Marella & Marella (No 3)
[2023] FedCFamC2F 1527
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marella & Marella (No 3) [2023] FedCFamC2F 1527
File number(s): CAC 1882 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – Parenting – long-time and flagrant disobedience by the Mother with Court Orders – Mother has relocated the child from NSW to Queensland in clear breach of existing restraining Orders not to remove the child’s residence from his current location – balancing of relevant risks including the steps the Mother has taken to remove the Father from the child’s life in breach of Court Orders – obvious lies by the Mother to the Court about what she would and would not do in facilitating the child’s relationship with the Father – risk to child in Mother removing him from his familiar environment (including school) contrary to existing Orders – further risk to the administration of justice if the Mother is permitted to remain in Queensland in obvious and flagrant breach of Court Orders, such matters constituting an affront to the administration of justice which would be brought into disrepute if the child simply lived with the Mother without the Mother being called to account for her disregard for Court Orders – Order for Mother to return to the child’s primary residence, and if no compliance, a recovery Order to issue and the child to live with the Father and, after a period of adjustment, the Mother to spend supervised time with the child. Legislation: Family Law Act 1975 (Cth), ss. 60CA, 60CC(2A), 60CC(3)(a) – (m) Cases cited: In the Marriage of Kress (1976) 13 ALR 309
Mulvaney v Lane (2009) 41 Fam LR 418
Partington v Cade (No.2) (2009) 42 Fam LR 401
Porter v Dyer (2020) 402 ALR 659
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Sigley v Evor (2011) 44 Fam LR 439
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 24 November 2023 Place: Canberra Counsel for the Applicant Ms A Gibbons Solicitor for the Applicant MIC Lawyers Respondent (Self-represented) No attendance/appearance Counsel for the Independent Children’s Lawyer Mr G Howard Independent Children’s Lawyer Legal Aid NSW 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:
29 NOVEMBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Final Parenting Orders of 16th November 2022 be discharged.
Parental Responsibility
2.The Father have sole parental responsibility for X born 2015 (‘the child’).
3.With respect to decisions regarding the child’s long-term welfare, 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 that 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
Living Arrangements
4.The child shall live with the Father.
5.Commencing from the date of these Orders, 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.
(b)The father to facilitate phone or video calls for X with the mother, no less than 3 times a week.
6.At the conclusion of Order 5 above, provided that the Mother has complied with Orders 13, 14, 15 and 18 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 5.00pm Sunday.
(b)Changeover to take place City C Library;
(c)The parents shall each ensure that any items required to travel with X, including but not limited to; X's 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 family dog also to be with X as a changeover. The parties shall be responsible for communicating between each other in relation to X’s medication via text message.
7.At the conclusion of Order 5, and the Mother has complied with Orders 13, 14, 15 and 18, for the NSW school term holidays, the child shall spend time with the Mother and Father as follows:
(a)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 holidays;
(b)In odd-numbered years, the child 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 holidays and conclude at 4.00pm on the last Sunday of the school holidays.
8.For the Christmas school holidays at the conclusion of Order 5, and that the Mother has complied with Orders 13, 14, 15 and 18, 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
9.At the conclusion of Order 5, and that the Mother has complied with Orders 13, 14, 15 and 18, 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.
10.At the conclusion of Order 5, and that the Mother has complied with Orders 13, 14, 15 and 18, 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 12.00pm until 6.00pm.
11.At the conclusion of Order 5 above, X shall spend time with the Father on Father’s Day weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) until 4.00pm Sunday, if not already spending time with the Father.
12.At the conclusion of Order 5, and that the Mother has complied with Orders 13, 14, 15 and 18, 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.
Counselling
13.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 these Orders and 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 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.
14.Upon nomination of a psychologist pursuant to the above Order, the Mother is to;
(a)Make an appointment with her clinical/forensic psychologist and provide the details of her psychologist to the Father;
(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)Affidavit of Ms Marella dated 13 April 2022;
(iii)Affidavit of Mr Marella dated 13 April 2022;
(iv)Expert Report of Dr H dated 22 September 2020;
(v)The assessment of Ms Marella completed by Ms K dated 11 April 2022; and
(vi)The Final Parenting Judgement of 16th November 2022.
15.Within 14 days of these Orders, the Mother shall enrol and subsequently complete the Triple P – Positive Parenting Program, and provide a certificate of completion to the Father.
16.Within 14 days of these Orders, the Father is to engage Ms AY at F Counsellors (or similarly qualified therapist) to provide psychological support and counselling for X.
17.That for the purpose of Order 16, 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 or 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 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)Expert Report of Dr H dated 22 September 2020;
18.Within 7 days of the Father confirming that he has engaged a psychologist pursuant to Order 16, 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.
19.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.
20.Within 28 days of the date of these Orders, 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.
21.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.
Airport Watchlist Order
22.The Mother, MS MARELLA (born 1991, FEMALE) and Father, MR MARELLA (born 1989, MALE), their servants and agents be hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, X (born 2015, MALE) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until such time as the child turns 12.
23.Upon the expiration of the period referred to in the immediately preceding Order and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s name(s) from the Watch List.
Miscellaneous
24.Within 14 days of the date of these Orders, 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.
25.Both parents are restrained from changing X's residence to outside a 50km radius from City C NSW, without prior written consent of the other parent or a Court Order.
26.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.
27.The parents are permitted to attend any school event or occasion, at X's school, which parents are invited to.
28.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.
29.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 medical condition related appointments; or
(d)X being admitted to hospital.
30.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.
31.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.
32.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.
33.Upon the making of these Orders, the ICL shall arrange an appointment with X as soon as practicable after the making of the Orders for the purposes of explaining these Orders to him, and if possible, prior to X changing residence and shall engage the assistance of Child Dispute Services to effect this Order.
34.That the Mother shall provide to the Father all of X's school uniforms and School supplies, X's necessary medical equipment, any medications X may be prescribed or taking and the family pet dog on the same day X begins living with the Father, either by way of courier or removalist service to be paid by the mother.
35.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.
36.The Mother shall be responsible for the payment of the Father's costs associated with this application, which shall be deducted from the shared property pool.
Service of These Orders on the Respondent Mother
37.The Court is satisfied that the records of Centrelink and Medicare are likely to contain information in relation to the following individuals:
(a)X, born 2015 (the child); and
(b)MS MARELLA, born 1991 (the Mother).
38.Pursuant to section 67N(2) of the Family Law Act 1975 (Cth), the Business Managers of Centrelink and Medicare furnish forthwith to the Registry Manager of the Canberra Registry of the Federal Circuit and Family Court of Australia such information as is contained in the records of Centrelink and Medicare in relation to the address at which the child and the Mother may be found.
39.Pursuant to section 67P(1)(d) of the Family Law Act 1975 (Cth), leave is granted to the Registry Manager to disclose to the solicitors for the Father, MIC Lawyers, and to a process server engaged by the solicitors for the Father any information provided to the Registry Manager by Centrelink or Medicare in accordance with order 37 herein.
40.Leave be granted to the solicitor for the Father to disclose to a process server the information provided pursuant to this commonwealth information order to serve these Orders on the Mother.
41.Upon receipt of the information as to the whereabouts of the child and the Mother pursuant to this commonwealth information order, the solicitor for the Father be and is hereby restrained from divulging such information to any person other than the process server effecting service of the application and supporting documents herein.
42.If service of any document is effected on the Mother using an address obtained pursuant to this commonwealth information order, the solicitor for the Father must ensure any Affidavit of Service does not state that address but identifies it only as “address provided by the Registry Manager of the Court”.
AND THE COURT NOTES THAT:
A.In accordance with standard practice, the Father’s lawyers are to ensure, presumably by a process server in the area, that the Mother is served with these Orders as a matter of urgency. Further, the process server, should, as soon as possible after service, provide a report which is attached to an Affidavit confirming service upon the Mother.
THE COURT FURTHER ORDERS THAT:
Recovery Order
43.The child be returned to the Father within 5 days of the making of these Orders, being by 4:00pm on 4 December 2023, at the City C Library.
44.Upon notification to the Court that Order 43 has not been complied with, the Recovery Order issued in Order 45 will be provided to the Australian Federal Police immediately.
45.Pursuant to section 67U of the Family Law Act 1975 a Recovery Order issue directed to the Marshal of the Federal Circuit Court of Australia and all officers of the state and federal police of the Commonwealth of Australia, AUTHORISING THESE AGENCIES ONLY to enter and search any premises or places, and to stop and search any vehicles, vessels or aircraft for the purpose of finding the child X born 2015 with such assistance as they may reasonably require and if necessary by force to recover the children and return them to the Father. This Order shall remain in the City Z Registry of the Court pending notification from the Father’s lawyers that the Mother has, or has not, complied with these Orders to return X to the City C Library as directed.
AND THE COURT NOTES THAT:
B.Pursuant to section 67W of the Family Law Act 1975 (Cth), this Recovery Order remains in force for a period of 12 months from the date of these Orders, unless otherwise Ordered by the Court.
C.Upon the transition of the child from the Mother's care or law enforcement to the Father's care, the Father shall ensure the presence or availability of a qualified child psychologist or counsellor to provide transitional assistance to the Child. The psychologist's role shall be to facilitate a smooth and emotionally supportive transition for the child during this period.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction & Overview
The long, significant and immensely unfortunate history of this matter, which has resulted in both parenting and property judgments of the Court, is recounted below. That history, most immediately, concerns the parents’ only child, X (who is now aged 8 years), and the Mother’s consistent non-compliance with the Court’s Orders regarding X and him spending time with his Father in accordance with the Final Parenting Orders made on 16th November 2022.[1]
[1] Marella & Marella [2022] FedCFamC2F 1564; Marella & Marella (No 2) [2023] FedCFamC2F 821. The current judgment must be read against the background, findings and Orders contained in the two earlier judgments noted here.
Among other things, and to speak in slightly general terms, the final parenting Orders, enjoined both parents from removing X from the general City C area in country New South Wales. Albeit circumstantial, there is significant evidence that the Mother, her partner Mr AS (and their young son AZ) have left the City C region with X and moved to Region BA in Queensland. The “evidence” provided to the Court, via multiple reports from friends of the Father and their children who are classmates of X, and according to postings on Facebook Marketplace and other “social media” platforms for the sale of numerous items by the Mother (including some of the Father’s goods, he contends) and by the Mother’s partner, is set out in the Father’s two recent Affidavits, the text of which are annexures to these reasons.
Given that the Father (or his wider, very supportive family) had not spent any time with X since 2018, the Final Orders provided for a regime of introductory time, facilitated by professional supports of one kind and another. Details are set out in the reasons in support of the Final Orders.
Again, to speak generally, whatever attempts the Court, and likewise the Independent Children’s Lawyer (“the ICL”), have made to engage the Mother in the litigation, post the trial, and to comply with Orders, have regularly and consistently proved fruitless. Even when the Mother did engage, it is impossible not to take the view that she misled the Court (and everyone else). This is to say that during the trial, she confirmed that she would abide by Orders of the Court if they provided for X to resume spending time with the Father (X having lived with his parents when he was young). This has not occurred. Likewise, more recently, she said that she would attend upon a Family Consultant in City AF for the purpose of the preparation of Report; she failed to attend. All of this said, more recently, the Mother confirmed on a number of occasions that she would not facilitate any time between X and the Father.
At the most recent hearing, Counsel for the ICL confirmed that any and every attempt to contact the Mother has failed. It also seemed that the Mother’s mobile phone is no longer operational, or otherwise now it is out of action, presumably because the Mother did not wish to be contacted, other than by her “followers” on Facebook, Instagram and other social media. A number of such “posts” are annexed to the Father’s Affidavits but otherwise need not be set out here.
The ICL is understandably very cautious in all of the circumstances here, especially in circumstances where X has spent no time with his Father (or the paternal family) for multiple years. It follows that, if the Court removes X from his, “in default Mother” (that is, almost contemptuously so), properly the ICL is concerned with the potential dysregulation of X coming into the care of his Father, supported (as he will be) by his family.
A further consideration here overall is the Mother’s openly defiant breach of Court Orders. Here, the Mother has effectively “thumbed her nose” at the Court Orders, including the restraint on moving from the City C region with the child. If the Court does not act accordingly in relation to X in the light of the Mother’s astonishing, recalcitrant conduct, there is the reality of the Mother’s actions effectively, and in reality, becoming a “play-book” for other litigants, who could fairly point to the Court doing nothing to ensure compliance with its Orders. In short, why make Orders if there is no “penalty” or consequence for non-compliance?
In response to the ICL’s concern about the lack of enforcement Orders sought by the Father in the light of the Mother’s ongoing defiance and non-compliance, the Father’s Counsel fairly points out that the Father does not seek or wish to “punish” the Mother via any enforcement proceedings. Rather, he simply seeks that the relationship between Father and son be restored and repaired. He also seeks that, after a period of what might reasonably be called “re‑calibration” of the relationship between Father and son, a range of Orders regarding the re‑introduction of the Mother into X’s life – assuming that she returns to the City C region. All the Court can do in this regard is watch this space – literally.
For the reasons given, and for those which follow, and readily accepting that there are risks and significant problems in relation to any course contemplated or adopted by the Court, somewhat tweaked (specifically, there shall not be, and cannot be, a “finding” that the Mother is in contempt of the Orders; such is procedurally inapt), the Orders sought by the Father in his most recent Application filed 23rd November 2023, should be made, with some not insignificant refinement given a number of obvious errors, including some proposed Orders that are also quite unclear. As far as it is possible to work out in the necessarily fraught circumstances here, they are in X’s best interest.
In broad terms, the Mother is to return with the child to the City C region within 5 days of the date of these Orders (the Mother is generally known to be in the City BB region of Queensland), failing which a Recovery Order (which has lain in the Registry of the Court) will issue immediately. Upon recovery of the child, he is to live with the Father (and his family) in City C NSW; the Father shall have sole parental responsibility; and the Mother shall spend time with the child as set out in the Father’s Orders Sought.
Applicant’s Orders Sought
The Applicant’s Orders sought were contained in his Amended Application for Final Orders filed on 23rd November 2023, and were as follows (emphasis in original):
1.That the Court finds the Mother in contempt of court due to repeated and wilful violation of the court orders.
Parental Responsibility
2.That the Father, [Mr Marella], have sole parental responsibility for [X].
3.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
4.That [X] shall live with the Father.
5.That within 24 hours of the making of these Orders, the Mother shall advise the Father via the Father’s 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.
6.That commencing from the date of these Orders, 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.
b.The father to facilitate phone or video calls for [X] with the mother, no less than 3 times a week.
7.That at the conclusion of Order 6 above, provided that the Mother has complied with orders 21, 22 and 25 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;
8.That the parents shall each ensure that any items required to travel with [X], including but not limited to; [X's] […] 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 family dog […] also to be with [X] as a changeover. The parties shall be responsible for communicating between each other in relation to [X’s] medication via text message.
NSW School Term Holidays
9.That at the conclusion of Order 6, and the Mother has complied with orders 21, 22 and 25, for the NSW school term holidays, [X] shall spend time with the Mother and Father as follows:
a.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 holidays;
b.In odd-numbered years, the child 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 holidays and conclude at 4.00pm on the last Sunday of the school holidays.
Christmas School Holidays and Christmas Day
10.For the Christmas school holidays at the conclusion of Order 6, and that the Mother has complied with orders 21, 22 and 25, [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
11.That at the conclusion of Order 6, and that the Mother has complied with orders 21, 22 and 25, 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.
Special Days
12.That at the conclusion of Order 6, and that the Mother has complied with orders 21, 22 and 25, 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 12.00pm until 6.00pm.
13.That at the conclusion of Order 6 above, [X] shall spend time with the Father on Father’s Day weekend from the conclusion of school on Friday (or 4.00pm if a non-school day) until 4.00pm Sunday, if not already spending time with the Father.
14.That at the conclusion of Order 6, and that the Mother has complied with orders 21, 22 and 25, [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
15.That in the event [X] is not delivered to the Father's care in accordance with Order 5 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.
16.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.
17.That this recovery order made pursuant to Section 67U of the Family Law Act 1975 is addressed to the Marshal of the Court, all officers of the Australian Federal Police and all officers of the State and Territory police services.
18.That the persons to whom this recovery order is addressed are authorised and directed to find, recover and deliver the [X] ([…] 2015) to the Father, namely [Mr Marella] or a person nominated by him in writing, and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is or was reasonable cause to believe that the child may be found.
19.That the Mother, her servants or agents, be and are hereby restrained from again removing or causing the removal of the child from the care of the Father, upon any breach of which injunction the persons to whom this recovery order is addressed are authorised and directed to arrest the mother without a warrant.
20.That the Mother pay the Father's costs of and incidental to this application.
Counselling
21.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 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 referral and Mental Health Plan for attendance upon a clinical 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.
a. Make an appointment with her clinical/forensic psychologist and provide the details of her psychologist to the Father;
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. Affidavit of [Ms Marella] dated 13 April 2022;
iii. Affidavit of [Mr Marella] date 13 April 2022;
iv.The Expert Report of [Dr H] dated 22 September 2020;
v.The assessment of [Ms Marella] completed by [Ms K] dated 11 April 2022; and
vi. The Parenting Judgement of 2022.
22.That within 14 days of these Orders, the Mother shall enrol and subeseqeuently complete the Triple P – Positive Pareting Program, and provide a certificate of completion to the Father.
23.That within 14 days of these Orders, the Father is to engage [Ms AY] at [F Counselling] to provide psychological support and counselling for [X].
24. That for the purpose of Order 23, 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 Counselling] with respect to [X's] engagement with and attendance upon [F Counselling];
d.Do all things necessary to obtain a mental health care plan for [X] to minimise the costs or 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 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. Expert Report of [Dr H] dated 22 September 2020;
vi.Provide confirmation to the Mother that he has complied with Orders 21 and 22.
25.That within 7 days of the Father confirming that he has engaged a psychologist pursuant to Order 23, the Mother is to contact [F Counselling] 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.
26.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.
27.That within 28 days of the date of these Orders, 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.
28.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].
Airport Watchlist
29.The Mother and Father, and either of their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the child’s name on the Watch List until such time as the child turns 18.
30.That within 14 days of the date of these Orders, 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.
General
31.That both parents are restrained from changing [X's] residence to outside a 50km radius from [City C] NSW, without prior written consent of the other parent or a Court Order.
32.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.
33.That the parents are permitted to attend any school event or occasion, at [X's] school, which parents are invited to.
34.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.
35.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] [health condition related] appointments;
or
c.[X] being admitted to hospital.
36.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.
37.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.
38.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.
39.Upon the making of these Orders, the ICL shall arrange an appointment with [X] as soon as practicable after the making of the Orders for the purposes of explaining these Orders to him, and if possible, prior to [X] changing residence and shall engage the assistance of Child Dispute Services to effect this Order.
40.That the Mother shall provide to the Father all of [X's] school uniforms and School supplies, [X's] […] necessary medical equipment, any medications [X] may be prescribed or taking and the family pet dog […] on the same day [X] begins living with the Father, either by way of courier or removalist service to be paid by the mother.
41. 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].
42.The Mother shall be responsible for the payment of the Father's costs associated with this application, which shall be deducted from the shared property pool.
Notation
A. Upon the transition of the child from the Mother's care or law enforcement to the Father's care, the Father shall ensure the presence or availability of a qualified child psychologist or counsellor to provide transitional assistance to the Child The psychologist's role shall be to facilitate a smooth and emotionally supportive transition for the child during this period.
Report of Ms BC
Ms BC prepared a “specific issues” Report, dated 30th October 2023. It will be admitted into evidence as MBC1. As earlier noted, despite assuring the Court that she would attend the interviews for this Report, the Mother did not so attend. The very careful, indeed, highly cautious, response of Ms BC (which is no criticism of her) is set out below (emphasis in original):
Recommendations, if any, in relation to any support that should be provided to [X], the mother and/or the father with respect to [X] being informed that [Mr Marella] is his birth father and his reintroduction to the father, NOTING that it is understood that [X] currently believes his father is [Mr AS] and he may be using a different surname than [Marella].
19. As outlined above in regard to first part of the inquiry.
20.It should be noted that [Mr Marella] has inquired and been advised by [X’s] school authorities that [X] is known as and referred to as [X Marella] in all aspects of his school life.
21.There appears to be contradictory information about whether [X] views his younger half-brother’s father, [Mr AS], as his biological father. In her report, [Ms AY] indicated that [X] has a close relationship with his maternal grandfather who he refers to as ‘Dad’ which might suggest that he does not view [Ms Marella’s] partner/prior partner as his biological father.
Any general/mental health supports to be provided to [X] in light of his current circumstances
22.A referral to a child psychologist may be beneficial for [X] which has been suggested by [Ms AY]. [Mr Marella] indicated that he has accessed a clinical child psychologist who has indicated they are willing to provide a service to assist [X] and provide [Mr Marella] with strategies to help [X’s] adjustment, if [X] were moved into his primary care.
23.A referral to the ‘[BD Program]’ children’s group work program may benefit [X]. It is an intervention program that strengthens emotional wellbeing of children and young people who are dealing with change, loss and grief in their life. The program, if available in [City C], is generally offered each school term and there may be a period of months before it becomes available for [X].
The likely impact on [X] of the mother failing to comply with Court Orders and/or failing to participate in the proceedings and whether this impacts and/or alters any recommendations made by the Court Child Expert
24.[Ms Marella] has clearly indicated to the Court that she will not comply with Court Orders that involves a re-introduction of [Mr Marella] to [X]. [Ms Marella] did, however, comply with Orders to participate in a therapeutic intervention to introduce the concept of a biological father which included making [X] available for seven sessions and participating in an individual session.
25.The benefits to [X] in relation to learning about [Mr Marella] and spending time with him and developing a relationship with [Mr Marella] are considerable. Providing [X] with an opportunity to know [Mr Marella] may help develop a better sense of his identity, his sense of self and potentially increase his feelings of self-worth and value. It will also expose [X] to a wider network of family members and the potential for close relationships with his extended paternal family including his grandparents, aunts/uncles and cousins which will develop and be available to him into adulthood. [Mr Marella] is culturally of [Country AK] background and [X] may gain a better understanding of his culture and heritage on his paternal side.
26.If [Mr Marella] is correct, it is feasible that if not currently the case with the passage of time, [X] may inadvertently learn via school peers, by overhearing comments in the maternal households, or through local community members that he has a biological father and extended paternal family members that he has not been given an opportunity to know. If the case, it may impact on his feelings of trust and security within regard to [Ms Marella] and whatever explanation she may provide to him is unknown. Children who do not know a parent sometimes develop fantasies about that parent which may become quite grandiose and intense. In addition, children sometimes experience a void or sense of lacking which they may carry into adulthood.
The mother’s capacity to support a relationship between [X] and his father, given the history of the relationship between the parents.
27.The writer is not in a position to comment directly on the mother’s capacity to support a relationship between [X] and his father. The report from [Ms AY] appeared to indicate that [Ms Marella] was triggered by the mention of [Mr Marella] being introduced as [X’s] father and that she emotionally dysregulated when this occurred.
28.It further appears [X] has been adversely affected when he was required to participate in counselling with [Ms AY]. As stated, [Ms AY] reported that [Ms Marella] ‘become very emotional’ when the concept of introducing [Mr Marella] was raised and when this occurred ‘[X] needed to be removed from the room and supported by secondary staff’. [Ms AY] reported that [X] would become distressed when [Ms Marella] was asked to stay outside, ‘his behaviour was hypervigilant’ and he ‘shut doing continually requesting to go home’.
The general care and impact on [X] of him remaining in the mother’s care.
29.The writer is not able to comment on the general day to day care parental care provided to [X] by [Ms Marella].
30.In her report, [Ms AY] indicated that when [X] presented to her for counselling, ‘all observations and information provided from the mother confirmed [X] was meeting all his developmental milestones according to age’. She reported ‘he was well groomed, good hygiene and appropriate size and physical stature’.
31.Currently, [X] does not have an emotional connection with [Mr Marella] and in his world view his family comprises of his maternal family members. The positive impact of [X] on remaining in [Ms Marella’s] care is considerable, she has provided his primary care since infancy and he will be able to maintain his sense of security, stability and ongoing warm relationships with his mother, younger half-brother, [AZ], and his maternal grandparents and extended maternal family members.
32.Without further intervention and based on information available to the writer [X] will probably be raised in a stable home environment where he feels loved and emotionally safe and secure over the longer term free from exposure to high parental conflict and the adverse impacts of ongoing litigation on his mother and her parenting and likewise on him.
33.Furthermore, the protection of [X’s] relationship with [Ms Marella] may best provide a strong and safe foundation for [X’s] emotional wellbeing and development. A protected and safe, secure and nurturing childhood will generally allow a child to grow into young adulthood with stronger personality functioning and less burden of trauma, which may provide them with a better opportunity for healthy life outcomes and good adjustment. It may also be a better foundation from which to commence and maintain an adult relationship with the father.
The father’s capacity to meet [X’s] physical, emotional and psychological needs if [X] was placed in the father’s care.
34.[Mr Marella] has not demonstrated that he is able to sole parent [X] or any child to date, he lacks parenting expertise and his capacity to parent appropriately is untested. The reality is that [Mr Marella] has not been given an opportunity to parent [X].
35.[Mr Marella] presents as a competent and responsible adult and he has demonstrated during litigation that he is highly motivated and committed to being a father to [X]. [Mr Marella] has accessed numerous professional services and programs including parenting education programs and a post separation parenting program, as outlined in his affidavit material. [Mr Marella] spoke about having communicated directly with [X’s] school authorities about [X] and his needs. He indicated that he had already sought a referral for a child psychologist to assist [X] and him to care for [X], if he is moved into his care.
36.In regard to his mental health, [Mr Marella] has sought and received treatment for his mental health and sustained this over time. His psychiatrist has provided updated reports to the Court which indicates that they have no concerns for his parenting capacity.
37.[Mr Marella] intends to live with the paternal grandparents with [X] and they are available for support and assistance should and when this is needed. In addition, the paternal aunt and uncle have indicated a willingness to provide support to [Mr Marella]. [Mr Marella] indicated that this will help him and provide some respite from the full time care of [X]. From [Mr Marella’s] account, which appeared genuine, he would use his best endeavours to support [X’s] needs.
38.[Mr Marella] acknowledges the significant challenges that he will face and the likely adverse emotional impacts on [X]. He said that he appreciates that [X] will likely exhibit a range of problematic behavioural and emotional responses about being compelled to live in a completely unknown environment with adults that he does not know and where he does not want to be. [Mr Marella] reported that he will show [X] care, love, compassion and reassurance and access all possible supports available to him to help [X] to adjust.
39.On the other hand, [Mr Marella] is unlikely to appreciate the depths of the challenges he may experience and the level of distress, anguish and emotional and behavioural difficulties [X] may display. Managing such a situation will be a very demanding parental burden for the most resilient adult. [Mr Marella] and the paternal grandparents’ coping may become rapidly exhausted and the demands of [X] may be difficult for him to manage.
The impact upon [X] of being removed from the mother’s household and placed with the father.
40.For [X] to be abruptly and forcibly removed from [Ms Marella’s] care, his primary caregiver and likely significant attachment figure will be a significantly disturbing experience for [X] and likely cause him to experience trauma and potentially overwhelming loss and grief. In reality, the scene itself of the removal will be drastically alarming for [X] and may require police involvement. [X] will be taken from his secure base, his familiar home environment and moved into an environment where the parties are completely unknown and unfamiliar to him. It appears that [X] does not know that there is a biological father, [Mr Marella] however even if this were the case, there is no existing relationship. To remove a child from their family of origin will result in a significant loss for the child and it is not taken lightly including in child protection matters where generally this occurs as a last resort when the child is considered at unacceptable risk and there is no other available means to mitigate such risk.
41.[X] will have a substantial experience of loss and life adversity which has the potential to significantly affect his emotional and psychological functioning in the short and longer term, as well as his ability to form and maintain important relationships during his life. There may be life-long adverse impacts and poor life outcomes related to [X’s] experience of loss. How [X] might react is unknown but he could present with behavioural and emotional dysregulation, either externalising or internalising (acting out/acting in) and significantly test limits. [X] will likely experience confusion, potentially feelings of abandonment or rejection by his mother, anxiety and worry, depression and in the worse scenario he might self-harm. In regard to his education and cognition, there could be decreased academic performance, preoccupation and inability to concentrate. There might be impacts on his social/peer relationships, particularly if he has compromised ability to regulate his emotions and there might be adverse impacts on his levels of social intelligence and empathy for others.
42.[X] may carry a significant emotional burden over time where he feels he is to blame for being placed with [Mr Marella]. Given [X’s] current reference for what is safe and trustworthy is [Ms Marella] and his maternal family members if [X] has a concept that [Mr Marella] is trying to cause him harm and if he forms the view that [Mr Marella] is not safe and trusting this will likely add to his experience of trauma.
43.In addition, while it is speculative about how [X] will respond if he externalises his feelings, it is feasible that not only will [X] act out at school and with [Mr Marella] but he might try to run away either from school or [Mr Marella’s] home, putting at risk of physical harm.
Written submissions of the Applicant Father
The Applicant Father filed 7 pages of pre-hearing written submissions on 22nd November 2023, which are outlined as follows (emphasis in original):
1.These are proceedings in respect of final Parenting Orders in relation to the parties’ son, [X], born […] 2015 aged 8 years.
2.The Father seeks Orders in accordance with the final Orders contained in his Amended Initiating Application filed 22 November 2023. In summary, those Orders provide for [X] to live with his Father for a period of three months after which [X] spend supervised time with the mother and supervised by [M Contact Service] at [City B] on an increasing pattern until it reaches unsupervised time every second week end from 9am Saturday to 5 pm Sunday and 1/2 of the school holidays.
3.The Father seeks a change of the child’s residence given the Mother’s flagrant disregard for Court Orders and more importantly and of concern, the Mother’s unwillingness to facilitate a relationship between [X] and his Father to the extent that she has moved interstate some 2,000,00 kilometers. The mother’s blatant blackmail of the Court knowing the difficult task that it has to contemplate and remove [X] from his new surroundings and place him with his father with whom he does not have an established relationship.
4.The uncontroversial facts of this case are as follows:
(a)The parties separated on 1 November 2018.
(b) [X] has not spent any time with his Father since November 2018.
(c)Final Orders were made on 16th November 2022 after a final hearing having taken each and every priority into account for [X] to spend time with the Father through a process which included a process of making aware of who his father is and reintroduce him to his father. After the final hearing, the mother stated that [X] did not know who his father is or in the alternative that [X] believed that the mother’s partner was his biological father. The Mother sought that there be no contact between [X] and the father. The father presents evidence that [X] does know that he is his father and as predicted by [Dr H] that [X] would eventually question who his father is and why he has no contact and importantly that he will suffer loss and sadness as a result.
(d)The father and the ICL present evidence that the mother has relocated to Queensland in defiance of the Court order not to move more than 50 km from [City C]. The inference that is available to the Court is that [X] has reached that point in his development when knowing his father has become important to him and this may have motivated the mother’s relocation to Queensland to avoid the consequences of a healthy and meaningful relationship developing between [X] and the father.
(e)The Father has done all acts and things and complied with all Court Orders to facilitate establishing a relationship with [X] and having some form of contact with him.
(f)The Father’s actions include commencing these Court proceedings, enrolling with the [City B Contact Service], and complying with the treatment and recommendations of his mental health practitioners. The Father has completed parenting courses including Parenting After Separation, the Positive Parenting Program, and Co-Parenting After Separation (paragraph 63 of the Father’s Affidavit). In addition, he participated in the process with [Ms AY] of preparing [X] to be reintroduced to him.
(g)The Mother frustrated the process of reintroduction by not attending with [X] and by demonstrating emotional behavior in the presence of [X]. [Ms AY’s] comments that the mother was not emotionally available to [X] and she had to settle him when he was upset. In addition stating in the presence of [X] “We do not talk about his dad”. The inference available to the Court is that this statement in [X’s] presence had the effect of stifling and or forbidding [X] from asking questions or inquiring about his father. This statement also flies in the face of the of the notion that [X] believes that the mother’s partner is his biological father.
(h)The Mother has failed to engage with and enroll in the [City B Contact Service] despite being ordered to do so by Orders dated 1 September 2020.
(i)The Father was subject to an ADVO from [early] 2019 until [early] 2020. The ADVO has now lapsed. The Mother did initiate proceedings for a further extension of the ADVO; however, the application was dismissed on the day of the hearing. It is noted that there were no breaches of the ADVO. Additionally, there were no charges associated with the ADVO, nor have there been any charges laid against the father at any other time.
(j)[X] has not spent any time or communicated with the paternal extended family since November 2018. It is submitted that the mother and maternal family purposefully prevented [X] from continuing his relationship with his paternal family. I may interest the Court the maternal grandfather in his interview with [Dr H] page was of the belief that had if the father had approached the mother for contact earlier, she would most likely have agreed. This position is inconsistent with the notion that the father posed or poses a threat to [X] or the mother.
(k)The Mother has failed to comply with the Orders on multiple occasions as set out in the father’s affidavit dated 22 November 2023.
5.The Court is required to make a determination of the child’s best interest by reference to the primary and additional factors referred to in Section 60CC. It is contended that the Court must balance the primary considerations of the child having a meaningful relationship with both parents and the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect, or family violence.
It is contended by the Father that the Mother’s complete refusal to engage in the Court process, in particular comply with Orders of the Court that provide for [X] to have a meaningful relationship with his father is not in the child’s best interest and amount to the child being exposed to psychological harm.
6.The Father contends that there is a risk of psychological harm to the child if he is prevented from having any contact with the Father and accordingly prevented from having and developing a meaningful relationship with the Father. The Court has the benefit of the Single Expert Report prepared by [Dr H] dated 22 September 2020. [Dr H] identifies the following:
(a) At 1292, and assuming the current arrangements continue:
“… as he ([X]) becomes older in primary school and as an adolescent, I believe that he would start to wonder why he hasn’t been able to see his father and hasn’t been able to develop a relationship with his father and paternal grandparents. Therefore, this would be a significant sad loss and confusing for [X] in the long term not to know his father.”
(b)At 1296 (if the parties and a Court wait until [X] is 10 years of age to reintroduce contact with the Father):
“… this nevertheless would be sad for [X] not to know his father for another number of years but would protect [Ms Marella] from the fear and stress involved with arranging contact with [Mr Marella].”
(c)On page 2 of his Report under the heading “Executive Summary” the following:
“[Mr Marella] now has successfully undergone treatment and appears to be mentally well and I believe does not present an unacceptable risk to [X] or [Ms Marella].”
“However [Ms Marella] has still high degrees of anxiety and fearfulness about [Mr Marella]. The challenge now is for [Mr Marella] to maintain his mental stability and for [Ms Marella] to overcome her fear and anxiety in order to allow [X] to gradually develop a relationship with [Mr Marella] whom he hasn’t seen since November 2018.”
7.The Mother and the Court have had the benefit of [Dr H’s] Report since September 2020. Despite this, the Mother has embarked on a course designed to deprive [X] of having any relationship with his father. The inescapable inference is that the mother’s move to Queensland can leave the Court in no doubt that if the mother’s cooperation is required to act in [X’s] best interests that she will defy any order of the Court no matter what it contains.
8.In respect of the Mother’s case that the Father poses an unacceptable risk of harm to the child given his previous mental health-related issues, it is submitted that the Court has a plethora of evidence before it that would support the Father’s contention that he has been compliant with the directions of his treating medical practitioners and that the Father has demonstrated his ability to effectively manage his mental health issues. The father has provided an up to date report that supports the father’s stable and uneventful mental health for some time.
9.The Mental Health Assessment Report from the Father’s Psychiatrist, [Dr O], filed 11 February 2020, states the following:
(a)The Father’s diagnosis is major depression (in remission) with partial symptoms of PTSD.
(b) [Dr O] states that the Father:
“… has progress well with the … treatment regime … and achieved a remission from his major depression …”.
“He has also become able to cope with his PTSD symptoms and his current mental stateis assessed to have remained stable.”
“It has also been my opinion that [Mr Marella] has shown a good and healthy attachment to his son and he would not in any way present a danger to him if he were to be granted access to his son.”
“I do not believe that [Mr Marella’s] TPD will have an adverse impact on his capacity to care for his child, [X]. He has been maintained on the least effective dose of medication for his condition which will not in any way interfere with his ability to care for his son.”
And more recently he has reiterated a similar opinion in his report attached to the father’s affidavit dated 22 November 2023
10.[Dr H] makes further findings that the Father does not pose an unacceptable risk of harm to [X] and in respect of the management of his mental health, at line 1194, [Dr H] states:
“I am not aware that he has ever presented a serious threat or danger to others,”
11.It is also noted that the father has recommenced employment with the flexibility of working from the relevant office in [City C]. This is further evidence that the father’s mental health is stable and has been for some time.
12.The Father also relies on the Affidavits of his parents, [Mr AE] and [Ms AB]. The Father’s parents identify to the Court that they are available and happy to assist [Mr Marella] in caring for [X’s] physical, emotional and financial needs and the Court will note the Father, in paragraph 78 of his Affidavit, states that whilst he is currently residing in [City Z] in rental accommodation:
“… I reside with my parents in [City C] regularly. I intend to reside with the paternal grandparents until such time that I can obtain alternate accommodation in [City C] should [X] live with and/or spend time with me.”
13.It is also noted that the paternal grandparents have filed undertakings with this Court dated 28 June 2021.
14.It is submitted that the Court would not be satisfied that the Mother has complied with the assessment of a psychologist.
15.The considered decision of the Court to date has been that [X] will benefit from a Relationship with his father and reflects [Dr H’s] opinion. In addition it is noted that at the time of his report [X] was 5 years old [X] is now 8 years old and in the space of young person/and soon a young adult.
16.It is submitted that the Mother has evidenced a clear intention to minimize the Father’s role in [X’s] young life. In addition the Mother has also evidenced a clear and willful intention to have no regard for the Orders of this Court.
17.It is submitted that Orders placing the child in the Father’s care, noting the Affidavits of the paternal grandparents and the undertakings they have previously filed with the Court, will result in the child maintaining a close and loving relationship with the Father whilst also protecting the child from any risk whilst the child remains in the Mother’s care.
18.It is an inescapable inference that depriving [X] the opportunity to know who he is will undermine his very identity and his ability to develop a confident sense of self without feelings of abandonment by his father. It is submitted that the Court can infer that the mother will instill fear in [X] as he inquires into why he does not know his father on the basis that his father is a threat to him and the maternal family. This unhappy outcome is likely to cause [X] to lack the confidence to trust his instincts and derail his ability to develop into a confident resilient young adult. The facts that surround this outcome evidence a willful and sustained abuse of [X].
19.It is submitted that the mother’s belief that the father is a threat to [X] is the result of the maternal grandfather’s grief about the tragic death of his mother at the hands of his father who was an alcoholic and domestically violent. The available inference for the Court is that maternal grandfather and the mother have transferred their generational grief to the father through a disproportionate emotional response to these earlier tragic events and have wrongly interpreted the father’s brief mental health difficulties as posing an ongoing treat, if it ever was a threat, to [X] and the mother. The evidence of the father sought treatment and followed the advice of his professional treating psychiatrist to the extent that he is now employed for some time will persuade the Court that he has the capability, resources and the insight to manage a change of residence for [X] regardless how it is executed.
20.True it is that the Court has a difficult decision to make about the future parenting arrangements for [X] but it should not be afraid to make a decision that will serve [X’s] welfare for many years to come versus a short period of discomfort for [X]. In addition such action will have the affect of averting the psychological abuse perpetrated by the mother who acts with the confidence that the Court does not have the metal to call her bluff.
21.The father places his faith that the Court will act in [X’s] best interest and take the necessary step to place [X] in his primary care relying on the evidence that he does not pose a threat to [X’s] welfare and on his undertakings that he will promote and facilitate [X’s] relationship with his maternal family as soon as it is feasible.
22.The Mother does not prosecute her case. At best she has informed the Court that she has no intention of following any orders made by the Court where they do not agree with her own beliefs. The father has spent significant money prosecuting his case for [X] to know and spend time with him on the basis that orders would be complied with when made in [X’s] best interests.
23.It is submitted that the mother’s lack of engagement and her not presenting [X] to the Court expert to assess how [X] may or may not react to being placed in his father’s care for a period of time until it is feasible for him to reengage with his mother and grandparents has significantly reduced the value of the latest report by the Court expert.
24.The expert has had to rely on the unknown young person and has opined in a vacuum as to how the theoretical 8 year old would react to the proposed changes to his living circumstances and has opined that the theoretical young person could experience loss and grief that may overwhelm them. This opinion is based on the belief that [X] does not know who is father is which on the father’s evidence is not the case. it also is guided by the Reports of [Dr H] that are now some three years old whereas [X] has advanced in his development and understanding of who he is. For instance had the expert explored this area of [X’s] understanding with him in person the expert may have come to a different conclusion. Yet again the mother has willfully stymied the Courts attempt to understand the issues surrounding [X’s] future welfare.
25.It is submitted that with professional assistance the father who is a competent and responsible adult will ensure that any grief, loss or confusion experienced by [X] will be minimized. The father’s position is that as soon as it is feasible he will facilitate time with the mother and the maternal family thus further assisting [X] to adjust to his new circumstances. It is noted that the effect of returning [X] to the [City C] area is likely to be eased by his familiarity with his school, his maternal grandparents and the community with whom he is familiar.
26.It is within the mother’s powers to return to the [City C] area to ease any loss that [X] may experience. It is likely that in the father’s care [X] will experience a minimum of psychological distress and the Court can be confident that the father will facilitate any measures that [X] may suggest or request to ease any loss he may experience. It is noted that the mother by virtue of her relocation to Queensland has separated [X] from his maternal grandparents whom the father acknowledges are significant attachments for [X] as are his school connections in [City C].
27.It is submitted that [X] is a significant, unnecessary, and unacceptable risk of psychological harm in the mother’s household as set out earlier and that this has been exacerbated by her relocation some 2000 km away which in turn extinguishes any opportunity for [X] to reconnect with his father.
28.It is submitted that the expert’s opinion in this case is based on the obvious deficiency created by not having interviewed [X] or the mother and therefore cannot but speculate what the actual or likely effects that changing [X’s] place of residence will have on [X]. Nor can she opine reliably what the effects that the mother’s relocation to Queensland has and or will have on [X] in the circumstance where he is separated from his maternal grandparents and his school friends and the area that he has grown up with in addition to his awareness that he knows who his father is and what effect that the mother’s narrative that his father is dangerous will have on his development.
29.If not now, when? Once [X] has settled in Queensland returning him to [City C] will have the effect of disrupting his social adhesion to his new surroundings as his connections to [City C] will necessarily diminish. The father asks the Court to take this opportunity to return [X] to an environment that he is familiar with before he forms attachments in Queensland that will necessarily increase the possibility of distress for [X] were the Court to delay his recovery to the father’s care.
Written submissions of the Respondent Mother
The Respondent Mother did not file any written submissions in accordance with Orders of 4th October 2023.
Written submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer filed 1 page of pre-hearing written submissions on 21st November 2023, which is outlined as follows (emphasis in original):
1.This is a case in which the Court is required to make a difficult decision about the future parenting arrangements for [X], who is 8 years old. The Court has previously made orders for [X] to live with his mother and orders which provide for [X] to understand his parentage, to be introduced to his father and to spend supervised time with him on a graduating basis. Although some attempt was made to implement the orders, [X] remains unaware that the applicant is his father and has not spent any time with him. The father now asks the Court to make orders for [X] to live with him. The mother opposes the father’s application but is not participating in the proceedings.
2.The Court Child Expert has provided a report, which sets out the very serious risks to [X] if the Court were to make the orders sought by the father. Those risks include:
a.That an abrupt and forceful removal from his mother’s care will be a significantly disturbing experience for [X] and will likely cause him to experience trauma and potentially overwhelming loss and grief.
b.That any removal will be drastically alarming and will likely require Police involvement.
c.[X] will have a substantial experience of loss and life adversity which has the potential to significantly affect his emotional and psychological functioning in both the short and long term, as well as his ability to form and maintain important relationships during his life.
d.Life-long adverse impacts and poor life outcomes.
e.That [X] may present with behavioural and emotional dysregulation, with may be externalised or internalised.
f.That [X] will likely experience confusion and may experience feelings of abandonment or rejection by his mother, anxiety and worry, depression or self-harm.
g.Although the father presents as a competent and responsible adult, he lacks experience as a parent and his capacity to parent is untested.
h.That the father and his parents may not be able to manage the emotional and behavioural difficulties that [X] may display.
i.There may be negative impacts on his education and his peer relationships.
j.The risk that [X] may run away, placing himself at risk of physical harm.
3.The risks identified by the Court Child Expert are likely to be exacerbated by [X] being placed in his father’s care in [City C], which is now a considerable distance to where [X’s] mother, partner and child are now living.
4.The Court Child Expert also considered the benefit to [X] in being able to develop his relationship with his father. The Court is however, required to give greater weight to s 60CC(2)(b) and the need to protect [X] from physical or psychological harm.
5.Notwithstanding the mother’s non-compliance with orders, this is not a case where there is an unacceptable risk to [X] if he remains in her household. As set out by the Court Child Expert, the removal of a child from their primary caregiver should only occur as a last resort, where the child is considered to be at unacceptable risk, and where there is no other way to mitigate that risk. On the other hand, the father’s proposal poses serious risks to [X].
6.This is a case in which there has been a change of circumstances since the parenting orders were made on 16 November 2022. For the reasons set out above, the ICL contends that orders 3 – 8 and 10 - 29 of orders made on 16 November 2022 should now be discharged and that the father’s application should otherwise be dismissed.
Outline of principle
In Sigley v Evor, at [136], the Full Court commented as follows (emphasis added):[2]
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’ ”.
[2] Sigley v Evor (2011) 44 Fam LR 439. See also the Full Court decision in Mulvaney v Lane (2009) 41 Fam LR 418 at [88] to similar effect.
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 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):[3]
[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.
[3] 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.[4] 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:[5]
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.
[4] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [56].
[5] In the Marriage of Kress (1976) 13 ALR 309.
This is very much the case here and the Court’s delicate task in the light of the troubling, discordant evidence that is before the Court.
In saying all this, the Court is acutely conscious of its protective responsibilities to X, notably under s.60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”). The Court is also very conscious of the diligence of the Father to attend to his significant mental health issues that were canvassed at both trials, and the expert evidence he provided from Dr O, whose evidence was very supportive of the capacities of the Father. The Court also had the benefit of the paternal Grandmother’s evidence at the parenting trial. His parents have diligently attended Court events and indicated their full support for the Father and their undiminished support likewise for anything that X would require.
Consideration and Disposition
It is a regrettable and highly unusual circumstance that I do not agree with the submissions of the ICL here, especially one who is widely and highly respected, including by the Court. Regrettably here, in my view, the ICL’s submissions do not give appropriate consideration of the flagrant conduct of the Mother, and the wider and adverse impact that would have if the Mother was able to remain in Queensland in breach of long-standing Orders, and ongoing breach of directions by the Court. The Mother’s actions have flagrantly deprived X of any relationship with his Father (and the paternal family) for the better part of 5 years. In my view, it would be, and is, unconscionable, to let the Mother continue to flaunt (in every sense of the word) her disregard for the Court, and equally for her misguided disregard for X to continue in depriving him of the relationship with his Father.
Put another way, to permit the Mother to remain living with the child in Queensland, without sanction or censure, and in obvious and flagrant breach of Court Orders, would bring the administration of justice into complete disrepute.[6] It is also the case that neither the Father, nor the Court, know precisely where the Mother is currently residing with X, Mr AS and their young son. As such, the Court cannot and does not know if there are, for example, any safety issues arising from their location. It is a matter for her whether she remains living in her locality, but she cannot do so while-ever X remains with her. If she remains there, X cannot remain with her, and must thereby live with his Father in City C and return to his school and circle of friends.
[6] A comprehensive consideration of relevant principle regarding the “administration of justice” is set out in the Full Federal Court’s decision in Porter v Dyer (2022) 402 ALR 659 commencing at [107] (Lee J; Besanko and Abraham JJ agreeing)
It also follows from the Mother’s flagrant conduct in not complying with Orders, especially in breach of removing X from the City C region, that if it ultimately is the case that if she returns with X to City C, the child must still move into the Father’s care because I have no confidence at all that, contrary to her revised, positive evidence at trial confirming that she would do so, the Mother will ever facilitate a relationship between Father and son. For the last 12 months, the Mother has obfuscated, lied, opposed, and done everything in her power to prevent any time to be spent, or otherwise to facilitate the relationship, between X and his Father, including even procedural Orders, such as attending the specific issues interviews, which she said she would do. Such dedicated opposition and conniving conduct cannot be allowed to continue.
The Mother has consistently, but in very general terms, considered X to be at some form of “risk” if left in the Father’s care. The Mother’s concern in this regard seems quite clearly to have become engrained in her mind over the years as this almost mantra of concern has been expressed. It was and remains her justifying basis for not just opposing X spending any time with his Father, but also for actively taking steps to comply with Court Orders to facilitate it. Such matters were canvassed at length at the final hearing in May 2022, including by the various experts in their Reports discussed in the reasons for the Final Orders. To state the obvious: these reasons must be read in conjunction with the two sets of reasons for the Final parenting and property Orders. The experts, including and in particular, the Father’s treating psychiatrist, Dr O, confirm that there is no such risk. As noted in earlier reasons, I have no reason to doubt the expert evidence confirming the capacity of the Father to care for X. This is especially so being supported by his family.
I should add that the broad range of informal communication between the Father and multiple parents of X’s friends and class-mates set out in the annexures to his Affidavits, indicate reasonably clearly that X (among other things, with his patent, clearly paternal Country AK heritage; his Mother is another heritage) is quite well aware of the identity of his Father. In some correspondence, there is some suggestion that the Mother has been promoting Mr AS as X’s Father. If this was to be happening, even obliquely, it would only even more cogently (if anything more was required, which it is not) to the need for the Court’s now urgent attention and action. It is quite undisputed that Mr AS is a relatively recent partner of the Mother. Indeed, for a time, the Mother contended that (a) she was not in a relationship with him, (b) he provided the Mother with the “assistance” she required to have another child, but (c) she sought no financial support from him for this second child. As indicated above, it now seems undisputed that the Mother and Mr AS, as a couple, together with X and younger brother AZ (who is now perhaps one year old) have relocated to Queensland.
In addition to what was said at the outset of these reasons, and above, I note the following.
Following a Final Hearing in May 2022, and the delivery of a lengthy judgment, Final Orders with respect to parenting were made on 16th November 2022. As of today, in accordance with those Orders, the Father should be spending time with X at a contact centre, and near spending time with X supervised by the paternal family.
Separately, the Mother, in accordance with Order 20 – 21 of the Orders of 16th November 2022 should have attended upon a clinical/forensic psychologist to assist her to facilitate contact between the Father and X, and the benefits of this relationship to X. It is not known if this has occurred – the Court has not received any advice in this regard.
The Court records that this matter remains a case of ongoing non-compliance of Court Orders by the Mother, and the consequent frustration this is causing for the Father.
Observations by Dr H in his Report dated 22nd September 2020 noted that the Mother ‘can’t see a role’ for the Father with X, and that the Mother had intended to obtain a report from M Contact Service to ‘indicate there was no benefit in [X] having a relationship with’ the Father.
At the Final Hearing in May 2022, the Mother advised, when asked directly by Counsel for the Father, that if the Court were to Order that X is to spend time with the Father, the Mother would do as the Court ordered and facilitate that time. The Mother confirmed that if the choice was between X remaining in the Mother’s care and spending time with the Father, or going into the Father’s sole care, she would choose her care and abide by the Court Orders. The Mother also confirmed that if the Court ordered that X were to live primarily with the Father, she would ‘do as the Court orders.’ Because the Court directed the Mother and her lawyers to confer regarding compliance with parenting Orders regarding X, in the Court’s view, it is clear that the Mother was advised and aware of the possible risks of non-compliance with Court orders, including that X could end up living primarily with his Father.
At the Final Hearing in May 2022, Ms K, who had undertaken a psychological assessment of the Mother in April 2022, indicated in her oral evidence that she thought the Mother had demonstrated a willingness to comply with Court orders to the extent of making appointments and going to psychological sessions. She suspected, however, that she may have issues following through, and did not go so far as to say the Mother would not actually facilitate time between X and the Father. Further, Court Child Expert, Ms N noted in her own Report dated 14th February 2023, that it was likely the Mother would struggle to ensure X was not exposed to her own fears about the Father; Ms N thought it doubtful that the Mother would ‘have the capacity’ to comply with an Order to facilitate X spending time with the Father.
Although not made, the Father sought Orders at the time of the Final Hearing in May 2022 that in the event the Mother did not comply with facilitating time between X and the Father without relevant reason, X’s primary residence should change to live with the Father.
The Report of Ms AY, annexed to the Affidavit of the Independent Children’s Lawyer filed 6th September 2023, noted that the Mother has not supported X’s requirement to be at counselling, and that the Mother has demonstrated a lack of communication and has failed to offer emotional support to X about his attendance upon Ms AY. Ms AY advised that the Mother’s behaviour ‘would inhibit any further attempts at introducing’ the Father to X due to the Mother’s emotional unavailability and inability to be present to support X’s needs. The Mother’s inability to be child focused and her unfounded fears for her safety limited Ms AY’s ability to reintroduce “the concept” of the Father to X.
On 5th July 2023, the Mother was ordered to file and serve an Affidavit and Amended Response. This did not occur. On 31st July 2023, the Mother advised she would file her Response on the same day. The Mother was ordered to file her Response within 48 hours. This did not occur. On 22nd August 2023, the Mother failed to attend the listing, virtually or otherwise. Both the Court and the Independent Children’s Lawyer attempted to make contact with the Mother by email and by phone. Again, the Mother was ordered to file her Response material pursuant to the previously made orders within 7 days. This did not occur. The Mother’s Response material remains outstanding and those Orders directing that she file such material remain in effect.
At the Undefended Hearing on 4th September 2023 the Mother attended by video-link. Orders of 22nd August 2023 required the parties to register with BE Contact Service in City C NSW within 7 days. The Mother advised on 4th September 2023 she had not done this. When asked if she would, the Mother confirmed she would do it within 48 hours. When asked directly if the Mother would be facilitating a relationship between the Father and X, the Mother plainly stated ‘definitely not’. The Mother advised that she would be complying with Orders of the Court that were procedural in nature, such as registering for the contact centre, but would not be ‘following through’ to facilitate X’s reintroduction to the Father.
A further Undefended Hearing was listed for 15th September 2023 to allow time for the Independent Children’s Lawyer to obtain a Report from Ms AY. It was understood that the Mother was not in attendance at this Hearing as she failed to announce her appearance, or make her presence known at any point. Accordingly, the Hearing proceeded on an undefended basis, noting also that the Mother had again failed to file any Response material as ordered on numerous occasions previously. The Mother contacted Chambers by email on 19th September 2023 advising that she had been dialled in to the Court on 15th September. Accordingly, all comments made by Counsel on behalf of the Independent Children’s Lawyer (and the separate comments by the Court) about the potential risks of X’s forcible removal from the Mother’s care by police should the Court order a change of residence presumably have been heard by the Mother.
As foreshadowed, following discussions with a Child Court Expert, Orders for a Child Impact Report remain in effect and interviews will take place. It is likely that, formally, the Report will be described as a Specific Issues Report, which will address previously Ordered Terms of Reference prepared by the ICL. One of the acute matters to be addressed in this Report will relate to the possible impact upon X if he is removed from the Mother’s care and placed with the Father. All parties are expected to attend at their allocated times. As soon as possible, and as a matter of urgency after the release of the Child Impact (or Specific Issues) Report, the matter will be listed for Final Hearing to deal with any findings and recommendations in the Report, and in particular, in the light of the Mother’s ongoing non-compliance in relation to X’s relationship with the Father being facilitated.
In the event at such a Hearing that there remains non-compliance by the Mother with the Orders of November 2022 and those listed above, it is likely that it would be unnecessary for the Father’s Counsel, subject to what is contained in the Child Impact (or Specific Issues) Report, to make any further submissions, noting that submissions have already been made at the Undefended Hearings on 4th September and 15th September 2023 regarding a likely change in residence. The Mother again did not attend the [undefended] hearing on 24th November 2023. Counsel for the ICL confirmed that the ICL had tried to contact the Mother but without success. Indeed, it appeared to the ICL that the Mother’s mobile phone was no longer operational. There was no response by the Mother (or anyone on her behalf) to the “call” at the Court prior to the matter proceeding in her absence.
As earlier indicated, for the reasons given, the Orders sought by the Father, with some adjustment, are in X’s best interests. For completeness, given the actual location of the Mother is unknown, a Commonwealth Information Order will also be made on the Court’s own motion. This necessarily means that the Final Orders of November 2022 are to be discharged.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 29 November 2023
Appendix A
Affidavit of the Applicant Father dated 23 November 2023 (emphasis in original)
1.I am the applicant for a recovery order in relation to the child of my relationship with [Ms Marella] (“[Ms Marella]”).
2. We were married [in] 2012.
3.Our child is [X] (“[X]”) born […] 2015. He is 8 years of age.
4. I have no other children.
5. [Ms Marella] has one other child with her partner [Mr AS].
6.[Ms Marella] and I separated on 1 November 2018. The divorce was decreed [in early] 2020, and it became effective [in mid] 2020.
7.Our child has been living with [Ms Marella]. I have not seen [X] since 8 November 2018.
8.Annexed to this affidavit is a copy of a parenting order made by the Federal Circuit and Family Court of Australia on 16 November 2022. X has been living with the Mother and has not been spending time with me as per the orders. Annexed hereto and marked with the letter “A” are a copy of the orders.
9.I have been offered highly flexible employment opportunities at both [BF Company] in [City C] NSW and [BG Pty Ltd] in [City Z], allowing me to choose between full-time or part-time work, which ensures a stable environment for prioritising and nurturing my child's well-being under my care with adaptable work hours and locations.
10.From my understanding, [Ms Marella] is engaged in [social media work], although the extent and nature of her […] work are not entirely clear. It does display that she is in paid partnership with [a brand]. I understand she is also receiving single parenting payments despite her current relationship status. Annexed hereto and marked with the letter “B” are copies of Paid Instagram Posts.
11.[X] has [medical equipment] that necessitates a […] monitor next to his bed while he sleeps. This machine receives information from his [equipment] as he sleeps, and sends information to his […] specialists. Medical records indicate a history of [health conditions], resulting in prior […] surgery, during which a [medical condition] was discovered
12.[X] had been enrolled at [BH School] until November 2023. However, due to recent relocation to [City BB] in contravention of current Orders dated 16 November 2022, I am currently unaware of the specific school [X] is attending in [City BB].
Recovery order sought
13.I have not seen [X] since 8 November 2018 as the Mother and [X’s] maternal family prevented me from seeing him, disregarding orders that mandated my reintroduction into [X’s] life. Moreover, on November 2023, [X] was taken to [City BB], Queensland, from [City C] without my prior consent. This information was relayed to me by friends in [City C] and confirmed by [BH School], where [X] was previously enrolled.
14.On 9 October 2023, I received a text message from [Mr BJ], whose daughter is in [X's] year at school. He informed me that his wife, while at work, was informed by a new client that the Mother is planning to move to [City BB]. (Annexed hereto and marked with the letter "C" are the text message from [Mr BJ])
15.Throughout [X's] time at school, parents of children in his year have maintained contact with me due to their knowledge of him being my son. On October 11, 2023, [Ms BK], whose son is best friends with [X], informed me that her son [BL] had directly asked [X] about the move, to which [X] confirmed that he was indeed moving. (Annexed hereto and marked with the letter "D” for the text message from [Ms BK])
16.On 1 November 2023, [Ms BK] […] messaged me again, this time informing me that her son [BL] received an invitation to [X's event] scheduled for November 3, 2023, indicating that after the [event], [X] would be relocating. (Annexed hereto and marked with the letter "E" are text message from [Ms BK]).
17.On 2 November 2023, [Ms BK] once more messaged me, revealing that [X] had mentioned to his best friend [BL] about the move to [City BB]. (Annexed hereto and marked with the letter "F" for the text message from [Ms BK])
18.On 3 November 2023, I received a screenshot from [Ms BK] indicating that the Mother was informing other parents at the [event] that she was moving to [Region BM]. This contradicted previous information and led me to believe that she was deliberately misleading others to hide her actual location. (Annexed hereto and marked with the letter "G" for the text message from [Ms BK])
19.On 14 October 2023, I observed through local [City C] Facebook pages that the Mother was conducting a garage sale at [BN Street, Suburb BO] NSW […], her parents' address. Notably, several items, including some of my belongings that have yet to be returned to me, were put up for sale. This reinforced my concern that the information about their intended out-of-state move was accurate. (Annexed hereto and marked with the letter "H" are screenshots of the Facebook posts of the garage sale)
20.On 1 November 2023, I noticed on local [City C] Facebook pages that the Mother's partner, [Mr AS], was selling a significant number of his business tools, old stock, and a [vehicle]. This further confirmed to me their intent to relocate out of state. (Annexed hereto and marked with the letter "I" are screenshots of the Facebook posts of the sale)
21.On 6 November 2023, I received a text message from [Ms BK], whose child is in [X's] class, indicating that the teacher informed the class about [X's] absence, stating that he is no longer enrolled at the school and has moved away. Following this, I promptly emailed the principal to inquire about [X's] departure; however, the principal declined to provide any information regarding [X's] relocation. (Annexed hereto and marked with the letter “J” are copies of the text message and the email from the principal)
22.On 13 November, 2023, I received correspondence from the Independent Children's Lawyer (ICL) confirming that after making inquiries with [X's] school, it was disclosed that [X] was absent from school on that day. The school authorities also informed the ICL that, to their knowledge, [X] had relocated to [City BB].
23.On November 19, 2023, I attended [an event hosted by] my close friend, [Mr BP]. The event took place in [City C], NSW.
24.During [the event], I saw [Ms BK], mother of [BL], and [Ms BQ], mother of [BR]. [BL] and [BR] are friends of [X] and all three have been classmates and have celebrated each other's birthdays over the years.
25.While seated with [Ms BK] and [MS BQ] at the party, their sons, [BL] and [BR], frequently returned to our table for refreshments. They were aware of my identity as [X's] father, a fact their mothers had informed them of beforehand. Moreover, they had some prior knowledge of me before our encounter at the [event]. Both boys inquired, 'Is [X] coming to the [event]?' I replied, 'Not this time,' and asked them, 'Are you enjoying the [event]?'
26.Later during the party, [BL] and [BR] approached me to ask about [X]. [BR] asked, 'Why did [X] move to [City BB]? When is he coming back?' He said, '[X's] sad he left his friends and school.'. [BL] and [BR] then shared disheartening details, highlighting [X's] feelings of missing out. [BR] added ‘[X's] missing out. He never got to take school photos with us, he really wanted to.' [BL] added that 'He's sad because he missed the school disco parties,' [BR] continued to say '[X] didn’t come to my birthday party. He said his Mum wouldn't let him go.'"
27.I inquired with [BL] and [BR] if [X] had ever mentioned me. [BL] mentioned that [X] knew about our connection because he informed [X] that his mum and I are friends. Additionally, [BL] mentioned that other kids at school have talked to X about me and my efforts to see him. [BR] mentioned that he informed [X] about my past association with his dad, mentioning our shared hobby of [sports]. This connection dates to the time when his father, [Mr BS], and I were [sporting] companions years ago. Although our paths diverged due to life commitments, we recently reestablished contact as our sons became close friends.
28.I have sought an urgent recovery order, with police help if necessary, so that my child may be returned to my care immediately.
Location order
29.As to my application for a location order, [Ms Marella] has been in receipt of a single parenting payment from Centrelink.
Variation of parenting order
30.Due to the gross irresponsibility of [Ms Marella’s] actions, I am also seeking an order for sole parental responsibility, and an order for costs.
Psychiatric assessment of other party
31.Over the course of our relationship, I witnessed distressing instances where [Ms Marella] physically disciplined [X], including smacking him forcefully, yelling at him, and forcibly moving him to a corner by grabbing his arm. When I confronted [Ms Marella] about her treatment of [X], her response was, 'I had to, to keep him in line.' These actions deeply concerned me as they appeared to have a distressing impact on [X]. In moments of [Ms Marella’s] anger directed at [X], I observed him seeking refuge with me, attempting to hide. I want to emphasise that I never resorted to physical discipline with [X], nor did I raise my voice at him, except in situations where his safety was at risk. In fact, on a particular morning around [mid] 2018, witnessing [Ms Marella’s] heightened aggression towards [X], I felt compelled to take photos to document the distressing impact her behaviour had on him. (Annexed hereto and marked with the letter “K” are copies of the photos)
32.I wish to draw attention to specific instances where [Ms Marella] exhibits significant emotional distress, often reacting vehemently, becoming hysterical, and visibly upset when my name is mentioned in the presence of [X]. These behaviours have been observed during interactions witnessed by mental health professionals. I believe these reactions stem from traumatic events within [Ms Marella’s] family history, notably the tragic loss of her grandmother due to familial violence. This trauma has instilled in [Ms Marella] a deep-seated fear, leading her to believe that a similar fate might befall her, causing extreme emotional reactions even in situations tangentially associated with perceived threats.
33.Additionally, I have been attending psychology appointments and have received an evaluation from [Dr BT], my treating psychiatrist. [Dr BT’s] assessment underscores my consistent dedication to maintaining mental health, adhering to prescribed medications, and active participation in therapy sessions. His report affirms my stable mental state, as evidenced during examinations and consultations. Furthermore, [Dr BT] emphasises my continuous concerns for [X's] well-being and asserts that I pose no harm to the child. He advocates for [X's] placement with me and my supportive family in [City C], NSW. (Annexed hereto and marked with the letter “L” are copied of the report)
34.I present this information to emphasise the necessity of a comprehensive psychiatric examination for [Ms Marella], akin to the assessment I have undergone. This step ensures a comprehensive evaluation of both parties, prioritising [X's] best interests and welfare in these proceedings.
Breach of Orders and Non-Compliance
35.Over the course of these proceedings, the Mother has continually displayed a flagrant disregard for the Court’s authority by breaching an inordinate number of Orders. Her consistent non-compliance has stymied all orders for a relationship between myself and [X] and has denied me due process in these proceedings.
36.The Mother has consistently exhibited a pattern of non-compliance with court orders, repeatedly failing to meet deadlines for filing crucial documents and disregarding court appearances. These persistent breaches encompass various orders, including late or absent filings of affidavits, failure to submit required materials, and non-attendance at court hearings. This ongoing trend of delayed or absent submissions and disregard for court appearances has persisted across multiple orders, undermining due process.
37.The Mother openly declared non-compliance with the Court's orders.
38.The Mother has failed to comply with the Parenting Orders made on 16 November 2022. The Mother breached the order restraining [X's] residence change by relocating over 2000km away.
The Child [X]
39.[X] holds an incredibly special place in my heart, and my love and care for him remain unwavering. Despite the challenges in our circumstances, my commitment to fostering and nurturing his relationships is steadfast. I deeply value [X's] connection with his maternal grandparents, recognising the importance of their presence in his life. I am devoted to facilitating and encouraging these relationships, ensuring [X's] continued bond with his grandparents. Additionally, I understand the significance of his friendships and schooling environment. I am dedicated to maintaining his connections with friends at school, supporting his social interactions and preserving the familiar and nurturing environment he has in his educational community. [X's] happiness, well-being, and the preservation of his meaningful connections are paramount to me, and I will consistently strive to uphold these vital relationships.
40.All the above facts are within my own knowledge except those which are deposed to from information only, my means of knowledge and sources of information for which appear in this affidavit.
Appendix B
Affidavit of the Applicant Father filed 8th November 2023 (emphasis in original)
1.I, [Mr Marella] of [BU Street, Suburb BV], in the State of New South Wales, make oath and say that:
2.I was born [in] 1989, I am currently aged 33 years, and I am the Applicant Father in these proceedings
3.[Ms Marella], born [...] 1991 and aged 32 years is the Respondent Mother (“[Ms Marella]”).
4.[Ms Marella] and I were in a relationship that commenced in late 2008 and concluded on 1 November 2018.
5.Divorce Ordered [early] 2020 which took effect [in mid] 2020.
The Child
6.[Ms Marella] and I have one (1) child together, being [X], born […] 2015 (“[X]”).
7. I have no other children.
8. [Ms Marella] has one other child with [Mr AS].
9.There has been an attempt to persuade the Court that [X] believes his father to be [Mr AS] and that he does not know of my existence. I know that this is not the case.
Specific Issues Report
10.On 19 October 2023, I attended an appointment in [City AF] with the Court Child Expert, [Ms BC]. After my appointment with [Ms BC], informed me that the Mother breached another Court Order by declining to attend the day before, with [X]. [Ms BC] informed me that she was surprised when she tried to call the Mother that she actually answered the phone. The Mother informed [Ms BC] that she is not attending, and that this has been going on for the last five years and that the Court has enough evidence already because [Ms Marella] “speaks directly to the Judge and she feels the Judge hears her” (Annexed hereto and marked with the letter “A” is the Specific Issues Report dated 30 October 2023). I am particularly concerned by the nature of this comment, in light of the fact that the Mother has breached in excess of forty Court Orders with no repercussions.
11.After reviewing the report on 2 November 2023, I became concerned that a number of key issues were not addressed. To my knowledge, the Terms of Reference were provided to [Ms BC], by the ICL, without the opportunity for input by either myself or my legal representatives.
12.I brought with me evidence that the Mother intends to move to [City BB] despite a Court Order that [X] remain living in [City C]. Further, I brought up that I have sent two cards and one paternal family tree on [Ms AY’s] request so she could show [X]. I told [Ms BC] that people in the community have been seeing the Mother, [X] and [Mr AS] living in [temporary accommodation]. I also told [Ms BC] that I have been seeing [Dr BW], who specialises in children’s mental health and will provide guidance to me if needed for [X] and that I have arranged a forensic child psychologist for [X]. I believe all of the information I provided to [Ms BC] should have been considered in the report.
13.I also made it clear to [Ms BC] that I have never and am in no way running a no contact case. Should [X] come into my care he would have the benefit of both parents. I know how beneficial it is for [X] to have both parents in his life and I will continue to support [X] in a close relationship with his Mother, sibling and any maternal family he wishes.
[Ms AY’s] Report
14.Since [X] has started school, I have been informed of his troubling behaviour. As proceedings have gone on, this behaviour has been getting gradually more violent. As [Ms AY] reports, “it was recommended that he required higher levels of support through child psychologists” (Annexed hereto and marked with the letter “B” is [Ms AY’s] Report dated 4 August 2023. Yet neither the Mother, nor the ICL have done anything to get [X] these supports.
15.It was brought to the Court’s attention that the ICL had been communicating with the Mother without including myself or legal representation, and now I believe [Ms AY] and the ICL have been communicating without including myself or my legal representation in their communications. For [Ms AY] to state “For [X] to have a smooth transition he will require emotional support from his maternal family without prejudice” seems to me, very contradicting and biased towards me. [Ms AY] formally puts before the court that the mother is deficient at supporting [X], in particular “Other barriers for [X] included – Lack of communication by [Ms Marella], who did not offer any emotional support or truth as to why [X] needed to attend”, “Any reference to the biological father would trigger [Ms Marella] who would become very emotional” and that “[X] needed to be removed from the room and supported by secondary staff”. Furthermore, “[Ms Marella] would be emotionally unavailable for [X] and unable to present to support his needs” and any attempts to bring direction back to family and for [X] to participate “was threatened by [Ms Marella] which interrupted the therapeutic process”. Tracey goes on to say “[X’s] requirement to have parents to be emotionally available to support questions, confusion and curiosity were not available”. [Ms AY] lays out directly that the Mother is incapable, unsupportive, not child focused and that her own staff had to console [X] because the Mother could not do so (Annexed hereto and marked with the letter “B” is [Ms AY’s] Report dated 4 August 2023).
16.The Mother claims the Court had assessed her enough that she need not attend the appointment in [City AF] with the Court Child Expert, yet I note the Mother has never completed a full in person assessment as Ordered by the Court. There have been four reports done in this matter. The Mother attended a video assessment with [Dr H] as noted in his report dated 22 September 2020, where she claimed strange and unproven fears. Another video assessment by [Ms N] as noted in her report dated 14 February 2022, who on the stand withdrew her assessment of the Mother. Another was Ordered with [Ms K] in person and a report dated 9 April 2022 was produced, but the Mother refused to attend the entire assessment as noted by [Ms K] “An attempt was made to undertake cognitive assessment of [Ms Marella] while she was in [City Z] some days after the interview, however [Ms Marella] did not make contact for this arrangement, despite repeated communication between the ICL and [Ms Marella’s] representative”. The only current report that assesses the Mother is [Ms AY’s], which suggests the Mother to seek psychological care and clearly states her incapability in caring for [X’s] needs.
17.To my knowledge the ICL did not provide me or my legal representatives any input of the questions to be put to [Ms AY] about her report.
Child Forensic Psychologist
18.Since there has been no progress by the Mother or the ICL in obtaining a psychologist for [X] as [Ms AY] suggests, I have taken this matter very seriously. On 4 October 2023 I made enquires with a forensic psychologist [Ms BX] from [City B], who specialises in working with children and has extensive experience and qualifications to match. (Annexed hereto and marked with the letter “C” are the emails to [Ms BX] dated 4-17 October 2023).
19.[Ms BX] is happy to assist with helping [X] and I am willing to proceed in getting [X] to start seeing [Ms BX]. I would also make myself available for any appointments the psychiatrist recommended. In order for [X] to attend, [Ms BX] has made it clear that while the Mother has sole parental responsibility she needs to sign the service agreement so we can all be involved.
Mother’s intention to move out of state
20.On 9 October 2023 I received a text message from my friend [Mr BJ], who’s daughter is in [X’s] year at school, that his wife was at work and a new client informed her that the Mother is moving to [City BB]. (Annexed hereto and marked with the letter “D” is the text message from [Mr BJ] dated 9 October 2023).
21.Since [X] began School, I have had parents of the children in his years make and stay in contact with me about [X], as they know that he is my son. On 11 October 2023 a Mother by the name of [Ms BK] whose son is best friends with [X], informed me that her son [BL] had asked [X] if he is moving and [X] stated yes he is moving. (Annexed hereto and marked with the letter “E” is the text message from [Ms BK] dated 11 October 2023).
22.On 1 November 2023 I received a message from [Ms BK] that her son [BL] is invited to [X’s event] on 3 November 2023 as after the [event X] will be moving away. (Annexed hereto and marked with the letter “F” is the text message from [Ms BK] dated 1 November 2023).
23.On 2 November 2023, I received a message from [Ms BK] again, that [X] told his best friend [BL] that he is moving to [City BB]. (Annexed hereto and marked with the letter “G” is the text message from [Ms BK] dated 2 November 2023).
24.On 3 November 2023, I received a screenshot from [Ms BK] that the Mother was telling the other parents at the [event] that she is moving to [Region BM]. I believe the Mother did not tell the parents the truth, to further hide her location. (Annexed hereto and marked with the letter “H” is the text message from [Ms BK] dated 3 November 2023).
Mother’s garage Sale
25.On 14 October 2023 I noticed on our local [City C] Facebook pages, that the Mother was holding a garage sale at [BN Street, Suburb BO] NSW […], her parents address. I noticed a number of belongings for sale, including some of my belongings which are yet to be returned to me. This further heightened my fears that the information I received that they are moving out of state was true. (Annexed hereto and marked with the letter “I” are the Facebook posts of the garage sale, screenshotted on 14 October 2023).
[Mr AS] Business goods sale
26.On 1 November 2023 I notice on our local [City C] Facebook pages that the Mother’s partner, [Mr AS] was selling off lots of his business tools of the trade, old stock, [a vehicle] etc. Again, this to me confirms their intention to move out of state. (Annexed hereto and marked with the letter “J” are the Facebook posts of the garage sale, screenshotted on 1 November 2023).
Contempt of Federal Court Orders
27.[In late] 2023 the local pound of [City C] NSW called my parents to inform them that my dog […] was in the pound. [The dog] is my dog, microchipped and registered in my name. This dog was also included in my list of possessions before the Court in my property matter. It was ordered that my ex return my belongings, but she is yet to give me everything on the list provided to the court, and in particular my dog. The pound called my parents on [that date] to collect my dog and so my parents collected her on my behalf, after I spoke with the pound officer. (Annexed hereto and marked with the letter “K” is the letter to the [City C] NSW Police from Jack Amond, from Amond Legal, dated 20 October 2023, 5 July 2023 property orders, my property belongings list, and the NSW Pet Registry certificate of ownership).
28.Around an hour later the [City C] Police called my parents that [Ms Marella] is at the Police station with “paperwork” to show the dog belongs to her. [Ms Marella] knows her paperwork is misleading and in contempt of the current property orders, as the NSW Pet Register states [the dog] is in my name, that is why the pound contacted my parents.
29.At no point did not the Mother oppose my ownership during property proceedings. The officer threatened/intimidated my parents to return the dog, even though my parents stated that the dog is in fact my dog and I have the documents to prove it, and that I have the Federal Circuit Court documents showing the dog is mine as it formed part of my belongings list before the court.
30.The police threatened to charge my parents if they did not return the dog. Fearful of arrest my parents took my dog back to the police station. My parents showed the officer the papers, but she refused to look at them and said “take it to Court”.
31.This behaviour by the Mother to manipulate the NSW Police and go against Federal Circuit Court Orders, clearly displays the Mother’s disregard for Court Orders.
32.I now have a legal matter against the NSW Police for contempt of Federal Circuit Court Orders (Annexed hereto and marked with the letter “K” is the letter to the [City C] NSW Police from Jack Amond, from Amond Legal, dated 20 October 2023, 5 July 2023 property orders, my property belongings list, and the NSW Pet Registry certificate of ownership).
Supports for the Mother
33.It was Ordered by the Court on 16 November 2022 that “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” (Annexed hereto and marked with the letter “L” is a copy of the Orders). The Mother did not provide proof of compliance with this order in its entirety. The Mother wrote to the ICL on 19 December 2022 stating she had attended upon her general practitioner and had a psychologist. However, the Mother has failed to provide confirmation from either her general practitioner that she has attended upon them, provided them with a copy of the assessment completed by [Ms K] or obtained a mental health plan. I have written to the ICL asking her to address these issues with the Mother and the Court but she does not. (Annexed hereto and marked with the letter “M” are the emails to the ICL dated 21 March 2023 to 30 March 2023).
34.It was further ordered by the court on 16 November 2022 that "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.” No evidence has been supplied that the Mother has complied with these orders. The Mother has provided details of a psychologist but has provided no evidence that she has made an appointment with them, complied with recommendations regarding attendance and treatment, nor provided them with the ordered reports and Orders. I also note, per the AHPRA website (and which I have confirmed with them via telephone), [Ms BY] is neither a clinical nor a forensic psychologist (Annexed hereto and marked with the letter “N” is the information provided by AHPRA). My solicitor has written to the ICL asking her to address these issues with the Mother and the Court but she does not (Annexed hereto and marked with the letter “O” is the email to the ICL dated 10 July 2023).
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