keep [Y] safe from being exposed to family violence... I have a duty of care to my eight year old daughter to make sure she is protected from family violence”.
In another email also dated mid-2021, sent by the mother to her lawyer, the mother wrote that Y had suffered enough, that X was cruel to her, and called her “ugly…stupid… a piece of shit…a cunt” and “a […]”, and kicked her twice on the back and grabbed her arm leaving another red mark. In that email she said she did not believe it was in Y’s best interests for X to stay overnight in the mother’s home, as the father had not committed to the safety plan. She said Y was to move back into her own bedroom, as she had been sleeping in a bed in the dining room. She sought time with X every second Saturday and Sunday for 11 hours each day.
The mother deposed she had proposed that reduction in her time with X as a “last resort”, in circumstances where she had a “duty of care” to Y and “no choice but to surrender”.
A short time later, in mid-2021, the mother sent the father another email in which she said X “is not able to return to my care on […] 2021, due to family violence, where [X] is subjecting [Y] to harm… [X] is currently unable to stay in my home overnight until he seeks mental health assistance, and I have been allocated a three bedroom home”. The mother then again nominated that she have day time contact only on weekends. She also said she would not be able to attend the meeting the school had scheduled for the parents to attend in mid-2021, “due to another scheduled appointment”.
That same day, the mother’s lawyers sent correspondence requesting a “temporary variation to the orders” in which it was proposed that X live with the father, and spend time with the mother during the day for six hours on Saturday and eight hours on Sunday, each alternate weekend.
In mid-2021, an agreement was reached that X would live primarily with the father and spend only day time visits with the mother, in accordance with the mother’s proposals.
The father and Ms A attended a meeting with X’s teachers at this time in mid-2021 to meet with X’s teachers and discuss his progress. The mother did not attend. She said she had an appointment with her counsellor and psychotherapist, Ms F, and deposed that “I chose not to attend”. She sent her concerns regarding X to the school in writing.
The minutes of that meeting record that X struggled academically with a number of subjects and that at times he exhibited “impulsive behaviours” and that he did “keep getting in trouble”. It was noted that he had not lost his temper that year, but was easily distracted and craved attention. Those present discussed ways to build his confidence. It was suggested that X undergo some testing to understand his strengths and weaknesses and “determine underlying causes”.
The parties were interviewed by the Family Consultant, Ms U, on 30 August 2021 by telephone.
The father said that X was very distressed on 31 August 2021 when he was told that he was not to return to the mother’s care overnight.
On 3 September 2021, the parties and X participated in observations sessions with the Family Consultant, and X was interviewed by her.
In late 2021, X was to spend six hours with his mother, with changeovers to occur at Suburb KK Police Station. Approximately 16 minutes after the mother collected X, she contacted the father and requested the parties return to the police station and that X return to the father’s care. The mother said that was in circumstances where X was angry he did not have a bedroom at the mother’s home and that he “started blaming me for what had happened” and he wanted to spend time with friends instead. The father returned to Suburb KK Police Station, and collected X. He said at that time, the mother had left X with his belongings contained in two bin liners.
In late 2021, the mother proposed that X’s time in her care on the Saturday and Sunday be further confined to just a two hour period, with confirmation to be given on the Friday before the visits would occur. In the email the mother sent to the father that day she described X as being defiant and disrespectful towards herself and Y and that Y did not feel safe with X. She said that the father’s lack of support for the mother’s desire to involve the police was not appropriate and that his “messaging to [X] concerning his acts of aggression to a younger child are toxic and hugely damaging to [X] and his relationship with his sister and myself”. The father agreed to the mother’s proposals to reduce her time with X to two hour visits. At that time, the father said X indicated he did not want to live with the parties on an equal time basis.
Child Protection provided a report to the court dated 6 September 2021. Having interviewed the parties and X, Child Protection recommended that X be placed into the care of the father and the court orders be temporarily varied to reflect that.
Time occurred on 18 and 19 September 2021 between X and the mother. Those visits proceeded well.
In late 2021, the mother forwarded an email to the Independent Children’s Lawyer and to the father’s solicitors in which she said she was suffering “trauma and grief over the loss of my son since […] 2021”, “a continuation of family violence and parental alienation”, and a biased Child Protection report.
On 28 September 2021, the matter was again in court. Interim orders were made by consent for X to live with the father and spend time with the mother during the day, on alternate Saturdays and Sundays from 10.00 am to 6.00 pm. Orders were made for the father to obtain a mental health care plan for X, and a paediatric assessment, and to engage such medical or psychological services as may be recommended. The trial date was adjourned from 19 October to 8 December 2021 to enable these matters to be undertaken.
The mother said at that time, she was of the view that day time visits between herself and X would be better in light of her housing situation and she felt it “may be safer due to [X’s] behaviour”. However, it is common ground that X struggled with those arrangements which were changed by the parties following further incidents. I understand there were times X absconded from his father’s home, or from school in late 2021, seeking to be with the mother.
The mother sent the father a text message in late 2021 saying X had said he should hurt himself. In her email to the father dated two days later, in 2021 the mother asserted that this comment was made when X was upset and said he felt that the mother loved Y more than him. She said she told X she was waiting for a three bedroom home to become available and that “hopefully in the future that he can stay overnight. I explained that it was a difficult situation for myself as well and that I missed him….I did have a tear in my eye”.
When he was with the father, the father said X had been crying and told him that “they” - being the father and Ms A - were trying to take X away from his mother. However, the father said that X did settle, and appeared positive and well when he was in the father’s care, that he was cheerful and laughing, and that he confirmed to the father he had no thoughts of self-harm. In the circumstances the father declined the mother’s suggestion that psychiatric help for X was required.
In late 2021, X was in the father’s care, and was required to attend an online tutorial session. He did not want to participate and the father said if he did not, he would lose internet privileges the following day and miss out on a sleep over. X left the father’s home without his permission and travelled to the mother’s home. The mother did not notify the father that X had arrived at her home, nor take any steps to return him to the father. She said X “fled” to her home seeking “safety” as the father was angry.
The father called the police when X had not returned home by 7.30 pm. The police ascertained X was with the mother. He remained at his mother’s home for two nights. As best as I can gather, the police attended at the mother’s home with a mental health clinician at this time, in late 2021. I do not know whether X was interviewed. The mother said whilst in her care, X refused to call the father and said he did not want to return to the father’s home. In her oral evidence in December 2021 she told the court that she informed X that he had to return to the father’s home, and that if he did not, “somebody” could come into the house and remove him “with some force”.
The father sought that the mother explain to X that the orders that had been made for X to live primarily with the father, were supported by both parents. When the father collected X in late 2021 the father said X again told him he was trying to “take him away”. When the father told X that it was the mother who had requested the reduction in time, X told his father he was lying. I note that when interviewed on 3 September 2021 by Ms U, X had identified that the change to his living arrangements was a decision made by the mother.
In late 2021, X was riding his scooter and he had a fall. The father said he was wearing his helmet and had a few insignificant grazes on his arms and face but was otherwise uninjured. X must have informed his mother of the accident as she requested the police undertake a welfare check on him at his father’s home. The police then arrived at the father’s home two days later, in late 2021. No action was taken by the police.
In late 2021, X left school during school hours and went to the mother’s home. The mother said X did not want to return to the father’s home. She said X was not coping with the father’s anger and had not been sleeping properly. She said she had made another report to Child Protection. Again, the mother did not take steps to return X to the father.
X returned to the father’s care two nights later.
A short time later, in 2021, the mother arranged to meet with X, without telling the father.
In late 2021, X exhibited angry and aggressive behaviour in the father’s care, when the father sought to discuss with him an incident at school for which he got into trouble. X said the teachers were lying and he became angry. He damaged shelves in his bedroom, made a hole in the wall, threw his phone at the father, and broke a vase and two photo frames. The father agreed for X to then go to the mother’s home as he wanted to do so, although it appears he did not communicate with the mother before delivering him to her care. In an email the father sent to the mother that day, he said that X was really struggling with the mother’s decision to place him with the father and that X is under the impression that the father was trying to take X away from his mother and did not believe that it was the mother’s decision.
In late 2021, the parties agreed for X to spend time with each of his parents on a week about basis. During the hearing in December 2021, the mother said that was working well. However, X continued to be disruptive at school and there was a further incident of poor behaviour by X whilst in the mother’s care on around that time, in 2021.
The father was able to secure an appointment with Dr LL (“Dr LL”) in late 2021 for X to undergo a cognitive and educational assessment. The father met the entire cost of that assessment and report.
A short time later, in 2021, X was in the mother’s care. He left school during school hours. The father was unaware of where X was and requested information from the mother who indicated she was able to contact X by phone.
In late 2021, the mother sought the father’s agreement that X be referred to attend the NN School in Suburb MM. On that same day, the mother deposed in her affidavit that X’s behaviour in her care had been “mostly positive” and that he was no longer bullying his sister. She also deposed that she had “serious concerns” that X would run away from his father “if he is forced to go back there. I am attempting to protect [X] from being exposed to Family Violence”.
In late 2021, X engaged in a confrontation with an unknown man at the front of the mother’s home. The man confronted X about having stolen belongings and caused damage to this man’s motor vehicle, and X became infuriated. The mother was apparently unable to manage X’s angry behaviour and could not prevent him from picking up objects – including a hammer, and pieces of wood - and throwing them at the man’s car, damaging his windscreen. The mother’s explanation was that there was wood and a few tools at the front of her house as the children like to play with them. The police were called by the man, which the mother supported as she said there were “safety issues”. The police interviewed X. The man had taken X’s bike but returned that after there was an agreement for the cost of the repairs to his windscreen. The mother, apparently, did not have the funds to meet the costs of that, but the father was contacted by the police and agreed to do so.
The mother asserted that this behaviour further indicated X had undiagnosed behavioural issues and mental health challenges rather than it reflecting on her parenting and ability – or inability – to appropriately manage X’s outbursts.
The report by Dr LL was completed on 22 November 2021 and provided to the parties. Dr LL identified that X has a medical condition. The report outlined a number of strategies and supports that need to be implemented at home and school to assist him. Dr LL opined that supporting X to manage his medical condition may result in an improvement in his behaviour. He recommended that X continue with his counsellor and that he be assessed by a paediatrician.
The matter ran for three days before me in December 2021 in Division 2 of this Court. I reserved my decision at the conclusion of the hearing.
Whilst that decision was reserved, the shared care arrangement that the parties had indicated they would implement pending my determination rapidly broke down. The mother asserted in December 2021 that X’s behaviour had again deteriorated, to the extent that she once more involved the police and Child Protection. Her allegations include that X threatened to self-harm with a knife, that he hit his sister, swore at the mother, and bit her. X was returned to the father’s care about early 2022.
The parties and X were interviewed by Child Protection in early 2022. The mother’s allegations at that time included that:
(a)the father was blocking her attempts to arrange appropriate interventions for X;
(b)Y is hypervigilant and was very fearful and frightened of X, and scared that he would hurt her;
(c)X needed to take accountability for his violent behaviours;
(d)X had been subjecting his pet to sexual acts;
(e)X had been aggressive and oppositional whilst in her home, and that she did not want X to return to her home until he received appropriate assessment and treatments; and
(f)the father was attempting to alienate X from her.
X was interviewed by Child Protection in early 2022, and the details of that interview are set out in the Department response dated a short time later, in 2022. That records in part as follows:
On […] 2022, [X] was interviewed by Child Protection. [X] presented as a withdrawn child. [X] advised Child Protection that [the mother’s] house is a hard place to live, that [the mother] makes up lies about him, that [the mother] repeatedly rings the police on him, and that he believes her mental health to be bad. [X] advised that in a recent incident, he had an argument with [Y] and [Y] was hitting him and he pushed her away, and [the mother] called the police on him.
[X] showed Child Protection SMS sent between himself and [the mother] regarding [the mother] withholding [money] [X] was gifted by his maternal grandfather for Christmas. In these messages, [the mother] asks if [X] is taking his medication (asthma preventor [sic] and [other medication]) at [the father’s] house. When [X] advises that he is, [the mother] responds that she is punishing [X] for not taking the medication at her house by keeping the [money]. [X] responds to [the mother] that she has lost his trust and he is blocking her on his phone, to which [the mother] responds that he is entitled to do as he likes.
[X] denied touching the [pet’s genitals] or trying to put something in the […], though acknowledged when he was around 8 or 9 years old he touched the [pet’s genitals] once and [Y] was there also and did the same thing.
[X] indicated that he wants to remain living with his father… and doesn't want to see [the mother] again. [X] indicated that he wants to move to Brisbane, where [Ms A’s] family live, in order to get away from [the mother]. [X] advised Child Protection that he didn’t think [the mother] would care about him not wanting to come back to her house because she had told him in the past she didn’t want him living with her and he felt she meant it.
On […] 2022, Child Protection interviewed [X] again. [X] presented as withdrawn, making minimal eye contact and facing away during the interview. [X] was not expressive or expansive in his responses to Child Protection, but did advise that he didn’t want contact with [the mother], was open to contact with [Y], that he continues to miss his [pet], that he is enjoying having a new [pet], and that he prefers his new school to his previous one because it is more sporty. [X] advised Child Protection that he has not been aggressive towards [Y], but acknowledged there were instances when they argued and he pushed her, stating “because we are brother and sister”. [X] continued to deny being sexually inappropriate with the [pet] and advised Child Protection that [the mother] tells lies about him and that she had also lied to him about [the father] being abusive. [X] advised Child Protection that [the mother] has been aggressive towards him in the past, yelling at him for drinking some of her apple juice then chasing him in the house, putting him in a headlock and pulling his hair. [X] again advised that he wants to move to Brisbane with [the father] and [Ms A] [sic].
Child Protection expressed significant concern for X’s emotional wellbeing as a result of ongoing exposure to the conflict with his mother, her rejection of him, the frequent litigation and the mother frequently calling the police on X. They concluded that the mother appeared to be responsible for causing X emotional harm and it was recommended that X remain living with the father. Child Protection assessed the father as a protective parent. They wrote:
Child Protection are concerned that [Ms Tiller’s] rigid and problem saturated view of [X] will be internalised by [X], and impact the already tumultuous start to his adolescence. It is essential for [X’s] adolescence and his healthy development into adulthood that he be provided with stability and safety in his living arrangements.

The mother did not accept the reports made by Child Protection nor their observations or conclusions. Whilst arrangements were later made for a Child Protection worker to attend court and be cross examined by the mother, the mother did not attend court on the day that was to occur. In circumstances where the mother did not cross examine the worker despite arrangements being made for her to do so, I am of the view that I can rely on the report. Further, I have read the mother’s voluminous complaints about the report and report writer. In my view, there does not appear to be any obvious reason for the Court to reject their reports.
When the matter returned to court on 14 February 2022 I made orders suspending the mother’s time and communication with X. Orders were then made on 28 March 2022 providing that, amongst other things, X was at liberty to communicate with the mother or his sister at his discretion, with the father to provide him with a mobile telephone to do so. There was no restraint on Y contacting or initiating contact with X despite the mother repeatedly insisting that such a restraint had been made.
X was interviewed for the purposes of a Specific Issues Report by Ms OO (“Ms OO”), Court Child Expert, on 26 April 2022. X presented in a sad or depressed state and was flat and withdrawn. He was upset that he had not seen his pet, who remained at the mother’s home. He said he was happy living with his father and moved because the mother kept calling the police on him. He found it difficult and upsetting to discuss the apparent rejection of him by the mother. He also expressed “a significant level of hurt that she has assessed him to be abusive.” He remained open to re-establishing a relationship with his mother in the future, but reported “a significant sense of rejection, and sadness” regarding his mother’s care of him. He described events in his mother’s home as “dramatic”, and his father’s home as calm. He said he felt safe with his father and wanted to remain there. He identified he had a positive relationship with Ms A. He wanted to maintain a relationship with his sister, but as the mother did not want him to see or be near his sister, did not know how that could be achieved. The primary point of resistance to a relocation appeared to be his relationship with his sister and concern as to how that could be maintained. He was able to identify positives in relation to a relocation, and the report writer described him as having a slight preference towards relocating to Brisbane, as opposed to remaining in PP Town.
On 2 May 2022, I made an order pursuant to section 102NA(1)(c)(iv) of the Act. The mother was then to obtain assistance pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme. On 17 May 2022, however, the mother indicated she would not proceed with the funding application under the scheme, as she was dissatisfied with the lawyer appointed.
The parties then attended the City P Magistrates' Court in mid-2022 for the contested hearing of the mother’s application for an intervention order against the father. The father was not required to give evidence. No order was made, and the mother’s application was dismissed.
In mid-2022, the mother filed an appeal against the Magistrates’ decision to strike out her intervention order application. That matter was listed before the County Court in late 2022.
In mid-2022, very shortly after her application for an intervention order against the father was dismissed by the Magistrates’ Court, the mother filed a fresh intervention order application, this time on behalf of Y, seeking an order against X. It is somewhat difficult to understand why that application was brought. At that time, there was no physical contact occurring between the siblings. X once again had to endure being personally served by police with that application. He was then required to attend upon a solicitor and at court in relation to that application. This would have been deeply distressing, confusing and hurtful for X. At about that time, the mother deliberately destroyed the SIM card in Y’s mobile, to prevent the siblings from being able to contact each other.
In mid-2022 X’s behaviour at the father’s home was quite out of control. He kicked holes in the walls and was unable to be sufficiently calmed by the father such that the father, for the first time, called the police to attend to assist him. The father said X was reasonably responsive to the police, who spoke with him and told him his behaviour was not acceptable. X then went to school, but I understand from the father that he remained somewhat angry with his father, for at least that day. The father did not advise the court of this incident in his affidavit material, or in his evidence in chief. It was only revealed after Child Protection provided the Independent Children’s Lawyer with an update of their involvement. That incident makes it plain that X continues to be a troubled and burdened young man, often overwhelmed and confused by his circumstances.
The matter was then listed before me in Division 1 of this Court, for final hearing to commence on 1 August 2022. On that day, the mother attended court, unrepresented. She sought the matter be adjourned. That application was not granted. As there was no intervention order even on an interim basis, and given the pressing need for the matter to be concluded, I discharged the section 102NA order. Had I not done so, the mother would have been prevented from cross examining the father.
To assist the mother, who said she was unable to obtain care for Y, the hearing was moved to be conducted via Microsoft Teams. The matter resumed, on Microsoft Teams on the afternoon of 1 August 2022. The mother declined to articulate with any particularity the orders she sought regarding X’s care, beyond indicating that she opposed the relocation application.
The mother did not attend court, either in person or virtually the following day, on 2 August 2022. The mother forwarded an email to the father and the Independent Children’s Lawyer asserting she felt unsafe, and had experienced an “extreme stress reaction”, and would be attending to her mental health instead of attending court on 2 August 2022. I reserved the question of the father’s costs and those of the Independent Children’s Lawyer that day.
I adjourned the matter to 10 August 2022. In the event the mother did not attend court that day, I gave the father leave to seek to proceed on an undefended basis. In the event the trial was not able to proceed, the father was also given leave to seek interim orders that he have, amongst other things, sole parental responsibility for X, and that he be permitted to relocate with X to Queensland as soon as practicable. These matters were reflected in the orders made on 2 August 2022, which were subsequently served on the mother.
The mother attended court on 10 August 2022, but by telephone only. Although she had been ordered to provide evidence from a medical practitioner to explain her non-attendance on 2 August 2022, she had not done so. The father had subpoenaed the production of the mother’s records from Organisation B. Amongst the documents produced in response to that subpoena, was a note dated 1 August 2022. This was tendered. That note indicated that the mother was seen by a Mr D at Organisation B some time on an evening in mid-2022 and was ultimately discharged from the Emergency Department, it appears. That note records:
[Ms Tiller] reports an emotional crisis today following appearing in court. Had been in a 'fit of anger' and 'wanting to scream' so presented to the EMD for emotional support. Additional stress of her father not providing [money] so she could purchase ink cartridges for her printer at home.
Longstanding legal issues persist relating to the custody of her children.
- 9 y.o. daughter remains in her care
- 13 y.o. son which has recently been diagnosed with […] remains with her ex-partner.
Describes ex-partner to be perpetrator of family violence against her. Reports tomorrow she will be made to 'cross examine' him which she feels incapable of doing so. Denies having the support of legal aid to do so.
Describes being too emotionally vulnerable to go through with this cross examination and it will increase her [self-harm] risk. Is fearful she may do something in response to this stress. Continues to speak of her potential to escalate in terms of her risk of […] without any clear plan or intent.
Nil deliberate self-harm tonight.
Well-supported by psychotherapist [Ms E] and long-term Psychologist [Ms F].
[Ms Tiller] is aware that I do not feel comfortable supporting any adjournment for court proceedings based on presentation and requests for mental health support tonight. Has been directed to consider liaising with her pre-existing formal supports.
Throughout being provided the opportunity to ventilate her stressors, appeared to be able to formulate how to approach her complex social issues. [Ms Tiller] plans to:
- Avoid attending Court tomorrow and go to the beach with her daughter.
- Cease fighting for the care of her biological son due to the perceived risk of violence/aggression/verbal taunting. Allow for her 13 y.o. son to remain in the care of his biological husband [sic]
- Plans to link contact her pre-existing supports to notify them of her decision.
There is nil concerns regarding her capacity to make these decisions. Continues to feel quite powerless given current situation. Strong external locus of control.
From her actions tonight, there is evidence to suggest potential difficulty problem solving or wanting to feel supported in these decisions to avoid any associated guilt.
Impression:
- Emotional crisis, complicated by own childhood experiences and trauma of neglect/abandonment
Risks:
- Low risk of harm to self
- Low risk of harm to others
- Risk of escalating risk profile whilst comprehending her decisions in response to custody issues.
(As per the original)
The mother was unable to operate her camera on 10 August 2022. After discussing the matter with the parties, it was agreed that the mother would conduct her cross-examination of the father that day as follows:
(g)the father would remain at his solicitor’s office, in a room there alone, and he remain visible to me via Microsoft Teams throughout the day.
(h)the mother remain at her home and conduct the cross-examination using her telephone. I was not able to see the mother as she could not join the Microsoft Teams virtual courtroom with her camera.
There were no objections taken to the matter proceeding in that way. In fact, all parties were seemingly content with the matter proceeding as I have just explained.
The matter resumed on 11 August 2022 in person at the Melbourne registry. To assist the mother, Court Child Services kindly provided care for Y for the entire day, so that the mother was able to attend court in person. She completed her cross-examination of the father in person and of his wife, who attended via Microsoft Teams.
The mother then gave an opening to her case, was sworn in and adopted her trial material. I note the mother maintained she was unable to formulate any specific orders for X’s care. She said she needed his mental health status reviewed before she could do so. She did at one point suggest foster care was appropriate, but then said she was no longer sure. She maintained, however, that he remained at risk in his father’s care, which she said is an unsafe environment.
Counsel for the father commenced his cross-examination of her. That was not concluded by the end of the court day on 11 August 2022, and the matter was adjourned to resume the next morning. It was agreed the matter would continue on Microsoft Teams, to try to make it easier for the mother to manage her caregiving responsibilities for Y.
The mother did not attend court either by Microsoft Teams, or in person on 12 August 2022. She sent emails to the parties and the court making assertions that the court was failing to protect children’s rights, and seeking for X to live with her upon her securing a three bedroom home. The mother, however, declined to answer her telephone that day. The mother was informed by email that the matter would resume at 12.30pm that day, and that the court would hear the father’s application to relocate with X on an interim basis. The mother still declined to attend court that day. In her affidavit filed on 29 August 2022 the mother asserted her mental health “collapsed” that day. However, she has not adduced evidence from a medical or mental health practitioner to support her assertion.
That afternoon, I made interim orders permitting the father to relocate with X to Queensland. I otherwise adjourned the final hearing, part heard, to resume on 19 January 2023. I gave detailed reasons that day.
I understand that around mid-2022, X is alleged to have been involved in criminal activities, including theft, property damage and assault. I understand the police were involved.
After communicating with the mother some days later, in mid-2022, X’s behaviour towards the father significantly deteriorated. He lashed out at the father’s home, and caused property damage. X subsequently absconded from the father’s care, and returned to the mother’s care remaining there from around late mid-2022. At that time, X was angry at the father, and did not want to reside with him, and said he did not want to relocate to Queensland.
The matter returned to court on 7 October 2022 with the mother filing an Application in a Proceeding. The mother did not articulate the orders she sought in that application, however, she was clearly most dissatisfied with the interim orders I had made permitting the relocation. At that time, the father declined to seek a recovery order. X’s attitude towards the father at that juncture was extremely poor, and his behaviour quite uncontained. The father sensibly formed the view that obtaining and executing a recovery order would likely exacerbate hostilities and tension, notwithstanding the father’s significant concerns about X’s emotional wellbeing whilst in the care of the mother.
On that day, I made interim orders enabling X to live with the mother and suspending the previous orders regarding relocation whilst X remained in the mother’s care. X was also to return to EE School, as he was struggling to attend QQ School.
The mother appears to continue to have had significant issues managing X’s behaviour. Whilst in her care, from mid to late 2022, X continued to engage in defiant and anti-social behaviour. He faces a number of criminal charges. He also appears to have engaged in drug use. The mother was substantially unable to ensure X attended school whilst he was in her care, notwithstanding his enrolment back at EE School at her request. I understand X has had to attend court in relation to several charges, and will be required to attend again in the future.
The reconciliation between X and his mother was short lived. She ultimately relinquished care of X in late 2022. At that time she informed the Independent Children’s Lawyer that she consented to X immediately relocating to Brisbane. I anticipate this further rejection of X by the mother must have had a profoundly negative effect on X’s emotional and psychological well-being.
The father by that time, as I understand it, had himself relocated to Brisbane. He made arrangements for X to be temporarily cared for in the home of one of his friends, so that X could finish the school year in Victoria.
The father arrived back in Victoria in late 2022 and took X into his care. Unsurprisingly, that has not been entirely without issue. I am satisfied, however, that the father is doing all he can to provide X with reliable, predictable and consistent caregiving.
The mother’s County Court appeal in relation to the dismissal of her intervention order application was listed in late 2022. The parties attended court that day and the mother was cross examined in the morning. However, she did not return to court after the luncheon adjournment. The mother’s appeal was then dismissed. I do not know why she did not return to court. Accordingly, none of the several applications made by the mother for an intervention order against the father have been successful.
The father and his wife have now secured appropriate accommodation for themselves and X, and will be moving in shortly. The father has also arranged X’s enrolment in an appropriate school in Brisbane, and has started the process of obtaining a referral to a paediatrician so that appropriate supports can be engaged for him.
THE RELEVANT LEGAL PRINCIPLES
Relocation cases are not a separate category of parenting cases and I am required to apply the law and determine what orders should be made having X’s best interests as the paramount consideration. I can also have regard to the rights of parents including their rights to determine where they wish to live.
From a large number of authorities including: AMS v AIF [1999] HCA 26); A & A: Relocation Approach [2000] FamCA 751; U v U [2002] HCA 36; Taylor v Barker [2007] FamCA 1246; KB & TC [2005] FamCA 458; and Morgan & Miles [2007] FamCA 1230, the following propositions can be distilled:
(a)the best interests of the children are the paramount, but not the sole consideration;
(b)the person who wants to move is not required to provide compelling reasons for the relocation sought;
(c)the court must evaluate the competing proposals, considering how each proposal will provide advantages and disadvantages for the children;
(d)the question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)neither party bears an onus to establish that an order permitting or restraining relocation is in the children’s best interests; and
(f)the Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the parent who wishes to relocate.
Pursuant to s60CA of the Act, I must consider the best interests of X as the paramount consideration when making parenting orders. The multiple considerations that I have to take into account in determining X’s best interests are set out in sections 60CC(2) and (3) of the Act.
Parental responsibility
It is notable that neither party in their applications or responses sought an order for shared parental responsibility. It appears to me that given the history outlined, the parties are unable to appropriately negotiate and liaise in relation to X’s long-term needs. They do not have a sufficiently developed co-parenting relationship that would allow them to engage in constructive and respectful communication regarding X. There is no trust. There is no meaningful communication. There is no evidence that suggests the parties are able to genuinely liaise with one another to reach agreements regarding X’s long-term wellbeing. Rather, there have been frequent disagreements between them as to what are appropriate interventions and treatment for X.
In circumstances where the mother has – again – relinquished care of X, and he is accordingly living with the father, X’s best interests quite clearly dictate that the father have sole parental responsibility for him. Further, there is nothing in the evidence that causes me to have concern regarding the father’s exercise of that responsibility. That is, I am satisfied that he makes appropriate decisions for X’s care, welfare and development.
As I am not making an order for equal shared parental responsibility, I am accordingly not required to follow the legislative pathway set out in s65DAA.
The primary considerations
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a)the benefit to X of having a meaningful relationship with both of his parents; and
(b)the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

As is plain, I am concerned about the mother’s capacity to meet X’s needs, and in particular, to meet his emotional needs. That stems from her belief that she is a victim of ongoing violence and control perpetrated by the father, and from her belief that X poses a dangerous threat to herself and Y. In turn, the mother’s responses to, and interpretations of X’s behaviours is problematic at times. Her lack of insight into the implications for X by repeatedly involving the police to manage his behaviour is troubling. I accept that some of X’s more recent behaviours has been at the level that police involvement was required. However, the mother historically involved the police at times it was not necessary for her to do so. Her repeated characterisation of X’s behaviours as being significantly dangerous to the health and safety of herself and Y – and her belief that they need to be protected from him – is worrying and must be distressing to X. I anticipate this would re-enforce a negative self-image.
I also have concerns that the mother magnifies X’s issues and difficulties. For instance, she was not satisfied with the medical assessment regarding his knee issues or his bike injuries the latter of which she believed required x-rays to be undertaken. She requested the police undertake a welfare check in late 2021 when X had fallen off his scooter at his father’s home. There was no evidence that medical attention of any sort was required at that time. She also contacted child protections on multiple occasions in circumstances that did not appear to be warranted.
It is of concern that the mother sought the involvement of the police to assist her with managing X on several occasions as early as 2017. I note that the involvement of the police on that occasion was for a matter as trivial as X bouncing a ball and refusing to stop when requested by the mother. The mother appeared to have no insight into how unnecessary police involvement was in relation to that incident. The mother remained adamant that her involvement of the police to assist her with X has at all times been appropriate. In relation to the events at the end of 2020 which resulted in the police seeking an intervention order against X, the mother did not express any genuine regret or remorse at the impact the events must have had on X. As indicated, she sought an Intervention Order against X on behalf of Y in 2022, for reasons that remain completely unclear.
Those sorts of responses and actions by the mother gave me the impression that the mother exaggerated and catastrophized events and difficulties. Additionally, it appeared she did little to reflect on how her own anxieties and mental health struggles might impact upon her interpretation of events, or on X.
Additionally, the court has concerns about the mother’s insight into the role she plays in exposing X to the parental dispute. For instance, one evening during the course of the hearing in December 2021, the mother acknowledged she had spoken with X about what school he wanted to attend for high school and to discuss potential time arrangements with him. The mother was recalled to give evidence in relation to this. She maintained it was appropriate that she had that conversation with X. She said she was concerned as he had mentioned one school to her and then he told the father and the Independent Children’s Lawyer about another school. She said X told her he was forced and pressured by the father to nominate QQ School. She said that X told her that the father had threatened to take away his mobile if he did not tell the Independent Children’s Lawyer. The mother was able recognise there may not be truth to what X was reporting to her and that he may be “playing one parent off against the other”. However, she also maintained that it was “really important” she speak with X about the arrangements for his care and that in doing so she was prioritising his health and wellbeing. She was unable to see how it may have been difficult for X to have this discussion with her.
It appears the mother also discussed the care arrangements and relocation with X in mid-2022.
I am not aware as to how the mother regards her current mental health. I note her evidence prevaricated across these proceedings as to her mental health. At times she deposes that “all the reports about my alleged mental health concerns are unsubstantiated”. She also described her moods as having been “stable for many years”. Conversely, she acknowledged her mood significantly deteriorated in early 2021. That was to the extent that she felt unable to appropriately parent both children as well as meet her own needs. Additionally, in 2022, she did not attend court on occasion, asserting she was not mentally well enough to do so. She did not, however, adduce medical evidence that supported her assertions.
The mother presented at court as a somewhat vulnerable woman, who has engaged with a number of support services throughout her adult life including mental health services. She was emotionally fragile at times during the multiple hearings – leaving the virtual court room on occasion, declining to turn on her camera at times, and failing to directly answer questions in cross examination, saying that she was “dissociating”. As noted, at times she simply did not attend court at all. It appears that she does, at times, have considerable difficulty managing her emotional responses to X’s behaviour, as well as significant difficulties balancing the competing needs of herself, her daughter and X.
Notably the mother does not assess herself as playing a role in the “toxic co-parenting relationship”, as she described it. Rather, she attributed her difficulties and struggles, and those of X with the impacts of events she characterised as family violence perpetrated upon her, and X by the father. She appeared to have made considerable efforts to seek confirmation of her experiences from various sources and services, including RR Services, DD Family Services, JJ Service, Organisation L, TT Organisation, her counsellor and her psychotherapist. Those services and professionals have, of course, liaised only with the mother and have only had the information she has presented to them. Conversely, Child Protection have had the benefit of engaging with both parties and X. They do not appear to share the mother’s concerns regarding the father or characterisations of her experiences. Rather, as already set out, Child Protection have expressed considerable concern about the mother’s ability to appropriately parent X.
The fluctuations in the mother’s position regarding the appropriate arrangements for X raise further concern as to the mother’s capacity to meet X’s emotional and physical needs. In early 2020, the mother appeared to relinquish the care of X to the father whilst the COVID-19 restrictions were in place. Further, it is troubling that on the morning of a day in early 2021 she said she felt emotionally and physically unable to appropriately care for X for about two weeks, only to reverse her position just a few hours later. She then said in mid-2021 she could only have day time visits and then prevaricated about whether she would have X overnight, for full days, for short day time visits, or on a week about basis. At trial in December 2021 she sought just one night a fortnight, unless X was engaging in family therapy. By early 2022 she was unable to provide care for X, and placed him in the father’s care. For a period around that time she proposed X should be in foster care. Whilst X returned to live with his mother in mid-2022, that rapprochement was short lived, and the mother again relinquished his care in late 2022. I do not know the mother’s current position regarding the appropriate care arrangements of X.
No doubt this changeability would be confusing, distressing and destabilising for X.
I also have concerns that the mother accepts on face value negative reports that X makes about the father and Ms A. That included believing X’s reports about excessive discipline, the father’s anger or other complaints X makes regarding alleged inappropriate parenting. Similarly, the mother formed a view that X’s relationship with Ms A was cold and limited based on X’s reports to her.
The mother’s agitated responses also have the capacity to over-empower X and undermine the father’s parenting, causing X confusion regarding his safety and relationship with his father and his safety in his home. For instance, the mother formed the view that the father was instructing X to do dangerous tricks on his bike which she believed resulted in X receiving a spinal injury. Similarly, the mother responded in a frantic manner to Y’s exaggerated complaints regarding the kitchen implement incident, without calmly and carefully considering what actually occurred. It is also notable that in around early 2020 the mother complained about X’s poor behaviour in the school yard, and sought the father’s agreement there be some sort of intervention to deal with the behaviours. However, when the father then addressed those behaviours with X, the mother formed the view that the father’s chastisement was excessive. In that regard I note the exchange between the parties in early 2020.
These matters give the court considerable concern about the mother’s capacity to meet X’s needs.
I do not accept the mother’s evidence that the father has significant deficits in his parenting capacity, including that he has subjected X to violence, does not supervise him properly and has not sought appropriate medical or mental health treatment for him. Beyond the mother’s assertions, there was nothing in the evidence before me that corroborated these concerns. Rather, I am satisfied that the father does have the capacity to meet X’s needs.
He presented as an attuned, focussed and engaged parent. He said he and Ms A provide X with predictable and reliable parenting, clear boundaries and stable routines, to the best of their abilities. He acknowledged that X does experience frustration and dissatisfaction with his care arrangements, and indeed that can result in X engaging in unpleasant and antisocial behaviours. He may also have engaged in offending behaviour outside the home. However, the father is reasonably confident he and Ms A can – and have - appropriately responded to X’s challenging behaviours, and that they will do all they can to support, guide, love and parent X.
As indicated, Ms A was also sensitive to and supportive of X’s particular needs.
The father sought medical attention for X when appropriate and followed medical advice. He has arranged tutoring for X, speech pathology and obtained a cognitive and educational assessment for him. He has also engaged appropriately with X’s schools, including liaising with teachers and attending the meeting in mid-2021 which the mother declined to attend. He – together with Ms A - has endeavoured to put in place appropriate and consistent boundaries and expectations, to provide X with a reliable and predictable home. I further accept that he will continue to act responsibly and sensitively to X.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
Both parties previously had alcohol abuse issues. At least as at late 2021, the mother said she was not consuming alcohol and had not for around 17 years.
Similarly, the father had not consumed alcohol for many years. In her material filed in support of the hearing in December 2021, the mother was critical that the father had not continued to access supports. She described him as having “unmanaged alcoholism” and asserted that “[t]he removal of alcohol does not cure alcoholism”.
The father does not regard himself as requiring any additional supports to manage his historical alcohol abuse issues. I note his long term abstinence from alcohol and his desire to remain abstinent. Dr T did not recommend the father engage with any services or supports regarding his past alcohol abuse issues.
The mother also alleged the father had used prohibited substances on a weekly basis, and experimented with other drugs “in the past”. Beyond that mere assertion as to historical use, there was nothing in the material before me that suggested there were any issues at all with the father’s drug or alcohol use.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
The matters relevant to this consideration have largely been dealt with already in these reasons. I have no doubt that each of the parents takes their responsibilities to X very seriously and love their son deeply.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
I have already canvassed at length the allegations regarding family violence and the applications that have been made for intervention orders. I am not satisfied that the father has engaged in family violence in relation to the mother or towards X, or exposed him to violence. I do not accept the mother’s characterisation of the various incidences as family violence or coercive control. It also seems that the mother has exaggerated some events.
It is troubling that the mother has an apparently unshakeable belief that she and X continue to be the victims of violence perpetrated by the father against them. It is also troubling that she has apparently shared her views in this regard with X, involving him in the preparation of a “code red safety plan” when he is with his father. This must be extremely confusing for X.
I note again that there has never been an Intervention Order granted, even on an ex parte basis against the father. As indicated, the mother apparently abandoned her application in the County Court in late 2022 for an Intervention Order to be made, after her application was dismissed by the Magistrates Court. She has provided no explanation for her failure to return to the County Court to prosecute her appeal, following a break in the proceedings.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is abundantly obvious that proceedings need to come to an end. X must be relieved from the burden of being at the centre of his parents’ litigation over his care that has endured on and off throughout his childhood. The exposure to and involvement of X in that dispute must stop. He needs certainty and predictability regarding his care arrangements.
I am troubled by Ms U’s description of X as a confused, anchorless young man, effectively in crisis. His parents have been unable to provide him with the structure and support he so desperately needs. That observation was made many months ago. The interruptions to his care arrangements, and the ongoing turmoil he has endured have apparently left X in an even worse situation. Indeed, in the Specific Issues Report, I note X was described as flat, withdrawn, sad and teary.
The advantages and disadvantages for X
The benefits to X, if he is permitted to relocate, include that he would be living with his father and his stepmother in an environment in which they want to live. They will be supported by Ms A’s extended family. X will have the potentially significant benefit of being able to ‘start afresh’, away from the negative memories he has, it seems, formed around the City P area. Their household appears more stable, supportive and less chaotic than the environment in the mother’s home.
A relocation may actually provide X with some relief. He may feel less pressure being physically further away from the conflict and distresses that he has endured to date. It is also apparent that some of his peers in the City P area have engaged in poor choices with him. Separating him from those friendships could accordingly be beneficial.
There are obviously disadvantages upon which I have already touched. X will have to change schools, make new friends, and find himself in a new community. He has already endured significant changes and interruptions to his school and home life. He commenced at QQ School in 2022, but then was re-enrolled at EE School at the end of 2022. He will need to commence a third high school in Queensland. He is somewhat fragile, and his ability to manage more changes is not yet known.
It is plain that it will be more difficult for X to engage in a relationship with his mother and his sister if he moves a physical distance from them. At this point, however, the mother has not articulated what, if any, time she would seek with X, and on what basis. The physical distance between X and his mother also means that if X does rail against any boundaries imposed on him by the father it will be more difficult for him to ‘vote with his feet’ and return to his mother. I note that in the past when X has done so, the mother has made no efforts to ensure he returns to his father’s care. That disruptive and destabilising pattern needs to be terminated.
As already observed, I am reasonably satisfied that the father and Ms A will do all they can to manage and assist X, to make sure that he feels loved and supported and that they will ensure that he receives all the professional assistance that can be appropriately engaged. I am also reasonably satisfied that the father will support X to have a relationship with his sister and his mother if X expresses a view that he wishes to pursue that, and if it would be reasonably safe, and not disruptive for him to do so.
ORDERS TO BE MADE
I have already indicated it is in X’s best interests that one party have sole parental responsibility. I am satisfied that the father is better placed than the mother to take on those responsibilities. As I have indicated he impressed as an engaged and attuned parent, who has sought appropriate interventions and supports, and has generally responded reasonably to the challenges of parenting X. Conversely, for the reasons I have already outlined, I am concerned that if the mother had sole parental responsibility, she would subject X to unnecessary medical and mental health interventions. That would not be in in his best interests. Such an order cannot be realistically contemplated in circumstances where the mother has relinquished X’s care and failed to attend at court.
In addition to the matters already outlined, in light of the history as set out, and the potential for the mother to undermine X’s stability in his father’s care, it is in my view necessary that the mother be restrained from initiating any contact with X without the father’s consent. X needs the opportunity to spend uninterrupted time in the father’s care, so he can adjust to the transition of living in Brisbane.
The orders I have made are by consent between the father and the Independent Children’s Lawyer. A copy of the proposed orders was forwarded to the mother on 21 December 2022. Whilst I understand she indicated at that time she did not agree with the proposed orders, she did not attend court on 19 January 2023, nor has she indicated what orders she would seek. The orders sought by the father and the Independent Children’s Lawyer remain unchanged, save in relation to the specific arrangements for changeovers, in the event time is to occur. That is not a significant alteration. I am satisfied the mother is on notice of the orders being sought. She has had ample opportunity to advise the court what orders she seeks, and has not done so.
In all the circumstances, I was, and remain satisfied the orders I made are in X’s best interests.
For all of foregoing reasons, I will make the orders as set out.

I certify that the preceding two hundred and forty-one (241) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 27 January 2023

File number(s):	MLC 9308 of 2009
Judgment of:	CARTER J
Date of judgment:	27 January 2023
Catchwords:	FAMILY LAW – CHILD – final parenting orders – undefended hearing – protracted litigation – orders made by consent between the father and Independent Children’s Lawyer – where the mother declined to participate in proceedings – where the mother relinquished care of the child – relocation – father to have sole parental responsibility – father permitted to relocate with the child – where the child continues to exhibit challenging behaviours – mother restrained from communicating with the child – child at liberty to communicate with his step-sister – concerns regarding the mother’s capacity to meet the child’s needs, best interests of the child.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA, 69ZX 91B, 102NA
Cases cited:	A & A: Relocation Approach [2000] FamCA 751 AMS v AIF [1999] HCA 26 Cotton & Cotton (1983) FLC 91-330 KB & TC [2005] FamCA 458 Morgan & Miles [2007] FamCA 1230 Taylor v Barker [2007] FamCA 1246 U v U [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	241
Date of last submissions:	19 January 2023
Date of hearing:	19 January 2023
Place:	Melbourne
Counsel for the Applicant:	Andrew Combes
Solicitor for the Applicant:	Wightons Lawyers
The Respondent:	Litigant in person (did not participate)
Counsel for the Independent Children's Lawyer:	Sarah Mansfield
Independent Children's Lawyer:	Southern Family Law

MLC 9308 of 2009
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR LODGE Applicant
AND:	MS TILLER Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CARTER J
DATE OF ORDER:	19 January 2023