Maxfield & Eliot

[2022] FedCFamC1F 836

Federal Circuit and Family Court of Australia

(DIVISION 1)

Maxfield & Eliot [2022] FedCFamC1F 836

File number(s):

BRC 2474 of 2013

Judgment of:

BAUMANN J

Date of judgment:

31 October 2022

Catchwords:

FAMILY LAW – PARENTING – Contested residence – Where the mother has been the primary carer of the child since the parents’ separation in 2010 – Orders made for the child to spend substantial and significant time with the father – Order for equal shared parental responsibility

Legislation:

Family Law Act 1975 (Cth) s 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Maxfield & Eliot [2018] FamCA 866

Maxfield & Eliot [2020] FamCA 1035

Re G:  Children’s Schooling (2000) FLC 93-025

Division:

Division 1 First Instance

Number of paragraphs:

75

Date of hearing:

17 & 18 October 2022

Place:

Brisbane

Counsel for the Applicant:

Mr Purcell

Solicitor for the Applicant:

Cooper Roper Legal

Solicitor for the Respondent:

Litigant in person

Counsel for the Independent Children's Lawyer:

Ms Downes

Solicitor for the Independent Children's Lawyer:

Aylward Game Solicitors

ORDERS

BRC 2474 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MAXFIELD

Applicant

AND:

MR ELIOT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	BAUMANN J
DATE OF ORDER:	31 OCTOBER 2022

THE COURT ORDERS:

1.That all previous parenting Orders be discharged.

Parental responsibility

2.That the parents have equal shared parental responsibility for the child, B born … 2010 (“the child”).

3.That notwithstanding Order 2, each parent has responsibility for making decisions about the day-today care, welfare and development of the child when he is living with them.

Living arrangements

4.That the child live with the mother.

5.That subject to Order 8 herein, the child spend time and communicate with the father as agreed between the parents in writing and failing agreement during school terms, as follows:

(a)Commencing on Friday, 4 November 2022, each alternate weekend from after school (or 3.00pm) on Friday until before school Monday (or if Monday is a public holiday or student free day until 3.00pm Monday).

6.That the father shall take the child to his extra-curricular events that fall during times the child is with the father, both during school term and during school holiday periods.

7.That to give effect to Order 5 herein, the mother shall confirm by text message to the father not less than forty eight (48) hours before the child is due to commence time in his care, the details of any extra-curricular activities into which the child is enrolled.

School holidays

8.That the child spend time with the parents during school holidays as agreed between the parents in writing and failing agreement as follows:

(a)With the father in the December 2022/January 2023 school holidays for two (2) separate seven (7) night blocks from 3.00pm Friday at the end of week one (1) to 3.00pm Friday in week two (2) and from 3.00pm Friday in week five (5) to 3.00pm Friday in week six (6), and with the mother at all other times;

(b)With the father in the end of terms one (1), two (2) and three (3) school holidays in 2023 for a seven (7) night block from 3.00pm Friday in week one (1) to 3.00pm Friday in week two (2) and with the mother at all other times;

(c)Commencing from the December 2023/January 2024 school holiday period, the child will spend time with the parents on a week about basis for the term four (4) school holiday periods in each year with changeovers each Friday at 3.00pm:

(i)with the Mother in the first week in odd numbered years, and

(ii)with the Father in the first week in even numbered years,

and in the event there are an uneven number of weeks, the child will spend one half of the final week with each of the parents.

(d)Commencing in 2024 and continuing thereafter for the terms one (1), two (2) and three (3) school holiday periods:

(i)with the father for the first half and with the mother for the second half in even numbered years, and

(ii)With the mother for the first half and with the father for the second half in odd numbered years.

(e)For the purposes of school holidays, the school holiday period shall commence at the conclusion of school on the last day of term and conclude at 3.00pm on the last Friday of the school holiday period.

Special occasions

9.That the child spend time with the parents on special occasions at all times as agreed between the parents in writing and failing agreement as follows:

(a)For Christmas:

(i)in 2022 and in even numbered years thereafter, with the father from 9.00am on 22 December until 7.00pm on Christmas Eve and with the Mother from 7.00pm on Christmas Eve until 7.00pm on 27 December; and

(ii)in 2023 and in odd numbered years thereafter, with the mother from 9.00am on 22 December until 7.00pm on Christmas Eve and with the Father from 7.00pm on Christmas Eve until 7.00pm on 27 December.

(b)With the father for Father’s Day (if not already in the father’s care), from 5.00pm Saturday until before school on Monday;

(c)With the mother for Mother’s Day (if not already in the mother’s care), from 5.00pm Saturday until before school on Monday;

(d)On the child’s birthday, with the parent he did not wake up with to collect the child at the commencement of time and deliver the child back to the other parent at the conclusion of time:

(i)for three (3) hours on a school day, from after school to 6.00pm, and

(ii)for four (4) hours on a non-school day, from 9.00am until 1.00pm.

Telephone communication

10.That the child communicate by telephone with the parent he is not living with at such times as the child reasonably requests but otherwise between 6.00pm and 7.00pm each Sunday night, and in relation to such communication each parent shall:

(a)ensure that the child is available to receive the telephone call;

(b)arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance, the child misses the telephone call from that parent, and

(c)ensure that the child has privacy during the conversation.

Changeover

11.That changeovers occur at school on school days and at McDonalds at Suburb EE on non-school days.

Schooling and extracurricular activities

12.That the parents sign all necessary documents to enrol the child to commence his middle school/ secondary school education upon the completion of his current primary school education, at FF School.

13.That this Order is sufficient authority for the child’s school and extracurricular provider to give each parent information about the child’s educational progress and other activities, and supply them with copies of any reports, school reports, photographs, certificates and awards obtained by the child, at the requesting parent’s cost.

14.That each parent is responsible for contacting the child’s school or extra-curricular activity provider to obtain all relevant information concerning the child’s progress at school or in that activity, and any special events involving the child.

15.That if either parent is informed by the child’s school of a social, behavioural, or educational concern in relation to the child, the receiving parent will notify the other parent of all details of the concern within forty eight (48) hours.

16.That the parents are at liberty to attend all educational, extra-curricular functions, events and activities the child may be involved in or to which parents are normally invited, subject always to the discretion of the school or organising authority.

17.That the parents will each ensure that the child attends all events associated with any extra-curricular activities in which he is enrolled (including games, training sessions, performances, trials, carnivals, holiday clinics and any other activity that team members are invited to attend) that are scheduled during times that the child is in their respective care, except in the event a parent is staying out of the Brisbane area with the child during that time.

18.That in the event the child expresses a wish to change his extra-curricular activities, the mother notify the father about his desired change, and:

(a)the mother will provide the father with the options available for that activity;

(b)the father will provide a response to the mother about his view about the child participating in that activity within seven (7) days of receipt of the mother’s correspondence;

(c)the mother will take the father’s view into consideration and attempt to reach agreement, failing which the mother will be at liberty to make a decision about the child’s extra-curricular activities and will notify the father, and

(d)both parents are thereafter required to take the child to the associated events for that extracurricular activity.

19.That the child is not to be enrolled in more than two (2) extra-curricular activities per term unless the parents agree in writing.

Child’s health

20.That within seven (7) days of the date of these Orders, the mother inform the father in writing of the medical centre (“the single GP”) the child is to be taken to for any treatment, interventions and referrals save in the event of an emergency with the parent taking the child for that emergency attendance to ensure that any treatment notes are sent to the single GP.

21.That if the single GP recommends that the child engage with such other allied health professional, the parents will engage with the recommended professional, and ensure the child attends all appointments.

22.That the mother is at liberty to obtain a mental health care plan for the child to attend upon a Psychologist for therapy and/or counselling as recommended by the single GP and to give effect to this Order:

(a)the mother will source an appropriate child Psychologist for the child and upon a Psychologist being appointed, will advise the father within seven (7) days in writing of the name and contact details of the Psychologist and the date of the first booked appointment;

(b)at the initial session, the mother is granted leave pursuant to s 121 of the Family Law Act1975 (Cth) (“the Act”) to provide the Psychologist with a copy of these Orders and the family report prepared by Ms HH;

(c)the father will contact the Psychologist to arrange an introduction session between the Psychologist and the father;

(d)the Psychologist is at liberty to recommend such programs or other allied health professionals to engage with the child and the parents will comply with any recommendations including taking the child to any programs or other professionals;

(e)the parents are to attend for sessions only as and when directed by the Psychologist;

(f)both parents are to meet any out-of-pocket costs payable for appointment fees incurred in relation to the child equally;

(g)the mother and father are to solely meet any out-of-pocket cost payable for appointment fees incurred in relation to any session they are individually directed to attend by the Psychologist; and

(h)should the parents attend for any joint sessions at the direction of the Psychologist (either in person or by telephone) the parents are to share the cost for appointment fees incurred equally.

(i)the mother and father shall:

(i)without delay, contact the other parent by phone and thereafter confirm by text in the event either parent needs to take the child to hospital or elsewhere for a medical emergency;

(ii)keep the other parent informed of the names and addresses of any medical or other health practitioners who treat the child and authorise those practitioners to provide to the other parent the information they are lawfully able to provide about the child;

(iii)inform the other parent as soon as reasonably practicable of any significant medical condition or significant health issue suffered by the child including advising of any follow up doctor’s appointments, and

(iv)inform the other parent of any specialist medical appointments made for the child within three days of any appointment being made.

(j)this Order shall, without more, act as authority for any professional care provider of the children (whether a doctor, allied health professional, counsellor/psychologist, hospital or otherwise) to release any information concerning the care, welfare and development of the children to both parents including information about the children’s medical condition, treatment and copies of medical records and reports.

23.That in the event the child is prescribed medication for any medical issue each parent ensure that the child is administered that prescribed medication according to the script/label.

Parental communication

24.That all necessary communication between the parents regarding the child be by way of parenting communication application as agreed between the parties, and if not agreed by using “AppClose”, except in the case of emergencies where such communication shall be by telephone and both parents are to do all things necessary to download and activate the application within seven (7) days of the date of these Orders.

25.That if a parent sends a message to the other parent on the communication application or by email or text message, the parent must acknowledge receipt of the message and respond to the message within twenty-four (24) hours.

26.That the mother and father shall:

(a)keep the other parent informed at all times of their residential address, landline (if any) and/or mobile phone numbers and email addresses and notify each other within forty eight (48) hours of any changes to those details; and

(b)be respectful and courteous in any communication with each other.

27.That in the event either parent is living with any other third party, they are to keep the other parent informed about the name, age and any relevant details of any other person residing in the house, within forty eight (48) hours of the change.

Other Orders

28.That the mother be restrained and an injunction issue restraining the mother from allowing Ms E to have any contact, whether direct or indirect, with the child.

29.That during the time the child is with either parent, the parents shall:

(a)actively promote the child’s relationship with the other parent and speak of the other parent respectfully;

(b)respect the privacy of the other parent and not question the child about the personal life of the other parent;

(c)not discuss these Court proceedings or the parenting Orders with the child;

(d)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

(e)not permit the child to have any social media accounts, gaming accounts or other chat room functions until the legal age for him to have those accounts for each platform, or until he reaches the age of thirteen (13) years, whichever is the latest, provided that the child is entitled to hold a “Messenger Kids” account, which is connected to the parent’s own account/s from the date of these Orders.

30.That pursuant to s 121 of the Act, leave is granted to the parents and legal representatives to provide a copy of these Orders to:

(a)any school, educational institution, or care provider;

(b)any treating medical practitioner, hospital or health care professional for the parents or the child; and

(c)any government department or instrumentally,

that may seek or require to hold a copy of the Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).

Dispute resolution

31.That in the event the mother and father are unable to resolve a dispute regarding parenting matters, the following is to apply unless otherwise agreed in writing between the parents:

(a)Either the mother or father shall compile a list of three (3) Family Dispute Resolution Practitioners and convey this list to the other parent within seven (7) days of any dispute between the mother and the father;

(b)The other parent shall choose a Family Dispute Resolution Practitioner from this list and convey this choice to the mother or the father (as the case may be) within seven (7) days of receiving this list;

(c)Either the mother or the father shall commence the family dispute resolution and the parents shall make a genuine effort to resolve the dispute, and

(d)The mother and father shall equally contribute to the cost of family dispute resolution.

32.That the Independent Children’s Lawyer be discharged.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxfield & Eliot has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. B, now aged nearly 12 years, is the only child of a relationship between the Applicant mother, Ms Maxfield, and the Respondent father, Mr Eliot, which ended with their separation in November 2012, when B was approximately two years of age.

2. That B presents now to all and sundry, including the family report writer, as a courteous, well-adjusted, polite and impressive young man is attributable at least in part to the mother who has been the primary carer, and the father who has, in more recent times, consistently spent time with the child.  As the history below identifies in a succinct fashion, that he presents in this way without the need for major counselling, therapeutic intervention, or with a diagnosed anxiety complex, is in many ways totally remarkable.

   Competing proposals

3. By final submissions delivered on 18 October 2022 when the resumed trial continued for one day, the Independent Children’s Lawyer (“ICL”) proposed an order in accordance with Appendix One.  Effectively, the ICL seeks that the mother have sole parental responsibility; that the child live with the mother; that the father spend substantial and significant time with the child from after school Friday to before school Monday – that can be extended to before school Tuesday if a public holiday – and for effectively half of each school holiday period.  There is no suggestion that the time should be supervised in any way.

4. The issue of schooling, which is a dispute between the parents, which, if not resolved by the grant of sole parental responsibility, should, in the ICL’s submissions, be resolved by an order that B commence the 2023 school year at the FF School.  He currently attends the GG School, which is across the road from the other.

1. The mother, represented by Mr Purcell of Counsel, indicated that he effectively adopted the order and the submissions of the ICL delivered at trial by Ms Downes of Counsel.  The orders sought are effectively those as recommended by the report writer, Ms HH.

2. As I will explain, the father had legal representation under the cross-examination banning scheme established to facilitate section 102NA of the Family Law Act 1975 (Cth) (“the Act”), for the preparation of material and for the cross-examination of the mother. However, after the evidence of the respondent Father closed (the mother’s case as Applicant having closed previously) and before cross-examination of the family report writer as the last witness took place, Mr Hanlon of Counsel (and his instructing solicitor) indicated to the Court that their retainer had been terminated by the father over lunch, and therefore they had no instructions to assist the father any further in the case. It was clearly apparent to the Court from the exchanges that took place when the father was in the witness box that he had lost confidence in his legal representation (a theme he returned to during final submissions later in the day) and in the circumstances, Mr Hanlon, having met his duty to the Court, was given leave to withdraw.

3. The father’s position as set out in his case outline document did not alter in any way after all the evidence had been received, including the evidence of the family report writer.  His position, as articulated in the further amended Response filed 14 October 2022, is set out in Appendix Two of these Reasons.  Effectively, the father seeks an order that the child live with him, and if not, that there be week-about time.  He proposed that the time the child spends with the mother would be from after school at 3.00pm on a Friday to 5.00pm Sunday or before school Monday during school terms, with changeovers to occur at school.

4. Both parents appeared to agree that changeovers which are to occur outside of school hours would occur at Suburb EE McDonald’s restaurant.

5. The father urges the Court to make an order that he have sole parental responsibility for the child, and further, that the child attend next year at the JJ School.

6. To understand the difficulties in this case, the following succinct history is given.

   BACKGROUND

7. The mother will turn 33 years of age shortly.  The father will turn 43 years of age later this year.  Although the parties commenced cohabitation, it seems, in May 2009, separation occurred three and a half years later, and at a time when B at the time of separation was approximately two years of age.

8. The proceedings have been on foot for a long time.  The initial Application came to the attention of the Court when Orders were made by consent in April 2013, where the child was to live “on an equal shared care basis”.  It did not take long for Contravention Applications to be filed and recovery orders to be sought.  There is no real point in seeking to set out the history of litigation between March 2013 until the transfer by the Federal Circuit Court of Australia (as it then was) in February 2014 to the Family Court of Australia, or earlier family reports.  This is because on 25 February 2015, final consent orders were made by a Registrar where B was to live with the mother and spend time with the father from Sunday to Wednesday, with changeovers at the Suburb Z train station.  The parents were to have equal shared parental responsibility.

9. Again, those final consent Orders did not last long.  On 15 July 2015, the mother brought fresh proceedings seeking a recovery order, and on an interim basis, that the father’s time with the child be suspended for eight weeks, and then moving to supervised time.  Again, significant Court time was devoted to trying to manage this matter from July 2015 until the competing proposals were listed for a final hearing before me to commence in October 2018.

10. The record will show that the trial did commence on 2 October 2018, and that for Reasons delivered 4 October 2018 (see Maxfield & Eliot [2018] FamCA 866), Orders were made that B live with the mother on an interim basis; that the parents have equal shared parental responsibility, and that B was to spend time with the father graduating up to but not including overnight time, on the condition that the time spent between B and the father would be “supervised at all times by [Ms U]” (the paternal grandmother).

11. The Court relies upon the earlier Reasons for Judgment.  However, for the reader of this Judgment, it suffices to observe that evidence was provided to the Court at the first part of the trial by a paediatric surgeon at the I Hospital who gave evidence of a significant injury to a baby (J) of the father and a former partner (Ms E).  Dr K provided a written witness statement of her concerns.  That was marked as Exhibit 3 on 2 October 2018.  On the face of the evidence then available, there was a strong concern expressed by the mother that the father had been involved in a serious assault, almost life-threatening to the baby J.  The father was ultimately charged with serious criminal offences relating to the injuries to the baby.  Whilst that was not the only concern at the time, that was, as the reasons reflect, the major concern for the interim Orders made by consent on 4 October 2018.

12. From October 2018, there have been many appearances before the Court, with the father as an unrepresented litigant not in any way being shy in commencing proceedings, either for relief to expand his time with B, or to bring to the Court’s attention alleged contraventions by the mother of Orders made by the Court.  However, there was a limit to how far the Court could progress these proceedings, notwithstanding the father’s strong desire to increase time with B, until the criminal proceedings had been resolved.  Sadly, as a result of delays in the criminal trial process in Queensland, much of it related to, it seems, Covid-19 difficulties, it was not until late 2021 that the father was found not guilty by a District Court jury of the serious assault upon J.

13. The matter came back before me on 20 January 2022 when I made Orders in relation to B’s time with the father.  I do not propose in these Reasons to set out all the Orders I have made, but where relevant, I will refer to them during the course of various incidents which are relevant to my determination.

14. Ms HH was retained by the ICL to conduct interviews for a family report, which she did on 24 February 2022.  In submissions, the father objected to the process by which that report was prepared.  His concern was that at least:

    (a)the mother was not observed with B personally as the child was in his care (and attended personally at the interviews) because the mother, who had not been vaccinated, appeared by electronic means; and

    (b)that the report writer did not interview the paternal grandmother Ms U who had been for much of the period since 2018 a supervisor of the father’s time with B.

15. I deal further with these allegations when dealing with the evidence of Ms HH later in these Reasons.

16. As a result of Orders made in May 2022 for the application or facilitation of representation by the parties under the cross-examination banning scheme, lawyers were appointed by Legal Aid Queensland to assist the father.  The initial firm retained by the father had to withdraw for reasons not known.  As already indicated, subsequent lawyers prepared the father’s material (although he says they were deficient in doing so) but had to withdraw halfway through the trial.

17. The trial was due to commence on 17 October 2022, however the mother had contracted, she felt, Covid-19 and was unwell.  Thankfully, she was able to safely attend Court the following day (as the father had demanded on the earlier day) and submitted herself to cross-examination by Counsel retained by the solicitors for the father.  Again, I should note that the father says that the cross-examination by his Counsel Mr Hanlon was defective and not in accordance with his specific written instructions.  The evidence was able to be taken in a day, and at the end of the day, final submissions were made by all parties.

18. I am conscious of the fact that the father, in his affidavit sworn by him and in support of his proposition that B should live with him, raised as the reasons why “[B] should be allowed to live with me” as the following:

    a)the mother’s history of not facilitating a relationship means she cannot be trusted to comply with orders to do so in the future;

    b)I did not use [B] as a weapon or play mind games;

    c)[B’s] relationships with my three younger children can grow as I am keen to facilitate this;

    d)[B] and I share many of the same interests and have a lot in common;

    e)[B] will be allowed to do other sports he is interested in if he lives with me such as [football], Martial Arts etc, which are 2 sports he is constantly asking to do due to my extensive experience and knowledge in both sports;  and

    f)[B’s] diet can improve significantly over time by having him introduced to healthy foods.

    Principles

19. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Act and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

20. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

21. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

22. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

    Credit of the parties

23. I found the mother to be a considered and reasonable witness, prepared to make concessions and prepared, it would seem, beyond the instructions she had provided to her lawyers, to contemplate the father spending more time with B than her case outline suggested.  She is the primary carer and has been of B since separation in 2010, but also is the primary carer of three other children, Q (aged eight), R (aged seven) and AA (aged five).  These three children share a father in Mr P.  There are no orders in place in relation to the care arrangements for these children, other than that they live primarily with the mother and see Mr P regularly.

24. It is apparent to me on all the evidence and the history of this matter that the biological mother of the three children with the father (J born in 2016, X born in 2017 and KK born in 2019), Ms E, has been at times a provocation to the father and at times of little assistance to the mother in this case.  I have not had the benefit of Ms E giving evidence or being cross-examined, and I am not, therefore, able to make any assessment of her.  The mother says that Ms E is now her friend.  I have no doubts the mother in this case and Ms E share stories about the father which have at times caused the father to become angry, aggressive and distrustful.

25. So much is clear from the charges of breach of domestic violence orders of which he has been convicted, as his extensive criminal history set out in Exhibit 6 reflects.  Be that as it may, the mother accepts that B having contact with Ms E is not supported by the father and likely to be of little benefit to B, if it is to cause friction with B’s biological father.  There has been a longstanding order that Ms E not come in contact with the child.  It is an order that the mother agrees should be made on a final basis and I shall do so.

26. To the extent that the father has argued that the mother has breached an earlier Order about B coming into contact with Ms E, the evidence before the Court presented to me does not suggest that is the case.  However, even if it is, it does, in my view, say more probably of Ms E than it does of the mother in this case.

27. The father presented in the Court at times as aggressive and emotionally distressed.  During the limited cross-examination, he engaged in abusive behaviour towards his lawyers, which no doubt led to them withdrawing in the case.  The father is very convinced of his own position; the facts that he sees are important, and less able to concede the relevancy of other facts, such as his criminal history and, more recently, two charges which are still pending before the State Courts which could have serious consequences for him.

28. He failed to produce any evidence to the Court of those charges.  However, Exhibit 1 was procured by the ICL on the Monday the trial was due to start, obtaining information from the Queensland Police Service.  It shows the father is facing charges of another breach of a family violence order involving Ms E, and a charge of driving under the influence of an illicit substance, having tested through saliva analysis to driving with an excessive amount of illicit substances.  The father says, and I accept, that his intention is to defend the charges and he will, he says, clearly be found not guilty.  That, of course, was his constant refrain from 2018 when charged with the serious assault of his son J, and he proved to be correct on that occasion.

    33His criminal history, however, reveals that he has not always been found not guilty of charges raised against him, and, in fact, at the time of trial, he is still under parole and under the terms of a suspended sentence.  It follows, of course, that if he is convicted of the two different and separate charges before the criminal Court, that may have a consequence upon him being incarcerated.  He has already had a period of incarceration since this matter was before me in 2018.  However, that seems to be more on the basis of remand awaiting the hearing of the domestic violence breaches rather than as the result of a conviction.  His time in remand occurred, on the evidence, in mid-2021.

29. Even after making allowance for the inevitable frustration of an unrepresented litigant, as he would say, falsely accused of a serious assault upon another child of his, and being denied regular, unsupervised time with B for so long until those charges were dealt with, the history of the father and his presentation in Court does raise issues about his capacity to control his anger, disappointment, frustration and temper.  Whilst he was, he says, previously a semi-professional sportsman, he no longer does so because of a wrist injury.  It is the wrist injury which has caused him, he says, and Exhibit 4 to some level supports, the prescription of medicinal cannabis for pain relief.  Again, I was critical of the father (and he says this is a criticism that should be directed to his lawyers) for the absolute lack of any evidence, not only about the recent criminal charges but also the circumstances upon which he has been prescribed medicinal cannabis and the nature of that prescription.

30. For these reasons, I treat the evidence of the father cautiously, in the absence of corroboration.

    The family report

31. The Court is not, of course, bound by the recommendations and opinions of the family report writer.  As much has been the law for many years (see Hall & Hall (1979) FLC 90-713). However, where the report is founded on facts demonstrated by all the evidence to be established, the evidence of an independent expert who has had the benefit, as Ms HH had, of seeing the child and viewing the material from a different social science perspective should not be ignored, and in appropriate cases, significant weight can be applied to that evidence.

32. This is a case where I believe the evidence of Ms HH, notwithstanding the criticisms the father has of the process, should be given significant weight.  Effectively, the Independent Children’s Lawyer and the mother adopt the recommendations of the report-writer.

33. The cross-examination of Ms HH as the final witness in the case did not, notwithstanding some of the concerns raised by the recent criminal matters relating to the father, cause her to amend her recommendations.  She acknowledged some concern about the father’s history of domestic violence and his inability to communicate.  She was particularly concerned that the father did not accept, by his propositions for change of residence, the importance to B of his continued relationship with his three younger siblings.  I regard that criticism by Ms HH of the father as borne out by the other evidence.

34. After I directed certain criticisms raised by the father, to Ms HH (as questions on the father’s behalf noting that he no longer had  legal representation), and in further exploration by the Bench, Ms HH indicated, by reference to the father’s “reasons” for seeking a change of residence (see paragraph 47 of father’s trial affidavit), that:

    (c)she did not form the view that the mother has not facilitated a relationship between the child B and the father.  On all the evidence, I make a finding that the mother has facilitated the relationship, at times under significant difficulties and often under the pressure of intervention by Ms E; and

    (d)when this matter was listed for trial, the father elected not to proceed with pending Contravention Applications.  He was given leave to rely upon, in this trial, the affidavits he had filed in respect of the Contravention Applications filed 21 December 2020 and 14 January 2022.

35. In respect of the period from July 2020 to 25 October 2020, when I am satisfied the child was not made available by the mother to spend time with the father, this was during a period where, having received information that the paternal grandmother was not supervising time, she continued to facilitate time as per the Orders until she got evidence from the Police which caused her to cease time.  When the matter came before me in respect of those events on 26 October 2020, I also suspended the father’s time pending receiving further information.  I dealt with the matter quickly, and by 12 November 2020, having received some further information and having received substantial submissions by the solicitor then acting for the mother, on 12 November 2020 I reinstated time.  The reasons for so doing are set out in the Judgment reported as Maxfield & Eliot [2020] FamCA 1035, and I rely upon those Reasons now.

36. The other occasions that there was a breakdown in time between the father and B, appears to be in late 2021.  On all the evidence, I am satisfied that this had more to do with a communication breakdown between the parents than any evidence that would sustain a view, contrary to all the other evidence, that the mother would not support the relationship between B and the father.

37. The history of this matter is that, save for the matters referred to in the father’s contravention affidavits, the mother has supported the relationship.  Even in her evidence before me for the trial, she was prepared to concede that the child maybe should have more time with the father.  She said, and I accept her evidence is genuine and considered, that she understands the importance to her nearly 12-year-old son of maintaining a relationship with the father, which has been nurtured in difficult circumstances.  Those circumstances included the long periods of supervised time and the period of over three months when the father was not available to spend time because he was in custody.

1. Ms HH was not satisfied that the mother had used B “as a weapon or to play mind games”.  I agree that there is no evidence that would support such a conclusion.  For example, there is no evidence that B has been repeating to the father and/or other persons negative views that the mother may well hold about the father.

2. Whilst the father indicated that it was important to him and, I accept, for B, that he have a relationship with the father’s three younger children (who are currently the subject of a state child welfare order due to expire in January 2023), Ms HH agreed that that was not a basis for seeking to change residence.  It should be noted at the very least that there is no clarity as to what time the three younger children of the relationship between Ms E and Mr Eliot will ultimately have with their father.  That is because, although time was more extensive than is currently enjoyed, as a result, according to the father, of unfair and false recent allegations made by Ms E, his time with the three children has now been further reduced and is again supervised.  He is upset about that and I understand why.  However, B can only spend time with the three children (his other siblings), from his subsequent relationship if and when they are spending time with him.

3. Whilst I accept that B and the father have a number of common interests, including cars, sport and other such similar outside activities, I agree with Ms HH that this is not a basis for removing the child from the mother’s primary care.  It is to be hoped that as the child continues to develop, that the father and B can continue to share common interests.  The father indicated, for example, that B has a car (worth approximately $1,000) that the father and B are “doing up” when the child spends time with him.  I am sure that is an enjoyable activity for the child.

4. Finally, the father has been critical of what he says is B’s diet in the mother’s home.  The mother concedes that the child is finicky in his eating and is not attracted to eating vegetables.  Currently, he will eat corn and carrots.  The father says that he will be better at getting the child to eat healthier food.  The father’s suggestion, based on what he says B has told him, that the mother has takeaways and fast food regularly was rejected by the mother.  I accept the mother’s evidence.

5. The cross-examination, limited that it was, of Ms HH did not cause her to depart from the recommendations set out in her family report.  Her evaluation as set out in the report shows a balance between all the issues which one might expect to be considered for a child of this age.  I set out the parts of the evaluation as follows:

   8.1This report relates to an articulate and well-mannered young boy who is in his final year at primary school.  [B] impressed me as a boy who clearly loves both his parents and wants a relationship with them both.  He has half-siblings from both his mother and father who he is able to maintain contact with when he lives with his mother and spends time with his father.  [Mr Eliot] spoke of his younger three boys being reunified back to their mother by the department and him wanting to seek orders in the Federal Circuit and Family Court.  This of course will need departmental endorsement.  I understand that [Mr Eliot] has transitioned to having those three boys for one full weekend day per week and this coincides with his time with [B] every second weekend

   8.2[Mr Eliot] and [Ms Maxfield] both have vulnerable backgrounds having used illicit drugs and being involved in domestic violence.  [Mr Eliot] was very heightened on the day of the interviews due to what he perceived as miscommunication for the report process.  It took me a significant period of time to calm [Mr Eliot] down and encourage him to come in for his interview.  He appeared angry with the ICL, [Ms Maxfield] and the paternal grandmother as he was unsure of what had been organised.  If [Mr Eliot] behaves like that when situations become stressful, this would be a risk factor for [B] should he be exposed.  I have no doubt that [Mr Eliot] loves [B] and they do appear to have a close relationship.  The key factor for [Mr Eliot] will be for him to gain assistance in being able to develop effective strategies to manage his emotions at times when there is stress.  No doubt being the father to children in the care of two ex-partners that he doesn’t like will require him to manage emotions in a healthier way in the future.

   8.3[Ms Maxfield] stated that she is not in a current relationship.  She appears to have a very close and amicable relationship with her ex-partner [Mr P].  She stated to me that [Mr P] lives with his own mother in [H Town] and he comes to the children’s school and sport functions and takes them out fishing and [B] is sometimes included.  [Ms Maxfield] was asked to include her partner in this report process however this didn’t occur.

   8.4It is clear to me that the relationship between the parents was characterised by conflict and the parents have differing opinions as to who instigated the violence and how bad it got.  [Mr Eliot] has spent time in prison for domestic violence offences and was also incarcerated for suspected abuse of his youngest child with his ex-partner.  [Mr Eliot] confirmed that he was found not guilty of these charges in the District Court in late 2021.  As a result, [Mr Eliot] now has unsupervised time with his youngest children authorised by the department.

   …

   8.7Poor communication and a parent's need to prove who is the better parent are not conducive with achieving positive co-parenting arrangements.  In such scenarios, the child will generally experience significant instability.  Shared parenting across two households with very different routines and schedules will often result in the child becoming highly anxious and being caught between the adult issues.  [Mr Eliot] has only recently transitioned to having [B] for two consecutive nights.  After a period of time, this could transition to a third night to alleviate the need for changeovers during the school term.  If [Mr Eliot] is seeking more time with his youngest three children, this will also need to be considered as that will likely be a very stressful time for him given the very poor relationship he has with the mother of those three children.  The other factor to consider is that [Mr Eliot] is currently living with the paternal grandmother.  On the day of the report interviews when things became tense and stressful, [Mr Eliot]’s behaviours towards and language to the paternal grandmother was noted to be very aggressive and poor.  The paternal grandmother was only following the directions of the ICL and trying to assist in being at the report to su xfpervise [B] during the interview of [Mr Eliot].

   8.8If the court assesses that the contact between [B] and [Mr Eliot] is positive, the transition of time from the current two nights to occurring from Friday afternoon until before school on Monday morning could begin in Term 4 of the 2022 school year.  I would recommend this time also occur during the school holidays in the 2022 school year; however, from 2023, if [Mr Eliot] is available, I would recommend that the time [B] spends with both parents occurs on a week about arrangement during the school holidays and time during the school term continue to occur from Friday afternoon to before school on a Monday morning.

   8.9For there to be a more amicable co-parenting relationship, the parents will need to start to look at the co-parenting relationship through a child’s eyes and consider the impact their current poor relationship is having on [B].  [B] would benefit from seeing his parents work amicably about his future.  It was important for [B] to make sure people making decisions about his future knew he wanted to maintain a relationship with both his parents.  On the recommendations I have made, this can occur.  The court will need to be careful to balance the conflict and poor relationship between the parents with maintaining meaningful relationships for [B].  My concern is that any additional time with [Mr Eliot] beyond what I am recommending, will result in the conflict between the parents significantly impacting on their capacity to consider what is [B’s] best interests and [B] will be exposed to the poor parental relationship.

   8.10 My framework when completing family reports is to always recommend what is in the best interests of the child while considering their views and wishes and also the concerns of each parent.  I like to promote to the parents that they need to be solution-focused and to work as collaboratively as possible to avoid any undue stress on the child from the difficulties in the adult relationships.  Once a relationship ends between the parents, the co-parenting relationship of child begins and requires both parents to be committed to the process.  I am a strong advocate for both parents maintaining a safe relationship with children.

   8.11Each parent needs to accept that they can only change themselves and their own behaviours to make changes to their lifestyle that are more conducive with parenting.  They need to work on how they can navigate the issues within their lifestyle and assist their child to do the same.  The parents need to accept ownership for their role in the relationship difficulties and prioritise how they can demonstrate to their child the importance of them maintaining significant relationships with both parents.  It takes two committed parents to ensure that the child understands that they can enjoy a relationship with both parents and ensure the child feels safe and secure.

   8.12The parental relationship upon separation will transition through different phases and child will also experience this transition with the parents.  Children also observe parents’ behaviours, and this significantly impacts on how they deal with changes such as new living arrangements, changes to time the child spends with extended family and the differences between households.  These changes can be difficult for many children to accept, and parents need to be able to recognise that developing a parenting arrangement is not about what is fair for the parents but should be about what the child needs. It can be a fluid process that is able to adapt as the child feels safe and secure in building relationships with significant people in their life.

   8.13The more capable parents are at managing their own feelings and emotional stability, the better equipped they will be in supporting the children develop relationships with significant family members during times of change.  It is important for parents to differentiate between what occurred during the spousal relationship and try to preserve the positive aspects of the family relationship.

6. Furthermore, Ms HH was asked by the Court if she had a view about schooling, although it is noted that the child has not expressed a view, independently captured, as to his preferred secondary college.  Ms HH referred to the importance for this child in having stability in schooling; that moving from a primary to a secondary campus of the same school, as the mother proposes, is a continuity that would be of importance for this child, allowing him to maintain peer relationships and to build on relationships with children he has been at school with since grade two.  I accept the evidence of Ms HH in that respect.

   Primary considerations

7. There is a benefit for B in having a meaningful relationship with both of his parents.  In my view, on the evidence, the mother was more insightful as to the benefit of this relationship between B and the father than the father appears to value in relation to the mother’s relationship with the child.

8. Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Neither party ask the Court to make any finding that the child is at risk in the care of the other parent. Notwithstanding the concerning family violence history of the father reflected by the criminal convictions, the mother accepts that there is little chance that this child will be the subject of any physical or psychological harm from the father. On the evidence, I may be a little more cautious than the mother appears to be, but again, I take into consideration that this father has been frustrated by the litigation and the limited opportunities during B’s development to have meaningful and substantial time with him whilst the serious criminal proceedings against him were pending.

   Additional considerations

9. I deal with these additional considerations in a narrative style.

10. The father says, although his evidence is somewhat silent on this, that the child repeatedly says to him and Ms U that he does not wish to return to the home of the mother.  In this regard, I should note that Ms U did file an affidavit in support of her son and that the child live with her son.  She was the subject of short cross-examination.  She is a loving grandmother.  She says at paragraph nine of her affidavit:

    [B] loves coming over to our house and many times I have seen him get upset and even cry when it was time to go home because he did not want to go.

11. This is consistent with the broad allegation made by the father.  In my view, however, the views expressed by the child to Ms HH and recorded through her personal interview of the child on 24 February reflect the child’s conflict of loyalties as was identified by Ms HH.  This articulate and well-mannered young boy impressed Ms HH “as a boy who clearly loves both his parents and wants a relationship with them both”.  When interviewed, he said – and is recorded at paragraphs 4.1 to 4.5 as follows:

    4.1On 24 February 2022, I conducted an age-appropriate interview of [B] at my office in [LL Town].  I spoke to [B] about my role as a report writer stating that I work with children who no longer live in the same house as their mother and father.  [B] appeared to understand my role and happily spoke to me alone.

    4.2[B] stated that he believed that he was talking to me about his parents and the court case.  [B] stated that he currently lives with his mother and two younger brothers and younger sister. He stated he has a younger brother named [R] who is six, a younger brother named [AA] who is five, and a younger sister named [Q] [sic] who is nearly eight.  He stated that he likes living with his mother and they all play games together and he enjoys cooking with [Ms Maxfield].  When asked if there was anything about this household that [B] would like to change, [B] said there is nothing he would change and he’s happy there.

    4.3[B] stated that [Mr Eliot] currently lives with [B’s] paternal grandmother and [B] stated he gets on well with his father.  He stated that he spends time with [Mr Eliot] every Saturday and Sunday during the day; however, from this weekend, he will be also spending two nights there.  [B] described the time he spends with [Mr Eliot] as fun saying that they play video games, work on cars and he gets to see his cousins.  He stated he is wanting overnight time with his father and he also gets to do crafts and arts with his paternal grandmother.  [B] stated that there is nothing he would like to change about [Mr Eliot] or [Mr Eliot’s] household.

    4.4[B] stated that he also gets to see his younger brothers when he is with [Mr Eliot].  [B] stated that he has no preference where he lives and he wants to spend time with both his parents as he loves them both.  When asked how his parents get along, [B] said he doesn’t really know and they never talk about each other when he is with them. He stated that he knows that his mother is friends with a girl named [Ms E], who is the mother of his younger half-brothers.  He stated that [Ms E] doesn’t come to his mother’s house.  [B] stated that there are no safety concerns in either home and he stated that he wanted the court to know that as long as he is seeing both his parents, he feels safe and happy.

    4.5[B] said that he gets along well with his younger siblings father, [Mr P] [sic]. He didn’t refer to [Mr P] [sic] being a partner of [Ms Maxfield] but did acknowledge that he sees [Mr P] [sic] a lot and they sometimes do things together with the younger children.

12. I agree with the assessment of Ms HH that this little boy, with the history he has had to navigate since he was two years of age, is quite likely to say to each parent things that he may wish them to hear.  I accept that he is likely on occasions to express to both the father and Ms U that he did not wish to return to the mother’s home.  However, that would not, in my view, and should not be seen as any valued assessment by the child of the quality of maintenance of his long-term relationship with and the household he has lived in with the mother and his siblings.

13. I accept that the child has a good relationship with both the mother and father and Ms U.

14. The father in final submissions complained that his lawyers had not indicated (and the mother was not cross-examined upon) allegedly estranged relationships that the mother has with her own extended family.  In the absence of evidence before me, I am unable to make any assessment of that issue or the reasons for it.  I am satisfied that to the extent that the parents have been able to do so, they have participated in making decisions and spending time with the child.

15. In respect of the maintenance of the child, the father has, on the evidence, including Exhibit 3, paid the minimum child support, generally in the range of $15 a fortnight. This is, of course, reflective of the fact that the father does not have employment other than casual employment as a condition of his continued receipt of government benefits. It follows that it is the mother who, through her entitlements, has been responsible for the child’s financial needs substantially. I will deal with section 60CC(3)(d) (the likely effect of changes) in the conclusions to these Reasons.

16. I am not satisfied there are any significant practical difficulties and expense in the child spending time with or communicating with a parent.

17. The father complains that he now lives further away from the child’s school, which is one of the reasons he seeks that the child’s school move closer to him.  He also says as he and the mother were past students of JJ School, B going to that school has a nexus with the family history.  However, he acknowledged that when he chose (perhaps with few choices because of the difficult rental housing market in Queensland at this stage) to move further away from the school to Suburb MM where he currently lives, he was aware that he was going to be further away from the child’s school, and/or the changeover location on non-school days.  The parties live approximately 30 to 50 minutes from the school, the mother no doubt closer.

18. The father identifies as First Nations, although little evidence was advanced by him to enable me to consider, as the Court is required to do, section 60CC(3)(h) of the Act. There is, for example, no evidence as to how or when the child is in his care he currently exposes the child to and allows the child to enjoy any First Nations culture. That was a matter for the father to place before the Court.

19. In respect of the capacity of each of the parents and the attitude of those parents to the child, to the responsibilities of parenthood (section 60CC(f) and (i)), in my assessment, the mother has as the primary carer, under significant stress and with the care of four children under the age of 12, demonstrated a consistently appropriate capacity and attitude to parenting.  No real criticisms can be made, in my view, on the evidence of her efforts.  Whilst the father has had more limited time to “parent the child”, I do not in any way ignore his passion for being a parent and sharing with his son many male-orientated pursuits and activities.  Notwithstanding the concerns which I will come to shortly about the father’s capacity to be angry and frustrated, these factors do not appear to strongly affect the child at the moment, save that in documents produced during the course of the trial by the ICL from the Department of Education, the child has expressed to a guidance counsellor at his primary school concerns about some of the father’s behaviour when he goes to the father’s home.  None of these concerns were identified by the child when speaking to Ms HH.  The mother does not seem to regard them as particularly concerning, or certainly concerning enough to limit the father’s time.  I do not ignore that evidence, but in the absence of anything other than the records, it is difficult to take the matter further.

1. I do note that the father and his mother deny that there is yelling in their home, Ms U opining that the father speaks loud and that could on occasions be perceived by a child as “yelling”.  My impression is that she is so supportive of her son she may well minimise the effect of their conflict, although I do not regard it as a significant factor and note that Ms U and her son have entered into a 12 month lease for new property which they co-tenant, and there is no indication on the evidence that that will change any time soon, maintaining a long-term living arrangement between the paternal grandmother and her son.

2. I take into account that there is a family violence order in place.  Although the order does not restrict, nor has any injunction ever been made restraining the child from sharing with the father details about where he lives, the standard orders in the domestic violence order (see Exhibit 2) apply.  There is evidence that the father has breached not only this order but orders for the benefit of Ms E.  I cannot ignore the criminal history of the father, which shows from 2003 regular antisocial behaviour and, relevantly, since at least 2013, convictions for breaches of domestic violence orders.

3. It is fair to say that any behaviour of the father which can be seen as dismissive of the mother, or likely to reduce the respect B might feel for his mother or women generally, is a real concern in this case, and one which is present, even if, on the evidence, B has not been the subject of any physical actions by the father.

4. The role modelling of the father is very important to B, as the father is the only and primary male role model in his life.

5. The order I make, I believe, is less likely to lead to further proceedings.

   Analysis

6. As early orders have provided the parents have equal shared parental responsibility, at least one consideration is whether that should change.  In my view, notwithstanding the difficult communication between the parties, but with the type of substantial time the child will spend with the father, I am not satisfied that there is a principled reason to depart from the statutory presumption of equal shared parental responsibility.

7. The issue of schooling will be dealt with by an order to be made now.  There is no suggestion the child’s name will change.  There is no suggestion that any faith issues arise in this case, and I am satisfied that when confronted with a major medical issue, these parents who do dearly love this little boy will come together and make the right decision on the basis of medical advice.  Where there is no principled reason to depart from the presumption, it is appropriate in this case that an order for equal shared parental responsibility be made, and I do so (see Vallans & Vallans (2019) 60 Fam LR 193).

8. The father’s proposition, if agreed to, would move the child’s residence from the mother to himself.  That is not in the child’s best interests, for the reasons I have set out in these Reasons.

9. The Court is required with an order for equal shared parental responsibility to consider whether it is in the best interests of the child to spend equal time.  In my view, it is not in the best interest of B or reasonably practicable to do so for at least the following reasons:

   (a)The parenting styles and households of each parent are significantly different;

   (b)The child has had stability in the household of the mother since separation in 2010, and I accept the submissions of counsel for the ICL that to change to an equal time arrangement would be to put at risk the stability and significant development this child has enjoyed in the primary care of the mother; and

   (c)The difficulties with communication also are contraindicative of an equal time order where they would need to communicate well enough so that the child does not become their messenger.  They do not do so at the moment, and although they could on major decisions communicate by email, on the day-to-day requirements that are likely to arise in an equal time arrangement, these parents would simply be unable to sustain such communication, such is, in particular, the level of distrust the father holds for the mother.

10. In my view, the orders which appear at the commencement of these Reasons are in the child’s best interests.  They provide for the child to spend substantial and significant time with the father.  I regard such time as in the best interests of the child and reasonably practicable.

11. In respect to the issue of schooling, I am comfortably satisfied that it is in the best interests of the child that he attend the GG School for the commencement of the 2023 school year.  It gives the better option for him to maintain and sustain peer relationships already developed during his primary school; he is familiar with the community around that school, having attended the primary school; there is no evidence that the current curriculum is not meeting his needs; and consistent with authorities such as Re G:  Children’s Schooling (2000) FLC 93-025, it is the preferred option for the good reason the school is closer to the mother’s home. The father can navigate (at times, if necessary, with the willing assistance of his mother) the travel from his home to the child’s school for collection and drop off, and to be engaged in extra-curricular activities, like little athletics.

12. I note that the father asserts that there are some improvements in the curriculum or activities at the JJ School, but little evidence to support such an assertion was offered to the Court.  Thankfully for these parents, this is not a special needs child, but a child who is rounded, likely to get outside activities in both parents’ homes, develop friendships and do as well as possibly he can in an educational curriculum at any State educational school.

13. I find that the orders that appear at the commencement of these Reasons are in the child’s best interests.

14. I discharge the Independent Children’s Lawyer with the thanks of the Court.

I certify that the preceding seventy five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       31 October 2022

APPENDIX ONE

1.        That all previous parenting orders be discharged.

Parental Responsibility

2.That the Mother have sole parental responsibility for the child B born … 2010 (the Child)

3.        In the exercise of her sole parental responsibility, the Mother must:

(a)inform the Father in writing, at least 14 days prior to making a decision, that there is a decision to be made, including providing her views and seeking the Father’s view/s on the decision;

(b)The Mother and Father are to consider their respective views and attempt to reach an agreement about the decision to be made;

(c)in the event no agreement is reached, the Mother shall make the decision and inform the Father in writing within 7 days of making the decision.

4.That notwithstanding Orders 2 and 3, each parent has responsibility for making decisions about the day-to-day care, welfare and development of the child when he is living with them.

Living Arrangements

5.        That the child live with the Mother.

6.Subject to Order 8 herein, the child will spend time and communicate with the Father at all times as agreed between the parents in writing and failing agreement as follows:

(a)Commencing on xx 2022, on alternate weekends from after school or 3.00pm on Friday until before school Monday (or if Monday is a public holiday or student free day until 3.00pm Monday); and then

7.The Father is to take the child to his extracurricular events that fall during times the child is with the Father, both during school term and during school holiday periods, and to give effect to this Order, the Mother is to confirm by text message sent to the Father not less than 48 hours before the child is due to commence time in his care, the details of any extra curricular activities into which the Child is enrolled.

School Holidays

8.That the child spend time with his parents during school holidays at all times as agreed between the parents in writing and failing agreement as follows:

(a)With the Father in the December 2022/ January 2023 school holidays for two separate seven (7) night blocks from 3.00pm Friday at the end of week one to 3.00pm Friday in week two and from 3.00pm Friday in week five to 3.00pm Friday in week six and with the Mother at all other times;

(b)With the Father in the Terms 1, 2 and 3 school holidays in 2023 for a seven night block from 3.00pm Friday in week one to 3.00pm Friday in week two and with the Mother at all other times;

(c)Commencing from the December 2023/January 2024 school holiday period, the child will spend time with his parents on a week about basis for the Term 4 school holiday periods in each year with changeovers each Friday at 3.00pm:

i.         with the Mother in the first week in odd numbered years, and

ii.        with the Father in the first week in even numbered years

and in the event there are an uneven number of weeks, the child will spend one half of the final week with each of his parents;

(d)Commencing in 2024 and continuing thereafter for the Terms 1, 2 and 3 school holiday periods:

i.with the Father for the first half and with the Mother for the second half in even numbered years, and

ii.with the Mother for the first half and with the Father for the second half in odd numbered years.

9.For the purposes of school holidays, the school holiday period shall commence at the conclusion of school on the last day of term and conclude at 3.00pm on the last Friday of the school holiday period.

Special Occasions

10.That the child spend time with his parents on special occasions at all times as agreed between the parents in writing and failing agreement as follows:

(a)       For Easter:

i.in 2023 and in odd numbered years thereafter, with the Father from 5.00pm on the Thursday immediately prior to Good Friday until 5.00pm Easter Monday, and

ii.in 2024 and in even numbered years thereafter, with the Mother from 5.00pm the Thursday immediately prior to Good Friday until 5.00pm Easter Monday.

(b)       For Christmas:

i.in 2022 and in even numbered years thereafter, with the Father from 9.00am on 22 December until 7.00pm on Christmas Eve and with the Mother from 7.00pm on Christmas Eve until 7.00pm on 27 December; and

ii.in 2023 and in odd numbered years thereafter, with the Mother from 9.00am on 22 December until 7.00pm on Christmas Eve and with the Father from 7.00pm on Christmas Eve until 7.00pm on 27 December. 

(c)With the Father for Father’s Day (if not already with his Father), from 5.00pm Saturday until before school on Monday.

(d)With the Mother for Mother’s Day (if not already with his Mother), from 5.00pm Saturday until before school on Monday.

(e)On the child’s birthday, with the parent he did not wake up with to collect the child at the commencement of time and deliver the child back to the other parent at the conclusion of time:

i.         for three (3) hours on a school day, from after school to 6.00pm, and

ii.        for four (4) hours on a non-school day, from 9.00am until 1.00pm.

Telephone communication

11.That the child communicate by telephone with the parent he is not living with at such times as the child reasonably requests but otherwise between 6.00pm and 7.00pm each Sunday night, and in relation to such communication each parent shall:

(a)       Ensure that the child is available to receive the telephone call;

(b)Arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance, the child misses the telephone call from that parent, and

(c)       Ensure that the child has privacy during the conversation.

Changeover

12.That changeovers occur at school on school days and at McDonalds at Suburb EE on non-school days.

Schooling and Extracurricular Activities

13.This Order is sufficient authority for the child’s school and extracurricular provider to give each parent information about the child’s educational progress and other activities, and supply them with copies of any reports, school reports, photographs, certificates and awards obtained by the child, at the requesting parent’s cost.

14.Each parent is responsible for contacting the child’s school or extracurricular activity provider to obtain all relevant information concerning the child’s progress at school or in that activity, and any special events involving the child.

15.If either parent is informed by the child’s school of a social, behavioural, or educational concern in relation to the child, the receiving parent will notify the other parent of all details of the concern within 48 hours.

16.The parents are at liberty to attend all educational, extra-curricular functions, events and activities the child may be involved in or to which parents are normally invited, subject always to the discretion of the school or organising authority.

17.The parents will each ensure that the child attends all events associated with any extra-curricular activities in which he is enrolled (including games, training sessions, performances, trials, carnivals, holiday clinics and any other activity that team members are invited to attend) that are scheduled during times that the child is in their respective care, except in the event a parent is staying out of the Brisbane area with the child during that time.

18.In the event the child expresses a wish to change his extra-curricular activities, the Mother will notify the Father about his desired change, and:

(a)       The Mother will provide the Father with the options available for that activity;

(b)The Father will provide a response to the Mother about his view about the child participating in that activity within seven (7) days of receipt of the Mother’s correspondence;

(c)The Mother will take the Father’s view into consideration and attempt to reach agreement, failing which the Mother will be at liberty to make a decision about the child’s extra-curricular activities and will notify the Father, and

(d)Both parents are thereafter required to take the child to the associated events for that extracurricular activity.

19.The child is not to be enrolled in more than two extracurricular activities per term unless the parents agree in writing.

Child’s Health

20.That within seven (7) days of the date of these Orders, the Mother will inform the Father in writing of the Medical Centre (“the Single GP”) the child is to be taken to for any treatment, interventions and referrals save in the event of an emergency with the parent taking the child for that emergency attendance to ensure that any treatment notes are sent to the Single GP.

21If the single GP recommends that the child engage with such other allied health professional, the parents will engage with the recommended professional, and ensure the child attends all appointments.

22.The Mother is at liberty to obtain a mental health care plan for the child to attend upon a Psychologist for therapy and/or counselling as recommended by the Single GP and to give effect to this Order:

(a)The Mother will source an appropriate child Psychologist for the child and upon a Psychologist being appointed, will advise the Father within seven (7) days in writing of the name and contact details of the Psychologist and the date of the first booked appointment;

(b)At the initial session, the Mother is granted leave pursuant to s121 of the Family Law Act1975 (Cth) to provide the Psychologist with a copy of these Orders and the Family Report of Ms HH;

(c)the Father will contact the Psychologist to arrange an introduction session between the Psychologist and the Father;

(d)the Psychologist is at liberty to recommend such programs or other allied health professionals to engage with the child and the parents will comply with any recommendations including taking the child to any programs or other professionals;

(e)the parents are to attend for sessions only as and when directed by the Psychologist;

(f)both parents are to meet any out-of-pocket costs payable for appointment fees incurred in relation to the child equally;

(g)the mother and father are to solely meet any out-of-pocket cost payable for appointment fees incurred in relation to any session they are individually directed to attend by the Psychologist; and

(h)should the parents attend for any joint sessions at the direction of the Psychologist (either in person or by telephone) the parents are to share the cost for appointment fees incurred equally.

23.      The Mother and Father shall:

(a)without delay, contact the other parent by phone and thereafter confirm by text in the event either parent needs to take the child to hospital or elsewhere for a medical emergency;

(b)keep the other parent informed of the names and addresses of any medical or other health practitioners who treat the child and authorise those practitioners to provide to the other parent the information they are lawfully able to provide about the child;

(c)inform the other parent as soon as reasonably practicable of any significant medical condition or significant health issue suffered by the child including advising of any follow up doctor’s appointments, and

(d)inform the other parent of any specialist medical appointments made for the child within three days of any appointment being made.

24.This Order shall, without more, act as authority for any professional care provider of the children (whether a doctor, allied health professional, counsellor/psychologist, hospital or otherwise) to release any information concerning the care, welfare and development of the children to both parents including information about the children’s medical condition, treatment and copies of medical records and reports.

25.That in the event the child is prescribed medication for any medical issue each parent ensure that the child is administered that prescribed medication according to the script/label.

Parent’s Communication

26.That all necessary communication between the parents regarding the child be by way of parenting communication application as agreed between the parties, and if not agreed by using “AppClose”, except in the case of emergencies where such communication shall be by telephone and both parents are to do all things necessary to download and activate the application within seven (7) days of the date of these Orders.

27.If a parent sends a message to the other parent on the Communication Application or by email or text message, the parent must acknowledge receipt of the message and respond to the message within twenty-four (24) hours.

28.      The Mother and Father shall:

(a)keep the other parent informed at all times of their residential address, landline (if any) and/or mobile phone numbers and email addresses and notify each other within forty-eight (48) hours of any changes to those details;

(b)be respectful and courteous in any communication with each other.

29.That in the event either parent is living with any other third party, they are to keep the other parent informed about the name, age and any relevant details of any other person residing in the house, within 48 hours of the change.

Other Orders

30.      That during the time the child is with either parent, the parents shall:

(a)Actively promote the child’s relationship with the other parent and speak of the other parent respectfully;

(b)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(c)Not discuss these Court proceedings or the parenting Orders with the child;

(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

(e)Not permit the child to have any social media accounts, gaming accounts or other chat room functions until the legal age for him to have those accounts for each platform, or until he reaches the age of 13 years, whichever is the latest, PROVIDED THAT, the child is entitled to hold a “Messenger Kids” account, which is connected to the parent’s own account/s from the date of these Orders.

31.Pursuant to Section 121 of the Family Law Act 1975, leave is granted to the parents and legal representatives to provide a copy of these Orders to:

(a)Any school, educational institution, or care provider;

(b)Any treating medical practitioner, hospital or health care professional for the parents or the child;

(c)       Any government department or instrumentally;

that may seek or require to hold a copy of the Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988.

Overseas Travel

32.From 1 January 2023 the parents are at liberty to travel internationally with the child PROVIDED THAT they only do so in accordance with these orders or otherwise as agreed between the parents in writing.

33.      Each parent shall do all acts and sign all documents necessary to:

(a)apply for an Australian Travel Document (“Passports”) for the child and/or renewal of the child’s passport by 31 November 2022; and,

(b)       keep the said Passport up to date at all times thereafter,

(c)with each parent to be equally responsible for the costs of applying for a Passport and/or renewing the Passport.

34.That pursuant to s11(1)(b)(i) of the Australian Passport Act 2005 (Cth), the child B born … 2010 shall be permitted to hold Australian Travel Documents including a Passport.

35.      Should either parent wish to travel internationally with the child:

(a)       the travelling parent shall give the other parent sixty (60) days written notice of:

i.their intention to travel overseas during the time the child is scheduled to spend time with that parent pursuant to these Orders or such other time as the parents agree in writing; and

ii.if necessary, their proposed arrangements to make up the other parent’s time with the child AND the other parent must respond within seven (7) days of receiving the request,

(b)       the other parent shall not unreasonably object to the said travel.

36.That in the event a period of overseas travel for the child necessitates him being absent from school to facilitate such travel, then the school absence will not exceed five days before and/or after such travel.

37.Pursuant to s65Y Family Law Act 1975 (Cth) the mother and the father each be at liberty to travel overseas with the child as provided herein AND neither shall travel with the child to countries where the DFAT travel warning is level 3 or above, or to any country which is not a signatory to the Hague Convention unless the parents agree otherwise in writing.

38.The travelling parent must provide to the other parent in writing at least thirty (30) days before travel with the child:-

(a)the proposed destination country/countries and the dates of travel;

(b)       copies of return E-Tickets for the child;

(c)       flight/vessel details;

(d)travel itinerary and will notify the other parent of any material change to the itinerary;

(e)all main accommodation details and a contact telephone number(s) for the child while travelling; and

(f)       copy of travel insurance for the child.

39.Should the travelling parent fail to provide the information outlined in Order 39 by the specified date or other date as agreed between the parents in writing, the parent receiving the request shall be at liberty to withdraw their consent for the child to travel.

40.During any overseas travel, the travelling parent must arrange for the child to telephone the other parent in Australia within four hours of arrival at the intended destination (not any stop-over flights) and on regular occasions during the period of the trip and within four hours of arrival back in Australia.

41.The child’s passport shall be held by the Mother, and the Mother shall release it to the Father within three (3) days of his written request AND upon the child’s return to the Mother the Father must return the child’s passport to the Mother.

42.The travelling parent shall meet all costs of travel including visa costs and in relation to the issue of any applicable visas for the child:

(a)the travelling parent shall provide a copy of the applicable visa application; and

(b)the parent to whom the visa application is presented shall sign the application (if required) and return it to the travelling parent within seven (7) days of receipt of the visa application and otherwise do all things necessary for the visa to issue.

43.Where a passport is lost or stolen whilst in the care of either parent that parent shall replace the passport (and any associated visas) at their own cost.

Dispute Resolution

44.That in the event the Mother and Father are unable to resolve a dispute regarding parenting matters, the following is to apply unless otherwise agreed in writing between the parties:

(a)Either the Mother or Father shall compile a list of three (3) Family Dispute Resolution Practitioners and convey this list to the other parent within seven (7) days of any dispute between the Mother and the Father;

(b)The other parent shall choose a Family Dispute Resolution Practitioner from this list and convey this choice to the Mother or the Father (as the case may be) within seven (7) days of receiving this list;

(c)Either the Mother or the Father shall commence the Family Dispute Resolution and the parents shall make a genuine effort to resolve the dispute, and

(d)The Mother and Father shall equally contribute to the cost of Family Dispute Resolution.

AND THE COURT ORDERS:

45.      That the Independent Children’s Lawyer be discharged.

APPENDIX TWO

1.That all previous Orders and Parenting Plans be discharged.

2.That the Child B born … 2010 (herein referred to as the child) live with the Father.

3.That the Father have sole Parental Responsibility for the child.

3A.That except in the event of an emergency, the father shall consult the mother in writing about decisions to be made in the exercise of his sole parental responsibility and consider the views of the mother prior to making such decisions.

4.That the parents each be allowed to attend the Child’s School, any Extra Curricular (i.e. Sporting events, Award Ceremonies etc.) and Parent Teacher interviews.

5.That subject to the Orders below, the Child spend time with the mother unsupervised, each alternate weekend as follows: From after School at 3pm Friday to 5pm Sunday or before school Monday during school terms, with changeovers to occur at School.

6.Subject to the Orders below, The Child is to spend 50% of each School Holidays with the Father, 1 week with the Father, 1 with the Mother and so on until the Holidays are complete, being from 10am Friday till the Following Friday at 10am.

7.Changeovers outside of school terms to occur at Suburb EE McDonalds.

Special Days

8.That the mother shall spend time with the child on Mother’s Day 5pm Saturday till 5pm Sunday Afternoon.

9.That the father shall spend time with the children on Father’s Day 5pm Saturday till 5pm Sunday Afternoon.

10.That each parent be at liberty to spend dinner with B on that parent’s birthday.

11.Unless this is already a scheduled Fortnightly Visit like outlined above, in Condition 5 and 6.  The time the Child spends with each Parent on Christmas shall Alternate each year (starting this year with the Father and be set out as Follows- If the Child is not already with the Father, than the Child is to spend time with the Father from 12pm on Christmas Even till 1pm Christmas Day.

If the Child is already with the Father than the Child is to spend time with the Mother From 1pm on Christmas Day till 12pm Boxing Day with the Mother.

If the Child is not already spending time with the Father on Father’s Day than the Child is to Spend time with the Father from 10am to 4:30pm Sunday, with the Father Picking up and Dropping the Child off at Suburb NN Police Station, if the D Contact Centre is not Open.

That the Child be allowed to interact and communicate with Members of the Father’s Family like Aunty’s, Uncle’s, Counsins etc.

Communication

12.      The child communicate with the Mother by telephone:

a.        each Tuesday and Thursday between 5pm-6.30pm

b.        each Mother’s Day, Easter and Christmas Day

with the call to be initiated by the Mother to the Child’s mobile phone; and the Father to facilitate the call, including but not limited ensuring that the Child speaks with the Mother in a room that is free from distraction and excessive noise, as is reasonably possible.

13.The Child be allowed to communicate with any Family Member by Telephone on any Special Occasion as follows:

a.        Easter Sunday

b.Christmas Day

c.        Birthdays (Child’s Birthday and Family Members Birthdays)

The Parent must provide the other Parent with any Family Members Telephone number the Child request to contact.

14.In addition to communication in condition 13 above, the Child be at liberty to communicate with either Parent he is not already with by telephone and/or Video Chat. The Parent the Child is with must facilitate any reasonable request by the child to communicate with the other Parent.

15.When communicating with the child, each Parent shall ensure that their communication is child focussed including but not limited to not swearing and not using derogatory terms in relation to the other Parent, the other Parent’s Family or Friends.

Specific Issues

16.Each parent shall immediately notify the other by SMS or telephone of any serious illness or medical emergency pertaining to the child.

17.Each party shall advise the other with 48 hours of any change to their mobile telephone number and within 7 days of any change of residential address

18.If for any reason either Parent has transport issues they must immediately notify the other by SMS or telephone to arrange an alternative means of transporting the Child, like asking Another Family Member, using Public Transport, Politely request the Other Parent to Transport the Child to/from their House (this 1 being as a last resort to ensure that the Child be able to spend time with both Parents).

19.Like Stated in Previous Conditions above, the Suburb NN Police Station is to be used as a Pick up/Drop of Point only if the D Contact Centre is Closed.

20.If for any reason the Suburb NN Police Station is to be used for ChangeOver Place, Than the Mother’s Partner, Mr P, not be allowed to attend, be present or even seen within a 500metre radius distance of the Suburb NN Police Station at the Time its being used as a Change Over Place.

21.Cost of Education, Extra curricula and sports for B be equal shared and split between both parents.

FATHER’S ALTERNATIVE POSITION

Should Orders 2-3A, 5 and 7 above not be granted:

1.The Child B born … 2010 (herein referred to as the child) shall live with the parties on a week about basis.

2.        That the mother and father have equal shared parental responsibility for the child.