Malas and Anor and Osman

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALAS & ANOR & OSMAN

[2020] FCCA 3220

Catchwords:
FAMILY LAW – Parenting – best interests of the child – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D

Applicants:

MR MALAS & MS MALAS

Respondent:

MS OSMAN

File Number:

PAC 1018 of 2012

Judgment of:

Judge Newbrun

Hearing dates:

4, 5, 6 and 8 May 2020, 7 September 2020

Date of Last Submission:

7 September 2020

Delivered at:

Parramatta

Delivered on:

25 November 2020

REPRESENTATION

Counsel for the Applicants:

Ms Conte-Mills of Counsel

Solicitors for the Applicants:

Reid Legal Pty Ltd

Counsel for the Respondent:

Ms Smith of Counsel

Solicitors for the Respondent:	Griffiths Family Law
Counsel for the Independent Children’s Lawyer:	Mr Blank of Counsel
Solicitors for the Independent Children’s Lawyer:	Claremont Legal

ORDERS

That all previous parenting orders in relation to the child X born in 2008 (“X”) be discharged.
That X live with the Respondent Paternal Aunt.
That the Respondent Paternal Aunt shall have sole parental responsibility for the child X provided that the Respondent Paternal Aunt:
(a)Notify the Applicant Father and the Applicant Mother of any proposed decision relating to the long-term care and welfare of X, including but not limited to:
(i)Proposed decisions about which schools X shall attend.
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting X;
(iii)Ensure that such notification is given to the Applicant Father and the Applicant Mother in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.
(iv)Thereafter the Applicant Father and Applicant Mother are entitled to provide their input to the Respondent Paternal Aunt; and
(v)The Respondent Paternal Aunt is to take into consideration any input provided by the Applicant Father and the Applicant Mother in respect of such proposed decision and advise the Applicant Father and the Applicant Mother of the decision made.
That X spend time with the Applicant Father and the Applicant Mother as follows;
(a)Stage one – For a period of 8 weeks from the date of the making of these orders, each Friday from the conclusion of school, or 3pm if Friday is a non-school day, until 7pm.
(b)Stage two –
(i)Week one - For a period of twelve weeks, every second week from the conclusion of school Friday, or 3pm if Friday is a non-school day, until 3pm Saturday;
(ii)Week two - Each Friday from the conclusion of school Friday, or 3pm if Friday is a non-school day until 7pm Friday;
(c)Stage three –
(i)Week one - For a period of twelve weeks, every second week from the conclusion of school Friday, or 3pm if Friday is a non-school day, until 3pm Sunday;
(ii)Week two - Each Friday from the conclusion of school Friday, or 3pm if Friday is a non-school day until 7pm Friday;
(d)Stage four and thereafter,
(i)Week one - Every second week from the conclusion of school Friday, or 3pm if Friday is a non-school day, until the commencement of school Monday, or 3pm if Monday is a non-school day;
(ii)Week two - Each Friday from the conclusion of school Friday, or 3pm if Friday is a non-school day until 7pm Friday;
(e)On Father’s and Mother’s Day from 3pm the day before until 3pm the day of Father’s Day and Mother’s Day;
(f)From 3pm Christmas Eve until 3pm Christmas Day in even numbered years. AND, from 3pm Christmas Day until 3pm Boxing Day in odd numbered years.
(g)Skype/FaceTime communication each Tuesday and Thursday between 6pm and 6.30pm with the Applicant Father and or applicant Mother to initiate the call to the Respondent Paternal Aunt’s telephone.
The time pursuant to Order 4 above;
(a)is to be in the presence of the Paternal grandmother between the times of 8am and 8pm and until such time the Father provides to the Respondent Paternal Aunt and the ICL correspondence from his treating psychiatrist/psychologist confirming;
(i)Times that the Father has consulted the psychologist/psychiatrist;
(ii)Clinical diagnosis;
(iii)Outlining compliance with any treatment, including but not limited to taking any medication;
(b)During the times of 8pm and 8am, the Father is to ensure that the paternal grandmother resides at the Father’s home;
(c)Once the Father complies with Order 5 (a) by providing correspondence from his treating psychiatrist/psychologist, orders 5 (a) and 5(b) are then discharged.
That X’s time with the Mother be in the presence of either the Father and or/the paternal grandmother.
The Father is to comply with all recommendations given by his mental health treaters, including but not limited to taking medication and attending appointments as required.
That at all other times when changeovers are not occurring to and from school, all changeovers shall occur by the Father collecting and delivering X to and from the Respondent Paternal Aunt’s place of residence at the commencement and conclusion of X’s time with his parents.
That the Applicant Father, the Applicant Mother and the Respondent paternal aunt continue to attend upon Dr B for family therapy until such time as Dr B recommends otherwise. The Respondent Paternal Aunt is to ensure that X attends all appointments as scheduled by Dr B.
That the Applicant Father and the Applicant Mother refrain from physically chastising X at all times when X is in their care.
That the Applicant Father, the Applicant Mother and the Respondent Paternal Aunt refrain from denigrating each other, or allow others to do so, within the presence or hearing distance of X.
That the Applicant Father, the Applicant Mother and the Respondent Paternal Aunt keep each of other advised of their telephone numbers and residential address at all times and notify the other within 48 hours of any change to these details.
These orders serve as authority for the Applicant Father and the Applicant Mother to obtain copies of all school reports, school photographs, and any other school material that parents are otherwise entitled to obtain from X’s school.
These orders serve as authority for the Applicant Father and the Applicant Mother to communicate with X’s school in relation to X’s progress.
These orders serve as authority for the Applicant Father and the Applicant Mother to attend any parent/teacher interviews at X’s school.
These orders serve as authority for the Applicant Father and the Applicant Mother to liaise with any of X’s medical practitioners and obtain information in relation to X’s health.
That the ICL remain appointed for a period of 6 months from the date of the making of these orders after which time the ICL be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1018 of 2012

MR MALAS & MS MALAS

Applicants

And

MS OSMAN

Respondent

REASONS FOR JUDGMENT

This final parenting hearing relates to the child X born in 2008 (the child).
The child’s parents are Mr Malas (the Father) and Ms Malas (the Mother).
The child has siblings, with the surname Malas, as follows: C, aged 16, D aged 14, E aged 14, and F aged 5.
The child lives with the paternal great-aunt, Ms Osman (the aunt) and her husband Mr G.
The paternal grandfather, Mr H, who died in 2019, was the aunt’s brother.
On 25 March 2014, by consent, this Court made final parenting Orders that the aunt have sole parental responsibility for the child; that the child live with the aunt; and that the parents spend certain overnight time with the child, including holiday time with the child. Those Orders provided that upon the parents obtaining suitable accommodation, they spend time with the child each alternate weekend from after school Friday until 4PM Sunday, and each alternate Wednesday from after school until 6 PM.
The above Orders were facilitated until about September 2017.
On 24 May 2018, by consent, interim parenting Orders were made providing, inter alia, that the child spend time with the parents, on a without admissions basis, at the J Supervised Contact Centre at Suburb K, on one day each week for a minimum of two hours or as directed by the Contact Centre.
The parents spent supervised time with the child at the contact centre in Suburb K from about January 2019 until 16 November 2019 on a fortnightly basis for 2 hours.
On 11 June 2019, the Family Report of Ms L was released to the parties and ICL.
On 2 September 2019, by consent, interim parenting Orders were made for family therapy, and to involve the parents, the aunt and the child. The family therapist was to be Dr B. An Order was made that the parents be permitted to take two of the child’s siblings at any one time to spend supervised time with the child at the contact centre.
The parents presently live in a four bedroom home which they rent in Suburb M, and they have lived there since about August 2018.
The aunt and Mr G live in Suburb N. They have grown up daughters, Ms O, aged 38 years, and Ms P, aged 33 years, who do not live with them but maintain a close connection.
The child suffers from mild global developmental delay; the child was enrolled in Year 5 in a support class for students with a mild intellectual disability; and he has undergone occupational and speech therapy.

Proposals

The Mother and Father’s proposals were initially set out in Exhibit D. Inter alia, and summarising, they sought orders that the child live with the paternal great-aunt; the paternal great-aunt have sole parental responsibility for the child provided that she notify the parents of any proposed decision and seek and consider their input; that the child spend time with the parents on a graduating basis ultimately leading to, in week one, every second week from after school Friday until before school Monday, and in week two, each Friday from after school Friday until 7PM Friday, together with time during school holidays, on special occasions. There were other proposed ancillary parenting orders.
However, in the parents’ final oral submissions, in reply, they agreed to the whole of the ICL’s proposed orders in Exhibit E (see below).
The aunt’s proposals were set out in Exhibit F. Inter alia, and summarising, they sought orders that the aunt have sole parental responsibility for the child; that the child live with her and spend no time with the Father or Mother, and that the aunt provide by electronic mail to the Father copies of any report prepared by treating specialist medical consultant of the child, and any school reports, reports and school progress and behavioural issues, and any school photograph order forms provided to her.
The ICL’s proposals were set out in Exhibit E. Inter alia, and summarising, the ICL sought orders that the child live with the aunt; the aunt have sole parental responsibility for the child provided that she notify the parents of any proposed decision and seek and consider their input; that the child spend time with the parents on a graduating basis ultimately leading to, in week one, every second week from after school Friday until before school Monday, and in week two, each Friday from after school Friday until 7 PM Friday, together with time on special occasions.
The ICL sought an order that her above time-with proposed orders:
i)be in the presence of the paternal grandmother between the times of 8 AM and 8 PM and until such time the Father provides to the aunt and the ICL correspondence from his treating psychiatrist/psychologist confirming:
a)    times that the Father has consulted this psychologist/psychiatrist;
b)    clinical diagnosis;
c)    outlining compliance with any treatment, including but not limited to taking any medication
ii)during the times of 8 PM and 8 AM, the Father is to ensure that the paternal grandmother resides at the Father’s home;
iii)Once the Father complies with the above order i) a)-c), by providing correspondence from his treating psychiatrist/psychologist, then the above proposed orders i) a)-c) and ii) are then discharged.
The ICL sought an order that the child’s time with the Mother be in the presence of either the Father and/or the paternal grandmother.
The ICL sought an order that the Father, the Mother and the aunt continue to attend upon Dr B for family therapy until such time as that doctor recommends otherwise. The aunt is to ensure that the child attend all appointments as scheduled by the doctor.
The Father and Mother relied upon the following documents:
a)The Father’s Affidavits filed on 13 April 2020 and 24 August 2020;
b)The Mother’s Affidavit filed on 13 April 2020; and
c)Affidavit of Ms Q filed on 13 April 2020.
The aunt relied upon the following documents:
a)Her Case Outline filed on 3 May 2020;
b)Her Affidavits filed on 26 April 2020;
c)Her Affidavit filed on 30 August 2020;
d)Affidavit of Ms O filed on 29 April 2020; and
e)Affidavit of Ms O filed on 2 September 2020.
The ICL relied upon the following documents:
a)The Family Report of Ms L dated 6 June 2019; and
b)The Affidavit of Dr B filed 2 May 2020.
The following Exhibits were relied upon:
a)Exhibit A: ICL’s Tender Bundle;
b)Exhibit B: Police Entry for X;
c)Exhibit C: Subpoena Tender Bundle from NSW Police;
d)Exhibit D: Minute of Order;
e)Exhibit E: ICL’s Proposed Orders.

Evidence

The Court refers to the evidence below, and it also refers to evidence discussed within the Court’s discussion of the primary and additional considerations under section 60CC of the Family Law Act 1975.

The Aunt’s Evidence

The aunt was born in 1964, and is currently aged 56 years. Her husband Mr G was born in 1947 and is currently aged 73 years.
The Father was born in 1985 and is 35 years. The Mother was born in 1985 and is aged 35 years. The Mother and Father were married in 2010.
The child came to live with the aunt, her husband, and Ms O and Ms P in about late 2008. The child was then about six months of age. Ms O and Ms P now live independently but spend a lot of time with the aunt and her husband.
D came into the care of the Father’s sister, Ms R, and her partner, Mr S, shortly after her birth. She returned to live with the Mother and Father towards the end of 2018.
On 10 January 2012, an ADVO was made at the Suburb T Local Court. The child, Ms O and the aunt were named as persons in need of protection from the Father. The order was made for two years. The Father received a good behaviour bond in relation to an incident that occurred at the aunt’s home.
In September 2016, when the child returned home from spending time with the parents, the aunt observed that the child was tired and exhausted, dirty, and could not sit on his bottom. His bottom was red raw and infected. The aunt took the child to their GP and he was prescribed antibiotics and the aunt was advised to apply antiseptic cream.
On about 3 December 2016, the child fell on his face when he had an accident on a skate ramp at a skate park. He was taken to hospital for assessment and treatment, and discharged. He was assessed as having a frontal haematoma, bruising over his nasal bridge and lip. The clinical notes of the hospital records the assessment as “minor head injury”. The child had been at the skate park with an elder sister.
On about 29 September 2017, the child returned home to the aunt from having spent time with the parents. He was observed to have some bruising on his left arm, on both of his legs, and some blisters inside his mouth and on his feet.
The following day, the child told the aunt, inter alia, that the Mother had hit him excessively on his bottom. The aunt made a report to the police. The Court, on the balance of probabilities, finds that the Mother physically chastised the child but does not accept that this chastisement was excessive.
The parents spent supervised time with the child at a contact centre in Suburb K from about January 2019 until 16 November 2019 on a fortnightly basis for 2 hours. The Father had cancelled the child’s fortnightly contact session scheduled for 30 November 2019.
C and E have a history of poor school attendance. There have been proceedings in the Children’s Court in 2020 relating to this issue. These children have anxiety and mental health issues, and have been seeing their school counsellor.
When the child originally came into the aunt’s care, he was suffering from bronchitis and had been hospitalised for it. The parents brought the child to the aunt’s home and told her that they didn’t have anywhere to live and were having problems with DOCS. The child was wearing a dirty singlet and nappy. His eyes were red and he smelled of cigarettes. The child was taken to a paediatric ENT specialist who advised the aunt that the child had scarring in both ears as they had not been treated when infected. The child was also later diagnosed with pulmonary valve stenosis and heart murmur; the aunt was advised that if the child ever experiences any pain or shortness of breath during activities, dizziness or fatigue, he needs to be medically assessed.
A school counsellor report for the child dated 9 September 2019 (from the U School at Suburb V) stated that the child was currently enrolled in Year 5 in a support class for students with a mild intellectual disability. The child’s cognitive ability was assessed with the results indicating he was in the extremely low to very low range of cognitive ability. His adaptive functioning skills were assessed by his classroom teacher with the results being within the low range. The results of the current assessment indicated the child met the Department of Education’s criteria for students with a mild intellectual disability. It was recommended that the child maintain his placement in the support class for students with a mild intellectual disability.
The aunt has executed a Learning Links NDIS Service Agreement on 30 October 2019.
In a speech therapy progress report from 2019 it was recommended, inter alia, that fortnightly speech therapy, in addition to other supports, continue for the child. It was stated that without continued speech therapy intervention, it was unlikely that the child would continue to make gains in his communication. It was stated that due to the child’s difficulties with managing his emotions, his receptive and expressive language disorder, coupled with the complexity and breadth of his needs, the child would benefit from continuing weekly speech therapy sessions for the next 12 months.
A psychologist’s report for the child dated 26 April 2017 states, inter alia, that the child has been attending psychological therapy sessions since 2013 for the treatment of behavioural difficulties. It confirms the child having a severe expressive and receptive language delay. It refers to his intellectual disability. It refers to his receipt of speech therapy since the age of 3 to 4 years. It refers to his current occupational therapy. The report states the child presents with symptoms of trauma, evident in his behaviour patterns. It states that the child is a child with a complex presentation and high support needs. It states that he will benefit from being on the NDIS.
The parents have previously disclosed to the aunt that they have used illicit drugs.
In the past, the parents have had a very poor tenancy history. The aunt’s children had previously helped the parents find properties to rent.
At Christmas 2016, the parents collected the child on Christmas Eve but did not return him, pursuant to Court Orders, at 3 PM on Christmas Day. The child was not returned until about 5:30 PM on New Year’s Day

In the past, the child was never really interested in conversing with others over the telephone, and he did not participate well when having FaceTime with the parents.
The child loves school.
The aunt’s husband, Mr G, is patient with the child and understands his difficulties well. He has a close relationship with the child.
An order for family therapy was made by consent on 2 September 2019, and to involve the parents, the aunt, and the child. The family therapy was to be reportable.
The child’s occupational therapist and psychologist both suggested to the aunt that she limit the child’s time on the videogame Fortnight due to the child’s anger issues.
On about 2019, the Father asked Mr G if he could take the child for a short ride around the block in his motor vehicle. Permission was granted. The Father returned the child at about 8:30 PM that evening.
On 28 June 2020, the police attended the aunt’s residence. They told the aunt that the Father had made a complaint about explicit photos of the child on the Internet. Police ascertained that a video had been uploaded to the child’s YouTube account.
The Father and Mother each have a history of mental health issues. In relation to the Father, the Suburb K hospital discharge summary dated about 19 January 2020 refers to the Father’s medical history as including anxiety, depression and borderline personality disorder.
The aunt gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The aunt was asked what Order she was seeking from the Court. She stated that she wanted the child live with herself, and wanted the parents “supervised” at this point. In this context, she stated that the parents were having supervised time with the child and she did not know why the Father cancelled those visits.
The aunt was asked whether the child should continue to spend supervised time with the parents at a contact centre, to which she replied that that would be an option; she stated that she wanted the child to be safe and to be able to see the parents.
The aunt was asked about supervision. The aunt stated that the child had been doing well at the contact centre. She stated that, “we can move on from (supervision)”. She clarified by stating that later they could move on to supervision at home.
The aunt was asked how supervision at home would work. She then referred to the paternal grandmother offering supervision. In this context she stated that the supervisor would be keeping an eye on the child and ensuring that his needs were met.
On the assumption that the contact centre reports were generally positive, relating to the child’s time spent with the parents, the aunt confirmed that it gave her a feeling that the child has and would enjoy spending time with the parents in the future.
The aunt stated that the child has to know his parents. She agreed that it was important for the child have a relationship with his sisters. In this regard she stated that she had recommended that the child’s sisters come to the contact centre (to see the child).
The aunt was asked whether she had done anything to facilitate the child having a relationship with his sisters. The aunt replied that the child’s siblings had played the Fortnight game with him.
The aunt confirmed that the child had ceased seeing the parents and his sisters at the end of December 2019.
The aunt was asked whether the Court Orders state that she is not permitted to allow the child to speak to his sisters, to which the aunt replied in the negative. In this context, the aunt stated that the Court Orders refer to supervised time.
The aunt stated that the child’s sisters have never telephoned. She stated that she had not allowed the child to ring his sisters. The aunt was asked whether she had done anything to allow the child to maintain a relationship with the parents since the end of December 2019, to which she replied in the negative.
On 29 December 2019, for most of the day, the child spent time with the Father and his family. The Father had attended the aunt’s home at about 9 AM and picked up the child. The aunt’s husband had been at the changeover. The aunt was not present and was in bed. The Court does not accept, on the balance of probabilities, that the Father deliberately misled either the aunt or her husband into believing that he would return the child to the aunt following a car ride that morning. The Court finds that the Father probably believed that he had permission to spend time with the child for the day. It is not without relevance in this context that there was no affidavit filed by the aunt’s husband in relation to this issue.
The aunt was asked whether it would be suitable for the child to have contact with his family, with the paternal grandmother as supervisor, if the aunt required a supervisor, to which the aunt replied in the negative. She stated that she required a contact centre.
It was suggested to the aunt that it would be more interesting for the child to spend time with his parents outside the contact centre. The aunt stated that she would allow time to be spent outside the contact centre if the child was kept safe.
The aunt confirmed that the child loves cars.
The aunt stated that she was prepared to continue to do changeovers for the next six years. In this context, she stated that they could do changeovers with the paternal grandmother. She stated that she would be comfortable if the paternal grandmother was present for changeovers.
The aunt was asked whether, if the Court decides that a contact centre was now not appropriate, she would be comfortable for the paternal grandmother to be present during the child’s time with the parents. The aunt stated that the paternal grandmother was offering to be present. She stated that she would be comfortable if the paternal grandmother assisted the parents due to the child’s needs.
The aunt was asked whether she had a relationship with the paternal grandmother. The aunt stated that she spoke with her at her brother’s funeral and that it was a civil conversation. She stated that she continues to speak and communicate with the paternal grandmother in respectful terms.
The aunt stated that she had communicated all the time with the parents about the child’s special needs. She clarified by stating that since September 2017 she had not instigated communication with the parents about the child’s health. However, she stated that since that time she did communicate with the parents about the child’s educational issues; she clarified by stating that the child’s school had explained everything to the parents.
The aunt stated that she had no objection with the parents communicating with the child’s school to obtain information, nor with the parent approaching the child’s doctors to obtain information. She was content for the child to communicate with the parents by skype/face time.
The aunt confirmed that the child was in Year 6 this year. The child is in a special needs class. The aunt stated that the child suffers from global delay, anxiety, ADHD, eczema, weakness of his core muscles, and the valve to his heart is narrow. He has behavioural problems. In this context, the aunt stated that she has strategies. She researches a lot. She keeps an eye on the child at school.
The aunt stated that she completed her schooling to the end of Year 12. She was trying to become a counsellor. She worked in employment some years ago before she had her two children.
The aunt was asked what strategies she had in place for the child. She stated that the child gets frustrated very easily. Sometimes he does not understand things. She had to speak to the child quietly. The child does not like loud noises. She stated that, “we can do things he likes”.
The aunt stated that she was prepared to document her strategies for the child for the parents.
Presently, the aunt stated, the child is not taking medication for ADHD.
The aunt stated that the child likes to fly his drones.
In relation to the incident at the skate park in December 2016, the aunt acknowledged the parents had taken the child for medical attention and had done the right thing in this regard. She was aware that the child had been checked over thoroughly with only bruises and scratches being identified.
The aunt stated that the child has a lot of friends in a special needs class and was a friendly child.
The aunt stated that she still holds the opinion that the parent’s parenting capacity is inadequate.
The aunt stated that she had not provided the child’s current medical report to the parents. She stated that she had always told the parents of the child’s illnesses.
The aunt confirmed that following Court Orders in 2014, the arrangement whereby the child spent time with the parents on alternative weekends and holidays had continued up until September 2017.
The aunt stated that she cannot trust the parents.
The aunt stated that she has no objection to the child spending time with the parents provided there is no risk. Explaining how such “risk” would be removed, the aunt stated that the parents should get to know the child’s illnesses and special needs. Further, the parents have to be patient with the child. In this context the aunt stated that the child was sensitive.
The aunt stated the child suffered from global delay. His reading was below par and he was immature for his age. He needs to see an occupational therapist and speech therapist. He needs to attend a special class at school. She stated that the child has a beautiful teacher.
The aunt stated that she always actively encourages the child to see the parents.
The aunt stated that the parents had told her several years ago that they used illegal drugs. She stated that they had told her that they were not on drugs any longer. The aunt stated that she had been told that they had probably ceased such use. In this context, the aunt stated that she had spoken to the paternal grandmother.
The aunt agreed that the Father and child could play around cars and bond (together).
The aunt agreed that it was important for the child to feel warmth and love from herself and the parents.

Evidence of Ms O (Ms O)

Ms O (Ms O), a daughter of the aunt, swore two Affidavits and gave oral evidence. The Court does not propose to set out the entirety of such evidence.
She stated that she works as a health care worker.
She stated that she last communicated with the Father, through his text message, three weeks ago. She stated that the Father contacts her and this could be daily or weekly.
She stated that she doesn’t have any issues with either the Father or the Mother.
She stated that she had no conversation with the Father as to the Father resuming spending time with the child on an unsupervised basis.
She was asked whether it concerned her that the child and the parents had had no (unsupervised) face to face time since 29 September 2017, to which she responded in the affirmative, stating that she believes that any parent and child should have a relationship.
She stated that the child had interacted with the parents at the aunt’s residence following the funeral of the paternal grandfather, and she had no concerns with such interaction.

Father’s Evidence

The child did not spend time with the Father from about the end of September 2017 until about January 2019 when time commenced supervised at a contact centre.
In about mid-2019, the Father’s parents moved in with his family.
The Father’s household consists of the parents, the paternal grandmother, Ms Q, who lives in one room, C and D, who share a room, and E who has her own room. The parents live in one room with the youngest child F.
The Father has a bedroom at his residence in which the child could sleep in. Presently his older brother Mr W and his partner Ms Y use this room when they occasionally come to stay at the Father’s residence, but the Father could make this room available for the child.
The Father previously worked doing trades work. He and the Mother are now on Centrelink payments. The Father holds an ABN and does some work on a very haphazard basis as a handyman when he can obtain work.
In early 2020, the Father lost his driver’s licence due to speeding fines. He got his licence back in mid 2020.
The child’s siblings were not able to spend time with the child at the contact centre until about August 2019 following mediation.
As at 13 April 2020, the child had had no contact with the parents since December 2019.
The Father completed the 1 2 3 Magic and Emotional Coaching program in about September 2019.
The Father confirmed that the child has always lived with the aunt since he was a baby and so he understands psychologically that it may be better for the child to remain living with her, but he just wants to know that he will be able to spend time with the child, and he wants to be involved in his medical treatments and schooling and extracurricular activities.
The child’s school academic report for the first semester of 2020 states, inter alia, that he requires support when managing conflict, particularly in the playground. It states that when the child can self-regulate his emotions and responses he is a friendly and courteous class member.
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Father denied that he had previously taken illicit drugs and was not taking illicit drugs now.
The Father confirmed that he had last seen the child on 29 December 2019.
The Father stated that the paternal grandmother had been on a carer’s pension to support his late Father.
The Father stated that he loves working on cars. He stated that the child is a car fanatic.
The Father was asked by the ICL what strategies he would adopt if the child was in his care and was refusing to go to school on the Monday morning. The Father stated that all his children suffer from the same problem, namely going to school. He said that he would talk to the child and would make breakfast. He stated that if you treat the children right, they will obey.
The Father stated that if orders are made for him to engage with a family therapist, including Dr B, he would comply.
The Father stated that he no longer speeds when driving. He stated that having a drivers licence is important.
The Father stated that, from his conversations with the Mother, she received a disability support pension because of global delay.
The Father stated that he cannot read and write properly. However, he stated that he knows the importance of learning. He stated that it was important for children to receive an education.
The Father stated that he was ingesting Epilim being a mood stabiliser. He had been taking this medication for a couple of months, having previously been on Valium. He stated that he still gets anxious, and that it was hard for him to catch transport. He stated that he had spoken on one occasion to a psychologist a couple of months ago.
The Father stated that he thought that he might have previously been diagnosed with borderline personality disorder. He thought that the last psychiatrist he saw might have mentioned that condition. He stated that his health practitioners are exploring what is wrong with him. He stated that 95% of his condition was generalised anxiety disorder and bipolar depression.
The Father stated that he works at an employer at Suburb Z, mainly for work experience. He said he can earn money at his employer from between $100-$300 each week. He stated that he is a handyman, in particular relating to landscaping and lawns, and repairs.

Mother’s Evidence

The Mother states that she suffers from suspected depression and anxiety that has not been given a formal diagnosis and does not take any medications.
The Mother states that at mediation there was an agreement for two of the child’s siblings to attend the contact centre one at a time with the parents and which commenced in about August 2019.
The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother was asked what the child had been diagnosed with, to which the Mother replied “global delay”. The Mother was asked what global delay is, and the Mother replied that she did not really know. She went on to state that it affects the child’s concentration, reading and learning but she was not sure.
The Mother stated she did not drive and did not have a drivers licence. She stated she has anxiety driving on the road.
The Mother’s attention was drawn to paragraph 105 of the Family Report, wherein the Family Report writer suggested it may be of assistance for the Mother to attend Engage 4 Mums as run by AA Counsellors to assist her with developing skills to engage with the child, to enhance the quality of their relationship. The Mother was asked whether she had done the course to which the Mother replied in the negative. The Mother was asked why she had not done the course and the Mother replied that she did not remember.
The Mother stated that, in relation to her family’s six bedroom residence, there were four bedrooms with doors and two bedrooms without doors. She agreed that there were some rooms in the house that had beds set up in open areas of the house.
The Mother stated that the Father’s brother, Mr BB, owned vehicle which the Father sometimes used.
The Mother was asked questions about disciplining the child. Initially she stated that she would send the child to his room to help him calm down and that she could look to the Father and her daughters to assist her if the child misbehaves. She then stated that she could look to the paternal grandmother for assistance if the child was misbehaving. She stated that the paternal grandmother was aged 59 years.

Paternal Grandmother’s Evidence

The paternal grandmother swore an Affidavit and gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The paternal grandmother is in good health and does not take any medications.
She has lived with the Father and Mother since about mid-2019. She has her own bedroom in the parents’ residence. She helps out with the children when needed. She does not drive. She is on jobkeeper Centrelink benefits. She contributes to household bills and rent.
The paternal grandmother was able to see the child when he came to the parent’s residence on 29 December 2019. Prior to that time, she had not been able to see the child since 2017.
The paternal grandmother would like to know more about the child (she states that she does not know fully what the child’s several medical issues are) and would love to see him more regularly if not living in her residence.
The paternal grandmother had a good relationship with the aunt and her husband when they were younger.
In oral evidence, the paternal grandmother stated that she was aware of Children’s Court proceedings regarding the child’s siblings not going to school. She was not aware of a report to FACS regarding the child’s siblings arriving in dirty clothes and smelling at school.
The paternal grandmother was aware that the Father suffered from a panic disorder and anxiety.
The paternal grandmother had not witnessed any arguments between the parents. She had not witnessed either parent physically disciplining the child or his siblings. She had never witnessed any bruising on the child. She was not aware why the child’s siblings were not attending school.
The paternal grandmother agreed that the parents became homeless when the child originally went to live with the aunt.
The paternal grandmother stated that if the child spent overnight time at the parent’s residence, she was prepared to give the child her bedroom (to sleep in).
The paternal grandmother stated that she was home most of the day. She stated that if Court Orders were made for the child to spend time with the parents, and she had to be present during such time, she could do this. Further, she stated that she spent evenings at home. If Court Orders were made for the paternal grandmother to be present if the child was spending overnight time with the parents, the paternal grandmother stated that she could be present during such time.

The Family Therapist’s Report: Dr B

The family therapist was Dr B, clinical psychologist (the family therapist). Her report, requested at the instance of the ICL, is attached to her Affidavit filed 2 May 2020.
The family therapist stated that she had interviewed the parents in October 2019, and in April 2020. She had interviewed the aunt on two occasions, in March and April 2020. She had interviewed the child on two occasions in April 2020.
The parents had told the family therapist that when the child was an infant they were homeless and lived in their car. They stated that their daughters lived with other relatives whereas the child was placed in the care of the aunt. The parents had stated that they had spent their day sharing their time between the children.
The aunt had stated that the child’s care arrangements were unstable and he went backwards and forwards between herself and the parents.
In relation to the child, the family therapist stated that he presented as a child whose play suggested themes that he is quite immature for his age.
The family therapist stated that the aunt presented as quite ambivalent in respect of her feelings for the child to have a relationship with the parents and his siblings. The family therapist stated that the aunt had questioned why the child would need to be forced (to spend time with the parents) and that he should be given the choice as to whether he sees the parents considering the hostility he has expressed. The aunt had stated that she wanted the child to be happy and did not want him to be stressed as that would exacerbate his developmental concerns.
The family therapist stated that at the interview with the aunt on 31 March 2020, the aunt vacillated between saying that the child needs direction and has emotional regulation problems and, if only the parents had persisted with the contact centre, the child might have felt more comfortable. The aunt stated that the parents are the child’s parents but she is not sure how to proceed with moving towards unsupervised time. The aunt stated that she might agree to the child spending time with the parents provided the paternal grandmother was present. She stated that she has never had a disagreement with the paternal grandmother and “it might fall into place that way.”
The family therapist gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The family therapist stated that the child is quite immature for his age and has some gaps in his development.
The family therapist was asked whether she considered the aunt to have exercised a level of caution around the child having a relationship with the parents. The family therapist responded by stating that the aunt wanted to put weight on the child’s views (as to spending time with the parents) and “given (the child’s) developmental maturity, it was clearly a decision that the adults needed to make for (the child).” Later, the family therapist stated, in this context, that the child needed to know that this was what the adults had decided for him.
In relation to mental health of the parent, the family therapist stated that mental health issues don’t per se negate parents having time with the child, particularly when there is another parent and siblings present. She stated that what is more of a concern is if a parent is having an acute episode which places children at risk that she would see as there being a necessity for maybe a child to be protected for a period of time from being exposed to a mental health crisis. She stated that generally people with mental health pathology, particularly if it’s treated and managed, are eminently appropriate to have children both to live and spend time with.
The family therapist was asked about the Father’s anxiety, depression and borderline personality disorder. She stated that borderline personality disorder symptomatology often presents as poor emotional regulation. She stated that a child should be removed from an event where there is an episode of such dysregulation. She stated that it would be part of the responsibility of the other parent to protect the child or children from episodes of dysregulation.
The family therapist gave this evidence:
MS CONTE-MILLS: Dr B, you report at paragraph 20 of your report that the paternal aunt seemed quite ambivalent to you about a relationship between X and his parents. That ambivalence, did you have any idea where that might have come from?--- Well, I think there are probably a number of sources. One possibly is a fear that she has that – that X is – is not safe in – in the parents’ care, but I – I think there are also longstanding issues of difficulties between these parties. I think that – that there were some issues that arose around the death of her – her brother and paying for the funeral and the – the fleeting attempts that were made at that time for X to spend time with the family unsupervised. So I – you know, I think that it’s a – a combination of – of factors and possibly not just one that appears to be .....
So nothing directly attributable to a concern, for example, of X’s care with his parents. It was a combination of factors? -----Well – and that – that being – that being one. And I – also I – I think that the – the – the aunt has a huge investment in X and – and, you know, feels possibly quite threatened by – by the proceeding…
The family therapist stated for a whole host of reasons very little momentum was gained in the therapeutic relationship relating to the family therapy with her. She stated that the parties may need some assistance so that they have a forum where they can discuss issues “rather than allowing those issues to become bigger than Ben Hur and then – and then cause the relationship that X forms yet again with his – with his family to – to break down.”
In relation to prospective therapy, the family therapist suggested that any therapeutic intervention needs to address the issue of there being consistency in the way the child’s behaviour is managed across the two households. In this context, she stated that communication by the aunt to the parents would be essential for the child, both in relation to medical and educational issues.
The family therapist stated that she suspected that the child does have a narrative that he believes the aunt wants to hear.
The Court accepts the evidence of the family therapist, unless otherwise indicated below, whether express or implied.

The Family Report

The Family Report was prepared by Ms L and is dated 6 June 2019. She interviewed the parties, the child, the aunt’s husband, and Ms O on 8 April 2019. She made observations of the child with the parents and the child siblings on the same date. She also made observations of the child with the aunt, her husband, and Ms O on the same date.
The Family Report writer stated that the parties live about 15 km from each other being about a 20 minute drive.
The Father told the Family Report writer that he is being treated with medication for symptoms of depression and anxiety. The Mother described feeling symptoms of anxiety.
The Father told the Family Report writer that one of his current challenges as a parent is managing teenage attitude.
The Father stated that since they had moved out of the local area to his daughter’s school it has been challenging to get the children up and ready for school.
The Father stated that C has recently been refusing to go to school. He stated that the child D appeared to be behind in her studies compared to her peers.
The Father stated that the paternal grandfather’s cultural background was Country CC and the paternal grandmother’s cultural background was English.
The Mother stated that disciplining the children is a challenge for her, she said particularly when they give her “attitude” and do not listen.
The Mother stated that she has been on the disability support payment since age 16. She reported that she is estranged from her family although she occasionally speaks with the maternal grandmother. The Mother’s cultural background is Country DD.
The Family Report writer stated that during her interview, it appeared that the Mother had some difficulty in elaborating on her thoughts, experiences and concerns.
The aunt was interviewed by the Family Report writer and she spoke positively of the children’s contact Centre.
The aunt stated that she was unable to identify anything positive that the parents are able to offer the child.
The aunt stated that Ms O spends time with the child each weekend.
Regarding discipline, the aunt stated that she talks to the child about his behaviour. She stated that the child has sensory issues and becomes dysregulated if she raises her voice at him.
The aunt described a difficult relationship with her brother, the paternal grandfather. She had not had contact with him for a number of years.
The aunt reported that her cultural background is Country CC.
The aunt’s husband stated that his cultural background is Country CC.
Ms O reported that she is a clinical advisor and works Monday to Friday. She spends time with the child each Saturday.
The Mother reported that the child moved between her care and the care of the parents, frequently, up until 2010.
The Father reported that he is treated with Valium by his family doctor to assist with sleeping difficulties as a result of symptoms of depression and anxiety. He stated that he only uses Valium as required and would generally only take one tablet once every fortnight.
The Father reported that his mental health difficulties are the result of being arrested and refused bail in relation to an ADVO in 2012. He stated that he sometimes feels scared and worried about leaving his home and that this may occasionally result in a panic attack.
The Family Report writer stated that the Father and the aunt each reported high levels of mistrust and a history of poor communication between them. There had not been any communication between the parties in September 2017.
The Mother reported that she has a good relationship with the Father but they do have disagreements about the children at times. She explained that they have a different approach to discipline and that the Father “let’s them get away with blue murder.”
Ms O stated that the Father contacted her several months ago about a medical issue and she was able to help book a specialist appointment for him.
The child presented as a friendly, energetic and sociable child. He appeared confident in engaging with the Family Report writer.
When asked who is in his family, the child stated, “Mum, Dad and two sisters” identifying the aunt, Mr G, and their daughters as his family.
The child spoke negatively of the Mother and Father. He stated that he feels stressed when he sees them and stated that they smack him everywhere. He reported concerns that his parents were seeking for him to live with them. He stated that he wants to have zero nights at his parents’ house. He stated that the aunt and Mr G are not friends with his parents and they never talk to each other.
The child stated that he is in Year 5. He said the hardest thing about school was writing and spelling.
During the observation session between the child and the parents, the child and the Father shared eye contact, laughed as they shared ideas about the game, and their interactions appeared warm and mutually enjoyable.
The child gave his sibling F a hug and she reciprocated.
The child played a game with one of his older siblings.
At the end of the observation session, the child, the Father and his sisters had a group hug.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that the child presented as aligned with the aunt, and during the interview he presented as rejecting of a relationship with his parents and siblings. During observation, however, the nature of the child’s relationships seemed incongruent with his stated views, particularly with regard to his Father and sisters. The Family Report writer stated that as such, and with regards to his age and developmental stage, it was recommended that the Court give some determinative weight to his stated views.
The Family Report writer stated that since 2014 the child has experienced the primary care of the aunt and her husband, and spent time regularly with the parents until September 2017. She stated that the sudden change to the child’s time with the parents and siblings, and the extended period before supervised time commenced, was likely to have had a negative impact on the child’s relationships with the parents and siblings. She stated that the stability of the child living with the aunt over the past five years has likely reinforced his perceptions of the aunt and her husband as his primary caregivers and strengthened his relationships with them.
The Family Report writer stated that observations of the Father’s time with the child during the observation session, if reflective of how the Father usually engages and responds to the child, then it appears that the Father has some positive parenting skills. In this context, she stated that the child was likely to experience the Father’s non-judgemental, acceptance of, and focus on, himself and the activities they engaged in positively and this was likely to strengthen their relationship.
The Family Report writer stated that during interview, the Mother demonstrated a limited understanding of the child’s developmental needs and factors that may influence the child’s apparent rejection of the parents. She stated that it seemed that the Mother perceived the child’s negative attitude as a reflection of his poor behaviour rather than other influences. She stated that during observation, the Mother appeared to have some difficulties in engaging with, and connecting with the child. She stated that the Mother seemed passive in her interactions, and after X’s siblings joined the observation session, the Mother continued to remain quite separate from the children and Mr Malas. If this is typical of the Mother’s attitude towards X, and interactions with him, then it is likely that this will have an impact on the quality of her relationship with X. X may perceive her lack of initiative or engagement with him as the Mother being disinterested in him. Furthermore, if the Mother only engages with X to correct his behaviour then X is likely to experience the Mother as critical. If X has little positive experience of the Mother, and the quality of their relationship remains strained, then this may lead to X further rejecting the Mother.
The Family Report writer stated that during interview, the aunt impressed as reluctant to make the child spend time with the parents against his wishes, and it seemed that she had formed the opinion that the child should be able to decide whether or not he spend time with the parents. She stated that, “Ms Osman spoke about the emotional distress for her when making X spend time with his parents, particularly if X presents as upset and unwilling to spend time with his parents. It may be that Ms Osman has difficulty in tolerating her own distress about this issue and therefore may not be able to adequately support X in managing his reluctance in spending time with his parents. If this is typical of Ms Osman’s attitude towards X’s relationships with his parents, it is likely that this would negatively impact X’s attitude and willingness towards spending time with his parents.”
The Family Report writer stated that the impression given, from the observation of the child, the aunt, the aunt’s husband, and Ms O, was that X was a very cherished child within the family.
The Family Report writer stated that the aunt and Father’s reported level of anxiety and fear in relation to the other did not appear to be based on recent interactions. Similarly, she stated, it would appear that prior to the aunt ceasing the child’s time with the parents there had been little conflict or threatening behaviour.
The Family Report writer stated that if the Court determines that the parents engaged in conflict instigated family violence, it may be necessary to consider Orders that X spend limited time with his parents. The Court could consider Orders that provide for X to spend up to alternate weekends with his parents, depending on the nature and level of risk.
The Family Report writer stated that if the Court determines that X is at unacceptable risk of harm in his parents’ care due to lack of supervision, lack of accessing medical treatment and possible emotional abuse, then the parents may be unable to prioritise and meet X’s needs to the extent necessary for him to live with them or spend substantial and significant time with them.
The Family Report writer stated that if “the Court is satisfied that Ms Osman has the capacity and willingness to support X’s relationships with his parents and siblings, it may be in X’s best interest to remain living with Ms Osman. Given X’s reported additional needs, it may be that he would benefit from experiencing a continuity in his care giving arrangements. In this instance the Court could consider Orders for X to spend some time with his parents to enable him to maintain relationships with his parents and siblings. Given the difficulties in the co-parenting relationship, it may be necessary for X’s transitions to occur in a neutral environment such as school or a children’s contact centre.”
The Family Report writer stated that, “It would seem likely that the adults will be unable to support X’s relationships within his family without professional support and guidance. It may be of assistance for the family to engage the Keeping Contact program as run by EE Counsellors to assist them with developing a better understanding of X’s emotional experience, and implementing strategies to enable them to work cooperatively together to meet X’s needs.”
The Family Report writer stated that, “It appears that the relationships between Mr Malas, Ms Malas and Ms Osman have been historically very difficult. It seems likely that their relationships have been negatively influenced by the poor relationship between Ms Osman and the paternal grandfather and by the starkly different approaches, and attitude, to parenting. It would seem unlikely that the co-parenting relationship will improve without therapeutic intervention. However, the effectiveness of any therapeutic intervention would be dependent on the parents and Ms Osman’s capacity and willingness to take on new information. If their relationship continues to remain strained and unworkable then this is likely to have a negative impact on X’s emotional wellbeing, his development, and his relationships with his various family members.”
The Family Report writer stated, “Given the level of mistrust and the poor co-parenting relationship, the Court could consider Orders for X to spend no time with his parents. It is noted that this would sever X’s relationships, not only with his parents, but also with his siblings. However, this may be necessary to protect X from exposure to conflict. It may also minimise the possibility of X being exposed to Ms Osman’s heightened anxiety, which, if it continues, may result in less than optimal parenting of X by her. Furthermore, given the apparent level of mistrust and the lack of communication between the parents and Ms Osman, it would appear unlikely that the parties would be able to make decisions for X in a timely fashion without protracted conflict. Therefore, it is recommended that the Court make Orders for the party/parties with whom X lives to have sole parental responsibility.”
The Family Report writers final recommendations were stated as follows:
117. Unless the evidence before the Court suggests otherwise, it is recommended that X live with Ms Osman.
118. Unless the evidence before the Court suggests otherwise, in the absence of X being at unacceptable risk of harm in his parents care, it is recommended that Orders be made for X to spend alternate weekends from Friday after school until Sunday afternoon with Mr Malas and Ms Malas. It is further recommended that X’s transitions occur at school and/or a children’s contact centre.
119. That parental responsibility be determined by the Court.
120. That the parties engage with the Keeping Contact Program as run by EE Counsellors.

The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Family Report writer stated initially that there was nothing she wished to change or amend in her Family Report.
The Family Report writer was questioned in relation to paragraph 40 of her Family Report. In paragraph 40 it was recorded that the Mother’s approach to discipline of the children was that, “I look them in the eyes so they know I am serious” but said that “if they don’t listen, I just give up.” The Family Report writer then gave this evidence:
And would that attitude cause you some concern in relation to the Mother’s ability to parent X and meet his needs?---It would.
Could you just outline those concerns?---Certainly. So I guess the reported difficulties that X has, the kind of difficulties, the behaviours, ideally would require a really consistent structured parenting approach, so that would be in his day-to-day routines and also in terms of managing any difficult behaviours as they emerge, and I guess his mum came across as a little bit passive in her approach and, I guess, not confident in progressing it more than just looking them in the eyes and expecting them to respond appropriately.
The Family Report writer was asked questions in relation to mental health issues of the parents and she gave this evidence, both in relation to such issue and also the issue of conflict between the parties:
So any untreated mental health or poorly managed mental health condition can have an impact on parenting capacity, specifically in relation to borderline personality disorder. One of the key issues is around emotional regulation and how that person can look after their own emotions, firstly, that can sometimes impact their parenting, because they’re not necessarily able to reflect back or manage their children’s emotional presence at any one time as well. Sometimes people with borderline personality disorders have difficulties with interpersonal relationships, so if the Court accepts that Mr Malas has a diagnosis of borderline personality disorder and he’s not receiving any treatment for that, I guess one would wonder whether or not this is part of the difficulty in the – in the relationships with the adults involved in this family, so Mr Malas and Ms Osman and the extended family as well.
…
If there’s some uncertainty around the Father’s mental health and treatment, specifically treatment that he’s receiving for his conditions, would it be ideal or beneficial for the Court to have a report detailing that before the Court ordered any unsupervised time with – between the Father and X?--- It – it could be. I guess my concern with the information that I have available to me now is whether or not it’s just related to a mental health issue. I mean I guess I’m aware that the conflict between the parties seems to have heightened since I – I wrote my report, and I would be quite concerned about that as an issue for X as a priority over the mental health issue.
And when you say “the conflict between the parties”, does that go to specifically your recommendation of sole parental responsibility? ---It does.
And what about any time that X spends with the parents? ---Yes. So at the time of my report I guess it would ..... whether or not the Court determines that X is at unacceptable risk of harm. I did make the recommendation for X to spend time with his parents. The – the additional information I’ve received since writing the report, I do have serious concerns about X’s emotional wellbeing, the possible risk of exposure, and, quite frankly, likely risk it would seem at that stage, exposure to the conflict between his parents and Ms Osman.
Okay. So there’s the risk of conflict. Any other concerns that flow from that?---I guess the other issue that I’ve been talking about is it’s not just X, and whether or not his siblings are going to be brought into this conflict, and whether or not they’re going to be used to push an agenda for their parents. I think that’s quite problematic for them, but it also then has a flow on effect for X as well. That’s an avenue.
The Family Report writer was then asked questions by counsel for the Mother and Father, and the Family Report writer gave this evidence:
If I can inform you that their position is no longer that, they are seeking eventually to spend graduated time which would lead to X eventually spending alternate weekends and half school holidays in their care. Now, on that basis, do you remain concerned about X’s emotional wellbeing if he has limited time on that basis with his parents?---I do.
And what would be the reasons for those concerns?---The key issue I think at this stage is – there’s a couple, but one of the key issues is the conflict and the likelihood that X will be exposed – exposed to that conflict. I’m not sure whether either household can protect X from their feelings and beliefs about the other household, and I think that will have a negative impact on how X perceives his family and himself within that system.
The Family Report writer was asked whether prospective family therapy could assist the parties in dealing with issues of conflict. The Family Report writer responded by stating that she did not feel confident that even with family therapy that this family was going to be able to move forward in a kind of cooperative manner that was going to support the child ultimately. In this context she stated that the child had been exposed to the Court for some time now. She stated that this was a family with quite entrenched mistrust in one another, stemming back to a lot of family history in terms of the aunt’s parents, and then forward more recently to the passing of the aunt’s brother.
The Family Report writer stated that a program like 1 2 3 Magic is quite limited for a child of the child’s age, particularly as he is going off to high school next year, and a different kind of approach would be better.
As to the child’s attitude towards seeing the parents at the Family Report interviews, the Family Report writer acknowledged that the child has bias in favour of the aunt, but she also stated that:
He has had really disruptive experiences spending time with his parents, and his state of rejection might be a way of kind of protecting himself emotionally from how that feels, and I – I think he does feel a sense of the – the loyalties between his family.
The Family Report writer was asked about the paternal grandmother potentially being a supervisor or being present when the child spend time with the parents and she gave this evidence:
MS CONTE-MILLS: And if I tell you the gist of the conversation that seems to be reported by Dr B that the aunt expressed a view to Dr B that she seemed to have no difficulty with the paternal grandmother being in a position, for example, as a supervisor or being in the presence of any time X might spend with his parents, are you able to comment on that?---That Ms Osman doesn’t have a – doesn’t have an issue with her being present or supervising X’s time; is that correct?
That’s right. It seems that that’s what Ms Osman expressed to Dr B that she didn’t have an issue with that?---I guess there’s a couple of things. Firstly, I mean, we take that at face value that she’s willing to have her involved in some capacity. The second thing, though, is in Ms Q’s Affidavit she spoke quite – there was reference made that there has been longstanding kind of conflict between her and Ms Osman over the years where they ..... to a number of other issues, and that she doesn’t feel confident that Ms Osman is really supportive of X with his family, so I would wonder if that – her presence is going to contribute further to the conflict – the existing conflict.
Counsel for the ICL then had the following exchanges with the Family Report writer:
MR BLANK: In terms of the engagement that you saw between X and his Father, you would say that in overall terms it was positive?---I would.
And do you think it would helpful for X to maintain some connection with his Father? ---That’s a difficult question. I mean, if it is reflective of how Mr Malas generally interacts with X there might be some value to him having an ongoing relationship. I guess the other issue to consider is whether or not Mr Malas himself can protect X from his beliefs and attitudes towards Ms Osman and whether or not that’s going to really dominate any time X spends with Mr Malas.
Just turning that on its head, is the same not a concern in relation to Ms Osman’s feelings towards Mr Malas?---Yes. I think I documented that in my report in terms of each party’s attitudes and beliefs towards the other.
Is there any way that you could think of whereby this hostility between the aunt and Mr Malas could be ameliorated so that X could at least enjoy time with his parents?---As I mentioned earlier, sometimes family therapy can help in these situations, but as the situation currently stands I don’t really have confidence that this is going to be possible for this family at this stage. I mean, they’ve been in dispute for X since X’s first – first year of life. I just don’t think that it’s – even with family therapy I think their – their beliefs and attitudes will endure because it’s more than just X. There’s some kind of deeper family issues that have fed into this – in this – in this family system.
And what are long term risks for X if this continues?--- I think it’s highly likely to exacerbate his reported difficulties. I guess he’s already a person and a child in the world who has difficulties with rules and boundaries My sense is that he probably has some interpersonal difficulties as it exists, so in terms of his peer relationships. I’m conscious that he’s due to start high school next year, and that’s going to be developmentally quite challenging for him, as it would be for many children, but more so perhaps because of his difficulties, and I think if – ongoing conflict is really going to put him under immense pressure. I think it’s going to be very difficult for him to kind of manage moving forward.
The Court accepts the evidence of the Family Report writer, unless otherwise indicated below, whether express or implied.

Relevant Legal Principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The child has a meaningful relationship with the aunt and will benefit from a continuance of that relationship.
The child probably had a meaningful relationship with the Mother and Father prior to their ceasing to spend unsupervised time with them in about late September 2017. By reason of the child’s generally positive supervised time spent with the Mother and Father in 2019, the child’s former meaningful relationship with his parents was beginning to be re-established.
The child will likely benefit from the continued re-establishment of his former meaningful relationship with the parents, provided it is safe for him to do so. In this regard, the Court refers, inter alia, to the positive interaction between the child and the parents (the Father in particular), and the positive nature of numerous supervised visits at the contact centre.
Should the child spend time with the Mother and Father, in accordance with the ICL’s proposed graduated time-with Orders, there is a real prospect that the child can continue to develop, in a timely fashion, his former meaningful relationship with his parents.
The aunt proposes that the child spend no time with the Mother and Father. Such an Order would likely sever the child’s relationships, not only with the Mother and Father, but also with his siblings, and in these circumstances, there would be a real risk that the child would suffer significant emotional harm; such an Order would not be in the best interests of the child.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The aunt contended, inter alia, that there is insufficient evidence before the Court to indicate that the Father’s mental health is being adequately managed and she contended that the Court would be concerned accordingly.
In April 2019, the Father reported to the Family Report writer that he is treated with Valium by his family doctor to assist with sleeping difficulties as a result of symptoms of depression and anxiety. He stated that he only uses Valium as required and would generally only take one tablet once every fortnight.
The Father reported that his mental health difficulties are the result of being arrested and refused bail in relation to an ADVO in 2012. He stated that he sometimes feels scared and worried about leaving his home and that this may occasionally result in a panic attack.
In about early 2020, the Father was diagnosed with generalised anxiety disorder and was prescribed Valpro daily and he also has a prescription for Valium which he can take if needed. He sees his GP Dr FF at the GG Medical Centre.
In oral evidence, the Father stated that he was ingesting Epilim being a mood stabiliser. He had been taking this medication for a couple of months, having previously been on Valium. He stated that he still gets anxious, and that it was hard for him to catch transport. He stated that he had spoken on one occasion to a psychologist a couple of months ago.
The Father stated that he thought that he might have previously been diagnosed with borderline personality disorder. He thought that the last psychiatrist he saw might have mentioned that condition. He stated that his health practitioners are exploring what is wrong with him. He stated that 95% of his condition was generalised anxiety disorder and bipolar depression.
The Court acknowledges that the Father did not adduce any significant evidence from his treating health professionals in relation to his mental health.
There is no significant evidence before the Court relating to the Father having suffered an acute mental health episode when with or caring for the child, nor any such evidence relating to the Father having suffered an episode of emotional dysregulation when with or caring for the child. The Family Report writer did not observe any untoward mental health issue in relation to the Father at the Family Report interviews.
Nevertheless, in the view of the Court, acting cautiously and conservatively, any risk of harm posed to the child by spending time with the Father if he was to suffer an episode of adverse mental health can be addressed and minimised by the Court making the ICL’s proposed protective Orders 5 and 7 in Exhibit E.
Such above Orders, inter alia, require the child’s proposed graduated time with the father to be in the presence of the paternal grandmother between 8 AM and 8 PM, and further requires that during the times of 8 PM to 8 AM, the Father is to ensure that the paternal grandmother resides at his home. Such Order also requires the Father to provide to the aunt and ICL relevant information from his treating psychiatrist/psychologist confirming, inter alia, that the Father is complying with any treatment, including but not limited to taking any medication.
The Court refers to the ICL’s proposed Orders 5 and 6 in Exhibit E, in relation to the paternal grandmother. The Court is of the view, again, that she is likely to be able to act as a protective mechanism in relation to the child spending time with the parents safely. In this regard, the Court accepts the evidence of the paternal grandmother; it refers to the oral evidence of the aunt in relation to the potential role of the paternal grandmother in relation to supervision of the child’s time with the parents; it refers to the evidence of the aunt in relation to her civil communications with the paternal grandmother; and it also refers to the statements of the aunt to Dr B, family therapist, in relation to such potential role. In the view of the Court, there is force to the submissions of the ICL in relation to the likely protective role proposed to be exercised by the paternal grandmother as reflected in the ICL’s proposed Orders 5 and 6 in Exhibit E.
In the view of the Court, there is a risk of harm posed to the child in spending time with the Mother other than in the presence of either the Father and/or the paternal grandmother, as proposed in the ICL’s proposed Order 6 in Exhibit E.
The Mother reported to the Family Report writer that her family doctor said that she has anxiety. She stated that she feels anxious in her body and in her thoughts but said “there is not much I can do (about the anxiety).” The Mother, the Family Report writer stated, appeared to have difficulty explaining her symptoms and the impact this has on her daily life.
The Mother suffers from suspected depression and anxiety but has not been given a formal diagnosis and does not take any medications.
The Mother does not know why her Mother had previously applied, on her behalf, for a disability support pension; she was unsure as to whether it was mental health related.
The Mother had previously taken medication for anxiety.
The Mother was asked, during cross examination, whether she suspects herself that she suffers from depression and anxiety, to which the Mother replied that she did not know. The Mother agreed that she needed to go back to her doctor to talk about the issue of depression and anxiety. The Mother stated there was no reason that she had done that yet.
From the above discussion in relation to the Mother’s mental health, it is apparent that such mental health has not been optimally assessed or treated. Even if assessed, the Court would still have a real concern as to whether the Mother would reliably abide the treatment recommendations of any health professional assessing her in this context.

Counsel for the ICL submitted, in effect, that the Mother’s presentation in oral evidence was of concern and the Court is of the view that this submission has force. There was a significant suggestion in the Mother’s presentation during oral evidence that she may have been a little delayed and disoriented. There was a vagueness in her responses to questions asked of her in oral evidence.
The Court refers to the evidence of the Family Report writer in relation to the Mother, including her evidence that, during the interview, the Mother demonstrated a limited understanding of the child’s developmental needs and factors that may influence the child’s apparent rejection of the parents; she referred to the Mother appearing to have some difficulties engaging with and connecting with the child; and she referred to the Mother being seemingly passive in her interactions with the child. The Family Report writer had referred in her oral evidence to her concern that the Mother’s approach to discipline of the child was unsatisfactory, particular taking into account the child’s difficult behaviours.
Taking into account the above discussion in relation to the Mother, and also taking into account the evidence of the Family Report writer in relation to the Mother, there is an unacceptable risk of harm posed to the child in spending time alone with the Mother, particularly through possible neglect of the child.
In the view of the Court, the ICL’s proposed Order 6 in Exhibit E, namely that the child’s time with the Mother should be in the presence of either the Father and/or the paternal grandmother, should address and minimise any risk of harm posed to the child in spending time alone with the Mother.
The aunt submitted that there was an unacceptable risk of harm posed to the child in spending time with the parents by reason of being exposed to conflict between the aunt and the parents.
Despite the Family Report writer, in her oral evidence, initially indicating that she did not wish to change or amend her Family Report (having later acknowledged having received additional information since her Family Report was prepared, and the Court refers to the Family Report writer’s recommendations in her Family Report), she expressed serious concerns about the child’s emotional well-being if he was exposed to the conflict between the parents and the aunt, which she considered to be a likely risk posed to the child. She remained concerned about the child’s emotional well-being if he was to spend graduated time with the parents leading to him eventually spending alternate weekends and half school holidays in their care. The Court does not share these concerns of the Family Report writer to the extent expressed by her in her oral evidence.
The Court acknowledges that there remains a not insignificant level of distrust between the parties; on the aunt’s part, she continues to have significant doubts, inter alia, as to the parties’ parenting capacities, and, for the parents’ part, they continue to have significant doubts as to the willingness of the aunt to facilitate the child having a meaningful relationship with the parents and siblings of the child.
Nevertheless, since the Family Report interviews in April 2019, the Court observes that there would appear to have been fairly limited occurrences of discrete conflict between the parties; the incident on 29 December 2019 when the child spent time during the day with the parents and their family, and the incident involving the police attending the aunt’s residence on about 28 June 2020 in relation to the child’s explicit videos on the Internet.
There have been some positive signs of a willingness between the parties to cooperate on matters relating to the child since the Family Report interviews in April 2019. For example, the parties agreed on 2 September 2019 to family therapy, non-denigration, and the parents being permitted to take two of the child’s siblings at any one time to the contact centre; there had been goodwill between the parties at about the time of the funeral of the paternal grandfather in December 2019 (see the report of Dr B); and the aunt facilitated fairly seamless changeovers in relation to the child’s supervised time spent at the contact centre on numerous occasions in 2020.
And further, in the view of the Court, there is the real prospect of the parties reducing their level of distrust in each other and cooperating in relation to the child should the Court make the ICL’s proposed Orders relating to time to be spent between the child and the parents, having the effect of removing the need for a contact centre; the paternal grandmother acting protectively towards the child in terms of the ICL’s proposed Orders in this regard, including the real prospect of the paternal grandmother and aunt being able to communicate positively in relation to the child; future family therapy between the parties and child; and the aunt’s daughter Ms O being able to regularly communicate with the Father and thereby potentially being able to inform the Mother of relevant matters relating to the child.
In the view of the Court, there is a real prospect of the aunt’s significant concerns in relation to the child spending time with the parents being significantly lessened once she is able to observe the successful facilitation of the ICL’s proposed graduated time-with Orders between the child and the parents. The Court would also observe, looking at the ICL’s proposed time-with Orders, that there is a significant prospect that the risk of conflict between the parties can be minimised through certain changeovers occurring at the child’s school.
The Court is of the view that prospective family therapy has some real prospects of significantly reducing the level of distrust between the parties and facilitating increased cooperation between them in relation to the child. In this context, the Court observes that the family therapist conducted limited meetings with the aunt, the parties and the child; only two conferences with each.
As to the Father’s parenting capacity, absent mental health issues, as discussed above, the Court is of the view that the Father probably has sufficient parenting capacities to provide adequate care for this particular child. The Court refers to the Father’s positive interactions with the child during the Family Report interviews. The Court refers to the Father’s positive interactions with the child during his supervised time with the child in 2020. In this context, the Court refers to the child’s apparent affection towards the Father and enjoyment of undertaking playful activities with the Father including in relation to cars.
As to the previous ADVO against the Father in 2012, which occurred some eight years ago, there has been no ADVO made against the Father for the protection of the aunt and/or child since then. As to the incidents of September 2016 (soiled nappy), 3 December 2016 (the skate park incident), and 29 September 2017 (the child returning to the aunt with bruising), the Court is not satisfied, on the balance of probabilities, that these incidents bespeak significant neglect or deliberate harm on the part of the parents, or either of them, towards the child. The Court would observe that there is a significant suggestion, on the evidence before the Court, that the aunt and parents have different parenting styles, with the child’s parents being significantly more liberal in affording the child independence and freedom of movement in his play activities, in comparison to the aunt.
On the evidence before the Court, the Court is not satisfied that the Father has a significant problem with the ingestion of illicit drugs. The Court is not satisfied that the Father’s past criminal record poses any significant risk of harm to the child.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The Court would give some weight but not significant or determinative weight to the child’s views expressed to the Family Report writer in relation to his negative views expressed in respect to the parents. In this regard, the Court observes that it is likely that the child is aligned with the aunt, and further refers to the child’s impairments.
The Court would observe that the child on occasion has expressed views that he misses his parental family, comprising the parents, his sisters, and in particular his younger sister. The Court gives some weight to these views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to its discussions above under the meaningful relationship primary consideration.
The child has previously enjoyed positive relationships with his sisters, and the paternal grandmother. One or more of the child’s sisters was beginning to attend the supervised time between the child and the parents in 2020. The child has a positive relationship with the aunt’s husband.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The aunt has taken such opportunities.
Early on in the child’s life, it is apparent that the parents were having their own personal difficulties and which led to them requesting the aunt to care for the child. Thereafter, and following the parents’ personal difficulties being lessened, the parents sought to take such opportunities, noting the cessation of their time with the child at various times, at the instance of the aunt.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The aunt has maintained the child very well in her care.
Subject to the Court’s discussion above under the need to protect primary consideration, when spending time with the child, the parents have usually maintained the child adequately.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

There is a real prospect that the child should emotionally cope in spending time with the parents, pursuant to the ICL’s proposed Orders in Exhibit E, particular in circumstances where such time is graduated, where family therapy is proposed for the parties and child, and where the child’s time with the parents will be in the presence of the paternal grandmother as proposed by the ICL.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable.

(f) The capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

The aunt has such capacities. As to the parents, the Court refers to its discussions above under the need to protect primary consideration.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

The child has impairments, including behavioural difficulties. The child has been receiving health professional treatment for a considerable time to assist him to manage his difficulties. The child is in a special needs class presently.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The aunt has usually demonstrated such responsibilities and attitudes towards the child in a satisfactory manner.
In relation to the parents, the Court refers to its discussions above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family

The Court refers to its discussions above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

There was a previous ADVO in place against the Father for the protection of the aunt, being in 2012.

(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

The Court refers to its discussion above under the meaningful relationship primary consideration. The ICL’s proposed Orders in Exhibit E would be least likely to lead to the institution of further proceedings in relation to the child.

m) Any other fact or circumstance that the Court thinks is relevant

Not applicable.

Parental Responsibility

The aunt seeks an order for sole parental responsibility relating to the child. The ICL and the parents agreed to such an order, however, they would add the proviso that the aunt be required to notify the Father and the Mother of any proposed major decision for the child and consider any input they provide to the aunt in relation thereto.
The above proviso sought by the ICL and parents will help to facilitate the re-establishment and maintenance of the child’s former meaningful relationship with the parents. The child is only 12 years of age and it will benefit him to see his parents playing a role in the formation and making of major decisions for him.
It will be in the best interests of the child that the Court make the ICL’s proposed order relating to sole parental responsibility.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
That all previous parenting orders in relation to the child X born in 2008 (“X”) be discharged.
That X live with the Respondent Paternal Aunt.
That the Respondent paternal aunt shall have sole parental responsibility for the child X provided that the Respondent Paternal Aunt:
(a)Notify the Applicant Father and the Applicant Mother of any proposed decision relating to the long-term care and welfare of X, including but not limited to:
(i)Proposed decisions about which schools X shall attend.
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting X;
(iii)Ensure that such notification is given to the Applicant Father and the Applicant Mother in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.
(iv)Thereafter the Applicant Father and Applicant Mother are entitled to provide their input to the Respondent Paternal Aunt; and
(v)The Respondent Paternal Aunt is to take into consideration any input provided by the Applicant Father and the Applicant Mother in respect of such proposed decision and advise the Applicant Father and the Applicant Mother of the decision made.
That X spend time with the Applicant Father and the Applicant Mother as follows;
(a)Stage one – For a period of 8 weeks from the date of the making of these orders, each Friday from the conclusion of school, or 3pm if Friday is a non-school day, until 7pm.
(b)Stage two –
(i)Week one - For a period of twelve weeks, every second week from the conclusion of school Friday, or 3pm if Friday is a non-school day, until 3pm Saturday;
(ii)Week two - Each Friday from the conclusion of school Friday, or 3pm if Friday is a non-school day until 7pm Friday;
(c)Stage three –
(i)Week one - For a period of twelve weeks, every second week from the conclusion of school Friday, or 3pm if Friday is a non-school day, until 3pm Sunday;
(ii)Week two - Each Friday from the conclusion of school Friday, or 3pm if Friday is a non-school day until 7pm Friday;
(d)Stage four and thereafter,
(i)Week one - Every second week from the conclusion of school Friday, or 3pm if Friday is a non-school day, until the commencement of school Monday, or 3pm if Monday is a non-school day;
(ii)Week two - Each Friday from the conclusion of school Friday, or 3pm if Friday is a non-school day until 7pm Friday;
(e)On Father’s and Mother’s Day from 3pm the day before until 3pm the day of Father’s Day and Mother’s Day;
(f)From 3pm Christmas Eve until 3pm Christmas Day in even numbered years. AND, from 3pm Christmas Day until 3pm Boxing Day in odd numbered years.
(g)Skype/FaceTime communication each Tuesday and Thursday between 6pm and 6.30pm with the Applicant Father and or applicant Mother to initiate the call to the Respondent Paternal Aunt’s telephone.
The time pursuant to Order 4 above;
(a)is to be in the presence of the Paternal grandmother between the times of 8am and 8pm and until such time the Father provides to the Respondent Paternal Aunt and the ICL correspondence from his treating psychiatrist/psychologist confirming;
(i)Times that the Father has consulted the psychologist/psychiatrist;
(ii)Clinical diagnosis;
(iii)Outlining compliance with any treatment, including but not limited to taking any medication;
(b)During the times of 8pm and 8am, the Father is to ensure that the paternal grandmother resides at the Father’s home;
(c)Once the Father complies with Order 5 (a) by providing correspondence from his treating psychiatrist/psychologist, orders 5 (a) and 5(b) are then discharged.
That X’s time with the Mother be in the presence of either the Father and or/the paternal grandmother.
The Father is to comply with all recommendations given by his mental health treaters, including but not limited to taking medication and attending appointments as required.
That at all other times when changeovers are not occurring to and from school, all changeovers shall occur by the Father collecting and delivering X to and from the Respondent paternal aunt’s place of residence at the commencement and conclusion of X’s time with his parents.
That the Applicant Father, the Applicant Mother and the Respondent paternal aunt continue to attend upon Dr B for family therapy until such time as Dr B recommends otherwise. The Respondent paternal aunt is to ensure that X attends all appointments as scheduled by Dr B.
That the Applicant Father and the Applicant Mother refrain from physically chastising X at all times when X is in their care.
That the Applicant Father, the Applicant Mother and the Respondent Paternal Aunt refrain from denigrating each other, or allow others to do so, within the presence or hearing distance of X.
That the Applicant Father, the Applicant Mother and the Respondent paternal aunt keep each of other advised of their telephone numbers and residential address at all times and notify the other within 48 hours of any change to these details.

These orders serve as authority for the Applicant Father and the Applicant Mother to obtain copies of all school reports, school photographs, and any other school material that parents are otherwise entitled to obtain from X’s school.
These orders serve as authority for the Applicant Father and the Applicant Mother to communicate with X’s school in relation to X’s progress.
These orders serve as authority for the Applicant Father and the Applicant Mother to attend any parent/teacher interviews at X’s school.
These orders serve as authority for the Applicant Father and the Applicant Mother to liaise with any of X’s medical practitioners and obtain information in relation to X’s health.
That the ICL remain appointed for a period of 6 months from the date of the making of these orders after which time the ICL be discharged.

I certify that the preceding two hundred and eighty six (286) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 25 November 2020

[2020] FCCA 3220

25 November 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness