Marella & Marella
[2022] FedCFamC2F 1564
Federal Circuit and Family Court of Australia
(DIVISION 2)
Marella & Marella [2022] FedCFamC2F 1564
File number(s): CAC 1882 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 16 November 2022 Catchwords: FAMILY LAW – Parenting – where child has not seen the Father since the parents separated in late 2018 – where Father has a history of mental health episodes – where Mother alleges that the father is a risk to her and X – Mother running a no contact case - Father seeks to recommence time with the child, orders for which have been made on an interim basis – issue with Mother not complying with court orders for time between the Father and child – where Mother revised her positon and confirmed in court that she would comply with any order the court made – found that Father is not an unreasonable risk and time should recommence between Father and child – orders made for time to progress very slowly Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC(2), 60CC(3)(a) – (m), 65DAA Cases cited: AMS v AIF (1999) 199 CLR 160
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey & Saunders (2007) 208 FLR 287
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Jones v Dunkel (1959) 101 CLR 298
In the Marriage of Kress (1976) 13 ALR 309
In the Marriage of R (2002) 169 FLR 243
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Partington v Cade (No.2) (2009) 42 Fam LR 401
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
Vontek & Vontek [2017] FamCAFC 28
Division: Division 2 Family Law Number of paragraphs: 270 Date of last submission/s: 17 August 2022 Date of hearing: 4, 5, 6 May 2022 and 1 June 2022 Place: Canberra Counsel for the Applicant Dr S Leslie Lawyer for the Applicant Parker Coles Curtis Counsel for the Respondent Ms J Haughton Lawyer for the Respondent Hosking Legal Advocate for the Independent Children’s Lawyer Ms E Karagiannis Independent Children’s Lawyer Legal Aid NSW (City B) ORDERS
CAC 1882 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARELLA
Applicant
AND: MS MARELLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
16 NOVEMBER 2022
THE COURT NOTES THAT:
A.These Orders are final in relation to parenting. The matter remains on foot in relation to property issues; and
B.While not formally a party to these proceedings, the Court notes that the maternal Grandfather will likely play a significant role in supporting the Mother and X, and the resumption of X’s time with the Father. It is requested that the maternal Grandfather use his best endeavours to ensure that the Mother complies with these Orders; accordingly,
ON A FINAL BASIS IN RELATION TO PARENTING, THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
Parental Responsibility
2.By consent, the Mother have sole parental responsibility for X born in 2015 (‘the child’).
3.The Mother shall keep the Father advised of the names of all medical practitioners and treating allied health practitioners that the child attends upon and is to advise the Father by email of any change within 24 hours of such change occurring.
4.The Father is permitted to contact any treating medical practitioner the child attends upon and may receive any and all information pertaining to the child.
5.Each party shall advise the other as soon as practicable, in the event of the child being injured or falling seriously ill, the child requiring urgent medical treatment, any issues in relation to the child’s pacemaker or heart appointments, the child being admitted to hospital or any other medical emergency relating to the child
6.Both parties are to keep the other advised of their residential address, telephone number and email address, by email, within 24 hours of such change occurring.
7.For the purpose of all communication about the child, for the first 6 months following these Orders this is to occur via email between the Father and the maternal Grandfather and thereafter between the parties via a parenting app or email, save for circumstances of urgency at which time the parties may contact each other via telephone or text message.
8.Both parties by this Order, authorise any school that the child attends to provide to the other party copies of all information concerning the child, including but not limited to school reports examples of schoolwork, school newsletters, notification of all school activities, parent/teacher nights.
Live with
9.The child shall live with the Mother.
Spends time with arrangements
10.From the date of these Orders, for a 6 month period, the Father will be permitted to communicate with the child as follows:
(a)For a period of 3 months (and for no less than 6 visits between the child and psychologist), the Father be permitted to provide to the child’s psychologist cards, gifts and letters to the child to be passed onto the child during therapy sessions; and
(b)Following the period set out in Order 10 (a), for a further period of 3 months (and for no less than 6 visits between the child and psychologist), in addition to providing cards, gifts and letters to the child as per Order 10 (a), the Father be permitted to speak with the child via FaceTime or telephone, with such communication to occur with the child during therapy sessions; and
(c)For the purpose of Order 10, the therapist is permitted to read any cards or written material before they are passed onto the child; and
(d)For the purpose of Order 10, the therapist may use their discretion to decline to pass on any cards or gifts if the therapist forms the view that the child is not yet ready to receive these items or if they are inappropriate and will advise the Father and provide feedback about this decision.
11.For the purpose of Order 10 (a) and (b), the Father’s time with the child is conditional upon the Father’s compliance with Orders 22, 23 and 24.
12.Upon conclusion of the 6 month period set out in Orders 10 (a) and (b), and subject to the child’s therapist confirming that the child is ready for it, the Father will be permitted to spend time with the child at the City B Children’s Contact Service (City B) on a fortnightly basis on dates and times as can be facilitated by the City B.
13.For the purpose of Order 12:
(a)The Father’s time with the child is conditional is upon the Father’s compliance with Orders 22, 23 and 24.
(b)Both parties must do all things necessary to complete the intake and assessment process required by the City B and are to follow all reasonable directions of the City B.
(c)No other members of the paternal family are to attend the supervised visits between X and the Father within the first 4 months.
(d)The Mother is to bring the child to the City B for the purposes of facilitating supervised time with the Father. Should the Mother be unable to do so, the maternal Grandfather may do so.
14.Following the 6 month period of contact occurring at the City B pursuant to Order 12 and subject to the child’s therapist confirming that the child is ready for it, the Father will be permitted to spend time with the child as follows:
(a)For a period of 3 months, on each alternate Saturday and Sunday from 10.00am until 1.00pm; and
(b)Following the 3 month period specified in Order 14 (a), for a period of 3 months, on each alternate Saturday and Sunday from 10.00am until 4.00pm on each day; and
(c)Following the 3 month period specified in Order 14 (b), for a period of 3 months on each alternate weekend from 10.00am Saturday until 4.00pm Sunday
(d)Following the 3 month period specified in Order 14 (c), thereafter the child will spend time with the Father as follows:
(i)Each alternate weekend from the conclusion of school on Friday, or 4.00pm on a non-school day, until 4.00pm Sunday, with these weekend periods to commence on the first Friday of each school term;
(ii)In even numbered years, the child will spend the first half of all term and summer school holidays with the Father with such time to commence at the conclusion of school on the last day of term and conclude at 4.00pm on the middle Saturday of the holidays;
(iii)In odd numbered years, the child will spend the second half of all term and summer school holidays with the Father in odd numbered years with such time to commence at 4.00pm on the middle Saturday of the holidays and conclude at 4.00pm on the last Sunday of the school holidays;
(iv)For 3 hours on the child’s birthday in the event the child is not in the Father’s care pursuant to these Orders; and
(v)On Father’s Day weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) until 4.00pm Sunday.
(e)For the purpose of Order 14, changeover is to occur as follows:
(i)On non-school days, the Mother is to deliver the child to a member of the paternal family, including the paternal grandparent/s or paternal aunt or uncle at the City C Library at the commencement of time and collecting the child from the grandparents at the City C Library at the conclusion of time.
(ii)On school days the Father (along with a paternal family member) are to collect the child from school on Friday afternoon and at the conclusion of the Father’s time with the child, are to return the child to the Mother at the City C Library.
15.The Father’s time in Order 14 is conditional upon the following:
(a)The Father’s compliance with Orders 22, 23 and 24; and
(b)That contact between the Father and child in Orders 14 (a) – (b) being supervised at all times by either the paternal Grandmother, paternal Grandfather, paternal Aunt, MS D, or the paternal Uncle, MR E;
(c)The contact between the Father and child in Orders 14 (c) – (d) occurring in the presence/substantial attendance of either the paternal Grandmother, paternal Grandfather, paternal Aunt, MS D, or the paternal Uncle, MR E;
(d)All overnight periods in Orders 14 (c) – (d) occurring at the home of the paternal Grandparents, paternal Aunt, MS D, or the paternal Uncle, MR E; and
(e)The paternal Grandmother, paternal Grandfather, paternal Aunt and paternal Uncle sign an undertaking prepared by the Independent Children’s Lawyer and file it with the Court prior to time in Order 14 occurring, regarding their primary, protective responsibilities towards the child.
Child Psychologist
16.Within 7 days of the date of these Orders, the Mother is to engage Ms G, a psychologist at F Counsellors, City B (or an alternative suitably qualified therapist nominated by the Independent Children’s Lawyer if Ms G is not available) who will provide psychological support and counselling for the child.
17.For the purpose of Order 16, the Mother must:
(a)Complete all required documentation including the intake form; and
(b)Complete the intake process; and
(c)Comply with all reasonable directions and recommendations made by F Counsellors with respect to the child’s engagement with and attendance upon F Counsellors; and
(d)Do all things necessary to obtain a mental health care plan for the child to minimise the costs of attendance at individual counselling. In the event that there is a shortfall in the costs of counselling, both parties are to be equally responsible for those costs;
(e)Provide confirmation to the Father via email, or via his solicitor, that she has complied with Orders 17 and 18.
18.Within 7 days of the Mother confirming that she has engaged Ms G (or another suitably qualified therapist nominated by the Independent Children’s Lawyer if Ms G is not available) pursuant to Order 16, the Father is to contact F Counsellors and provide the psychologist with his contact details and is to:
(a)Comply with all recommendations and directions made by X’s therapist with respect to contact between the child and Father.
19.Within 7 days of the Mother confirming that she has engaged Ms G (or another suitably qualified therapist nominated by the Independent Children’s Lawyer if Ms G is not available), the Independent Children’s Lawyer will provide to the psychologist a copy of the following documents:
(a)These Orders;
(b)The Expert Report of Dr H dated 22 September 2020;
(c)The Family Report of Ms N dated 14 February 2022; and
(d)The Assessment of Ms Marella completed by Ms K dated 11 April 2022.
Supports for the Mother
20.Within 7 days of the date of these Orders, the Mother is to attend upon her general practitioner and provide them with a copy of the Assessment completed by Ms K dated 11 April 2022 and is to obtain a referral and Mental Health Plan for attendance upon a clinical or forensic psychologist. This psychologist is to be nominated by the Mother’s general practitioner or failing such nomination, nominated by the Independent Children’s Lawyer.
21.For the purpose of Order 20, the Mother must
(a)Make an appointment with her clinical/forensic psychologist and provide the details of her psychologist to the Father via his solicitor;
(b)Comply with the recommendations as to ongoing attendance and treatment made by the clinical/forensic psychologist; and
(c)Provide a copy of the following documents to the Psychologist:
(i)These Orders;
(ii)The Expert Report dated 22 September 2020;
(iii)The Family Report dated 14 February 2022.
(iv)The Assessments of Ms Marella completed by Ms K dated 11 April 2022.
Supports for the Father
22.The Father must continue to attend upon his general practitioner, psychiatrist, psychologist and any other associated health care provider as recommended by his general practitioner, psychiatrist and psychologist.
23.Within 14 days of the date of these Orders, the Father must provide a copy of these Orders to his general practitioner, psychiatrist and psychologist and is to provide confirmation of having done so to the Mother via email to the maternal Grandfather or via her solicitor.
24.The Father irrevocably authorises and directs, and this Order acts as such authority and direction to his general practitioner, psychiatrist and psychologist to contact the Mother (by email at …) or her solicitor and inform them in the event that:
(a)The Father has failed to comply with the recommendations of treatment; or
(b)The Father has failed to comply with recommendations as to his attendance upon the treating practitioner.
Authorities for Child’s Psychologist and Contact Centre
25.These Orders act as an irrevocable authority for the child’s psychologist/therapist to discuss each of the parties’ and the child’s progress and attendance upon them with the City B Contact Service.
Miscellaneous
26.(a) Both parents are restrained from changing the child’s residence to outside a 50km radius from City C NSW, and (b) the Mother is restrained from changing the child’s name, without prior written consent of the other parent or a Court Order.
27.During the time the child is with the parents, both parents shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak to the other parent respectfully; and
(c)Not denigrate or insult the other parent and use their best endeavours to ensure that others do not denigrate or insult the other parent
28.For the next 12 months, the Independent Children’s Lawyer is to provide a short note to the Court every 3 months regarding the progression of the implementation of the Orders.
29.The Independent Children’s Lawyer is to remain in the matter for the next 12 months. Assuming there is general progress and compliance with these Orders, the Independent Children’s Lawyer is discharged on 16 November 2023.
30.Within 21 days, the Father is to provide the funds in the Go Fund Me bank account to the Mother, to be used solely for the child’s medical expenses.
31.21 days thereafter, the Mother is to advise the Father’s lawyers of how those funds have been spent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Marella & Marella has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
X has just turned 7 years old (he was born in 2015). He is fiercely, but somewhat differently, loved by both of his parents: by his Mother, exuberantly and somewhat overly protectively, whereas, in part because his Father has been excluded from his life for a number of years, and now by virtue of personality and much else explored below, in a necessarily more distant and reserved manner. He has lived primarily with his energetic, often direct if not blunt, and curiously engaging Mother who has coped with a number of issues, which highly experienced expert, Dr H, described as a “perfect storm.”[1] Those issues included the breakdown of her marriage to X’s Father (separation was in November 2018); the Father’s significant mental health issues which led to him admitting himself to a private mental health facility in Sydney; and X (then aged 3 years) having open-heart surgery at L Hospital in 2018, and because of complications, within 5 days of his first operation X had further surgery to have a “pace-maker” inserted. X continues to be monitored for his significant heart issues. All of these matters are canvassed in detail later in these reasons.
[1] The initial expert in the matter, and only independent psychiatrist, Dr H, stated in his oral evidence that the Mother was “high-functioning”, able “to manage … critical situations well and being able to adapt”, and that she “has done an amazingly competent job caring for X and helping him get through cardiac surgery … and having … severe illness …” Transcript (5th May 2022) 146. An almost identical comment was made by the psychiatrist at Transcript (5th May 2022) 151. Hereafter, such references will simply be “T” followed by the page number. The “perfect storm” reference is at T 148. Another expert, Ms K, agreed with the assessment of the Mother as a “can do” person, and someone “getting on with things”: T 164.
The Mother has also endured astonishing, tragic and violent inter-generational loss and trauma in her own family with her Father being witness to his Mother’s murder by his Father.
The Father (and his very supportive, if not industrious, and from the Mother’s perspective, somewhat overwhelming, family) have spent little or no time with X since separation.
The issue before the Court is to determine what parenting Orders are in X’s best interests in the rather fraught circumstances that are canvassed in detail later in these reasons. More particularly, the quite limited issues are: (a) what, if any time, should X spend with his Father (issues of “risk” in the light of the Father’s mental health and other history are considered also; (b) if time with the Father is to commence, what regime will be best (e.g. supervised at a contact centre, progressing to general supervision from other members of his family, and perhaps progression ultimately with no supervision); and (c) the capacity of the Mother to comply with Court Orders regarding the Father’s time with the child in circumstances where, for a significant period of time, she has not done so on the basis that she remains utterly scared of the Father (and his family to some degree), but during the trial, she confirmed that she will comply with any Orders of the Court.
The Mother is understandably wary of the Father’s mental health. She is similarly wary of the parenting capacity of the Father, as well as various “pressures” which she says come from his and his family’s involvement with certain elements of the community in City C in country New South Wales.
The Father, who lives in Canberra while his family live in City C (New South Wales), says that, based on his treatment (psychiatric and medication) he is doing well and is relevantly capable, not to mention very keen, to re-engage with X.[2] During the trial, the Father amended his Orders Sought. These included default Orders whereby X would come into his primary care if the Mother did not comply with Orders that re-introduced time between him and X.
[2] The distance between Canberra and City C (NSW) is some 360 kilometres, a drive of between 4 – 4½ hours, depending on the route taken.
As explained later in these reasons but summarised here, whatever deficiencies the Father has had in the past as the Husband of the Mother and as a parent to X, and accepting unquestioningly the “perfect storm” evidence of Dr H regarding the seriously debilitating circumstance encountered by the Mother with a very young X in hospital with very significant medical issues, and the Father with not insignificant mental health issues, all the evidence points to the Court finding that: (a) the Father is not the monster, or the incompetent or dangerous Father, the Mother so vehemently fears; (b) according to the Mother’s “revised” evidence on the second day of the trial, she will abide by the Orders of the Court; (c) the Mother will abide by Orders because she would be much more concerned about potentially “losing” X to the primary care of the Father if she did not. This is stated not as any “threat” but as a standard Order in family law litigation that spells out to both parties some of the consequences if Orders are not complied with; (d) the Mother will also be assisted in complying with Orders for the Father to commence spending time with X – very gradually, monitored and with significant support (familial and professional) for the Father – because she will have, as she more than implied in her evidence, the ongoing support of her Father upon whom she relies significantly. As recorded in Dr H’s Report (noted later in these reasons), the maternal Grandfather confirmed that he would be guided by the “experts” and do what they recommend. It was unfortunate that the maternal Grandfather did not give evidence at the trial; he was interviewed by Dr H for the preparation of his Report; and (e) pursuant to s.60B(1) of the Family Law Act 1975 (Cth) (“the Act”), X is entitled to have a meaningful relationship with both of his parents, to the maximum extent consistent with his best interests. This same section (along with others in Part VII of the Act) also imposes relevant protections for the child and responsibilities on both parents.
For the reasons that follow, in my view, in the light of all the evidence, the recommendations of Dr H provide the most apposite foundation for Orders that are in X’s best interests. To a degree, the Father’s Orders Sought (with some adjustments and amendments), which provide for X to remain living with his Mother but to re-commence spending time with him (and the wider paternal family), are closest to those recommendations and provide a useful reference point for what Orders are in X’s best interests. Apart from anything else, in my firm view, it would not be in the child’s best interests if X was ever to move from the Mother’s primary care. Moreover, on the basis of her changed evidence and the evidence of Dr H in particular, I am confident that the Mother will make the Orders work and that she will engage such supports (which include, to a very significant degree, her Father) that she might require to assist her to cope with, and to manage, various transitional arrangements for X in her usual energetic way. It should also be noted here that any doubtless, well-intentioned, “pushing” by the Father’s family for increased, and/or expedited, time between X and his Father, which will happen over time, should be avoided at all costs.
It also follows that, in my view, it is not in X’s best interests not to spend time with his Father. It needs to happen very cautiously with everyone – X, the Mother, and the Father – properly supported. It will very likely take a little time for things to settle down, but settle down it must – for X’s sake.
Orders sought by the Applicant Father
The Applicant’s initial Orders sought were contained in an Amended Initiating Application filed on 27th April 2022. However, on the first morning of the Trial the Applicant Father filed in Court a revised Minute of Orders Sought in relation to the parenting matters; they were as follows (emphasis in original):
ORDERS:
1.That all previous parenting orders be and are hereby discharged.
Parental Responsibility
2.That the mother, [Ms Marella], have sole parental responsibility for the child [X] born [in] 2015 (“X”).
3.The mother shall keep the father advised of the names of all medical practitioners and treating allied health practitioners that [X] attends upon and is to advise the father by email of any change within 24 hours of such change occurring.
4.Both parties are to keep the other advised of a telephone number and email address that they can be contacted on and are to advise the other of any change, by email within 24 hours of such change occurring.
5.For the purpose of all communication about [X], this is to occur via email save for circumstances of urgency at which time they may contact each other via telephone or text message.
6.That both parties by this order, authorise any school that [X] attends to provide to the other party copies of all information concerning [X], including but not limited to school reports examples of schoolwork, school newsletters, notification of all school activities, parent/teacher nights.
7.The father is permitted to contact any treating medical practitioner [X] attends upon and may receive any and all information pertaining to [X].
8.The mother is restrained by injunction from changing [X]’s surname and the mother shall ensure that [X] is to be referred to by the name ‘[X]’ .
Lives with
9.That [X] shall live with the mother.
Spends time with arrangements
10.From the date of these Orders, for a 6-month period as set out in Orders 10 (a) and (b), the father will be permitted to communicate with the child as follows:
a. For a period of 3 months (and for no less than 6 visits between the child and psychologist), the father be permitted to provide to the child’s psychologist cards, gifts and letters to the child to be passed onto the child during therapy sessions; and
b. Following the period set out in Order 10 (a), for a further period of 3 months, in addition to providing cards, gifts and letters to the child as per order 10 (a), the father be permitted to speak with the child via facetime or telephone, with such communication to occur with the child during therapy sessions; and
c. For the purpose of Order 10, the therapist is permitted to read any cards or written material before they are passed onto the child; and
d. For the purpose of Order 10, the therapist may use their discretion to decline to pass on any cards or gifts if the therapist forms the view that the child is not yet ready to receive these items or if they are inappropriate and will advise the father and provide feedback about this decision.
11.For the purpose of Order 10 (a) and (b), the father’s time with the child is conditional upon the father’s compliance with Orders 22, 23 and 24.
12.Upon conclusion of the 6-month period set out in Orders 10 (a) and (b), the father will be permitted to spend time with the child at the [City B] Children’s Contact Service on a fortnightly basis on dates and times as can be facilitated by the [City B Contact Service].
13.For the purpose of Order 12:
a. The father’s time with the child is conditional is upon the father’s compliance with Orders 22, 23 and 24.
b. Both parties must do all things necessary to complete the intake and assessment process required by the [City B Contact Service] and are to follow all reasonable directions of the [City B Contact Service].
14.Following the 6-month period of contact occurring at the [City B Contact Service] the father will be permitted to spend time with the child as follows:
a. For a period of 2 months, on each alternate Saturday and Sunday from 10.00am until 1.00pm; and
b. Following the 2-month period specified in Order 14 (a), for a period of 2 months, on each alternate Saturday and Sunday from 10.00am until 4.00pm on each day; and
c. Following the 2-month period specified in Order 14 (b), for a period of 2 months on each alternate weekend from 10.00am Saturday until 4.00pm Sunday
d. Following the 2-month period specified in order 14 (c), thereafter [X] will spend time with the father as follows:
i)Each alternate weekend from the conclusion of school on Friday, or 4.00pm on a non-school day, until 4.00pm Sunday, with these weekend periods to commence on the first Friday of each school term;
ii)In even numbered years, [X] will spend the first half of all term and summer school holidays with the father with such time to commence at the conclusion of school on the last day of term and conclude at 4.00pm on the middle Saturday of the holidays; and
iii)In odd numbered years, [X] will spend the second half of all term and summer school holidays with the father in odd numbered years with such time to commence at 4.00pm on the middle Saturday of the holidays and conclude at 4.00pm on the last Sunday of the school holidays; and
iv)For 3 hours on [X]’s birthday in the event [X] is not in the father’s care pursuant to these Orders.
v)On Father’s Day weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) until 4.00pm Sunday.
e. For the purpose of Order 14, changeover is to occur as follows:
i)On non-school days, the mother is to deliver [X] to a member of the paternal family, including the paternal grandparent/s or paternal aunt or uncle at the [City C] Library at the commencement of time and collecting the child from the Grandparents at the [City C] Library at the conclusion of time.
ii)On school days the father (along with a paternal family member) are to collect [X] from school on Friday afternoon and at the conclusion of the father’s time with [X], are to return [X] to the mother at the [City C] Library.
15.The father’s time in Order 14 is conditional upon the following:
a. The father’s compliance with Orders 22, 23 and 24; and
b. That contact between the father and child in Orders 14 (a) – (b) being supervised at all times by either the paternal grandmother, paternal grandfather, paternal aunt [Ms D] or the paternal uncle [Mr E]; and
c. The contact between the father and child in Orders 14 (c) – (d) occurring in the presence/substantial attendance of either the paternal grandmother, paternal grandfather, paternal aunt [Ms D] or the paternal uncle [Mr E]; and
d. All overnight periods in Orders 14 (c) – (d) occurring at the home of the paternal Grandparents, paternal aunt [Ms D] or the paternal uncle [Mr E]; and
e. That the paternal grandmother, paternal grandfather, paternal aunt and paternal uncle sign an undertaking prepared by the Independent Children’s Lawyer and file it with the Court prior to time in Order 14 occurring.
Child Psychologist
16.Within 7 days of the date of these Orders, the mother is to engage [Ms G], a psychologist at [F Counsellors City B] (or an alternative suitably qualified therapist nominated by the Independent Children’s Lawyer if [Ms G] is not available) who will provide psychological support and counselling for [X].
17.For the purpose of Order 16, the mother must:
a. Complete all required documentation including the intake form; and
b. Complete the intake process; and
c. Comply with all reasonable directions and recommendations made by [F Counsellors] with respect to the child’s engagement with and attendance upon [F Counsellors]; and
d. Do all things necessary to obtain a mental health care plan for [X] to minimise the costs of attendance at individual counselling, in the event that there is a shortfall in the costs of counselling, both parties are to be responsible for those costs;
e. Provide confirmation to the father via email, or via his solicitor, that she has complied with Orders 16 and 17.
18.Within 7 days of the mother confirming that she has engaged [Ms G] (or another suitably qualified therapist nominated by the Independent Children’s Lawyer if [Ms G] is not available) pursuant to Order 13, the father is to contact [F Counsellors] and provide the psychologist with his contact details and is to:
a. Comply with all recommendations and directions made by [X]’s therapist with respect to contact between the child and father.
19.Within 7 days of the mother confirming that she has engaged [Ms G] (or another suitably qualified therapist nominated by the Independent Children’s Lawyer if [Ms G] is not available), the Independent Children’s Lawyer will provide to the psychologist a copy of the following documents:
a. These Orders;
b. The Expert Report dated 22 September 2020.
c. The Family Report dated 14 February 2022.
d. The Assessment of [Ms Marella] completed by [Ms K] dated 11 April 2022.
Supports for the Mother
20.Within 7 days of the date of these Orders, the mother is to attend upon her general practitioner and provide them with a copy of the Assessment completed by [Ms K] dated 11 April 2022 and is to obtain a referral and Mental Health Plan for attendance upon a clinical or forensic psychologist, such therapist to be nominated by the Independent Children’s Lawyer.
21.For the purpose of Order 20, the mother must
a. Make an appointment with her clinical/forensic psychologist and provide the details of her psychologist to the father via email or via his solicitor; and
b. Comply with the recommendations as to ongoing attendance and treatment made by the clinical/forensic psychologist; and
c. Provide a copy of the following documents to the Psychologist:
i)These Orders;
ii)The Expert Report dated 22 September 2020;
iii)The Family Report dated 14 February 2022.
iv)The Assessments of [Ms Marella] completed by [Ms K] dated 11 April 2022.
Supports for the Father
22.The father must continue to attend upon his general practitioner, psychiatrist, psychologist and any other associated health care provider as recommended by his general practitioner, psychiatrist and psychologist.
23.The father must, within 14 days of the date of these Orders, provide a copy of these Orders to his general practitioner, psychiatrist and psychologist and is to provide confirmation of having done so to the mother via email or via her solicitor.
24.The father irrevocably authorises and directs, and this Order acts as such authority and direction to his general practitioner, psychiatrist and psychologist to contact the mother (by email at …) or her solicitor and inform them in the event that:
a. The father has failed to comply with the recommendations of treatment; or
b. The father has failed to comply with recommendations as to his attendance upon the treating practitioner.
Authorities for Child’s Psychologist and Contact Centre
25.These orders act as an irrevocable authority for the child’s psychologist to discuss each of the parties’ and the child’s progress and attendance upon them with the [City B Contact Service].
Miscellaneous
26.That each party shall contact the other as soon as practicable, in the event of any medical or other emergency relating to [X].
Default provisions/ change of residence
27.In the event that the Mother does not comply with facilitating time between the Child and the Father in accordance with Orders 10 to 14 above, for 3 consecutive occasions, or on 4 occasions in any 3 month period, without providing to the Father or the contact centre (whichever is relevant under the operative order) a medical certificate on or before the commencement of time (“the Third Default”) indicating that the child is unwell and unfit to attend the time, the following Orders 28 to 52 are to apply from the commencement of the next day immediately following the third default of the Orders (“the Commencement Date”):
Procedural
28.That Orders 1 to 27 in relation to the Child, [X] born [in] 2015 (“[X]”) are discharged.
Parental Responsibility
29.That the Father, [Mr Marella], have sole parental responsibility for [X].
30.That on each occasion a decision in respect to the long term welfare of [X] arises, the Father shall:
a. Advise the Mother in writing of the issue and his proposed decision;
b. Invite the Mother to express her view or any alternate proposal she may have within a nominated time;
c. Give genuine consideration to timely views of the Mother;
d. Advise the Mother in writing of the decision taken.
Live with/spend time with (change of residence)
31.That [X] shall live with the Father.
32.That within 24 hours of the Commencement Date, the Mother shall advise the Father via her solicitors of a time, which shall be no more than 48 hours after the making of these Orders, that she will deliver [X] to the Father, at the [City C] Library and ensure that [X] is delivered to the Father in accordance with this Order.
33.That from the Commencement Date, for a period of 3 months, [X] shall spend time and communicate with the Mother as follows:
a. Every second weekend for a period of 3 hours, at the [M Contact Service], City B (“ City B Contact Service”) and for the purposes of this Order;
i.the parties will forthwith do all acts and things and sign all documents necessary to complete any intake procedure required by the contact service;
ii.The parties will pay the fees of the contact centre equally;
iii.Time will take place as can be facilitated by the contact centre but not less than one occasion per fortnight.
34.That at the conclusion of Order 33 above, provided that the Mother has complied with orders 44, 45 and 48 below, [X] shall spend time and communicate with the Mother on the following basis;-
a. Each alternate weekend, commencing in week 1, from 9.00 am Saturday to 5.00 pm Sunday.
b. Changeover to take place [City C] Library;
35.That the parents shall each ensure that any items required to travel with [X], including but not limited to; [X]’s heart reporting machine, any other necessary medical equipment and any medications [X] may be prescribed or taking, are to be included in their belongings brought with them at changeover. The parties shall be responsible for communicating between each other in relation to [X]’s medication via text message.
NSW School Term Holidays
36.That at the conclusion of Order 33 above, for the NSW school term holidays [X] shall spend time with the Mother and Father as follows:
a. For the first half with the Mother in even numbered years; and
b. For the second half with the Father in even numbered years; and
c. For the first half with the Father in odd numbered years; and
d. For the second half with the Mother in odd numbered years.
Christmas Day and Christmas School Holidays
37.That at the conclusion of Order 33 above, for Christmas Day, [X] will spend time with the Mother and the Father as follows:
a. From 5.00pm on 24 December until 9.00am on 26 December with the Father in even numbered years;
b. From 9.00am on 26 December until 5.00pm on 27 December with the Mother in even numbered years;
c. From 5.00pm on 24 December until 9.00am on 26 December with the Mother in odd numbered years; and
d. From 9.00am on 26 December until 5.00pm on 27 December with the Father in odd numbered years.
Christmas School Holidays
38.For the Christmas school holidays [X] will spend time with the Mother and the Father as follows:
a. For the first half with the Father in even numbered years; and
b. For the second half with the Mother in even numbered years; and
c. For the first half with the Mother in odd numbered years; and
d. For the second half with the Father in odd numbered years.
Special Days
39.That at the conclusion of Order 33 above, for [X]’s birthday, he shall spend time with the parent with who he is not already spending time with, from 3.30pm until 6.30pm if his birthday falls on a weekday, and if his birthday falls on a weekend or a public holiday, then he shall spend time with the parent with who he is not already spending time from 12.00noon until 6.00pm.
40.That at the conclusion of Order 33 above, [X] shall spend time with the Father on Father’s Day from 9.00am until 5.00pm if not already spending time with the Father.
41.That at the conclusion of Order 33 above, [X] shall spend time with the Mother on Mother’s Day from 9.00am until 5.00pm if not already spending time with the Mother.
Recovery
42.That in the event [X] is not delivered to the Father’s care in accordance with Order 32 above, the Father shall be at liberty to seek Recovery Orders, or such other order effecting the change of [X] into his care as he may see fit.
43.In the event that [X] is withheld by the Mother upon or after the making of these Orders, or if [X] returns to the Mother’s residence without prior written agreement consent from the Father, then the Father shall be at liberty to seek a Recovery Order, or such other Order effecting the change of [X] into his care as he may see fit.
Counselling
44.That within 14 days of the Commencement Date, the Mother is to attend upon her general practitioner to obtain a referral for general psychological counselling and for the purpose of this Order the Mother must:
a. Make an appointment with her counsellor/psychologist forthwith and provide the details of her psychologist/ counsellor to the Father; and
b. Comply with the recommendations as to ongoing attendance and treatment made by the counsellor/psychologist; and
c. Provide a copy of the following documents to the counsellor/psychologist:
i.These Orders;
ii.Affidavit of [Mr Marella] sworn 13 April 2022;
iii.Affidavit of [Ms Marella] sworn 13 April 2022;
iv.Report of [Ms K] dated 9 April 2022;
v.Section 62G report of [Ms N] dated 14 February 2022; and
vi.Expert Report of [Dr H] dated 22 September 2020.
45.That within 14 days of the Commencement Date, the Mother shall enrol in and subsequently complete a Parenting After Separation Course and provide a certificate of completion to the Father.
46.That within 14 days of the Commencement Date, the Father is to engage a psychologist at [F Counsellors City B] to provide psychological support and counselling for [X].
47.That for the purpose of Order 46, the Father must;
a. Complete all required documentation including the intake form;
b. Complete the intake process;
c. Comply with all reasonable directions and recommendations made by [F Counsellors] with respect to [X]’s engagement with and attendance upon [F Counsellors];
d. Do all things necessary to obtain a mental health care plan for [X] to minimise the costs of attendance at individual counselling, in the event that there is a shortfall in the costs of counselling, the parties are to be jointly responsible for those costs;
e. Provide the psychologist with a copy of the following documents:
i.These Orders;
ii.Affidavit of [Mr Marella] sworn 13 April 2022;
iii.Affidavit of [Ms Marella] sworn 13 April 2022;
iv.Report of [Ms K] dated 9 April 2022;
v.Section 62G report of [Ms N] dated 14 February 2022;
vi.Expert Report of [Dr H] dated 22 September 2020;
vii.Provide confirmation to the Mother that he has complied with Orders 46 and 47.
48.That within 7 days of the Father confirming that he has engaged a psychologist pursuant to Order 46, the Mother is to contact [F Counsellors] and provide the psychologist with her contact details and is to comply with all recommendations and directions made by [X]’s psychologist with respect to contact between [X] and Mother.
49.That the Father shall continue to attend upon his general practitioner, psychiatrist, psychologist and any other associated health care provider as recommended by his general practitioner, psychiatrist and psychologist.
50.That the parents shall do all acts and things and sign all documents necessary to enrol [X] in Speech Therapy and in relation to this;
a. both parties will pay the costs of Speech therapy equally.
51.That within 28 days of the Commencement Date, the Father shall do all acts and things to facilitate a meeting with [X]’s school counselling service for the purposes of engaging [X] in counselling provided by the school.
52.That these Orders act as an irrevocable authority for [X]’s psychologist to discuss with each of the parties’ and [X]’s progress and attendance upon them with the [City B Contact Service].
General orders to apply regardless of which parent [X] lives with
53.That both parents are restrained from changing [X]’s residence to outside a 30km radius from [City C] NSW, without prior written consent of the other parent or a Court Order.
54.That within 48 hours of such a change occurring, the parents shall advise each other of any change of particulars of their residential address, landline, telephone number, mobile telephone number and email address.
55.That the parents are permitted to attend any school event or occasion, at [X]’s school, which parents are invited to.
56.That the parents shall authorise in writing the principal or alike at the school attended by [X] to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to and carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
57.The parents shall advise each other as soon as possible by the best available means in the event of the following occurring:
a. [X] being injured or falling seriously ill;
b. [X] requiring urgent medical treatment by a doctor or ambulance crew;
c. [X]’s pacemaker and heart appointments; or
d. [X] being admitted to hospital.
58.That the parents are permitted to attend any special medical appointments for [X] and the parents shall advise each other of any such appointments not less than three days prior to any such appointment.
59.That the parents are at liberty to obtain all medical records and to consult with [X]’s medical and dental practitioners, to obtain any information that they may require and that the purpose of this Order, service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority.
60.The parents shall not denigrate each other or the other parent’s family in the presence of [X] nor allow another person to do so.
61.That the Mother shall provide to the Father all of [X]’s school uniforms and school supplies on the same day [X] begins living with the Father either by way of courier or removalist service.
62.That during the time [X] is with the parents, both parents shall:
a. Respect the privacy of the other parent and not question [X] about the personal life of the other parent;
b. Speak to the other parent respectfully;
c. Not denigrate or insult the other parent in the presence and hearing of [X] and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of [X].
63.That within 14 days of the Commencement Date, the Mother shall surrender [X]’s Australian passport to the Father on the same day [X] begins living with the Father, following which the Father shall retain [X]’s passport at all times for safe-keeping.
DATED: 4 May 2022
Orders sought by the Respondent Mother
The Respondent’s revised Orders sought were contained in the Amended Response to Initiating Application filed 8th November 2021; they were as follows (emphasis in original):[3]
[3] These Orders do not reflect the Mother’s later evidence on day 2 of the final hearing where she accepted that, if the Court directed that X should commence spending time with the Father, she would comply with those Orders.
PARENTAL RESPONSIBILITY: -
1.That the Mother shall have Sole Parental Responsibility for the child [X] born [in] 2015 hereinafter referred to as (“the child”).
LIVE WITH: -
2.That the child shall live with the Mother.
SPEND TIME WITH: -
3.That the child shall spend no time with the Father.
MISCELLANEOUS:-
4.That pursuant to s 68B of the Family Law Act 1975 (Cth) that the Father shall be and is hereby restrained, by way of injunction, from attending upon the children’s home and/or school.
5.That the Mother is permitted to take the child [X] born [in] 2015 to place outside Australia in accordance with s65Y of the Family Law Act 1975 (Cth).
6.That the child [X] born [in] 2015 is permitted to travel internationally as provided for in s 65Y of the Family Law Act 1975 (Cth) and s 11(1)(b) of the Australian Passports Act 2005 (Cth) and for this purpose the Mother is permitted to apply for the issue of an Australian Passport for the child. That the Mother is permitted to take the child without the necessity for consent by the Father.
7.That the Mother and Father henceforth exclusively use the name [X] [Bracewell] as the name for the child and forthwith do all things necessary, individually and jointly including making application and executing documents, to seek the alternation of the registration of the name of the child in the register of births in the state of New South Wales from the name “[X] [Marella]” to the name ‘[X] [Bracewell]”.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s Orders sought were initially contained in a Case Summary Document filed 2nd May 2022. Those Orders were amended on two occasions. The ICL’s second version of the Orders Sought were filed on 8th May 2022.
The ICL’s further amended Orders sought were set out in her final submissions, filed 24th June 2022. They were as follows (emphasis in original):
1.That all previous parenting orders be and are hereby discharged.
Parental Responsibility
2.That the mother, [Ms Marella], have sole parental responsibility for the child [X] born [in] 2015 (“[X]”), save for the issue of passports as provided for in Order 24 herein.
3.The mother shall keep the father advised of the names of all medical practitioners and treating allied health practitioners that [X] attends upon and is to advise the father by email of any change within 24 hours of such change occurring.
4.Both parties are to keep the other advised of a telephone number and email address that they can be contacted on and are to advise the other of any change, by email within 24 hours of such change occurring.
5.For the purpose of all communication about [X], this is to occur via email save for circumstances of urgency at which time they may contact each other via telephone or text message.
6.That both parties by this order, authorise any school that [X] attends to provide to the other party copies of all information concerning [X], including but not limited to school reports examples of school work, school newsletters, notification of all school activities, parent/teacher nights.
7.The father is permitted to contact any treating medical practitioner [X] attends upon and may receive any and all information pertaining to [X].
8.The mother is restrained by injunction from changing [X]’s surname and the mother shall ensure that [X] is to be referred to by the name ‘[X] [Marella]’.
Lives with
9.That [X] shall live with the mother, conditional upon the following:
a.Within 7 days of the date of these orders, the mother is to attend upon her general practitioner and provide them with a copy of the Assessment completed by [Ms K] dated 11 April 2022 and is to obtain a referral and Mental Health Plan for attendance upon a registered psychologist (“psychologist”), such therapist to be nominated by her general practitioner.
b.For the purpose of Order 9, the mother must
i.Make an appointment with her psychologist and provide the details of her psychologist to the father via email or via his solicitor; and
ii.Comply with the recommendations as to ongoing attendance and treatment made by the psychologist; and
iii.Provide a copy of the following documents to the psychologist:
b.These Orders;
c.The Expert Report dated 22 September 2020.
d.The Family Report dated 14 February 2022.
e.The Assessment of [Ms Marella] completed by [Ms K] dated 11 April 2022.
Spend time with arrangements
10.For a period of 3 months, the father is permitted to provide cards, gifts and letters to the child and to speak with the child via facetime or telephone, with such communication to occur with the child during therapy sessions.
a.For the purpose of Order 10, the therapist is permitted to read any cards or written material before they are passed onto the child; and
b.For the purpose of Order 10, the therapist may use their discretion to decline to pass on any cards or gifts if the therapist forms the view that the child is not yet ready to receive these items or if they are inappropriate and will advise the father and provide feedback about this decision.
11.For the purpose of Order 10 the father’s time with the child is conditional upon the father’s compliance with Orders 20, 21 and 22.
12.Upon conclusion of the 3 month period set out in Orders 10, the father will be permitted to spend time with the child at the [City B Contact Service] on a fortnightly basis on dates and times as can be facilitated by the [City B Contact Service], for a period of three months.
13. For the purpose of Order 12:
a.The father’s time with the child is conditional is upon the father’s compliance with Orders 20, 21 and 22.
b.Both parties must do all things necessary to complete the intake and assessment process required by the [City B Contact Service] and are to follow all reasonable directions of the [City B Contact Service].
14.Following the 3 month period of contact occurring at the [City B Contact Service] the father will be permitted to spend time with the child as follows:
a.For a period of 2 months, on each alternate Saturday and Sunday from 10.00am until 1.00pm on each day; and
b.Following the 2 month period specified in Order 14 (a), for a period of 2 months, on each alternate Saturday and Sunday from 10.00am until 4.00pm on each day; and
c.Following the 2 month period specified in Order 14 (b), for a period of 2 months on each alternate weekend from 10.00am Saturday until 4.00pm Sunday
d.Following the 2 month period specified in order 14 (c), thereafter [X] will spend time with the father as follows:
i)Each alternate weekend from the conclusion of school on Friday, or 4.00pm on a non-school day, until 4.00pm Sunday, with these weekend periods to commence on the first Friday of each school term;
ii)In even numbered years, [X] will spend the first half of all term and summer school holidays with the father with such time to commence at the conclusion of school on the last day of term and conclude at 4.00pm on the middle Saturday of the holidays; and
iii)In odd numbered years, [X] will spend the second half of all term and summer school holidays with the father with such time to commence at 4.00pm on the middle Saturday of the holidays and conclude at 4.00pm on the last Sunday of the school holidays; and
iv)For 3 hours on [X]’s birthday in the event X is not in the father’s care pursuant to these Orders.
v)On Father’s Day weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) until 4.00pm Sunday.
e.For the purpose of these order 14, changeover is to occur as follows:
a.On non-school days, the mother is to deliver [X] to a member of the paternal family, including the paternal grandparent/s or paternal aunt or uncle at the [City C] Library at the commencement of time and collecting the child from the Grandparents at the [City C] Library at the conclusion of time.
b.On school days the father (along with a paternal family member) are to collect [X] from school on Friday afternoon and at the conclusion of the father’s time with [X], are to return [X] to the mother at the [City C] Library.
15. The father’s time in Order 14 is conditional upon the following:
a.The father’s compliance with Orders 20, 21 and 22; and
b.That contact between the father and child in Orders 14 (a) – (b) shall be supervised at all times by either the paternal grandmother, paternal grandfather, paternal aunt [Ms D] or the paternal uncle [Mr E]; and
c.The contact between the father and child in Orders 14 (c) – (d) shall occur in the presence/substantial attendance of either the paternal grandmother, paternal grandfather, paternal aunt [Ms D] or the paternal uncle [Mr E]; and
d.All overnight periods in Orders 14 (c) – (d) shall occur at the home of the paternal Grandparents, paternal aunt [Ms D] or the paternal uncle [Mr E] save for periods of overseas travel as provided for in Order 26 herein; and
e.That the paternal grandmother, paternal grandfather, paternal aunt and paternal uncle sign an undertaking prepared by the Independent Children’s Lawyer and file it with the Court prior to time in Order 14 occurring.
Supports for [X]/reintroduction
16.Within 7 days of the date of these orders, the mother is to engage [X] with [F Counsellors City C] (or an alternative suitably qualified therapist nominated by the Independent Childrens Lawyer) who will provide support and counselling for [X].
17. For the purpose of Order 16, the mother must:
a.Complete all required documentation including the intake form; and
b.Complete the intake process; and
c.Comply with all reasonable directions and recommendations made by [F Counsellors] with respect to the child’s engagement with and attendance upon [F Counsellors]; and
d.Do all things necessary to obtain a mental health care plan for [X] to minimise the costs of attendance at individual counselling, in the event that there is a shortfall in the costs of counselling, the father is to be responsible for those costs;
e.Provide confirmation to the father via email, or via his solicitor, that she has complied with Orders 16 and 17.
18.Within 7 days of the mother confirming that she has engaged [F Counsellors City C] (or another suitably qualified therapist nominated by the Independent Children’s Lawyer) pursuant to Order 16, the father is to contact [F Counsellors] and provide the service with his contact details and is to:
a.Comply with all recommendations and directions made by [X]’s therapist with respect to contact between the child and father.
19.Within 7 days of the mother confirming that she has engaged [X] with [F Counsellors City C] (or another suitably qualified therapist nominated by the Independent Children’s Lawyer), the Independent Children’s Lawyer will provide to the service a copy of the following documents:
a.These Orders;
b.The Expert Report dated 22 September 2020.
c.The Family Report dated 14 February 2022.
d.The Assessment of [Ms Marella] completed by [Ms K] dated 11 April 2022.
Supports for the father
20. The father must continue to attend upon his general practitioner, psychiatrist, psychologist and any other associated health care provider as recommended by his general practitioner, psychiatrist and psychologist.
21.Within 14 days of the date of these orders, the father is to provide a copy of these Orders to his general practitioner, psychiatrist and psychologist and is to provide confirmation of having done so to the mother via email or via her solicitor.
22.The father irrevocably authorises and directs, and this Order acts as such authority and direction to his general practitioner, psychiatrist and psychologist to contact the mother (by email at …) or her solicitor and inform them in the event that:
a.The father has failed to comply with the recommendations of treatment; or
b.The father has failed to comply with recommendations as to his attendance upon the treating practitioner.
Authorities for Child’s Therapist and Contact Centre
23. These orders act as an irrevocable authority for the child’s psychologist to discuss each of the parties’ and the child’s progress and attendance upon them with the [City B Contact Service].
Passport and overseas travel
24.Each parent shall, within 14 days of any request by the other parent give all consents, sign all documents and do all things necessary to enable the requesting parent (“requesting parent”) to obtain a passport for the child [X] born [in] 2015.
25.Failing the parent who is being requested to do all things necessary for the passport to issue complying with Order 24, the requesting parent shall be at liberty and is hereby authorised to obtain a passport for [X] absent the other parent’s consent.
26.Commencing in December 2023 both parties are permitted to travel with the child outside of the Commonwealth of Australia to countries that are signatories to the Hague Convention, provided that they shall provide the other parent with the following information:
a.Twenty-one (21) days’ notice of such intended travel;
b.An itinerary for such intended travel;
c.Contact telephone numbers and address for all places at which [X] will stay during such travel; and
d.Copies of all travel tickets or bookings and in particular a copy of the return travel ticket.
27.The parent with possession of [X]’s passport must provide the passport to the travelling parent upon request and in preparation for travel, conditional upon the provision of information required by Order 26 having been met by the travelling parent.
28.Overseas travel shall take place during the travelling parent’s time pursuant to these orders unless otherwise agreed. In the event that compensatory time is required, such time must take place within 4 weeks of [X]’s return to Australia.
Miscellaneous
29.That the mother and father share equally the costs of [Dr H]’s attendance for cross-examination at Final Hearing, noting that the parties are legally aided and that Legal Aid ACT have approved funding for this purpose.
30.That each party shall contact the other as soon as practicable, in the event of any medical or other emergency relating to [X].
31.The Independent Children’s Lawyer be granted liberty to relist the matter on short notice.
Notation
A. The ICL seeks that this matter be adjourned for a period of 6 months, on a part heard basis, to monitor the mother’s compliance with orders allowing for the reintroduction of time between [X] and his father.
Applicant Father’s Evidence
Summarised, the Father’s evidence was as follows.
At the outset of the Father’s cross examination he confirmed that he was in receipt of a disability pension. He confirmed that he was also in receipt of some “income protection” which was dependent upon him providing a doctor’s report each time. The income protection was paid approximately every four weeks. The amount he received under this income protection scheme was approximately $2,770 (every four weeks).[4]
[4] T 14.
In his financial statement, filed 27th April 2022, he confirmed that he was spending $1,658.83 per week. The Father said that he had previously disclosed his income protection as “income”.
These questions then led into him being asked how he was currently living in a rental property in Canberra and otherwise supporting himself financially. He simply said that it was “a tough ride” and that he had “a lot of support from my parents.” The result of these questions led to Counsel for the Mother putting to the Father a number of times that there was a shortfall between his income and his expenditure of nearly $1,000 per week. To this proposition, he just simply said: “I have good family that support me”. [5] I took then, and take now, that the Father’s answer should be taken to be affirmative of the proposition put to him regarding the family making up for any financial shortfall in the Father’s day to day existence. The Father also confirmed that his income protection was able to continue until retirement age or until he started work again, which he hoped to do.
[5] T 15.
The Father confirmed that it was his treating psychiatrist, Dr O, who provided the documents necessary for his income protection scheme but also more generally for the purposes of the current proceeding in relation to the Father’s mental health treatment, past and present. The Father said that he checks in with Dr O approximately every eight weeks or so.[6]
[6] T 16
The Father confirmed that although he has been living in Canberra for some little time, all correspondence, for example in relation to his income protection and the like, is sent to the postal address at his parents residence in City C “because they help look after my mail as well.”[7]
[7] T 17.
The next issue canvassed with the Father was whether or not he provided any financial support to the Mother for her ongoing care of X. The Father said that he had been putting money aside for his son but that he was not paying any money directly to the Mother because the Mother had refused such financial assistance.[8]
[8] T 18 – 19.
Still in relation to “financial support”, the Father said that he continued to pay things like rates and insurance on the former marital residence where the Mother and X continue to reside. He confirmed however that sometimes his parents pay those outgoings and sometimes he said he could afford to pay it himself. Curiously, the Father said that he pays for X’s school fees. Immediately upon being questioned why this would be so because X goes to a “public school”, the Father confirmed that this was correct. Then the Father said (emphasis added): “… his public school sent me an email. They say that you can – you don’t have to pay but I want to feel like I’m supporting my son – so I still pay a school fee for him”. In response to further questions on the same subject, he said he could not recall exactly what sort of figure was in his mind regarding “school fees”, and he confirmed that he had not yet received a notice for the next school fees which might have been “maybe one hundred and something dollars. It wasn’t a lot”.[9]
[9] T 19 – 20.
Even from this brief evidence, it might reasonably be said that there are necessarily some questions over the Father’s capacities on a number of fronts. Fairly, the Father seems to acknowledge a number of these, and equally, his heavy dependence upon his family for support of various kinds, including emotional and financial. The Father’s less than detailed, clear plans and insight into parenting now and in the future, his curious living circumstances so far from his family and X, his evidence regarding possible but currently unknown employment in the future and “income”, which still involves heavy dependency upon his family, are all significant issues. None of them, including his mental health issues, in my view, as it were disentitle him from seeking to restore, over time and with much assistance, his relationship with X.
The next series of questions most relevantly related to what might be described as part of the longer-term issue(s) regarding the Father’s mental health. In this regard there is a report from Dr P who treated the Father in 2018. The psychiatrist report refers to the Father’s condition in 2018 as being unstable and that the Father’s prognosis was guarded, which included that he may require admission to hospital for treatment. It was shortly after this report from Dr P that the Father voluntarily admitted himself to the Q Clinic in Suburb R in Sydney in 2018. As put to the Father in his cross examination, the report of Dr P, under the heading “Relationship of Psychological Injuries to his Employment”, stated:[10]
The post-traumatic stress disorder and depression are reactive to experiences of personal and family threats through his work and his sense of loss of safety. He may have had a milder episode in 2012.
[10] T 23.
The Father insisted that he first started experiencing mental health issues at the end of 2013. He confirmed, as recorded in Ms N’s report (discussed later), that he was first diagnosed with depression in 2013.
A wide range of the Mother’s contentions were put to the Father. Each of them he denied. These contentions ranged from (a) on or around the date of the parties’ wedding that there was a significant incident between the Father and his parents, (b) the Father (or perhaps his Grandparents) allegedly driving around City C for many hours until his parents (or perhaps the Mother’s parents) found him, and that when found, the Father was saying words to the effect of “I just want to kill myself”, (c) the Father insisting to the Mother that the parties could not get married and that he demanded the Mother to take off her ring and finally, (d) the Father allegedly saying to the Mother things like “I almost smashed your face in” and “last night when you were sleeping I fully punched past your face.” In relation to each and every one of these and other significant allegations, the Father denied them and confirmed that they simply did not happen.[11]
[11] T 23 – 24.
The Father confirmed that in relation to his significant mental health issues, beginning in 2013, he was sick. He said notwithstanding his mental illness, he would, and still could, recall his actions and that he had never hurt anyone because it simply “did not happen”.
The Father was taken to page 6 of the ICL’s tender bundle which was a report from Dr S. This report is dated 31st October 2018. It confirmed that the Father presented on 20th April 2018 with symptoms of depression, anxiety features, and social phobia. The Report also confirmed that the Father displayed “high levels of anxiety”. The Report went on to confirm that the Father’s Wife, Ms Marella, “reported difficulty in calming Mr Marella down when he was highly anxious.” The Father further confirmed that there were times where he would be anxious but “not aggressive” and that the Mother would help him and calm him down.[12]
[12] T 25.
The Father confirmed that there was an incident where the Mother found the Father with a butter knife and that she calmed him down on this occasion as well. This was in circumstances where, somehow, the Father had managed to cut himself with the butter knife. The Father confirmed that when he had injured himself with the butter knife, he was being medicated but he said that his medication was not “fully fine-tuned properly”.[13]
[13] T 26.
Dr S’s Report also recorded the Father becoming suspicious and displaying paranoid behaviours. The Father further confirmed that some of his then co-workers at Employer T came to his house which, the Father confirmed, frightened him significantly. Indeed, he became so frightened at times that he went to live with his parents because he was too frightened to be at home. The Father also said that at this time he had thoughts of self-harm.[14]
[14] T 26.
The Father confirmed that in relation to his ownership of guns and/or other weapons, the police came to his residence on 21st June 2018, but the weapons that he had were at a gun dealership and were up for sale. He confirmed that the attendance by the police was ostensibly to remove the Father’s weapons in circumstances where it was not possible to have mental health issues and also to own a gun licence. The Father said he was not aware of his then HR manager going to police on 20th June 2018 to report concerns about threats of self-harm; the Father said he had no contact with a HR manager but believed it was the doctor’s duty to make the report in relation to his mental health and ownership of weapons of one kind or another.
The Father did accept that those in his workplace had concerns about his mental health.[15]
[15] On page 52 of the ICL’s tender bundle is a COP’s report, dated 20th June 2018, which reports that the human resources manager at the Employer T reported to the police that she was aware that the Father was off work for stress leave for 2 months. See T 27.
The Father confirmed that the single gun that he owned and which was held at the gun shop was in fact sold.
The Father confirmed that for his work at Employer T he had medications for use with animals but that he was provided with a safe in which this medication was kept.
The Father denied that, even in the worst circumstances of his mental illness, he was any risk to his son X. He said that he did not recall any instance where he was paranoid in front of X. He seemed, however, unable to accept that he could well have been paranoid or otherwise mentally unwell in front of X. He observed that in relation to the incident of self-harming with the butter knife, he could genuinely say there was no risk to X, or that it was not done in front of him because, on the Father’s evidence, the Mother said that X was “apparently asleep”. He confirmed however that he had no specific recall in this regard.
The Father confirmed that he has had panic attacks. It was put to him that during a panic attack he would have little ability to control his behaviour in front of X. To this the Father said; “I definitely tried to – tried my best not to put X in the situation where he would feel… scared and things like that.”[16] This then led to the following exchange:[17]
- - - with trying your best is, sir, you’re not really answering the question. The reality is you accept, don’t you, that some of your behaviour at its worst when you were severely mentally unwell could have been very frightening for [X]?---It’s –it’s possible.
Right. And do you accept that it was equally frightening to my client?---Possibly, yes.
[16] T 29.
[17] T 29.
In response to paragraph 66 of the Mother’s trial affidavit where she said that the Father was (at that time in 2018) suffering from violent night terrors, the Father confirmed that this was the case. To state what presumably should be obvious: this must have been, at least and likely much worse, very troubling for both the Father and the Mother.
There was an incident on 8th November 2018 where the Mother had arranged for X to spend time with his Father at the maternal Grandmother’s residence. He confirmed that the Mother was pleading and begging with the Father to hand X back (this was after the Father had entered the Mother’s residence and had picked up X, and that the Father did not hand the child back to his Mother). In fact, X was only returned to the Mother when the police intervened. The Father’s explanation of this incident was that he was trying to take X so that the child could spend time with the paternal Grandparents.
As an observation at this stage, the evidence of the Father thus far in relation to his confirmation of, in 2018 and earlier, suffering from anxiety, depression, night terrors, engaging in self-harm, and taking the child from the Mother so X could spend time with the paternal Grandparents, would suggest, on almost any reasonable assessment, that the Father’s conduct would have been, understandably, extremely concerning for the Mother and, to a significant relevant degree, would justify on her part an extremely cautious if not completely guarded approach in relation to the Father and his unpredictability at that time, and likely for some significant period of time later.
The Father said in his trial Affidavit, and commented in his oral evidence, that he had asked the police to do a welfare check on X. In fact, he was asking the police to accompany him to the Mother’s (or maternal Grandmother’s) residence. The Father confirmed that in fact the reason for him asking the police to accompany him was for the Father’s protection. He said that he was expecting that there would be a significant argument with the Mother about his intention to take X to spend time with the paternal Grandparents. He said he was hoping the police would be able to “keep the peace”. He also said he was concerned about the presence of the maternal Grandfather at the time.[18] He said he was not concerned about any confrontation with the Mother because he said as far as he was aware they were still together and that he did not see that there was going to be a problem in this regard.[19] It followed the following exchange, which patently was almost identical to an earlier discussion, noted above:[20]
- - - with trying your best is, sir, you’re not really answering the question. The reality is you accept, don’t you, that some of your behaviour at its worst when you were severely mentally unwell could have been very frightening for [X]?---It’s –it’s possible.
Right. And do you accept that it was equally frightening to my client?---Possibly, yes.
[18] T 31.
[19] T 32.
[20] T 32.
The Father confirmed that X had open heart surgery in 2018. He further confirmed that because there developed a blockage that five days later, further surgery had to be undertaken and a pace-maker inserted. He remained in hospital for at least 3 weeks. It was during this time when X was in hospital, and the parents were staying in Location U in Sydney, that the Mother raised a range of allegations against the Father such as the Father almost punching the Mother in the face while she slept and punching her pillow instead. It was not explored at all as to whether these actions could have been taken while he was suffering from the “night terrors” referred to earlier. It was on or around 10th September 2018 when the Mother said that she found the Father stabbing the blinds in the residence where they were staying with a knife. The Father said that he couldn’t recall the date but confirmed that there was an incident but that he could not recall details. This included him being unable to remember the stabbing of the blinds; he said “something happened. I had cuts on myself.” The exchange continued:[21]
Ms HAUGHTON: But, as you say, you went there with the intention of removing [X]?---To spend time with him.
So, yes, you went there with the intention of removing [X]?---Yes.
Yes. And you know that my client would not consent to that occurring?---I did not know that she would not – I did not know that she would say no. That’s why I handed him back after.
No. You handed him back because the police told you you had to hand him back. That’s why you handed him back, isn’t it?---Yes, as well; yes, yes, yes.
Yes. Not because you – not because she said, “Please hand him back”. It took the police to make you do it, did not it? That’s the case, isn’t it?---Yes.
And if you had had your way you would have grabbed him and left the house with him and taken him to your parents’ house. That’s what you would have done if you could have got away with it?---No.
[21] T 33.
The Father’s further commentary and/or explanation in relation to his “plan” to take X to see his parents was addressed further this way:[22]
[22] T 34.
Right. Right. So – but here’s an incident where you don’t remember something happening. Do you accept that’s your evidence?---Yes.
And you were in such a state, overwhelmed emotionally – is that an explanation, do you think, for why you can’t remember what happened on 10 September?---Yes.
So we have a situation where you’ve turned up with the intention of removing [X] on 8 November, so not very long after he has had open heart surgery and a pacemaker inserted. Do you accept that?---Yes.
And not long after the mother says she found you stabbing the blinds with a knife?---Well - - -
The 10th – that’s 10 September, so - - -?---10 September. What was the date, again, of [X]’s surgery?
20 September for the first one and 25 September for the second one?---And the stabbing of the blinds?
On 10 September?---So that was before.
Before, yes?---Okay. So what was your question again?
Right. So do you accept that my client shortly before you turned up on 8 November - - -?---Yes.
- - - there had been an incident that my client – that alarmed my client about your behaviour?---Yes.
And in addition to that she says that you had told her that you punched past her face while you were staying at [Location U]?---No.
No. And we have the issue in relation to his surgery. So you would have expected, would not you, that if you had turned up on 8 November that my client would not have consented to you removing X. You accept that, don’t you?---Possibly.
Yes. And that’s – at no time and in your material you don’t say that “I had asked her if I could do that”?---I asked her when I picked him up.
Right?---Yes.
The Father further confirmed that he did not inform the Mother when he picked X up and that it was only after he had picked him up that he told the Mother that he was going to take him. Then followed this slightly longer exchange which included the police account of part of the incident:[23]
[23] T 35 – 36.
You say in your affidavit that [X] saw you and ran up to you and that you picked him up in his arms and asked him words to the effect, “Do you want to go and see Nonna and Nanna?” And [X] said, “Yes”?---Yes.
So you’ve asked this little boy if he wanted to go and see them. And do you say that’s when you decided to take him to your parents, or was that your plan all along?---I definitely – yes, I – that was my plan to spend time with him at the Grandparents’ house.
Yes?---Yes.
And you would agree, sir, that when you made – the only arrangement you made with my client was to go to her parents’ home to see [X]?---When I – when he ran into my arms, she said, “What are you doing?” I said, “I’m going to take him to see the Grandparents and spent time with them.”
The answer is – to my question is – yes?---Yes.
At no time prior to that did you tell her that you were coming to pick him up?---No.
And you then say in paragraph 65 that:
[Ms Marella] approached me when I was holding [X] and when she was close enough she proceeded to lunge at me, reaching for [X], in what I interpreted to be an attempt to snatch him out of my arms. I became immediately fearful as I did not understand [Ms Marella’s] explosive reaction.
Is that what you say?---Yes.
…
All right. And do you accept that her reaction was reasonable in the circumstances that it hadn’t been discussed with her prior to that?---It wasn’t discussed prior to that.
And [X] was still recovering from major open heart surgery?---Yes.
And you’re already booked into a mental health facility as an inpatient?---Yes.
So you accept that she would realise that you were suffering a significant mental health crisis at the time?---Possibly. If she thought of it that way. I don’t know.
And you say in your affidavit that around this time, the police arrived and may you give him back to - - -?---Yes.
Okay?---Yes.
Were you – at that time – by the police arrived you were, in fact, already moving towards your car, weren’t you?---No. I was still at the house.
All right?---Yes.
Just accept for the moment so that the cops’ report for – which is page 50 of the ICLs tender bundle says that on that day, it says the police attended after you – the defendant – reported concerns for the welfare of [X]. It’s not the way it’s typed?---Yes. Yes.
It says effectively that:
Upon arriving at the location the police observed the defendant holding his son and walking backwards on the driveway of the premises towards his vehicle.
Do you accept that was true? That’s what the police found when they got
there?---No. No, that’s not true.
They got that wrong?---I was moving backwards so [Ms Marella] would not hurt [X] with his chest.
And that the – my client appeared distraught and was following you and attempting to get the child back?---Yes.
Do you accept that’s what was happening?---Yes. Yes. Yes.
And I want to suggest that the police record accords with my client’s version that you’re moving towards your car, taking [X] and she’s pleading and begging for you not to do it. Do you accept that’s the case?---No. That’s not the case.
Rather surprisingly, the Father said that he believed that the Mother, and presumably her Father, and possibly even the police, simply over reacted on that day.[24] Respectfully, this was a rather startling comment which showed, in my view, even some years after the event, remarkable lack of insight having regard to the circumstances for everyone but especially X and the Father’s mental health care at the time.
[24] T 36.
The Father further confirmed that he was simply trying to organise to spend some time with X because he (the Father) was due to be going into hospital; he said that he did try to organise things via text message with the Mother but “nothing was happening for me”.[25] In my view, the Father’s use of the police on this occasion, among other things, was in fact the actual over reaction on the day and was rather extreme in all of the circumstances. “Insight”, again, was an issue.
[25] T 36.
He confirmed that he still has a significant suspicion of the Mother and her Father in relation to matters relating to X. He said, in my view far too baldly, that this was the reason why the litigation was continuing. When asked if there was any possible or potential bridge over the large gulf between the Mother and the Father, and which also included the Mother’s Father, the Father responded as follows:[26]
Yes. Like, not, like, you know, there’s times gone – like, I’ve been – I’ve been trying my best to – to make the mother as comfortable as possible and having a supervised contact, and I just don’t know what else to do. I’m trying – you know, I’m trying my best for everyone to be civil. I just wish we could all do this for [X], to – for his sake.
[26] T 37.
After a short break, the Father continued to be asked questions about his attendance on the Mother’s residence on 8th November 2018. He confirmed that at no time leading up to that date did he ask the Mother if he would be permitted to take X to go and visit the paternal Grandparents. He did not, however, accept that his somewhat limited account of the incident, was in any relevant respect an untruthful account of what happened. Nor was it, he said, an attempt to mislead the Court about what happened on that day.[27]
[27] T 38.
He said he had no first-hand account or any other knowledge of his cousin, Mr V, attending the Mother’s home and demanding to see X. He also said that he did not know why, if this incident occurred, it would have been potentially frightening for the Mother. The Father denied that during the relationship with the Mother he told her that if she ever left him that his cousins “would come and get her.” Likewise, he denied ever saying that his cousins were in the Mafia.[28]
[28] T 38.
Not for the first time, the Father seemed to have some difficulty in answering questions directly, or at all. For example, still on the subject of Mr V attending the Mother’s residence, he was asked whether or not his cousin had any right to attend the Mother’s home and demand to see X. In fact, the question was put even more directly to ask whether or not the Father accepted that his cousin had no such right. To this the Father simply said that he “would not know”, and that he did not “know about it.” Further still, he was asked if he could put himself in the Mother’s position when somebody comes around to the house “banging on the door, demanding to see X.” He was asked: “do you accept that that would have been alarming for her?” In my view, showing further unfortunate if not remarkable lack of insight, the Father simply replied: “I don’t know why it should be alarming.”[29]
[29] T 39.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in the Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[134]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[134] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have due regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[135]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[135] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[136]
[136] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], admittedly in a different context to what is the situation in the present proceeding, where his Honour said (emphasis added):[137]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[137] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[138]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[138] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[139] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[140]
[139] McCall v Clark (2009) 41 Fam LR 483.
[140] Sigley v Evor (2011) 44 Fam LR 439.
Subject to what is said below, the repeated reference in the cases to which I have referred to the quality of a parent-child relationship is not relevantly dependent upon the quantity of the time spent between the two.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented that (emphasis added):[141]
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
[141] Sigley v Evor (2011) 44 Fam LR 439.
In addition to the principles already outlined, because of the unique and delicate issues in this matter, the following further principles should be noted.
First, in Bondelmonte v Bondelmonte, the High Court confirmed that as important as it is to have regard to a child’s views, they are but one of a range of considerations under part VII of the Act, nor is a Court bound to follow any such views.[142]
[142] Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34] – [35] and [43]. Of course, in considering a child’s views, the Court should also be mindful of potential consequences if Orders are made that are contrary to any expressed views of a child or children.
Secondly, it is also the case that issues of relevant “risk” can apply to situations that concern various kinds of pressure that are brought to bear on a child or children that does not otherwise constitute either physical or sexual abuse. Thus, In the Marriage of R, the Full Court said, at [177] – [179] (emphasis added):[143]
[177] For our part, we echo the view expressed by the trial judge of the serious nature of depriving the father of contact in circumstances where that appears to have been engineered by the mother, without any fault on the part of the father at all. This cannot be in a child's best interests.
[178] It also does not appear to us to be appropriate for a parent to be able to manipulate the family law system to such an extent that the other parent's hope of ever seeing the child again, rests upon the possibility that she may wish to seek him out in later adolescence or adulthood.
[179] We think that a Family Court would not be doing its duty if it were to simply give in to these sorts of considerations, except in the most extreme case and only then, when a positive determination is made that the welfare of the child requires it.
[143] In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230.
Issues and assessment of “risk” (not necessarily relating to any physical or sexual abuse) may be relevant to a parent’s general parenting capacity.[144] In the current matter, it is “parental capacity” that is a central issue. In this regard, it is useful to record comments, now of a little age, from the decision in Kress, where Goldstein J said, at 319:[145]
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[144] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [56].
[145] In the Marriage of Kress (1976) 13 ALR 309.
Consideration and disposition
Although there is detailed consideration below of the “additional considerations” under s.60CC(3) of the Act, in many ways this matter turns on the Court’s consideration of the “primary considerations” under s.60CC(2), which provide as follows:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Before doing so, a comment or two regarding evidence and submissions is apposite here.
First, while it is common enough in family law litigation for the parties (and their lawyers) to be quite polarised in their accounts of events relied upon during the relationship, it is much less common for an ICL (but more likely the advocate for the ICL) to be so critical of a party, such as the Mother, in the unusual and difficult circumstances of the current matter. Critique is proper, of course, but in my view, for reasons already given, it strayed too far one way and gave the Father a much less difficult trial than it plainly was for the Mother. Rather more importantly, in my view, the Father was not subjected to a similar level of scrutiny as was the Mother.
Secondly, again to speak somewhat generally, all of the final submissions were, in a significant number of respects, unhelpful. A few, straight-forward, examples will suffice.
In the Mother’s submissions, even though the Mother confirmed multiple times in the witness box that she would abide by Court Orders, her written submissions seemed directly to disavow this evidence. The Mother’s apparent contention that, somehow, she was pressured to change her position regarding X spending time with the Father was not particularised. Nor was any Application ever filed so that any change in her evidence could be properly considered and investigated. Such a radical change in position was contrary to the Mother’s most recent evidence. Simply to make it, in effect, “on the run”, without any details or Application, was inappropriate.
The Mother’s submissions also asserted that the Father was seeking to take the child overseas. I do not understand that this was in fact the Father’s position, especially in circumstances where (a) no supervised time has even commenced, and therefore, (b) there can be no evidence available regarding how the resumption of time between Father and son has proceeded.
All of this said, given that the Mother had changed her evidence on day 2 of the trial, it was quite unhelpful (and inappropriate) that her submissions did not accord with the Mother’s changed evidence in Court. Instead, her submissions pursued the approach of essentially the “no contact” case that the Mother ran at the outset. The submissions also rather unfortunately essentially put the Court into a “choose the Mother or else” scenario, in a sort of in terrorem approach. In her earlier evidence, quite naïvely as well as much too simplistically, the Mother said a few times that she could not believe that the Court, faced with the evidence it had from her, would consider, let alone actually place, X with the Father now or in the future in the event that she defaulted in compliance with any Orders made. The Mother was cautioned or advised of the danger of adopting such an “all or nothing” approach.
This approach of the Mother, manifest certainly on the first day of the final hearing, indicated either astonishing lack of insight, lack of understanding and comprehension (commented on by a number of experts), or sheer stubbornness as if “willing” the Court to accept and acknowledge her plight during the marriage, and more recently, such that X “must” or inevitably will be confirmed to live solely with her and have no time with his Father.
I mentioned earlier in these reasons the remarkable omission in the Father’s evidence about what might be called, in a “short-hand” way, a mental health incident in early 2021 that involved his use of significant medication, over and above his daily medication. Apart from the fact that this information only came to light in documents produced under subpoena, and conversely that the Father never disclosed it himself, and that it was canvassed briefly by Counsel for the Mother in cross examination, no one mentioned this again! This was almost astonishing: a relatively recent mental health incident that resulted in the Father taking strong, and very likely excessive, medication, but which was not mentioned by him in his evidence. There were three significant things not mentioned or canvassed: (a) the incident itself, (b) the strong (and apparently overlapping) medication taken over and above his daily medication, and (c) the non-disclosure of it. And apart from Counsel for the Mother, not a question from anybody else. I am astounded and alarmed that no one addressed this, particularly when so much was levelled at the Mother regarding her evidence.
Both parties clearly have “issues”. Scrutiny was and is important. But it does have to be on the basis of objectivity for both parties. Lest it not be clear, I regard the undisclosed incident of the Father, and his use of strong medication, to have been an issue of significance which was remarkably and unfortunately not properly examined, as well as not disclosed.
A third matter of evidence and concern that was, in almost every respect, left “hanging” so to speak, concerned the limited “evidence” of Mr AC, the Mother’s Father. Although he was interviewed by Dr H in July 2020, he did not file any Affidavit in support of his daughter. The Mother said in Court that he would do so if it would assist. But nothing came from him. The Father’s Counsel urged the Court to draw the relevant inference from this omission. But as with the lack of attention to the early 2021 incident involving the Father noted above, no one addressed Dr H’s typically helpful comments, not least about Mr AC being a potentially significant “bridge-builder” (my term) as well as an ongoing critical support for the Mother. In my view, especially on the basis of Dr H’s detailed comments in his Report that the maternal Grandfather would follow the advice of the experts, Mr AC is very likely to play a central role in helping both parties to work out, likely over a long period of time, the co-parenting of X. Certainly, based on Dr H’s observations, again in my view, this aspect was equally remarkable not to have been canvassed as part of “problem- solving” for these parties, both of whom are going to be, and remain, heavily dependent upon their families for support and much else besides. However, “problem-solving” was not a strong feature of this contest.
I turn then to the “additional considerations” prescribed in Part VII of the Act. Even if not specifically referred to, I should be taken to follow them consecutively.
Given X’s age, there are no “views” to which I can relevantly have regard.
Regarding sub-paragraph (b) concerning the nature of X’s relationship with his parents and others, although repetitive, I note again that X clearly has a good and close relationship with his Mother (and apparently with his maternal Grandfather and other members of the Mother’s family). And, of course, X has spent neither time with, nor seen, his Father (or members of the Father’s family) for the better part of 4 years. The Father (and his family) speak of having had a good relationship with X when the parents were together. The paternal Grandparents speak likewise, and with notable enthusiasm, about their past relationship with X and provide their assurance of their protection of him in the future.
The matters embraced or contemplated by sub-paragraphs (c), (ca), (f) and (i), are all relevantly and significantly “coloured” by the reality already noted many times, namely the separation between X and his Father and the paternal family for some years. There is little that can properly be considered here other than to repeat what has been stated above, which includes the Mother’s almost obsessional concern about the risk that the Father poses, including his “lack” of parenting capacity. It is the co-parenting relationship – and of course the complete absence of it – that is one of the small but crucial, central matters here.
Another area of “unknown” import, perhaps best treated under sub-paragraph (d), is the Mother’s soon to be born child, X’s sibling. Like a number of other unfortunate “omissions”, this important and significant reality received remarkably little attention during the trial or in submissions.
There is little practical difficulty in any “time-with” arrangements, even though the Father currently lives in Canberra. He has ready access to his parents’ residence in City C, and indicated that any time with X in his care will be at their residence. Still, the Father’s understated evidence left multiple, if perhaps not sotto voce, questions or doubts on various fronts. These concerns include, how he fills his day playing puzzles, his completely undefined details of his proposed volunteering then [hopefully] employment, and how Dr O thinks that caring for a young child is not an issue for the Father notwithstanding that he remains on a disability pension. Actual caring by the Father of X, is unlikely to be any time soon. Even allowing reasonable progression in the time-with arrangements, the Father confirmed that he will remain dependent upon the support and assistance of his family. While necessarily rather imprecise, all of this was all so “open-ended” in its detail and time-frame, much more than is usually the case in parenting matters. In the circumstances, Donald Rumsfield’s somewhat infamous “known and unknown unknowns” comment, takes on a whole new meaning.
Of course, the Father’s Country AK heritage is an important consideration too, notably under sub-paragraph (g). As with other issues, this too takes on a different hue in the unusual circumstances here. Put another way, the question might be asked as to how does the Court consider this important family and cultural issue in circumstances of the hiatus in contact between X and his Father and the paternal family? Any re-introduction of the time-with X and his Father, and the wider paternal family (again to note: this must be done with extreme caution and support – for X, the Mother, and the Father) will, presumably, over time, accommodate the diversity contemplated by this “consideration.”
As with all other considerations, the issue or consideration of family violence is fraught. The Mother vehemently believes that she was assaulted (including sexually) by the Father during the relationship; just as vehemently, but perhaps not quite as passionately as the Mother, the Father denies any such violence. In these diametrically opposed circumstances and evidence, there is no finding the Court can make. However, the Father does acknowledge his self-harming with a butter knife, and violence of sorts directed to some window blinds in the residence at the time. These incidents were seemingly during times when the Father was mentally unwell, and certainly when he was not being treated with medication or otherwise. They clearly were (and remain) at least unsettling for both parties, but for different reasons. For the Mother, they are part of the history and experience of violence and unpredictability which, she says, she experienced during the relationship. The Father’s evidence was much less precise and more guarded.
Although stated a number of times already, Dr H’s evidence was, from my perspective, the most detailed and most helpful across the board. It will be recalled that Ms N endorsed Dr H’s Report and recommendations. That evidence – from his report and his oral evidence – very much informs my decision(s), especially regarding the Father not being a relevant risk to either himself or to X. In short, after some other preparatory engagement via cards and the like set out in the Orders, X should commence spending time with his Father at the contact centre in City B generally as proposed by Dr H and seemingly revised somewhat by the Father. It should proceed very gradually; all parties and the child need very strong support, likely professional and familial. No other members of the paternal family are to attend within the first three months of X’s time with the Father.
As noted already, there also obviously needs to be preparation and support for X, and separately for his Mother, prior to and during the first six months of supervised time between Father and son. The support and encouragement of Mr AC, the maternal Grandfather, will be crucial to making these Orders work. Ideally, the Mother should bring X to the contact centre. If, however, that would be too problematic in the early months, then the paternal Grandfather should do so.
Because of the utterly fraught relationship between the parents, and in the light of the concession by the Father and the ICL, the Mother is to have sole parental responsibility. However, through the maternal Grandfather, she is to keep the Father informed of major long-term decisions regarding X. A sole parental responsibility Order obviates the need to consider s.65DAA of the Act.
With more hope than certainty, the Orders now made by the Court are not only in X’s best interests, but they are the most likely to diminish the prospect of continued litigation. That said, the prospect of litigation remains firmly in the bands of the parties – the Mother in compliance with Orders, the Father in getting some balance, security and predictability in his life.
For completeness, because certain other matters were raised, I simply note them here.
First, the ICL proposed that the Court only make interim, rather than Final, Orders now. Respectfully, there was no evidence from any expert to support such a notion. Among other things, such a course would immediately provide a platform for one or either party to seek to re-litigate matters that have already been canvassed at length. Such a course is not in anyone’s interests.
Secondly, there was no formal Application by the Mother to change X’s surname. In her oral evidence, this was canvassed briefly. The Father seeks a restraint on the Mother from changing X’s name. In all of the circumstances, in my view, (a) it would be premature to make any Orders regarding the child’s name in circumstances where there was no independent evidence from any expert that dealt with this issue, (b) absent a formal Application and opportunity to respond to it, it would be inappropriate to consider it further here, and (c) as such, there should be no change of the child’s name unless and until there is both a proper Application and independent evidence to support it.
Finally, I request the ICL to remain in the matter for the next 12 months so that she can generally monitor matters and provide the Court with short reports or updates on how the implementation of the Orders is progressing every three months. Assuming that there is general progress and compliance with the Orders, after 12 months there will be a self-executing Order discharging her.
Should it need to be said after such long reasons, the parties, in utterly different ways, need to take gradual but sure steps to build some workable level of trust. Perhaps most particularly, without questioning the “perfect storm” of circumstances outlined by Dr H that the Mother endured a number of years ago and the enduring, scarring effect those and other related circumstances had on her, with both supreme effort and all relevant supports and assistance, the Mother needs to accept, however gradually, that all the expert evidence shows that the Father is a genuinely different person today than he was when the parties were married. The evidence plainly confirms that the Father was significantly mentally unwell during the marriage. Provided he continues to be monitored and supported by his mental health team, and abides by his medication regime, over time, the evidence shows that X will very likely benefit from having a relationship with his Father. The Court’s Orders are designed to ensure that both parties have the proper opportunity to support X’s relationship with his Father to be re-established and nurtured, without, in any way, detracting from the firm and wonderful relationship he has with his Mother – and soon with his new sibling.
I certify that the preceding two hundred and seventy (270) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 16 November 2022
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