LUSITO & LUSITO

[2011] FMCAfam 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUSITO & LUSITO [2011] FMCAfam 55

FAMILY LAW – Parenting – lesbian relationship – child aged 8 years the biological child of one party – sperm donor father unknown – parties in relationship at time of child’s conception – child in primary care of non-biological parent since separation – both parties assessed to have significant psychological disorders – entrenched parental conflict – evidence of psychological splitting by child.

FAMILY LAW – Parenting – where provisions of s.60H(1)b)(i) met – non-biological parent found to be “parent” under the Family Law Act 1975.

FAMILY LAW – Parenting – where non-biological parent found to be primary carer – where child’s primary attachment found to be with biological parent – child expresses wish to live with biological parent – order that child live primarily with biological parent and have substantial and significant time with non-biological parent – order for modified sole parental responsibility order because of entrenched parental conflict, nature of co-parenting relationship and parties’ psychological vulnerabilities – expert evidence that biological mother unable to engage with non-biological parent and likely impact on her.

Family Law Act 1975 (Cth), ss. 60B(1), 60B(2), 60C, 60CC, 60CC(2), 60CC(3), 60CC(4), 60H, 60H(1)(b)(i), 61DA, 61DA(1), 61DA(2) – (4), 65C, 65DAA

Marvel & Marvel (No. 2) [2010] FamCAFC 101
Goode & Goode (2006) FLC 93-286
Collu & Rinaldo [2010] FamCAFC 53
MRR v GR [2010] HCA 4
Aldridge & Keaton [2009] FamCAFC 229
Donnell & Dovey [2010] FamCAFC 15
Re Mark [2003] FamCA 822
Bagley & Snell [2010] FamCAFC 8
Gottspiel & Rufus [2009] FamCA 512
Simpson & Brockman [2010] FamCAFC 37
Baker & Landon [2010] FMCAfam 280
Wilson and Anor & Roberts and Anor (No.2) [2010] FamCA 734
Maurice & Barry [2010] FamCA 687
Re J and M: Residence Application [2004] FMCAfam 656
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Runcorn & Raine [2008] FamCA 837
Pottinger & Bainton [2009] FamCA 124

Applicant: MS J LUSITO

Respondent: MS D LUSITO

File Number: BRC6775 of 2009

Judgment of: Purdon-Sully FM

Hearing dates: 27 & 28 October & 7 December 2010

Date of Last Submission: 7 December 2010

Delivered at: Brisbane

Delivered on: 21 January 2011

REPRESENTATION

Counsel for the Applicant: Ms McDiarmid

Solicitors for the Applicant: Cooper Grace Ward Lawyers

Counsel for the Respondent: Mr Jordan

Solicitors for the Respondent: DA Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Foley

Solicitors for the Applicant: Harrington Family Lawyers

ORDERS

1. That the Independent Children’s Lawyer prepare a Minute of Orders to reflect this decision within seven (7) days of today’s date.

IT IS NOTED that publication of this judgment under the pseudonym Lusito & Lusito is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC6775 of 2009

MS J LUSITO

Applicant

And

MS D LUSITO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns a dispute between the applicant, Ms J Lusito, and the respondent, Ms D Lusito, in respect of the parenting arrangements for their son, [X], aged 7 years and 11 months at the commencement of the trial.

2. For ease of reference, I propose to refer to the applicant as

   
   

   “Ms J Lusito” and the respondent as “Ms D Lusito”.

3. [X], who is described by Ms P, the family report writer, as a “gentle, sensitive and sweet natured child”, is the biological child of

   
   

   Ms J Lusito.

4. Ms J Lusito and Ms D Lusito lived in an intimate relationship for about ten years.  [X] was born during the course of their relationship.

5. Ms J Lusito became pregnant in the course of IVF treatment using donor sperm. [X]’s biological father is unknown however he has indicated that he is prepared to have contact with [X] when he is 18 years of age.[1]

   [1] Exhibit 10

6. Following the parties’ separation in April 2009, [X] continued to live with Ms D Lusito.

7. Pursuant to interim orders of 9 September 2009, as varied on

   
   

   18 December 2009 and 19 April 2010, [X] spent time with Ms J Lusito each alternate weekend from after school Friday to before school Monday and in each other week from after school Thursday to the commencement of school Friday.  School holidays were equally shared and the parties spent time with [X] on special occasions.

8. An Independent Children’s Lawyer (“ICL”), Mr Stephen Page, was appointed to represent [X]’s interests.[2]  He engaged Ms P, a social worker and Dr M, a psychiatrist, to prepare expert reports.

   [2] I wish to acknowledge the considerable assistance provided to the court by the ICL.

9. The trial took place on 27 and 28 October and 7 December 2010.

10. I had the opportunity to see both Ms J Lusito and Ms D Lusito in the witness box. The evidence of the court appointed experts was also tested before me.

11. Ms P describes Ms J Lusito and Ms D Lusito as “essentially good women”.  I agree.  Both want the best for [X].  However, I accept that there are a “number of uncertainties”[3] in this case and with respect to the parenting options they seek for [X].

    [3] Para 97 of second report of Ms P filed on 18 August 2010.

12. Sadly, there has been a great deal of conflict between the parties.

    
    

    I accept the submission of Counsel for Ms J Lusito that there has been an intensity of hostility “much deeper than what you usually see”. 

Competing proposals

Ms J Lusito

1. Ms J Lusito seeks parenting orders as detailed in her Case Outline document filed on 20 October 2010.

2. If I made those orders then:

   a)[X] would live with her;

   b)[X] would spend time with Ms D Lusito:

   i)During school terms each alternate weekend from after school Friday to the commencement of school Monday unless a pupil free day with an extension to accommodate that and from after school Thursday to before school Friday each other week;

   ii)For one half of the school holidays;

   c)Special occasions would be shared;

   d)There would be phone time and some usual specific issue orders in relation to the exchange of information and exposure of [X] to adult conflict and an order restraining the parties from removing [X] from South East Queensland except during school holidays and only on notice;

   e)

   There would be an order for sole parental responsibility in

   
   

   Ms J Lusito’s favour.

Ms D Lusito

1. Ms D Lusito seeks the parenting orders detailed in her Case Outline document filed on 17 August 2010, as amended by her Counsel during the course of oral submissions. 

2. If I made those orders then Ms D Lusito’s primary position would be that:

   a)

   [X] would live with Ms D Lusito and spend time with

   
   

   Ms J Lusito on the same basis as the interim parenting regime;

   b)Holidays would be shared, as would special occasions;

   c)There would be some standard specific issues orders made;

   d)There would be an order for equal shared parental responsibility;

   e)[X] would complete his primary school education at the [S] School.

3. Ms D Lusito’s second position is that the court would implement a shared-care parenting regime.

4. Ms D Lusito no longer seeks an order that her name be included on [X]’s birth certificate.

ICL

1. The ICL seeks orders that would place [X]:

   a)

   During the school term in the primary care of Ms J Lusito.

   
   

   Ms D Lusito would spend time with [X] each alternate weekend from after school Thursday to before school Monday, to continue to Tuesday if a public holiday or pupil-free day and then in each other week from after school to 6.30pm on a Thursday;

   b)Holidays would be shared, as would special occasions.  There would be the usual specific issues orders to do with the exchange of information;

   c)The parties would equally share parental responsibility for long-term decision making for [X].

Background

1. Ms J Lusito, who changed her surname by deed poll to Lusito, is aged 43 years, having been born in 1967.  She has previously worked for [omitted] however she now works on a casual part-time basis with [omitted].

2. Ms J Lusito lives with her father, Mr P - aged 66, in rented accommodation at [address omitted].  He is in full-time employment.

3. Ms D Lusito is aged 53 years having been born in 1957. She has [qualifications omitted]. She is employed as a [omitted].

4. Ms J Lusito and Ms D Lusito commenced an intimate relationship in about 1998, cohabiting from about early 1999.

5. [X] was born [in] 2002.  He has recently completed Grade 2 at the [S] School.

6. [X] is aware of his birth and biological parenting status.[4]  

   [4] [X] usually calls Ms J Lusito “Mummy” and Ms D Lusito “Mumma”. He referred to his parents as the “two mummies” and [first names omitted] during his interviews with Ms P.

7. At the time of [X]’s birth Ms J Lusito took maternity leave for a few months.[5]  She then returned to full-time work.

   [5] On the evidence somewhere between three to five months.

8. Whilst both Ms J Lusito and Ms D Lusito have provided care for [X] during their relationship, Ms D Lusito was [X]’s primary carer and

   
   

   Ms J Lusito assumed the role of breadwinner.

9. In January 2009 Ms J Lusito sought admission to the PA Hospital psychiatric unit suffering from depression. At the time of her admission she had been working with [omitted] for 11 years and had been on sick leave. 

10. Ms J Lusito’s prescribed medication was not successful in treating her depression and she was readmitted to the PA Hospital on 15 April 2009 for electroconvulsive treatment.  In a letter to [employer omitted] dated 6 April 2009 her psychiatrist Dr J noted that Ms J Lusito was “compliant with treatment and very motivated to get better” and her illness and subsequent impairment were “not permanent.”[6]

    [6] Exhibit 1

11. The parties separated in April 2009 whilst Ms J Lusito was in hospital.  There was an earlier brief period of separation in September 2006. 

12. At separation [X] continued to reside with Ms D Lusito in the parties’ home at [suburb omitted] in Brisbane.  That remained the situation at trial.  The parties are yet to effect a property settlement.

13. Ms J Lusito commenced parenting proceedings on 3 August 2009. 

14. It is not disputed that following separation, [X] had limited contact with Ms J Lusito until orders were made by this court on

    
    

    9 September 2009.

15. Ms D Lusito’s great-niece, [B], born [in] 2006, also resides with

    
    

    Ms D Lusito and [X].  

16. The circumstances giving rise to [B] being in Ms D Lusito’s care and what Ms D Lusito refers to as “a complicated history regarding the assistance I provided to family members”[7] is, in summary, as follows:

    [7] Para 25 Ms D Lusito’s affidavit filed on 18 August 2010

    a)At the commencement of the parties’ relationship in about December 1998 Ms D Lusito was the full-time carer of her sister’s children, [K] and [M], then aged 8 and 6.  [K] is [B]’s mother. 

    b)Ms D Lusito’s sister was a drug addict who suffered from a bi-polar disorder. She abandoned her children in February 1998.

    c)[K] remained in Ms D Lusito’s care for 7 years. [M] remained in Ms D Lusito’s care for 15 months before living with his father.  

    d)Ms D Lusito’s sister was killed in a road accident in 2006.

    e)At the time of her death [K] had been living with her mother and had just given birth to [B].  [K], then aged 17, [M], then aged 15 and [B] came to live with Ms D Lusito, Ms J Lusito and [X].

    f)

    [K], on Ms D Lusito’s evidence had a problem with drugs, alcohol, stealing, and bad company and was asked to leave

    
    

    Ms D Lusito and Ms J Lusito’s home.

    g)In May 2009, [K] with the assistance of the police removed [B] from Ms D Lusito’s care.  The Department of Child Safety was involved.  [B] was in [K]’s care for most of 2009.

    h)

    [B] was returned to Ms D Lusito’s care and in March 2010

    
    

    Ms D Lusito became a kinship carer for [B]. [B] continues to have contact with her mother, [K].

17. Ms J Lusito and Ms D Lusito enjoy reasonable physical health.  However they have both been diagnosed by Dr M as having a significant psychological disorder. 

18. Ms J Lusito has a history of significant clinical depression, on the evidence of Dr M, arising from a history of child sexual abuse and the premature responsibility for a mentally ill mother.

19. Ms J Lusito takes anti-depressives.  She sees a psychiatrist.  She was in remission at the time of her assessment and at trial.

20. Ms D Lusito suffers from a chronic anxiety disorder.  She engages in counselling, consults a naturopath and takes some medication for her condition. 

21. Both Ms J Lusito and Ms D Lusito admit to cannabis use during their relationship. Ms J Lusito has in the past been diagnosed with cannabis and benzodiazepine misuse. 

22. Both parties were randomly drug tested by the ICL. Ms J Lusito returned a positive test for cannabis in September 2010.[8]

    [8] Exhibit 3

23. [X] made disclosures to Ms J Lusito (and on the evidence of Ms J Lusito also to his counsellor) of physical abuse by Ms D Lusito on

    
    

    20 and 25 May 2010 and again on 3 June 2010. Ms J Lusito reported the first incident to the Department.  There was no investigation.

24. Ms D Lusito denied the abuse allegations.

25. Both parties have attended a parenting program.  Both have been engaged in some personal counselling.

The issues

1. In the context of the legislative pathway I am required to follow under the Family Law Act 1975, as amended (“the Act”), in informing my discretion as to what orders to make in the best interests of [X], the issues in this case include:

   a)

   the strength of [X]’s attachment to Ms J Lusito and his stated wish to live with her and the impact on [X] of a removal from

   
   

   Ms D Lusito’s primary care;

   b)

   the risks, if any, to [X] arising from the parties’ mental health problems, illicit drug use and allegations of physical abuse by

   
   

   Ms D Lusito;

   c)the nature of the parent’s relationship and the risks, if any, to [X] of his parent’s conflict.

The legal principles

1. The relevant legal principles which govern the court’s determination in parenting matters and which I am required to follow are set out in the Family Law Act 1975 (“the Act”), in particular Part VII of the Act which relates to children.

2. Section 65D of the Act, subject to s.61DA and s.65DAB, gives the court power to make a “parenting order”. 

3. A “parenting order” is defined by s.64B of the Act.

4. In deciding whether to make a particular parenting order, s.60CA requires that I must have regard to the best interests of the child as my paramount consideration.

5. In determining what is in the best interests of a child, I must consider the matters set out in s.60CC and be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying those objects.

6. I must apply a presumption that it is in the best interests of a child for parents to have equal shared parental responsibility for the child -s.61DA(1). This presumption is rebuttable in the circumstances outlined in the Act - s.61DA(2) – (4).

7. In Marvel & Marvel (No. 2) [2010] FamCAFC 101, the Full Court, at 94 to 103, considered the responsibilities parents have by virtue of being parents of a child.[9]  Such responsibilities exist, subject to an order of the Court. 

   [9] See also Maurice & Barry [2010] FamCA 687 at 9-11

8. The legislative pathway I am required to follow has been outlined in a number of Full Court decisions, including Goode & Goode (2006) FLC 93-286 and Collu & Rinaldo [2010] FamCAFC 53 and by the High Court in MRR v GR [2010] HCA 4.

9. There are two initial questions that I propose to discuss relevant to the circumstances of [X]’s birth, firstly, whether [X] is a child of

   
   

   Ms J Lusito and Ms D Lusito within the meaning of s.60H(c) of the Family Law Act and secondly, whether Ms D Lusito is a “parent” under Part VII of the Act.

Is [X], a child born as a result of artificial conception, deemed to be the child of Ms J Lusito and Ms D Lusito within the meaning of s.60H(c) of the Family Law Act?

1. Section 60H of the Act relates to the law governing children born as a result of artificial conception procedures.

2. That section provides as follows:

   60HChildren born as a result of artificial conception procedures

   (1)If:

   (a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

   (b)either:

   (i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

   (ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

   then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

   (c)the child is the child of the woman and of the other intended parent; and

   (d)if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.

   (2)If:

   (a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

   (b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

   then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

   (3)If:

   (a)    a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

   (b)    under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

   then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

   (5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

   (6)In this section:

   this Act includes:

   (a)    the standard Rules of Court; and

   (b)    the related Federal Magistrates Rules.

3. I find that [X] is deemed to be the child of Ms J Lusito and

   
   

   Ms D Lusito within the meaning of s.60H(c) of the Act. This is because the requirements of s.60H(1)(a) and (b)(i) are made out in that:

   a)Ms J Lusito is the biological mother of [X];

   b)At the time of [X]’s conception Ms J Lusito was living in a de-facto relationship with Ms D Lusito, “the other intended parent” within the meaning of s.60H(1)(b)(i);

   c)Both Ms J Lusito and Ms D Lusito consented to the carrying out of an artificial conception procedure;

   d)The biological father consented to the use of his sperm in an artificial conception procedure.[10]

Is Ms D Lusito a “parent” under Part VII of the Act?

[10] Exhibit 10

1. The question of whether Ms D Lusito, the “other intended parent” under s.60H, is a “parent” for the purposes of the Part VII of the Act is, as the Full Court observed in Aldridge & Keaton [2009] FamCAFC 229 at 16, “not without some doubt.”

2. The term “parent” is not expressly defined in the Act.[11]

   [11] See Butterworths Australian Family Law Commentary at 1286.4

3. The relevance of a finding as to whether Ms D Lusito is or is not a “parent” under the Act is threefold:

   a)

   If Ms D Lusito is a “parent”, she would not be required to meet a threshold test under s.65C, the section of the Act that requires a person seeking a parenting order in their favour to be “a person concerned with the care, welfare or development of the child”.

   
   

   There can be no issue on the facts of this case that Ms D Lusito would not meet those criteria.

   b)In making a parenting order in [X]’s best interests I am required to follow the legislative pathway to which I have earlier referred. In that regard:

   (i)The Full Court in Donnell & Dovey [2010] FamCAFC 15 made clear that a “non-parent” cannot be treated as a “parent” in the context of a discussion of the s.60CC considerations;

   (ii)Section 60B(1)(a) and (d) and s.60B (2)(a) to (d) refer only to “parents”;

   (iii)With regard to the considerations under s.60CC, the first of the primary considerations, s.60CC(2)(a) and four of the additional considerations, s.60CC(3) (c), (e), (g) and (i) refer only to the “parents” of children;

   (iv)Sections 60CC(4) and (4A) also only refer to “parents”.

   c)With respect to the issue of “parental responsibility”:

   (i)Section 60C refers to each of the “parents” of a child, not aged 18 years, having parental responsibility for the child;

   (ii)Section 61DA applies a presumption of equal shared parental responsibility only to “parents”;

   (iii)Section 65DAA requires a court to consider equal time and if not equal then substantial and significant time with a child’s “parents”.

1. Whilst attempting to navigate through the relevant parts of the Act including the relevant state legislation involves a maze of windings and turns – the legal equivalent of a “Chemin de Jerusalem” type labyrinth – I have concluded that Ms D Lusito is [X]’s “parent” for the purposes of the Act. This is because:

   a)

   I accept the submissions of the ICL who in a careful analysis submitted that Ms D Lusito was a “parent” under the Act. No challenge to this submission was made by Counsel for

   
   

   Ms J Lusito or Ms D Lusito.

   b)Whilst there has been no legislative amendment to address the inconsistencies in the drafting of provisions of the Act as identified in Aldridge & Keaton [2009] FamCAFC 229, following the analysis of the Full Court in that case I intend to give a purposive construction to s.60H notwithstanding the use of the words “person” and “other intended parent” as opposed to “parent”.

   c)

   A reading of the Revised Supplementary Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and other Measures) Bill 2008[12] and the Senate Report makes clear that the intention of the legislature was that non-biological persons who met the relevant criteria under s.60H were to be treated as a “parent” (see Aldridge (supra) at 18).

   
   

   Ms D Lusito meets the relevant criteria.

   d)The approach taken in the case law[13] leads me to conclude that Ms D Lusito should be treated as a “parent”, in particular:

   (i)The dicta of Brown J in Re Mark [2003] FamCA 822 that s.60H did not “purport to give an exhaustive definition of “parent” but instead enlarges rather than restricts the categories of people who may be regarded as parents.”[14]

   (ii)The dicta of Riethmuller FM in Baker & Landon [2010] FMCAfam 280 wherein His Honour, in concluding that a lesbian non-biological co-parent was a “parent” within the meaning of s.60H and the donor of genetic material was not a “parent” under the Act, went on to observe at 43 and 44, that a mere donor of genetic material, someone who had no contact with and never knew the mother (as opposed to the donor in Re Mark [supra]), could not be said to be a person who was a “parent” or someone contemplated as a person “who would have shared parental responsibility for the child” under the Act and, at 45, that the “significant duties and obligations imposed upon parents by the Family Law Act are not imposed upon an unknown person who has donated biological material in expectation (fulfilled in state law) that there would be no duties or obligations to the child.”

   (iii)The dicta of Dessau J in Wilson and Anor & Roberts and Anor (No.2) [2010] FamCA 734 at 38 to 40, where Her Honour concluded that lesbian co-parents, having consented to the carrying out of an artificial conception procedure were the “parents” of the subject child and the donor of genetic material and his partner were not “parents” under the Act.

   (iv)The dicta of Faulks J in Maurice & Barry [2010] FamCA 687, at 15 and 16, that whilst the “drafting may fall short of the ideal” in His Honour’s view “a purpose of construction that s.60H in combination with the Explanatory Memorandum, would suggest that s.60H at least impliedly contemplates an “other intended parent” being a “parent”.”

   [12] See General Outline which refers to the Government amendments implementing the bipartisan recommendations for amendments to the Bill made by the Senate Legal and Constitutional Affairs’ Committee in its’ report on the Bill to “amend the definition of ‘child of de facto relationship’ in proposed section 90RB of the Bill and the parenting presumptions in section 60H of the Act to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act”

   [13] See for example, Re Mark [2003] FamCA 822, Aldridge & Keaton [2009] FamCAFC 229, Bagley & Snell [2010] FamCAFC 8, Gottspiel & Rufus [2009] FamCA 512, Simpson & Brockman [2010] FamCAFC 37, Baker & Landon [2010] FMCAfam 280, Wilson & Anor and Roberts & Anor (No.2) [2010] FamCA 734, Maurice & Barry [2010] FamCA 687.

   [14] Walters FM expressed agreement with Brown J in Re J and M: Residence Application [2004] FMCAfam 656.

2. I have concluded that it would be artificial and contrary to the clear intention of the 2008 amendments to the Act and the 2010 amendments to the relevant state legislation (here, Subdivision 2A of the Status of Children Act 1978, inserted into the Status of Children Act by the Surrogacy Act 2010 (Qld), which took effect on proclamation of the Act on 1 June 2010), albeit legislation not yet prescribed in the schedule in regulation 12C of the Family Law Regulations 1984), if [X]’s primary carer, Ms D Lusito, a person regarded by him as a parent for all of his life, a person regarded as such by his biological mother, was not treated as a “parent” in the analysis I am required to undertake under Part VII of the Act, an analysis designed to make orders based on a child’s best interests.[15]

   [15] This is so, notwithstanding that I am able to otherwise assess and make relevant findings and appropriately weight such findings under s.60CC if Ms D Lusito was not treated as a “parent” under the Act (see Donnell & Dovey [2010] FamCAFC 15 at 100 to 105).

3. Like Faulks J in Maurice & Barry (supra), it is difficult for me to imagine that the man on the [suburb omitted] bus (let alone the man on the ACTION Bus or Clapham Omnibus) would not view [X] as

   
   

   Ms D Lusito’s child and Ms D Lusito as [X]’s parent.

Applying the law to the circumstances of this case

Section 60CC(2)(a) - benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is common ground that [X] would benefit from having a meaningful relationship with Ms J Lusito and Ms D Lusito.

2. Subject to any welfare concerns, which I shall shortly address, there is no evidence to suggest that [X], who is seeking to spend more time in Ms J Lusito’s household, would not benefit from having increased time with Ms J Lusito or that it would not promote his relationship with

   
   

   Ms J Lusito or that a reduction in his time in Ms D Lusito’s household would negatively impact upon from his relationship with Ms D Lusito. 

3. All of the parenting proposals before the court, save for Ms D Lusito’s primary proposal, would afford [X] with additional time with

   
   

   Ms J Lusito.

4. Ms D Lusito’s primary proposal may negatively impact upon [X]’s relationship with Ms J Lusito if Ms D Lusito was unable to appropriately support [X]’s attachment to Ms J Lusito. I discuss this further under s.60CC(3)(d) and rely upon my findings in relation to the likely impact of the parties ‘proposals on [X].

5. I place significant weight on my findings with respect to this consideration and find that it supports the proposal of Ms J Lusito and the ICL and Ms D Lusito’s secondary proposal with respect to time.

Section 60CC(2)(b) – protecting the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence

1. The issues that I propose to address under this consideration are as follows:

   a)Did Ms D Lusito physically abuse [X]?

   b)What risks are posed by the parties’ mental health problems and drug issues?

   c)What risk does the parties’ conflict and relationship pose for [X]?

Did Ms D Lusito physically abuse [X]?

1. I am unable to find that [X] was abused at the hands of Ms D Lusito or that she poses an unacceptable risk of physical abuse to [X].

2. This is because:

   a)[X]’s complaints and the state of the evidence fall short of a positive finding being made against Ms D Lusito.

   b)Ms J Lusito’s father, Mr P, who I found to be a level-headed and overall impressive witness, was prepared to concede that the complaints of alleged hitting in Ms D Lusito’s household may be exaggerations on [X]’s part.

   c)[X] has been caught in his parent’s conflict, the evidence being that his reports of negative experiences in each parent’s household may be a coping mechanism.[16]

   d)No investigation was undertaken by the statutory authority.

   [16] Paras 30-31 of second report of Ms P.

3. In relation to Ms J Lusito’s actions in reporting the incidents, there is no evidence to suggest that she coached [X] into making his allegations. She informed Ms P that she was shocked and found it difficult to believe.[17]

   [17] Para 70 Ibid.

4. Nor am I able to find that her actions in “thinking the worst had occurred” and in reporting that to the authorities should be criticised as submitted by Counsel for Ms D Lusito.  The parties do not effectively communicate. They have a conflicted relationship. Ms D Lusito informed Ms P “… there is no trust” and she was not able to “address issues that might assist to build a more constructive relationship between the two of them.”[18] 

   [18] Para 48 Ibid.

5. In those circumstances, Ms J Lusito may have opened herself to criticism if she had not acted as she did.  Ms P was of the view that something had happened - “it is unclear as to whether the incidents occurred, or some part of these incidents occurred and whether there was an exaggeration in the telling of them to his mother Ms J Lusito however there would be some basis to his reporting of these incidents”.[19]

What risks are posed by the parties’ mental health problems and drug issues for [X]?

[19] Para 87 of report of Ms P filed 18 August 2010.

Ms J Lusito

1. Counsel for Ms D Lusito, Mr Jordan, submits that Ms J Lusito’s household poses an unacceptable risk to [X] not present in

   
   

   Ms D Lusito’s household by reason of concerns about her mental health, her illicit drug use and the impact of that on [X] or her care for him and the risks to [X] in changing his primary care from

   
   

   Ms D Lusito to Ms J Lusito, however I accept the submissions for Counsel for Ms J Lusito, Ms McDiarmid, in relation to the risk factors and I accept the evidence of Ms P that “there is little evidence that
   Ms J Lusito is a risk to [X] as originally put forward by
   Ms D Lusito.”[20]

   [20] Para 106 of second report of Ms P.

2. Whether Ms J Lusito was suffering from depression ineffectively treated or untreated for many years[21] and whether or not that depression came about because of a genetic pre-disposition, work or relationship difficulties or a combination thereof, Ms J Lusito has made considerable and commendable progress over the past twenty or so months. 

   [21] Ms J Lusito’s medical history reveals a diagnosis of post natal depression in 2003

3. I accept the submissions of Counsel for Ms J Lusito, Ms McDiarmid, that the fact that Ms J Lusito suffered from clinical depression which involved hospitalisations and electro–convulsive treatment is not the issue.  The issue is how she responded to her diagnosis and her prognosis.  In that regard Ms J Lusito has demonstrated insight into her disorder.  She has sought and engaged well in treatment, and she has been in remission since her discharge from hospital.

4. Whilst it is impossible to rule out further depressive relapse, and whilst I have taken into account Dr M’s less optimistic view that there was a “probability that in the future she will experience more depressive illness”, I prefer the professional view of Ms J Lusito’s treating psychiatrist Dr J, with whom Ms J Lusito appears to have developed an excellent rapport.

5. Her view is that Ms J Lusito has made a “huge progression” and that “since her latest discharge, Ms Lusito’s symptoms have improved significantly.”[22]

   [22] Affidavit of Dr J filed 22 October 2010.

6. I accept Dr J’s evidence that if Ms J Lusito has appropriate protective support and in this regard the evidence is that she has that support in the form of family, medication, a case manager and medical review, the risk of relapse is “very small”.[23]

   [23] See list of protective factors in affidavit of Dr J 26 August 2010

7. I accept and place significant weight on her evidence that it was her professional opinion that Ms J Lusito presented no risk to [X].  This is because:

   a)I found Dr J to be an impressive witness and, as Ms J Lusito’s treating doctor for some time, better placed than Dr M to express the views she did, Dr M conceding that a treating psychiatrist was in a better position to comment on her own patient.

   b)

   I do not accept that Dr J’s evidence was given out of a sense of loyalty to her patient.  I accept the submission of Counsel for the ICL that whilst Dr J’s statement of “support” in her sworn evidence for Ms J Lusito obtaining “full custody of [X]” may open her to some criticism it was understandable for the reasons advanced by Counsel for the ICL and that it did not detract from the compelling nature of her evidence on the nature of

   
   

   Ms J Lusito’s mental health and the risks that posed to [X].

   c)Dr J described Ms J Lusito as having moderate depression and that she could have been suffering from depression for some time without treatment.

   d)It was her opinion that Ms J Lusito’s conflict in her relationship with Ms D Lusito at the time the parties were living together and her work problems contributed to her depression and anxiety at the time of her hospital admission.

   e)Ms J Lusito’s ECT treatment was the preferred course of treatment, because it was the fastest treatment, not because it was undertaken based on the severity of Ms J Lusito’s illness or suicidality.

   f)Ms J Lusito had been compliant with her treatment and the circumstances of Ms J Lusito’s discharge from hospital in April 2009 were within the parameters of what had been discussed with Ms J Lusito and she had no concerns about the circumstances of her discharge as Ms J Lusito had completed her ECT treatment.

   g)Ms J Lusito’s overall functioning had improved. She had engaged with [X]’s school, reconnected to her brother, commenced paid employment, maintained friendships and she was living with her father who was supportive of her and with whom she enjoyed a good relationship.

   h)There are protective factors which minimise the risk of possible relapse these including Ms J Lusito’s positive response to treatment, her having maintained remission despite the stressful nature of court proceedings, her level of insight, an absence of aggressive or suicidal behaviour, her family support and her attitude to [X].

8. I do not find that either Ms J Lusito or Ms D Lusito pose an unacceptable risk to [X] by reason of substance abuse concerns.  This is because:

   a)Whilst Ms J Lusito’s failed drug test for cannabis use is a relevant consideration, both Ms J Lusito and Ms D Lusito admitted illicit drug use during their relationship. 

   b)Whilst Ms J Lusito’s cannabis use became problematic it did so at a time of a difficult employment situation, a disintegrating personal relationship, a household under significant strain, the death of Ms J Lusito’s mother, and, importantly, likely depression which was ineffectively or untreated.  Those stressors no longer exist and Ms J Lusito has evidenced sufficient insight that suggests that she would likely deal with any future life stressors without a relapse into illicit drug use.

   c)Since April 2009, Ms J Lusito has returned only one positive test.  She explained the circumstances that led to the failed drug test and I accept her evidence.

   d)Dr J viewed the failed test as an aberration.

   e)I am unable to make any adverse findings against Ms J Lusito based on two dilute samples of urine.

   f)I accept the submission of Counsel for Ms J Lusito that her functioning and the positive strides she has made in her life is the true proof of her abstinence, against the background of these court proceedings.

   g)I make no criticism of Ms J Lusito’s decision to not continue with a drug and alcohol program which she did not find helpful.

   h)I view any issues in relation to alcohol or prescription drug use by Ms J Lusito in the same light.

9. As to the risks to [X] arising from a change in his primary care and

   
   

   Ms D Lusito’s concerns about Ms J Lusito’s level of functioning in regard to her ability to care for [X], I rely upon my findings in that regard in my discussion of the relevant additional considerations.

Ms D Lusito

1. Counsel for Ms D Lusito, Mr Jordan, submits that Ms D Lusito’s generalised anxiety disorder does not pose risks for [X] in her household however I accept the submissions of Counsel for

   
   

   Ms J Lusito, Ms McDiarmid, that the distinguishing feature between Ms J Lusito and Ms D Lusito and their psychiatric/psychological issues is that Ms J Lusito has insight into her disorder and the real risk to [X] is not in the fact that his mothers have a psychiatric condition or the severity of their disorder or the fact that Ms J Lusito has had admissions to hospitals and Ms D Lusito has not, but their functioning and the impact of that on [X].

2. I accept the evidence of Dr M that Ms D Lusito experiences rescue fantasies associated with a difficult childhood, that she is highly intelligent and has the capacity for rationalisation which may belie her actual motivations and that there is a probability that within her household there will continue to be instability, largely as a result of her strong protective involvement of her family origin. 

3. The evidence is that Ms D Lusito has had longstanding problems with serious anxiety.  I find that when under stress Ms D Lusito engages in denial, projection and rationalisation, that she has limited insight into her ability to separate her own feelings from [X] and how that impacts on him and how she relates to him.  I accept that this presents as a risk to [X].

4. Under cross-examination by Counsel for the ICL, Mr Foley, Ms D Lusito denied that she had rescue fantasies, was unable to admit other than a “possibility” of any projection of her difficulties onto [X] and the impact for [X] of that, and she denied angry or aggressive behaviour.

5. Whilst Ms D Lusito accepted that denial as a technique may have some short term survival value, she agreed that it was ultimately corrosive of the capacity to make changes to behaviour.

6. In the context of ongoing litigation for nearly two years I attribute little weight to Ms D Lusito’s acceptance that she and Ms J Lusito needed to make some changes for [X]’s sake and that she was “willing to accept help when I need it, not just for myself but, more importantly for [X]” where:

   a)there had been no real change in her behaviour, notwithstanding her training in [omitted], her engaging in counselling with Centracare, her reducing her dependence on Xanax, her work with a naturopath and her listening to meditation tapes;

   b)she declined to undertake an anger management course as recommended by Ms P in her first report;

   c)her evidence was that she had not spoken to Ms J Lusito, [X]’s co-parent, since the week of 16 September, that is, for a period of over five weeks before the trial;

   d)

   she saw no benefit in engaging in joint counselling or therapeutic mediation even though recommended by Ms P and offered by

   
   

   Ms J Lusito before trial, because she had attended this before and it had not worked.

7. Notwithstanding her intelligence, educational background and training, at trial Ms D Lusito evidenced no great shift in her thinking about the dynamics of the parental conflict or the impact of her anxiety on [X] such as to enable me to take some comfort that there may be some future improvement.  Whilst there is some evidence that she has had the capacity to change her behaviour in the past, I accept that what changes she was able to effect in 1996 came about because she could not work.

8. I accept that Ms D Lusito may have some anger issues and that others do find their interactions with her challenging.  For example:

   a)Ms J Lusito’s evidence was of bullying and domination by Ms D Lusito during their relationship.  I found Ms J Lusito to be an honest witness.  Indeed at times her evidence was raw in its honesty.  She was prepared to give evidence against her interest.  

   b)There was some evidence, through Dr J, of difficulties encountered by Ms J Lusito’s case manager in her interaction with Ms D Lusito.

   c)The evidence of Ms D Lusito’s anxiety problems which have, in the past, impacted upon her in the workplace and her ability to present for work.[24]

   d)Ms P’ first report of 30 November 2009 that [X] experienced some distance, negativity and anger from Ms D Lusito concluding at para.83 that “[X]’s attribution of intimidating and angry behaviour in Ms D Lusito would suggest anger management problems.”

   e)

   Ms P’ further observation at para.85 of the same report that

   
   

   “Ms D Lusito’s negative portrayal of Ms J Lusito and her family during this assessment…” did not “stand scrutiny….”, that is, her criticisms of Ms J Lusito were unsubstantiated.

   [24] Exhibit 1.

What risk does the parties’ conflict pose for [X]?

1. I find that the parties’ failure to deal with their conflict has been neglectful of [X]’s emotional and psychological well-being and places him at an unacceptable risk.

2. I accept the evidence of Ms P that “the level of splitting that ([X]) would appear to be exhibiting is a cause for concern”.[25]

   [25] Para 102 of second report of Ms P.

3. I find that this has the potential to compromise his psychological health in the manner outlined by Ms P.

4. In reaching this conclusion I have had regard to the following evidence, in particular:

   a)The initial determination of Ms P not to involve [X] in the second interviews because of “the extreme conflict between the two women, reported and demonstrated, and the impact on [X]. Reports by each mother and correspondence exchanged relating to [X]’s comments about life in each household, suggested significant deterioration in [X]’s confidence and equanimity since the previous assessment six months ago in November 2009.”[26]

   b)Ms P’s observation that each mother had reported to her that “[X] has expressed strong wishes to reside with her.  He also reports negative experiences at each other’s household.  By these accounts [X] would appear to be exhibiting unusual, but disturbing splitting, as a way of coping with hostilities, reassuring each mother and at the same time keeping emotionally safe in the context of the dispute” and that, in her view, the “level of splitting cannot be sustained with out serious implications for future mental health outcomes for [X].”[27]

   c)[X], then aged 7 years, commencing counselling on 25 May 2010 with a counsellor who recommended weekly contact initially.

   d)Ms D Lusito informing Ms P that [X] felt “under significant pressure through his disclosures and discussion with the report writer” in November 2009 and Ms P’s concern that “what was experienced and expressed (in the report) as an open, frank and notably insightful discussion with a six year old, would appear to have been the source of such contention in his home environment that he was needing to deny the sentiments expressed.”[28]

   e)Ms D Lusito’s insistence at the second interviews that Ms C be present during [X]’s interview. 

   f)Ms P’ observations of [X] for the second report, as presenting as a child who was not “as open and frank a child with me in the second session as he was in the first” and that the explanation for this was not the presence of Ms C, in her view.

   [26] Para 28 of second report of Ms P.

   [27] Paras 30-31 of second report of Ms P.

   [28] Paras 34 and 35, 91 of second report of Ms P.

5. I accept the evidence of Dr M and Ms P that the level of the parties’ hostility makes a shared-care parenting arrangement problematic for [X].

6. I reject the submission of Counsel for Ms D Lusito, Mr Jordan, that the advantage of shared-care is that it would be an “opportunity to ensure that neither party exercises control over [X] that disadvantages [X] in not having the opportunity to have the relationship he deserves with the other parent.”

7. [X]’s opportunity to enjoy the relationship he deserves with the parents he loves is not a mere function of time.  It includes his parent’s ability to protect him from their adult conflict and angst.

8. I place significant weight on my findings with respect to the second primary consideration and find this supports the proposal of Ms J Lusito and the ICL with respect to time.

9. I find that Ms J Lusito’s proposal in relation to Thursday time will likely reduce [X]’s exposure to his parent’s conflict if changeovers are effected at school during school term.

Section 60CC(3)(a) – views expressed by child

1. Ms P met [X] on three occasions.

2. During his first interview in November 2009 [X] said that he would like to see his mothers’ week-about which Ms P viewed as being indicative “of his desire to be fair and is usual for children whose parents are in dispute and cannot resolve a jointly determined decision”.[29]

   [29] Para 46 of first report of Ms P.

3. By the time of the second interview [X] told Ms P “I think I am better off seeing each once per week, but I live with Ms J Lusito and see
   

   [30] Para 55 of second report of Ms P.

   Ms D Lusito.”[30]

4. Ms P went on to say “On further discussion later it would appear that [X] was proposing a reversal of the current arrangement whereby he would reside with Ms J Lusito and have alternate weekends and one or two overnights through the week with Ms D Lusito.”[31]

   [31] Ibid.

5. In her assessment for her second report Ms P observed “[X] has been consistent during this assessment in his stated wish to live with his mother, Ms J Lusito.”[32]

   [32] Para 91 of second report of Ms P.

6. Counsel for Ms D Lusito. Mr Jordan, asked Ms P a series of questions about the change in [X]’s wishes between the first and second reports and the manner in which she directed her questions to [X].  I accept the evidence of Ms P that:

   a)Whilst [X] did not express a wish to live with either parent in her first assessment, “throughout both assessments (she) observed and he indicated a strong attachment to Ms J Lusito and a desire to spend time with her. At the first assessment he was trying to be more equitable and he had become stronger in his stated wishes in the second assessment.”[33]

   b)His expression of initial confusion in the second interview was an indication that he “did not want to hurt either mother”.[34]

   c)When asked by Ms P which Mum he liked being with most, he replied “Ms J Lusito”.[35]

   d)

   When asked if the court decided there would be a change in his parenting arrangements how he would feel about that he said

   
   

   “I would feel really good about it.”[36]

   e)In relation to a week-about arrangement he said “Ms D Lusito is trying to see if I can live one week with her but I would like to swap around and live with Ms J Lusito and see Ms D Lusito (the same how I see Ms J Lusito now)”.[37]

   f)[X]’s concern that “his wishes be well known that he would like to live with his mother, Ms J Lusito”.

   [33] Oral evidence of Ms P under cross-examination by Mr Jordan.

   [34] Oral evidence of Ms P under cross-examination by Mr Jordan.

   [35] Para.89 of second report of Ms P.

   [36] Para.90 Ibid.

   [37] Ibid.

7. In assessing the weight I must give to [X]’s wishes I take into account:[38]

   [38] One month short of 8 years of age at trial.

   a)The evidence of Ms P who I found to be an impressive and thoughtful witness in general and on this issue in particular.

   b)Ms P described [X] as “confident and articulate”[39] and “quite a special little child… a child with special capacities” who was for his age able to articulate and understand the dynamics going on with his situation to “an unusual degree”.[40]

   [39] Para.41 of first report of Ms P.

   [40] Oral evidence at trial.

   c)

   Ms P’s acceptance, when this was put to her by Counsel for

   
   

   Ms J Lusito, that [X]’s expressed wishes were a strong expression notwithstanding that he was only seven at the time – a “true expression of what he would like to do”.[41]

   d)[X] is doing well at school.  His semester 1 report from his school reveals that he is receiving A’s and B’s for all of his subjects save for Maths.

   e)[X] is described by his teacher as having a “relaxed and easy going nature”, as being “well liked by his peers” and as making a contribution to the classroom.[42]

   f)The evidence is that [X] had thought through the parenting options in a mature way, being sensitive to the feelings of his parents.

   g)[X] was seeking more time with Ms J Lusito at the first assessment and by the second assessment, having had time with Ms J Lusito in the context of the interim parenting arrangements, was seeking a parenting arrangement that would have him live in her household.

   h)[X]’s “consistent” wish to live with Ms J Lusito during the second assessment was expressed in the context of his having been in the primary care of Ms D Lusito, Ms D Lusito having brought him to the interview, the presence of Ms D Lusito’s friend, Ms C, and [X]’s acknowledgement and articulation that whatever decision he made would result in one of his mothers being sad.[43]

   i)There is no evidence to suggest that [X]’s wishes were improperly influenced by Ms J Lusito or any other adult.

   j)Ms P rejected that there was an element of enmeshment in [X]’s relationship with Ms J Lusito for the reasons advanced by her, which I accept.

   k)[X]’s wishes are consistent with issues to do with his general welfare.

   [41] Oral evidence at trial.

   [42] Exhibit 1.

   [43] Para.52 Ibid.

8. Whilst Counsel for Ms D Lusito, Mr Jordan, submits that the Court should not put great weight on [X]’s wishes, for the reasons outlined by me in my discussion of this consideration and for the reasons outlined by Counsel for Ms J Lusito, Ms McDiarmid, I find [X]’s wishes to be compelling and I place significant weight on his wish to live primarily with Ms J Lusito.

9. I do so, having taken into account the following further matters:

   a)the need for caution with a child of this age where there is high parental conflict;

   b)[X] not having had contact with his mother for a significant period of time which may have heightened his sense of anxiety in relation to her and the further evidence of Ms P in relation to [X]’s “need to put (Ms J Lusito’s) case” to her; and

   c)the evidence in relation to an element of [X]’s expressions being part of the conflict and his real needs being lost in the conflict.

10. My findings with respect to this consideration support the proposal of Ms J Lusito and the ICL with respect to time.

Section 60CC(3)(b) – the nature of the relationship of the children with each parent and other persons

1. Both mothers have a good relationship with [X].

2. [X] has resided primarily with Ms D Lusito since separation.

   
   

   Ms D Lusito has been [X]’s historical primary carer. 

3. Whilst [X] was observed by Ms P to have a trusting and confident interaction with Ms D Lusito,[44] I accept the evidence of Ms P that [X]’s primary attachment is with Ms J Lusito, a view she maintained at the time of her second report.  [X] was observed by her to have a warmer and strong attachment to Ms J Lusito and to be a more open-seeming child with Ms J Lusito[45] and to have a demonstrated “heightened engagement” with her.[46]

   [44] Para 51 of Ms P’ first report.

   [45] Ibid.

   [46] Para 83 of Ms P’ second report.

4. Mr P informed Ms P that [X] and Ms J Lusito were “inseparable”[47].

   [47] Para 38 of Ms P’ first report and Para 95 of Ms P’ second report.

5. Counsel for Ms D Lusito, Mr Jordan, submitted that I would have concerns about the nature of Ms J Lusito’s relationship with [X] based firstly, on his client’s evidence that [X] was saying concerning things to her about what Ms J Lusito says to him and the way he feels and secondly, the way Ms J Lusito behaved following her discharge from hospital and attending [X]’s school and [X]’s concerns about being with Ms J Lusito.

6. I do not accept those submissions.  This is because:

   a)Anything that [X] may or may not have said to Ms D Lusito about Ms J Lusito must be understood in the context of his exposure to his parent’s conflict, his sense of responsibility for his parents and his desire to be fair to them both.  I rely on the evidence of Ms P in this regard.

   b)Ms D Lusito’s concerns about Ms J Lusito and about [X] are a likely projection of her anxiety.  In response to questions put to her by Counsel for the ICL, Mr Foley, Ms D Lusito accepted that she tended to “overanalyse things” and that it was “possible” that her fearfulness affected the way she heard what [X] said to her, although she later rejected the proposition that she projected her fear or anxiety onto [X].

7. As to the school incident, there is no evidence that supports a finding that Ms J Lusito’s actions posed a risk to [X].  The police formed the view based on advice from the PA Hospital that Ms J Lusito was able to care for [X] and did not pose a risk to him.[48] 

   [48] Exhibit 1

8. Any concerns Ms D Lusito may have had about Ms J Lusito’s functioning whilst in hospital and immediately following her discharge and her contact with [X] could have been clarified by her if she had spoken with Ms J Lusito’s psychiatrist, an avenue open, but not pursued by her.

9. Ms D Lusito’s conclusions about Ms J Lusito’s mental health at that time were largely unsupported by the facts.

10. Nor are Ms D Lusito’s present concerns that [X] spends much of his time at Ms J Lusito’s home engaged with the TV.  His time with Ms J Lusito appears to be an active one based on a range of outdoor activities.

11. Ms D Lusito’s other criticisms about Ms J Lusito were dealt with by Ms P and found to be unsubstantiated.

12. Over and above his parents, [X] appears to enjoy a positive relationship with his grandfather Mr P, who provides him with regular contact with a positive male role model.

13. Ms P’ assessment of Mr P as being “a gentle, quiet unassuming man”[49] and a “kindly grandfather to [X]”[50] accord with my own observations of him.  Mr P has two other grandchildren with whom he maintains regular contact.

    [49] Para.37 of Ms P’s first report.

    [50] Para.76 ibid.

14. There is no evidence to suggest that [X] does not have a positive relationship with [B] or that there would be a negative impact on his relationship with her on the proposal of Ms J Lusito or the ICL.  

15. [X] also has friendships with [Y] and [Z].  

16. He has pets at the homes of Ms J Lusito and Ms D Lusito.

17. [X] has regular contact with extended family members. 

18. He has good relationships with members of Ms D Lusito’s large sibship which include a grandmother, aunt, uncle and a number of nephews.  On the proposal of Ms J Lusito and the ICL [X] would be afforded the opportunity to further these relationships whilst in Ms D Lusito’s care.

19. I place significant weight on my findings as to [X]’s attachments and find that it supports the proposal of Ms J Lusito and the ICL and the shared care arrangement as proposed by Ms D Lusito.

Section 60CC(3)(c) – the willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

1. On all proposals before the court [X] would be afforded an opportunity in terms of the amount of time to develop his relationship with the other parent.

2. Counsel for Ms D Lusito, Mr Jordan, submits that I would have concerns about Ms J Lusito’s ability to promote [X]’s relationship with Ms D Lusito in the fullest sense by reason of what he referred to as “a sense of revenge”, her expressed view on biology and her refusal to accept that Ms D Lusito’s name should be included on [X]’s birth certificate, however, I do not accept these submissions.  This is because:

   a)My assessment of Ms J Lusito in the witness box is that her primary focus is [X] and she understands and accepts the importance of his relationship with Ms D Lusito.

   b)I do not extrapolate from Ms J Lusito’s reference to biology that she undervalues that relationship.  I view that as an articulation, perhaps clumsy, of her feelings in relation to the strength of her connection to [X].

   c)Ms J Lusito’s explanation in relation to Ms D Lusito’s name on the birth certificate was not based on reasons of exclusion but inclusion – to enable [X] to be consulted at an appropriate time about an issue that may have future consequences for him.  It is open to [X] and his biological father to pursue a relationship after he turns 18 years.

3. I do find that Ms D Lusito is unlikely to facilitate and encourage [X]’s relationship with Ms J Lusito in the fullest sense, the person with whom he has a demonstrated primary attachment, given the level of her anxiety and fearfulness which has played out in her parenting style and response and given her capacity for rationalisation – what she referred to in her oral evidence as a “lifelong, perhaps survival instinct”.

4. In reaching this conclusion I have taken into account:

   a)

   The history following separation of non-facilitation of time between [X] and Ms J Lusito by Ms D Lusito. In this regard I accept the submissions of Counsel for Ms J Lusito,

   
   

   Ms McDiarmid, in their entirety. I accept Ms P’s view that [X] “suffered from the restricted contact with his birth mother.”

   
   

   Ms D Lusito was unable to adequately explain why some arrangements could not have been implemented that met any legitimate concerns she may have had about Ms J Lusito and ensured that [X] spent regular time with her, including on birthdays, given that Ms J Lusito was open to supervised time and had provided some evidence from her psychiatrist.

   b)The history of continued problems at trial with phone time. I have to pose the question why this simple issue was not resolved well before trial given that both parties had access to legal representation.  The conclusion I have reached is that it had more to do with the parties’ inability to resolve issues to do with [X] and their conflict.

   c)Ms D Lusito’s presentation in the witness box.  Notwithstanding her acceptance that she had made “mistakes” over the previous eighteen months, had [omitted] training, had sat through two days of a trial, had reflected on her conduct, that it was a “possibility” that her interpretation of events may evidence her level of anxiety and fearfulness and/or lack of confidence which she then projected onto [X] and that she was mishearing his messages to her, there was no demonstrated shift in her understanding or insight.[51] She continued to engage in rationalisation by way of explanation.  It is difficult not to accept the submission of Counsel for Ms J Lusito, Ms McDiarmid, that Ms D Lusito believes that she always knows best, including better than the experts.

   [51] In relation to the latter in responding to a question about her insistence on Ms C being present at [X]’s interviews she responded “I wasn’t confident” later changing that to “[X] wasn’t confident about going in.” Further her evidence was that she felt that she had not been “heard” by Ms P during the first report led her to request that Ms C to be present during [X]’s interview for the second report.  See also Exhibit 9. 

5. I find that it is Ms D Lusito’s anxiety, fearfulness and insecurity that likely led to instances of unilateral parental decision-making, without reference to Ms J Lusito.

6. Whilst Ms D Lusito has the intelligence to understand the need for inclusive co-parenting, she has not evidenced that ability, notwithstanding her counselling.

7. I place significant weight on my findings and find that it supports the proposal of Ms J Lusito and the ICL as to time.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from parents

1. On Ms J Lusito’s proposal, [X] would be removed from his historical primary carer.  This may present a structural challenge for him and impact upon him emotionally in that:[52]

   a)he would have a strong sense of belonging in Ms D Lusito’s home where he has been well cared for.

   b)he may have a sense of knowing, safety and security and dependence on Ms D Lusito that he may not be able to acknowledge at his age.

   c)he may not be conscious of the implications for him of residing primarily in Ms D Lusito’s environment and he may feel a sense of loss of a known support base.

   d)a change in his primary residence may result in his feeling a sense of disloyalty to Ms D Lusito for the reasons addressed by Ms P to do with the parent’s conflict and his sense of responsibility for his parents. 

   [52] Para.109 of Ms P’ second report.

2. These are important considerations that I must carefully weigh, notwithstanding the strength of [X]’s wish to live with Ms J Lusito.

3. Against that, Ms D Lusito’s primary proposal may pose risks for [X]’s emotional wellbeing.  It would see a continuation of a parenting arrangement which, whilst providing good physical care for [X], has seen [X] engage in counselling and evidence psychological splitting. 

1. It is a proposal which may negatively impact upon [X]’s relationship with Ms J Lusito with Ms D Lusito unable to appropriately support [X]’s primary parental attachment.  It is not a proposal supported by Ms P.

2. Further Ms D Lusito is not as available to care for [X], as is

   
   

   Ms J Lusito.  She works full-time.  [X] is placed in care.  Ms J Lusito is able to tailor her working life around non-school hours so that she can be with [X].

3. Whilst child care is part and parcel of an Australian working parent’s life, I accept the evidence of Ms P that it would be better that [X] has as much parental exposure as possible and that the inability by

   
   

   Ms D Lusito to involve Ms J Lusito in that care is a detriment to [X].  

4. Further, I accept the evidence of Dr M that because of Ms D Lusito’s “rescue fantasies” and capacity for rationalisation, the probability is that within her household there will continue to be some instability.[53]  This has been borne out by the history of her care for [B] and her late sister’s children.

   [53] Report of Dr M filed 18 August 2010 at page 9.

5. On the proposal of the ICL and Ms J Lusito, [X] would live primarily with the parent with whom he has a primary attachment and with whom he has a strong desire to live.  He would have the daily influence of his grandfather, a positive male model important to his development.[54]  He would lead an active lifestyle which would be a positive generally and for his weight gain.  He would not attend after school care as Ms J Lusito would be able to care for him.  He would be in sibship of one, as opposed to two.  That may have its advantages and disadvantages.  There is no evidence to suggest that the relationship with [B] and [X] would not be promoted on the proposal of

   
   

   Ms J Lusito and the ICL.

   [54] In Ms D Lusito’s household he would also have regular contact with Ms D Lusito’s brother and brother-in-law and male cousins.

6. Of course I must consider Ms J Lusito’s history of depression and the possibility of relapse and the impact of that on [X].  Whilst future relapse cannot be discounted Ms J Lusito has insight, appropriate supports in place and a pathway to manage that situation.  I rely upon my earlier findings in this regard.

7. Ms D Lusito’s shared-care proposal, whilst superficially attractive in (possibly) assisting in reducing any impact on [X] of a reversal of his current care arrangements, is a parenting arrangement best supported by a co-operative co-parenting relationship.  That does not exist here. 

8. I have concerns, even with the cessation of litigation, such a relationship could develop.  This is because:

   a)The evidence as to the parties’ psychological profiles and the impact of that on their functioning.  

   b)Ms D Lusito’s presentation as an insecure parent.  Her insistence on Ms C’s presence during the interviews said more about her than [X].  This is notwithstanding what I accept would have been her likely stress following the allegations of abuse.

   c)Whilst Ms P felt that the parents could manage a shared-care arrangement, the caveat was “whether they are willing to is the question mark here”. They have not been able to do so since separation. They remain distrustful of each other and have dysfunctional communication.

9. The basis of Ms P’s proposal of shared care was firstly, as [X]’s level of anxiety was “fraught”, to use her words, with the abuse allegations and a sense that he had betrayed Ms D Lusito, if he was placed with Ms J Lusito there may be an emotional legacy for him arising out of that and secondly, shared-care might facilitate better relations between Ms J Lusito and Ms D Lusito.

10. Whilst there may be some validity in this approach, its workability is premised on resolution of the very difficulties and uncertainties identified by Ms P, against the background of a child whose emotional wellbeing is showing evidence of significant compromise. 

11. There is no evidence to suggest that the end to litigation will facilitate better relations between Ms J Lusito and Ms D Lusito, even if in

    
    

    Ms P’s view, [X] may be able to “emotionally manage” shared-care and given his demonstrated attachment to both women.[55]

    [55] Para.107 of Ms P’s second report.

12. Whilst shared-care was the preferred outcome for Ms P she acknowledged at trial “…a concern that if the conflict does not reduce then that’s obviously going to be counter productive for [X].”  She was uncertain as to whether the conflict could be reduced.

13. When invited to consider a scenario where the conflict did not settle her evidence was that “the other option” she had considered was that [X] be placed with Ms J Lusito, given his stated wishes and observed attachment.

14. Dr M, who did not interview [X] - something she observed as a limitation of her assessment - also viewed equal time as the optimal outcome, however this was “contingent on a resolution of the hostile feelings between the parties”.[56]

    [56] Report of Dr M filed 18 August 2010 at page 9.

15. I am satisfied that there is a sufficient evidentiary basis that contradicts shared-care given the entrenched nature of the parent’s conflict and nature of the co-parenting relationship, my findings as to any likely future improvement in that regard and the risks to [X] if there was no change for the better.

16. At trial, Ms P described those risks as being “quite detrimental.” 

    
    

    I agree. 

17. Whilst on the proposal of Ms J Lusito and the ICL the nature of the parent’s relationship will still be the same, [X] will be supported by his primary attachment figure, the parent whom I find has demonstrated greater insight into his emotional needs.

18. Ms P’s evidence was that “it is incumbent on the two women to make [X] feel OK, that they are actually getting on well enough and accept the situation so that he doest have to carry the burden of upsetting either parent”.  I have concluded that of the two parents, Ms J Lusito has the greater skill-set to manage this.

19. Whilst there remain uncertainties, I place significant weight on my findings and find that they support the proposal of Ms J Lusito and the ICL as to time.

Section 60CC(3)(e) – the practical difficulty and expense of children spending time with a parent

1. There are no practical difficulties and expense.

2. There is some travel involved in getting [X] to and from school from Ms J Lusito’s home however it is not travel that is onerous. Both parties live in Brisbane.

3. Ms D Lusito expressed concern in her trial affidavit about

   
   

   Ms J Lusito’s financial position however Ms J Lusito is now working and there is no evidence of financial instability or an inability to financially support [X].

4. Ms J Lusito and Ms D Lusito are yet to effect a property settlement.

Section 60CC(3)(f) – the capacity of each parent to provide for the needs of the children including emotional and intellectual needs

1. I find that both Ms J Lusito and Ms D Lusito have the capacity to provide for [X]’s day to day physical and intellectual needs.

2. Ms D Lusito raises a concern about Ms J Lusito’s lack of participation in [X]’s schooling however I find that Ms J Lusito has been involved at [X]’s school at an appropriate level. Whilst Ms D Lusito is a [occupation omitted] there is no evidence that Ms J Lusito is not focussed on [X]’s educational progress or unable to respond to his educational needs including homework completion. Ms D Lusito would maintain her involvement on Ms J Lusito’s proposal. 

3. Ms D Lusito also raised concerns about [X]’s diet.[57]  I am unable to find that Ms J Lusito would not provide [X] with a proper diet or respond appropriately to his weight gain. 

   [57] Ms D Lusito’s evidence is that [X] returns from Ms J Lusito’s visits heavier than when he left her home and that Ms J Lusito has fed him chocolate biscuits for lunch.

4. I find that Ms J Lusito has the greater capacity to respond to [X]’s emotional needs for the reasons discussed in the context of earlier considerations and I rely upon my earlier findings in this regard.

5. I place significant weight on my findings and find that they support the proposal of Ms J Lusito and the ICL as to time.

Section 66CC(3)(g) – the maturity, sex, lifestyle and background of the child or either of the child’s parents

1. I rely on matters already addressed and findings made in my discussion of other considerations.

2. The parents’ background is considered in expert reports to which I have had regard.

3. Both parties’ living circumstances provide appropriate accommodation for [X].

4. Neither party had formed another relationship at trial.

5. Ms D Lusito has had a conviction for drink driving however this occurred in 1987 and was at the lower end of the scale.

6. In 1996 Ms D Lusito was referred for psychological assessment and intervention arising from continuing conflict with a colleague in the work place and management of her anxiety.

7. As a result of her psychological difficulties Ms J Lusito underwent a disability assessment in 2005 whilst working for [omitted] and was placed on a rehabilitation return to work plan.

8. The parties’ medical history is otherwise outlined in the exhibited material.

9. [X] is aware of the circumstances of his conception and that he can meet his donor father when he is 18.[58]

   [58] Exhibit 1

10. [X] suffers from asthma for which he takes prescribed medication.

    
    

    Ms J Lusito and Ms D Lusito also take asthma medication. Both

    
    

    Ms J Lusito and her father are smokers and Ms D Lusito has raised as a concern any smoking around [X].[59]

    [59] The report from Ms D Lusito’s doctor dated 16 November 2004 reveals that at that time Ms D Lusito was also smoking.

11. [X] has a weight problem. I accept that he would benefit from engaging in some sport.  He has evidenced an interest in playing team sport.  By his own account he leads a somewhat more active lifestyle in the household of Ms J Lusito.

12. I have addressed the issue of the parties illegal drug use.  It appears to be a pursuit of the past for both parties.  I am satisfied that I am able to make orders that respond to this concern.

13. I place significant weight on my findings and find that they support the proposal of Ms J Lusito and the ICL as to time.

Section 60CC(3)(h)

1. It was not submitted that this factor was relevant.

Section 60CC(3)(i) – the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I repeat and rely upon my findings with respect to earlier considerations as they may touch on this consideration.

2. Both parents have otherwise evidenced an appropriate attitude to parental responsibilities.

Section 60CC(3)(j) – any family violence involving a child or member of the child’s family and Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child’s family

1. I repeat and rely on the matters earlier discussed relevant to this consideration.

2. There is no current family violence order in place.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It would be preferable to make an order that is the least likely to lead to the institution of further proceedings in relation to [X].

2. Both parties have found the proceedings stressful.  Both need closure.

3. [X] needs clarity in relation to his parenting arrangements.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. There are no other relevant considerations.

Section 60CC(4) & (4A)

1. I have addressed these considerations in the context of earlier considerations.

2. In relation to the issue of child support Counsel for Ms D Lusito,

   
   

   Mr Jordan, submitted that this was not an issue that would concern the Court.  I agree.

Conclusion on s.60CC factors

1. The conclusions and findings that I have made in relation to the primary and additional considerations form the basis for the parenting orders that I intend to make. 

2. I have identified those considerations in respect of which I place significant weight.  In summary, they are my findings with respect to the primary considerations, and with respect to the additional considerations being [X]’s wishes, the nature of [X]’s attachments, the impact on [X] of parties’ competing proposals and my findings in relation to what I will broadly call parental responsibility considerations.

3. My findings support the proposal of the mother and the ICL with respect to parenting time.

Parental responsibility

1. Pursuant to s.61DA(1), when making a parenting order, a court must apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for the child.

2. The presumption is rebuttable under certain circumstances including if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence or if it would not be in the best interests of the child for the parents of the child to have equal shared responsibility.

3. I accept the submissions of Counsel for the ICL, Mr Foley, and find that the presumption is not rebutted either by reason of the alleged incidents involving [X] or by reason of family violence concerns notwithstanding Ms J Lusito’s complaints about Ms D Lusito and notwithstanding the broad definition of “family violence” under s.4 of the Act.

4. Whilst acknowledging the seriousness of such a step, I have concluded that it would not be in [X]’s best interests for his parents to equally share the responsibility for his long-term decision-making as a result of their inability to demonstrate that they are able to exercise “the degree of communication, co-operation and agreement which the Act requires of parents who share parental responsibility equally.”[60]

   [60] See Murphy J in Runcorn & Raine [2008] FamCA 837 at 308.

5. I find that there is “cogent evidence”[61] that leads me to make the orders sought by the mother, albeit with some modifications in line with the orders made by Rose J in Pottinger & Bainton [2009] FamCA 124. This is because:

   [61] Ibid at 310.

   a)Whilst parents in conflict is not a phenomena new to a court that daily deals with the intense emotions that can emerge in parenting litigation, the nature and extent of the entrenched parental conflict in the circumstances of this case has seriously impacted on [X], a child of tender years.

   b)I am not prepared to risk a further compromise to his mental health in the hope that his parents will improve their dysfunctional parenting relationship when they have been unable to do so after nearly two years of separation.  They have had that opportunity.  Ms P’s evidence as to [X]’s psychological splitting must be a wake-up call.

   c)As [X] perceptively informed Ms P “They can’t seem to talk to each other anymore. They keep fighting a lot….”[62].

   [62] Para.53 of Ms P’s second report.

   d)In her first report, Ms P found Ms J Lusito to be “anxious and defensive in her interaction with Ms D Lusito. She impressed as easily talked over and struggled to maintain her ground.”[63]

   e)

   Whilst that observation arose from interviews conducted in November 2009, and Ms P observed some change in terms of

   
   

   Ms J Lusito being able to express her position, I find on the evidence that Ms J Lusito would have trouble coping emotionally with an order for equal shared parental responsibility.

   f)The evidence of Dr J is that whilst Ms J Lusito had the cognitive capacity to engage with Ms D Lusito and would do so, emotionally, she was unable to do so at present without a great deal of stress “and its going to stay that way for some time.”

   g)Ms P accepted that Ms J Lusito would have difficulty in standing up to Ms D Lusito and having equal power if shared parental responsibility was ordered.  Dr M opined that in their relationship Ms J Lusito saw Ms D Lusito as “dominant”, a perception that in her view was “likely to have an element of truth.”[64]

   h)Whether for reasons to do with their psychological or psychiatric vulnerabilities and/or the dynamics of their relationship, or a combination thereof, these parents are unable to deal with their hurt and they cope, in the words of Ms P, by being “quite reactive to each other.”[65]

   i)Other than the expert’s “hopes” for the future, there is little evidence that this situation is likely to improve in the future.

   [63] Para.54 of Ms P’s first report.

   [64] Report of Dr M filed 18 August 2010 at page 9.

   [65] Oral evidence at trial.

6. The desired parental outcome must always be equal shared parental responsibility.  However, the court’s focus is [X], not his parents.[66]  Orders for parental responsibility are not consolation prizes when there is a change in primary care.  Nor are they prizes for good day to day parenting or because parents love their children or because parents are good people. 

   [66] Other than how their presentation or response may impact upon him.

7. As I, (and others), have elsewhere observed, whilst there is clear legislative intent reflected in the objects of the Act and the principles underlying those objects which provide that children’s best interests are met by both parents sharing the responsibilities of parenthood, it was never the intention of the 2006 amendments to the Act that children be exposed to entrenched parental conflict or parents who cannot effectively engage with each other, nor that children be potentially placed in a “twilight zone” of parental decision-making.

8. Requiring Ms J Lusito and Ms D Lusito to engage with one another risks more conflict and places pressure on parents who already suffer significant vulnerabilities.[67]

   [67] As the Full Court observed in Marvel & Marvel (No 2) (supra) at 103, the circumstances in which a Court in the exercise of its discretion may find it inappropriate to make an order for equal shared parental responsibility could be “where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children.  In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.”

9. Counsel for the ICL, Mr Foley acknowledged the degree of continuing hostility evidenced in the witness box. 

10. I do propose, however, to make a modified order for sole parental responsibility in favour of Ms J Lusito which will put in place a process that enables Ms D Lusito to be informed in writing of the decision to be made, to express her views in writing in relation to the decision to be made, with a requirement that Ms J Lusito will then take those views into account before she makes a decision, and then communicate her decision to Ms D Lusito in writing.

11. I find Ms J Lusito to be child focussed and likely compliant with such an order.

12. I am satisfied that this process will assist in addressing any power imbalance between the parents.

13. I have taken into account the impact of any sole parental responsibility order on [X], including the evidence of Ms P in relation to [X]’s sense of responsibility for both his parents.

14. I have also taken into account the impact on the parents of requiring them to engage in dispute resolution with the assistance of a trained person to assist them in reaching agreement if an order for equal shared parental responsibility were to be made.

15. In rejecting that process I have had regard to the difficulties and delays on the evidence of the parties engaging in 2009 in dispute resolution and also the parties’ commitments, in particular Ms D Lusito’s own assessment of her time constraints.

16. In a letter dated 18 May 2010 in response to a request by Ms J Lusito that the parties engage in further mediation/counselling, Ms D Lusito’s instructions were that she would “struggle to find the time to present to attend counselling.  She is currently working full time and has the care of two children.  She leaves home at 7.00am and usually does not get home until between 5.00pm and 6.00pm. She spends each evening preparing [work] for the next day after the children go to bed. Our client is also keen to spend as much time as possible with [X] on the weekends that she has with him.”[68]

    [68] Exhibit 9 – accepting as I do that Ms D Lusito’s work arrangements as a [occupation omitted] vary.

1. I propose to order [X]’s surname remain as it is.

2. I propose to order that [X]’s primary schooling remain as is without the parties’ written consent or court order.  That he continues to attend this school during his primary years did not appear to be an issue at trial.

3. It is not necessary for me to make any order in relation to [X]’s birth certificate given the concessions made at trial.

Equal or substantial and significant time with each parent

1. As I have not made an order for equal shared parental responsibility, I am not required to consider an order that [X] spend equal time with each of his parents and whether it is reasonably practicable unless it would be in his best interests to so.

2. Given my findings under s.60CC equal time is not a parenting arrangement that would promote [X]’s best interests.

3. I have, however, concluded that [X]’s best interests are served by his living with his primary attachment figure, Ms J Lusito, and spending substantial and significant time with Ms D Lusito and that such an order is reasonably practicable notwithstanding the parties’ psychological profiles and the nature of their parenting relationship.

4. Whilst both the ICL and Ms J Lusito’s proposal would provide [X] with substantial and significant time with Ms D Lusito, on balance I prefer Ms J Lusito’s proposal given the level of conflict which on the ICL’s proposal would involve the parties having some contact each second Thursday, Ms D Lusito’s working commitments, time constraints and her care for [B] and the distance between the parent’s homes.

Conclusion

1. I make and find the following orders are in the best interests of [X].

2. I make the orders sought by the ICL and mother as follows:

   a)I make orders 1, 2, 6 to 10 of the orders sought by Ms J Lusito in her Case Outline document filed on 20 October 2010 however in relation to phone time, unless otherwise agreed, this is to be in favour of the parent with whom the child is not primarily residing as detailed in order 1 of my orders made on 28 October 2010 and at all reasonable times as may be instituted by the child.

   b)I make a modified order for sole parental responsibility in favour of Ms J Lusito.

   c)I make orders 5, 11, 12 and 16 of the orders sought by the ICL in his Minute of Orders handed up on 7 December 2010.

3. I order that [X] engage in a team sport on a regular basis including on weekends, the cost of his participation to be met equally by the parties and that both parties ensure that when [X] is in their respective care he participates in all commitments associated with such sport and that appropriate transport arrangements are made to enable him to meet such commitments.

4. I make orders 5 and 10 of the orders sought by Ms D Lusito in her Case Outline document filed on 17 August 2010.

5. I propose to make an order that no party smoke around [X] and that both use their best endeavours to ensure that no third party smokes around [X].

6. I also propose to order that Ms D Lusito undertake an anger management course as recommended by Ms P.[69]

   [69] Whilst Ms D Lusito’s evidence is that as a [occupation omitted] she facilitates such courses on a regular basis, her evidence was that she benefited from undertaking a parenting course even though she facilitated those courses as well and had been assessed by the Department as an appropriate carer for [K] and [B].

7. I propose to order both parties continue with their personal counselling.

8. I propose to order that neither party use illicit drugs or expose [X] to any person under the influence of illicit drugs.

9. I find these orders to be in [X]’s best interests.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM

Associate: 

Date:  21 January 2011