Medwin & Medwin

[2023] FedCFamC2F 509

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Medwin & Medwin [2023] FedCFamC2F 509

File number(s):

BRC 7616 of 2020

Judgment of:

JUDGE WILLIS AM

Date of judgment:

17 May 2023

Catchwords:

 FAMILY LAW – contested parenting applications – prior consent orders provided for the two (2) children to live with the mother – where the mother home-schooled both of the children – where the eldest child, almost 17 at the conclusion of the trial, self-placed with father when he was 14/15 years old – where the younger child, 13 years old at trial, remained living with the mother – where there is a documented breakdown of the relationship between the younger child and the mother – 13 year old child considering harming herself or the mother – schooling highly contentious issue – where the father seeks that the child attend mainstream schooling – mother’s final position seeks that the younger child continue to live with her and that the mother continue to deliver the home schooled education – where the children’s views are taken into account and great weight has been placed upon such views – where there is expert evidence of the children’s views and professional assessments of learning levels and any potential learning difficulties – where the Court finds it is in the eldest child’s best interests to remain living with the father and see the mother according to his wishes – where the Court finds it is in the younger child’s best interests to live with the father – time with mother subject to child’s views – father to have sole parental responsibility for both children (which includes schooling)

Legislation:

Family Law Act 1975 (Cth) Part VII, ss 60B(1), 60CC, 61DA, 65DAA

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Mazorski & Albright [2007] FamCA 520

MRR v GR [2010] HCA 4

Division:

Division 2 Family Law

Number of paragraphs:

392

Date of last submission/s:

3 April 2023

Date of hearing:

23 and 24 February 2022, 6 May 2022, 11 and 12 July 2022, 26-28 October 2022, 20 December 2022, 16 March 2023, and 20 March 2023 (total hearing time: 11 days)

Place:

Brisbane

Counsel for the Applicant:

Mr Gunn (26 - 28 October 2022)

Solicitor for the Applicant:

Ms Harris (23 February 2022 - 15 March 2023); self-represented (15 March 2023 onwards)

Solicitor for the Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Mr Todman

Solicitor for the Independent Children's Lawyer:

Ms Feeney

ORDERS

BRC 7616 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MEDWIN

Applicant

AND:

MR MEDWIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE WILLIS AM
DATE OF ORDER:	17 MAY 2023

UPON APPLICATION MADE TO THE COURT by Ms Medwin appearing for herself as the Applicant, Mr Medwin appearing for himself as the Respondent, and Ms Feeney as the Independent Children’s Lawyer

THE COURT ORDERS ON A FINAL BASIS THAT:

1.All previous parenting Orders be discharged.

Parental responsibility

2.The father have sole parental responsibility for all long term decisions for each of the children X born 2006 and Y born 2009 (including but not limited to medical decisions (which is to include the decision for a child to undergo any assessments for any condition – medical, psychological, behavioural or otherwise, including Autism or any similar conditions), educational decisions (including the choice of any school or school activity, sporting or extra curricula activity, or any choices regarding university, TAFE, or any other course of learning or program), and religious decisions.

Living and Time Arrangements – X

3.X is to live with the father.

4.X will only spend time with or communicate with the mother in accordance with his wishes. 

AND IT IS NOTED THAT:

A.At the time of these Orders X does not wish to spend time with or communicate with his mother and this is accepted by the Court. X is aged 17 and is therefore not required to engage in, accept, or reply, to any communication from the mother. There is no mandated time between the mother and X or mandated communication.

THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

Living and Time Arrangements – Y

5.Y is to live with the father.

6.Y will only spend time with or communicate with the mother when Y expresses a wish to do so, as expressed to her father.

AND IT IS NOTED THAT:

B.Even though final Orders are made herein for Y’s time and communication with the mother, given the troubled relationship between Y and her mother, any Order for time spent with the mother or provision for communicating with the mother by Y herein will only commence and/or occur when Y is ready to do so, as conveyed to her father. Further, each Order will always be subject to Y’s wishes as expressed to her father. Y’s failure to want to spend time with the mother or communicate with her will therefore not be a breach of the Orders.

THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

7.The mother is restrained from contacting Y other than as provided for in these Orders.

8.The re-establishment of Y spending time with her mother is set out hereunder, however, this time will only occur in accordance with Y’s wishes as expressed by her to the father:

(a)From the date of these Orders the mother will have no contact nor communicate with Y for a period of two (2) weeks, unless initiated by Y through the father.

(b)For three (3) months thereafter Y will only spend time from 10:00am until 2:00pm Sunday each fortnight with the mother (subject to Y’s wishes).

9.From the end of the period in Order 8(b) herein, Y will spend time with the mother from 5:00pm Friday until 3:00pm Sunday each fortnight, subject to Y’s wishes.

10.In the event that Y has an event which she may wish to attend, which is otherwise occurring during time spent with the mother on a weekend, upon the father giving notice to the mother of such an event, Y will attend that event and make up time will be offered by the father, subject to Y’s wishes.

11.At the conclusion of the period in Order 8(b) herein, the mother may text Y up to three (3) times per week, however Y is under no obligation to respond to such text messages. In the event that Y does not wish to receive any further text messages from the mother, the mother is to respect that position and cease sending any further texts.

Special days

12.Subject always to Y’s wishes as expressed to her father, notwithstanding any other Order herein and unless agreed otherwise:

(a)Y will spend the Mother’s Day weekend with the mother commencing at 5:00pm on Friday and concluding at 5:00pm on Sunday.

(b)Y will, subject to her wishes, if not otherwise with her mother, spend time with the mother from 9:00am Christmas Eve until 12:00pm Christmas Day in even numbered years, and then return to the care of the father.

(c)Y will, subject to her wishes, if not otherwise with her mother, spend time with the mother from 12:00pm Christmas Day until 5:00pm Boxing Day in odd numbered years, and then return to the care of the father.

13.Notwithstanding any other Order herein, and unless agreed otherwise:

(a)Y will live with the father on the Father’s Day weekend.

(b)Y will live with the father, if she is not already in his care, from 12:00pm Christmas Day until 5:00pm Boxing Day in even numbered years.

(c)Y will live with the father, if she is not already in his care, from 9:00am Christmas Eve until 12:00pm Christmas Day in odd numbered years.

14.Y will live with the father at all other times, other than the times spent with the mother pursuant to these Orders.

15.In the event that Y expresses a wish to spend holiday time with the mother, as expressed to the father, the father will convey such request to the mother and facilitate such reasonable time nominated by Y.

16.The father is permitted to spend time with Y for one half of all of the Queensland gazetted school holidays and the mother’s weekend time provided for in Order 8(b) herein will be suspended to enable this to occur. The father’s holiday time will alternate from the first half of all school holidays in 2023, and the second half of all school holidays in 2024, alternating each year thereafter.

17.The holidays will commence at the conclusion of school on the last school day of the term and conclude on the morning of the first school day in the next term.

Telephone Communication

18.Y be at liberty to call the other parent when she is not with that parent (which is to include members of the other parent’s family or siblings or half-siblings of Y) regardless of where she is living or spending time.

19.On Y’s birthday and Christmas Day, when Y is spending time with the mother pursuant to these Orders, the father (and other members of his household) are at liberty to telephone, skype, or FaceTime, Y prior to 10:00am and the other parent shall facilitate the call and not interfere with the call.

20.Subject to Y’s wishes, on her birthday, Christmas Day, and/or when Y is living with the father, if Y wishes to take the call as expressed to her father, the mother is at liberty to telephone, skype, or FaceTime, Y prior to 10:00am.

21.Any other telephone/FaceTime/Skype contact between the mother and Y will only occur by prior agreement with the father and subject always to Y’s wishes as expressed to her father and is to occur in line with these Orders and the restraints and conditions as expressed in these Orders. 

Changeover

22.Any changeover shall occur at McDonalds in Suburb B. In the event that the mother refuses or fails to attend at McDonalds Suburb B there is no obligation on the father to comply with Orders for the child’s time with the mother.

23.Each parent is at liberty to nominate another responsible adult known to Y to facilitate any changeover.

Schooling

24.In the exercise of his sole parental responsibility, the father is permitted to do all acts and things and sign all documents necessary for Y to enroll and attend at C School (or any other school or educational facility chosen by the father) without requiring the mother’s signature or permission to do so.  The Court notes that the father has sole parental responsibility for all long term decisions regarding Y’s education and other long term issues.

Restraints

25.The mother is restrained from requesting Y to spend time with her.

26.The mother is restrained from contacting or attending at C School (or any other school or facility that Y attends) without the prior written agreement of the father to do so, NOTING that the father has sole parental responsibility for all long term decisions regarding Y’s education.

AND IT IS NOTED THAT:

C.So there is no misunderstanding, the teaching and administrative staff at C School (or any other school or educational facility attended by Y) are not obliged under any Order of the Court to engage in any contact with the mother or comply with requests by the mother for information of whatsoever kind, or to agree to the mother’s requests for any documentation of any kind (including school reports).

THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:

27.The mother is not permitted to attend at the campus of C School (or any other school or educational facility that Y attends) without the prior written agreement of the father, and, if and when the mother does attend in compliance with the father’s agreement, her attendance is always subject to the discretion of C School (or any other school or educational facility attended by Y).

AND IT IS NOTED THAT:

D.In relation to medical issues and assessments referred to in these Orders, for clarification, the father has sole parental responsibility for such decisions as referred to in these Orders. 

E.The Court also notes that nothing in these Orders requires the children’s treating doctors and/or health professionals (including but not limited to hospitals, dental, medical, and mental health care providers, social workers, or counsellors, or psychologists), or any school or institution or entity or statutory body (for example, the Police), to provide any response to requests for information from the mother.

AND THE COURT ORDERS ON A FINAL BASIS THAT:

Travel and Passports

28.Pursuant to section 11(l)(b)(i) of the Passports Act, the children be permitted to have an Australian travel document and the father is permitted to do all acts and things and sign all documents necessary to apply for a passport or visa for either child.  The passport or visa is to issue notwithstanding that the mother has failed to sign the necessary documentation to enable this to occur.

29.The mother and father are to share equally in any costs associated with the renewal or issuing of the children's passports.

30.The children's passports will be held by the father.

31.Any current passports for either child is to be delivered up by the mother to the father forthwith.

32.In the event that either party wishes to remove Y from the Commonwealth of Australia for the purposes of an overseas trip, such travel is to only occur in countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and only in compliance with the conditions, times, and terms, of the Orders herein.

Miscellaneous

33.The mother is to deliver up to the father, at a location nominated by him, any of Y’s belongings currently in the mother’s possession as and when requested by Y.

34.Communication between the mother and father regarding the children shall be by email to an email address nominated by each parent in the first instance, or if the matter is a medical event and/or true emergency, a phone call or text should be made forthwith to the other parent regarding the emergency. 

35.The parents are to keep each other informed within 24 hours of a change to their email contact details, telephone number, or other necessary contact details.

36.Once in every three (3) month calendar period, the father will provide by way of email to the mother a summary of Y’s activities, touching on:

(a)Education and health; and

(b)General wellbeing and interests.

37.The father will provide to the mother, within a reasonable time after receiving such school report, a copy of Y’s school report (as issued by any school she attends). 

38.The father is permitted to provide a copy of these Orders and this judgment, and the Family Report of Ms D filed by leave on 16 March 2023, to the Police, the Department of Child Safety (under whatsoever name in any State), schools attended by the children, all health professionals, and any other professional or statutory body, who may come into contact with the children or upon whom the father attends for any counselling or therapeutic services.

39.The mother is permitted to provide a copy of this judgment and the Family Report of Ms D filed by leave on 16 March 2023, to any mental health practitioner upon whom she is attending for her own counselling, therapeutic services, or psychiatric assessment or treatment.

40.The Independent Children’s Lawyer will be discharged 30 days from the date of this Order, or upon the expiration of any appeal period.

41.All outstanding applications are removed from the Active Pending Cases list.

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 Medwin & Medwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

TABLE OF CONTENTS

INTRODUCTION	[1]
BACKGROUND	[3]
Events leading to current proceedings	[9]
Schooling	[15]
X’s Mental Health	[27]
Current Proceedings	[32]
THE APPLICATIONS	[42]
X – Orders Sought by the Mother	[42]
X – Orders Sought by the Father	[47]
Y – Orders Sought by the Mother	[49]
Y – Orders Sought by the Father	[61]
Orders Sought by the Independent Children’s Lawyer	[65]
THE TRIAL	[71]
THE LAW	[99]
THE EVIDENCE – THE WITNESSES	[105]
The Mother	[105]
The Father	[142]
Ms E –C School	[153]
THE EVIDENCE – REPORTS & THE REPORT WRITERS	[162]
Ms F	[162]
Ms G	[169]
The Family Reports	[174]
First Family Report – Ms H	[175]
Second Family Report – Mr J	[191]
Third (and Final) Family Report – Ms D	[203]
Y	[208]
X	[237]
THE SECTION 60CC FACTORS	[244]
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s view	[245]
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major, long term issues in relation to the child; and to spend time with the child; and to communicate with the child	[262]
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child	[267]
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living	[269]
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis	[288]
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs and S.60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents	[292]
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant	[322]
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family	[323]
S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order	[341]
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child	[342]
THE PRIMARY CONSIDERATIONS	[346]
S.60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and	[346]
S.60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence	[355]
THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY (S.61DA)	[359]
CONCLUSION – BEST INTERESTS	[371]

REASONS FOR JUDGMENT

JUDGE WILLIS AM:

INTRODUCTION

1. This is a contested parenting matter involving the living and schooling arrangements of Y and the living arrangements of her older brother X

2. In this judgment a statement represents a finding of fact unless stated otherwise.

   BACKGROUND

3. X was born 2006. By the end of the trial he was aged 16 years. Y was born 2009 and at the end of the trial was aged 13 years.

4. The father in this matter, Mr Medwin, aged 57 at the time of trial, is a professional. He seems to have a creative hobby and also works in the transport industry. Mr Medwin has re-partnered and his partner, Ms K, has two (2) sons of her own aged around 22 and 18/19 years old. Both X and Y have a good and happy association with Ms K and her two sons who are around X’s age.

5. The mother, Ms Medwin (also known by two other names)), was born in Country L and is aged 53. The mother has two (2) daughters from her previous relationship, Ms M and Ms N, who were aged around 12 and 8 years old respectively when the mother and the father commenced living together. The mother’s two (2) older daughters lived as part of the family circle with the mother and father, and then with X and Y once they were born. The father was the financial provider for the blended family. The mother has described how her first husband (father of Ms M and Ms N) was domestically violent and did not wish to spend time with children and that he did not pay child support.

6. The mother educated her two (2) older daughters at home through a program offered by O School and she did likewise with X up to Grade 10. The parties separated in 2014 before Y commenced her schooling. The mother did not consult the father about Y’s education and whether it would be agreed that Y also be educated by the mother delivering the O School curriculum. The mother just went ahead and enrolled Y with O School. At a point, the father found that O School would not talk to him anymore and that he had been removed from the enrolment form. The mother denies doing this.

7. The mother has, since separation in 2014, looked for part time work as an independent contractor for five (5) years and working/becoming a coach (though with two (2) clients, that seemed to start and finish during the trial). The mother says she has written a book which is said to be a self-help book. The father reported to the Family Report Writer that both children are aware that the book is “out there”.

8. The mother now lives in a relationship with Mr P who she describes as her de facto partner and a step father to Y. The mother says she is not able to receive any Centrelink payments because she is now in a de facto relationship. She says she gave up her work in February 2022. The father owned his home (encumbered with a mortgage) when he met the mother and during the relationship her name was included on the title. Following the property settlement, the mother retained their former family home. The Court has heard from the mother that the mother’s partner Mr P pays the whole mortgage, and has always done so, and that whilst the mortgage is in the names of both herself and Mr P, that the title to the home is in the mother’s name only. The mother has a negligible income.

   Events leading to current proceedings

9. When the parties separated in 2014 the father described a long and expensive legal process with the mother to be able to spend regular time with X and Y.

10. On 5 November 2015 the parties agreed to final parenting Orders by Consent (“the Consent Orders”) issued by His Honour Judge Baumann (as he then was). The Consent Orders provided for X and Y to live with the mother and that the parents have equal shared parental responsibility. The children were to spend each alternate weekend with the father, half the holidays, and special days.

11. Those Consent Orders remained in place until litigation between the parties commenced again in 2020. This was due to X, then aged 14/15 years old, self-placing with the father. The evidence of the Family Report Writers of the father and X overwhelmingly supports the finding that X has made the decision himself to live with the father and that he chose to do so for valid reasons which he was able to articulate. X told the Family Report Writers that his father has always made it clear that he would support X to spend time with the mother, if X wished to do so. The independent evidence in the first Family Report shows that in November 2020 X reported as being very happy living with the father, and content in not having seen his mother for six months. Further, X made it clear that he had no intention of doing so at that time. X maintained this position in the second Family Report and then again in the most recent and final Family Report in February 2023.  He refused to spend any time with the mother for the final two Reports and did not speak to her during observation in the first Family Report.

12. In moving to live with the father, X has voted with his feet after having a tumultuous time living with the mother and having his education delivered by his mother. During the latter years of living with his mother when he was maturing and becoming a teenager he lost interest in his schooling delivered by the mother, hated the frequent arguments he was always having with his mother, found himself lonely, isolated, and becoming paranoid, with a low self-worth, while living and being schooled under his mother’s supervision. This all culminated in him experiencing depression and serious lack of enjoyment of life, explained to his therapist in June 2020. The father had the insight back in 2020 to organise a therapist for X so that he could have someone to support him and be an independent person to talk to.  

13. Ultimately, through X’s deteriorating mental health at the circumstances he found himself in, and with Court intervention, X moved to live with his father and the Court ordered that he be permitted to attend C School.

14. At 17 years old, X has now completed his schooling and has been accepted to attend University.

    Schooling

15. Throughout the trial the mother has tried to make a significant distinction between the concepts of a child being home schooled as compared to the mother teaching her children the curriculum offered through O School. The only difference appears to be the curriculum. On either case, the mother takes on the major role of being the teacher and the children are taught at home.

16. The mother does not really accept that she is not a teacher. She proudly claims to have a certificate from O School that says she can teach her own children. Under cross-examination, the mother conceded that all parents who decide to teach their children through O School get such a certificate. 

17. When their parents separated back in 2014, X then aged 13/14 and Y aged 4/5 both remained living with their mother and spent regular weekend time with their father.   The father says that the children always told him they wanted to spend equal time with their parents, however, this could not be accommodated given they were schooled at home. At that time, X (and before him, his older half-sisters) was being educated by his mother at home using the curriculum offered through O School and Y had not yet started her schooling. Now, the mother has been teaching, facilitating and supervising all aspects of Y’s education for the past seven (7) years and Y has always lived primarily with the mother since separation in 2014.  

18. It was some six (6) years after separation, in 2020, when, aged 14, X decided that he no longer wished to have his mother as his teacher nor did he wish to be educated at home. He really wanted to try going to a mainstream school and had raised this for some years with the mother. The mother would not agree. In fact she was fiercely against it.

19. At the time, X, and members of the mother’s family, urged the mother to allow X to attend a mainstream school given his age and wishes, rather than continue to be schooled at home under the supervision and teaching of his mother. 

20. X told the first Family Report Writer in the November 2020 interviews that since he had been living with his father from June 2020 onwards, he is seeing a lot more of his older half-sisters, Ms M and Ms N, to whom he feels close, as they can drop in, and he has also been seeing more of his maternal grandmother at Suburb R. X said that the mother and maternal grandmother had not been speaking to each other for the past year and a half (1½) following on from a huge argument at his grandmother’s place two (2) years ago (in 2018).  The argument had started with X talking to Ms N about wanting to go to a state school and it escalated because many members of the mother’s family came together and tried to support X by persuading the mother to agree to X’s request. The mother would not agree. The argument was intense. The mother’s own family (including her sister and mother) strongly rallied their support for X and this resulted in significant argument/shouting for hours in the presence of X.

21. The fall-out was that the mother is no longer in family relationships with her sister and mother and she sees almost nothing of her two (2) older daughters. Both X and Y enjoy their relationship with their older sisters, and their aunt and grandmother, but whilst living with the mother, it did not happen.

22. The mother refused to agree to X attending a mainstream school. The father supported X’s request to try mainstream schooling and live in a week about arrangement, but there was no agreement by the mother. 

23. X became frustrated, depressed, and angry, at his mother’s refusal to allow him to attend a mainstream school, and with his personal life in the mother’s home. He later described feeling paranoid and depressed. He retreated from his mother and family life and was spending long periods of time in his bedroom. When he saw his therapist in November 2020 (organised by his father who was most concerned about his deteriorating state), X reported that for about 18 months before he moved to his father’s in June 2020, he had felt so lonely and isolated. He was a teenager who, on all of the evidence, was feeling stifled and oppressed in the home environment with his mother.

24. X wanted the chance to try being educated in a mainstream school setting rather than sitting at the kitchen table being taught by his mother. He wanted to have a chance to be part of a school community with other students, make friends, attend classes, and be educated by experienced and qualified teachers. All of the evidence from X suggests that he outgrew the environment and teaching that his mother could provide and that he was worn down by the constant arguing between himself and the mother.

25. On one (1) occasion when X and his mother were arguing about his wish to attend a mainstream school, X told his mother, quite logically, that he wanted the chance to be taught by real teachers. The mother showed him her certificate saying she can teach her own children and that she was a teacher. X ultimately gave up trying to reason with his mother. X has described the mother as extremely argumentative and always arguing. 

    X’s Mental Health

26. In June 2020 things came to a head for X. After seeing his therapist, Ms T, on a weekend in June 2020, while X was at his father’s for the weekend, X told his therapist of his loneliness and depression. Ms T wrote an immediate response via email addressed to both parents on that Saturday. The parents were told that she was deeply troubled about X’s mental health and that he was at an all-time low, flat, depressed, he could barely get out of bed each day, sleeping very poorly, unable to concentrate on his school work, finding no enjoyment in daily activities, and feeling overwhelmed. Whilst he denied having suicidal thoughts, Ms T was not satisfied that X would have told her of this because he would know that she would have to disclose this information to his parents. It was recommended that he not return to the environment in which he was struggling; meaning the mother’s home and teaching. Having read the email, the father wrote straight away to the mother extremely worried and said that it would not be wise to now return X the next day (being Sunday) to her care given the contents of the email.  Essentially the mental health worker said that X had reached breaking point. The father explained to the mother that X should now stay where he is with the father for the time being.   

27. The following day, being Sunday, the father returned Y and not X to the mother, in accordance with his email to her discussing the email from Ms T. At the handover the mother acted shocked and said she had no idea that an email had been sent the day before. The mother in her evidence at the trial blamed the father for her own alleged omission in checking her own emails by saying the father should have sent her a text to say he had sent an email reply to the email they each received from Ms T. The communications between the parents at the time of separation in 2014 had become extremely difficult and there has been a constant theme of the mother and father having opposing views and arguing. Each of the children have given evidence that there were nonstop arguments when their parents were together and since separation.

28. The mother’s criticism of the father about emails is a distraction to avoid the obvious criticism of her own failure to notice or alternatively to act on X’s desperately low mood and his sad, lonely, depressed state, whether or not she had an email telling her this. The mother says at trial she didn’t know anything about it and blames the father, saying the father “kept it from me.”

29. It is to be remembered that X was primarily living with the mother and being educated at home by her, so she had every opportunity to notice and act on his extremely poor mental health and suffering. The father saw X each alternate weekend and he took action. The mother either was not aware of it at all, which is extremely troubling in terms of her capacity to parent, or she knew about it and took no action, which is equally troubling and lacks child focus.  X has told Report Writers that he does not think his mother cares about him. 

30. Once the mother had read the email of X’s dire predicament and mental health symptoms, the mother still did not agree for X to try mainstream school. The mother decided to subsequently file an application for a Recovery Order for X, then aged 13/14 years old, to be returned to her and to continue with his schooling at home.[1]

    [1]   The Consent Orders of 2015 were still in place providing that X was to live with the Mother.

    Current Proceedings

31. When the mother filed for a Recovery Order, she had all of the knowledge that the father had.   She knew that X had reached a point of sheer desperation, and crisis, and of his complete inability to even get out of bed every day, and loss of enjoyment of learning. The mother knew that X wanted to stay with his father and desperately wanted a chance to go to a mainstream school rather than continue his Grade 10 high schooling with his mother. At the time the mother also sought Orders that the father’s time with X be suspended. The father had been asking the mother to allow X to attend a mainstream school since 2019 as he knew this was what X wanted. The father was concerned about the actual level of X’s home schooling, including literacy skills, and the social isolation. He had tried mediation with the mother on this topic, also to no avail.

32. Unsurprisingly, the Court refused to make the Recovery Order sought by the mother. A Child Inclusive Conference was ordered and completed on 7 September 2020. The recommendation was that X remain living with the father and that his views and placement with the father be respected.

33. Interim Orders were made by Consent between the parties on 21 September 2020 for X to live with the Father and spend time with the mother at times agreed between the parties and in accordance with X’s views and wishes. The mother however, would not agree that X could go to a mainstream school so the Court made a determination based on the evidence at that time that X was to be enrolled in C School, to commence in Term 4 2020.  

34. Subsequently, on 15 March 2021, when further Interim Orders were made, those Orders were set aside, however, replaced with similar Orders also by consent that X remain living with the father, spend time with the mother as agreed between the parties, and that the Orders for his schooling remain.

35. With this history in mind, it is inexplicable as to why, throughout the trial, the mother continues to make reference to X to being held over on a weekend or withheld by the father from her and that X should have been living with the mother because that is what the Orders said, but for the actions of the father. Even in 2023, at the final trial, the mother still refuses to accept that X self-placed with the father. 

36. Every time during the evidence that reference was made to X “self-placing” the mother would firmly respond that “[X] did not self-place with the father. [X] was withheld on a weekend contact against the court orders.”[2] Unfortunately, the mother has a tendency to ignore facts if they do not accord with her preferred position and she is content to keep repeating her inaccurate view of events.

    [2] Transcript of Day 1 at page 62, line 40.

37. To the extent that X’s earlier schooling assisted him before he joined the campus at C School in mid-2020, the mother should be proud of him and her assistance given to X in his earlier education. Despite the mother’s dire predictions to X as to how he would be treated poorly by the other students, not have any friends, and have to do a lot more work, X found the school welcoming and made friends and overall he has succeeded in his education and social life at C School. When he commenced schooling at C School, X carried the fears instilled in him by the mother who had told X for years that he would be very unhappy at a mainstream school; that he would be bullied and picked on. The threat of being sent to mainstream schooling was used by the mother to have X work hard or do his homework.

38. The father has supported X in every way and said in his evidence that X deserves much credit as he has worked really hard. In 2023 X has been offered a placement at a university, S University, and is looking forward to the next part of his education and life.

39. In this matter, there have been three (3) Family Reports. In those Family Reports there are some themes that have remained constant; for example, X wishing to live with his father and be educated at a mainstream school and not spend time with his mother. The mother’s refusal to the father’s requests that Y be permitted to attend a mainstream school given his concerns about her education, literacy, and isolation, has been a constant source of disagreement between the parties. The children have referred to the extent of the arguing that existed between the parties when they were together, with each X and Y recalling this. Each X and Y have also described their mother as being extremely argumentative to the point of arguing senselessly daily. Each complain that the mother does not listen to them.

40. As will be seen in these reasons, by the third and final Family Report, the frustrations of both Y and X were evident and the mental health of Y had deteriorated to a dangerously low point with a recommendation for an immediate change to Y’s living and schooling arrangements. There are many parallels between the experiences of X and Y at or around the age of 14 years old.

    THE APPLICATIONS

    X – Orders Sought by the Mother

41. In the orders sought by the mother in her Amended Application filed on 16 December 2021[3] the mother relevantly sought that all orders concerning [X] are discharged; that the father have sole parental responsibility for all educational decisions and that parties share parental responsibility for the other long-term decisions; that [X] live with the father; that [X] spend time with the mother as agreed between the parties from time to time.

    [3] in accordance with Orders for each party to specifically set out their orders sought.

1. Once the trial started, it was agreed by the mother, through her solicitor, and the Independent Children’s Lawyer, and the father, that X was approaching an age where he was too old for orders to be made (17 years old) and that he would be living with the father. The only Orders that were to be made about X would be that the father have sole parental responsibility and X was to see the mother at times of his choosing and that he could travel overseas.  Draft consent orders were proposed by the Independent Children’s Lawyer.  The mother was taken through these orders when she first entered the witness box by Mr Todman, Counsel for the Independent Children’s Lawyer, and she agreed with the orders proposed.

2. The mother, however, in her final submissions has changed her final orders sought.  The mother agrees that X live with the father, but now seeks an order that she have sole parental responsibility for X in relation to all long term matters.  Also the mother seeks orders not only that she spend time with X as agreed between the parties but that the Court mandate times empowering the mother to contact X by phone and text at least three (3) times per week.  These orders are sought in the face of the evidence that X does not wish to speak with his mother and where he has been saying this for three (3) years.

3. The mother also seeks orders that she is to be informed of all updates in relation to his health and wellbeing by a specific date each month and she seeks to obtain all information requested by either parent from all health practitioners and schools.

4. The mother makes allegations of alienation by the father of X towards herself and in her written submissions has included the allegation that the father’s partner has also alienated X against her.

   X – Orders Sought by the Father

5. At the commencement of the trial, the father sought an order for sole parental responsibility for X in terms of education, and equal shared responsibility for other long-term decisions, and that X continue to live with him.  By the end of the trial, given the evidence from the mother, and her conduct, the father sought an order for sole parental responsibility for both Y and X, and that X continue to reside with him. As to X’s communication and/or spending time with the mother, the father has sought that X be able to communicate with the mother at his (X’s) discretion. 

6. The Independent Children’s Lawyer supports the orders of the father in relation to X.

   Y – Orders Sought by the Mother

7. In her Amended Application filed on 16 December 2021 the mother requested sole parental responsibility for education issues for Y, and equal shared parental responsibility for the other major long term issues, and that Y live with the mother.  Y’s time with the father was to remain the same as the Consent Orders (each alternate weekend Friday to Monday and broadly half of the holidays), a variety of other authorities to school and medical agencies to provide all kinds of documentation and reports, and that Y attend DD Group youth group on Friday afternoons.

8. As to schooling, the mother sought an order that the parties ensure that Y continues to be enrolled at O School for the remainder of her schooling with the mother delivering all of the curriculum offered by O School; which had been happening for seven (7) years. Importantly, there is no reference at all to Y attending the institution known as “U School” and the mother was totally opposed to the father’s proposal of Y attending C School.

9. As will be seen in this judgment, right from the commencement of Day 1 of trial, the mother moved away from her stated position and altered the final orders sought and kept altering them throughout the trial. 

10. At the commencement of the trial, the mother included in her Case Outline a second, previously unknown, proposal that Y attending U School three (3) days a week and then to continue with her education through O School, as delivered by the mother on the other two (2) days each week. As events unfolded during the trial, the mother did not wait for the Court to determine this issue, instead she took matters into her own hands and, without reference to the Independent Children’s Lawyer or father, enrolled Y in U School in the midst of the trial.  

11. A further third change to her final orders sought was then made well into the trial (handed up on Day 5 of trial, tendered as Exhibit M1 on Day 6 of trial) so that her positon for Y was that Y’s education would be delivered by O School, or V School, however, for the first time, the mother included an Order that she cease delivering the education. The mother and/or her solicitor had been foreshadowing that expert evidence would be required from the principal at V School (about whom there was never any evidence-in-chief) to support the mother’s new proposal. The Court was told by the mother’s solicitor and then barrister[4] that in light of the evidence and recommendations by the Family Report Writers, and the subsequent other experts, that the mother accepts that she would no longer continue delivering Y’s education. The mother then started coming up with different permutations of alternate plans for Y not to attend a mainstream school. The mother proposed that Y continue to attend U School three (3) days a week (which by this time she was attending as organised by the mother only), and on the other two (2) days a week the mother said she would utilise tutoring support and additional teacher aide pending a NDIS application (Exhibit M1). As can be seen, the document handed up by the mother’s solicitor (a hand-written draft) included a restraint preventing the mother from teaching Y.

    [4] Who appeared for three (3) days during which time he cross-examined the father.

12. That proposed final order was changed again for the fourth time even later in the trial, this time to delete any reference to V School and to seek an order for sole parental responsibility for all matters, not just education. In her newly changed plan, the mother continued to seek a restraint against herself that she cease delivering the education home schooling. Y was to continue to attend U School and have supports organised by the mother through tutoring; pending a NDIS application (Exhibit M2) the mother was going to lodge. The theme of Y having an assessment for Autism was continually pushed upon the father by the mother and/or her solicitor after the trial commenced and continued to feature in the mother’s evidence up until to the end of the trial.  

13. At the conclusion of the trial, as seen in her written submissions, the mother, for the fifth time, changed her position again after the evidence had concluded.  As to schooling, this has changed, to go back to the future, where Y is to be schooled at home via enrolment at O School and the mother is to facilitate Y’s education. The mother asks that she be permitted to engage the professional services of Ms W (a tutor) who the mother has not given evidence-in-chief about but who the mother mentioned to the Family Report Writer in the final Family Report. Noticeably, there is no further reference to U School in the mother’s final proposal.

14. The mother adds to her orders sought “should her Honour choose [Y] to go to a school, please consider [Z School] or [BB School’s] Special Ed Units.”

15. The orders sought by the mother do not actually state where Y is to live, but I can infer from the other orders that it is intended that she live with the mother and spend the specific time set out with the father. The mother asks for sole parental responsibility on all matters for Y and that Y spend time with the Father each alternate weekend, and essentially half the holidays as set out at her orders 16(a) and (b).

16. The mother makes submissions there is evidence of the father’s alienation of X and that she is concerned that the father will similarly alienate Y. The mother submits that the father and his partner Ms K have been involved in an alienation process. The mother believes Y will struggle in mainstream schooling. The mother submits that Y has seen three (3) different Family Report Writers and that “no one has ever raised any concern about [Y’s] relationship with the mother.” The mother stresses that Ms G, Y’s child psychologist, predicts that Y will struggle at mainstream school and she further submits that Y has completed her primary school years with continued excellent results as seen in Y’s semester one 2021 student progress report (Exhibit ICL3).

17. The mother submits that she is also concerned that if the child lives with the father that he will cut Y off from her friends “as some of them also identify different to a gender they were born with.” The mother submits that the father will do the same to Y as he has done with X and the mother’s family in making it difficult for them to keep in touch with the mother’s family.

18. The mother denies that Y is not completing her work and says that she has provided over 500 videos over five (5) years showing the father that Y is completing her work. The mother submits that Y’s school reports are glowing and that Y works hard to achieve those results. The mother submits that the father has been gradually and systematically pushing the mother out of her children’s lives. The mother submits that “the Court became fixated on trying to destroy the mother through seven days of cross-examination by the ICL barrister.”

    Y – Orders Sought by the Father

19. The father’s position as to Y has remained steadfast; and that is that Y should be able to attend mainstream school and that the school be C School. As to Y’s living arrangements, initially the Father sought orders that, if it was possible, that Y could live in a week-on-week-off arrangement while she attended C School, however if this was not possible, his second position was that Y live with him.  Initially, his draft order sought he have sole parental responsibility for decisions concerning education and that both parents have equal shared parental responsibility for other major long-term issues. 

20. By the end of the trial, given the events that had occurred, the father sought an order for sole parental responsibility, and primary care of Y, and that she live with him. Y has told the Family Report Writer and the mother that she cannot cope anymore having her mother deliver her education. Y reached a point of distress and frustration with her circumstances living with and being taught by her mother, wherein Y threatened self-harm as a way out, or violence upon the mother, both by stabbing.

21. The father has adopted the spend time arrangements with the mother as per the recommendations in the final Family Report, however, he wished to add subject always to Y’s agreement to do so.

22. The recommendations of the final Family Report take account of all of the history of this matter, the two (2) previous Family Reports, the results of the testing by Ms G and Ms F, and the events which have unfolded since the second Report some 12 months earlier. The final Family Report sets out a time pathway for Y to start to spend time with the mother when it is appropriate that she do so, as being on a weekend day each week from 10.00am to 2.00pm to start with. Subject to other issues, after three (3) months and dependent upon the mother’s support of Y’s living and education arrangements at C School, then the recommendation is alternate weekends Friday 3.00pm to Sunday 5.00pm, subject to Y’s agreement to do so. And, assuming Y is happy to receive texts, that the mother be permitted to text Y up to three (3) times per week.

    Orders Sought by the Independent Children’s Lawyer

23. The Independent Children’s Lawyer’s orders sought adopts the recommendations of the final Family Report that the father have sole parental responsibility for both X and Y.

24. As to X, who turned 17 years old in early 2023, the Independent Children’s Lawyer supports the father’s proposal that X live with the father and spend time with the mother only in accordance with his wishes.

25. In relation to Y, the Independent Children’s Lawyer adopts the recommendation of the final Family Report Writer. The Independent Children’s Lawyer supports Y living with the father and that Y is to forthwith be enrolled to attend C School. The Independent Children’s Lawyer agrees that if the Court considers that the mother, who is totally opposed to this proposal and says Y will hate it, will interfere in Y’s schooling at C School, that restraints will need to be made preventing the mother from attending the school and/or communicating with the school or other similar orders.

26. Whilst the Independent Children’s Lawyer did not frame the orders as being subject to the wishes of Y, the Independent Children’s Lawyer is not opposed to any of Y’s communication or time with the mother being “in accordance with [Y’s] wishes.” The Independent Children’s Lawyer agreed that if an order was made that Y goes to the mother when she expresses a wish to do so, that the Court would need to have confidence that the father would facilitate that. The Independent Children’s Lawyer considers that confidence would be well-placed given the evidence of the father and that he has been an honest child-focussed witness.  The Independent Children’s Lawyer also points to the evidence of the mother’s sister, Ms JJ, who has given evidence in support of the father, and stated that the father has extended Y’s and X’s relationships to members of the maternal family (aunt, sisters, and maternal grandmother) whereas the mother has not.

27. In relation to Y spending time with the mother, the Independent Children’s Lawyer also conceded that before such mandated time could occur between Y and the mother, the Court would need to have confidence that all things were going very well in terms of Y’s education and non-interference by the mother. Mr Todman of Counsel conferred with the Independent Children’s Lawyer and agreed that given the very dire position that Y is in at present (with threats of self-harm or violence to her mother) and Y not even being able to bear to listen to her mother’s voice, that it is crucial to have some sort of moratorium in place to allow Y to commence her proposed schooling and new living arrangements without the pressure or possible interference of the mother.

28. The Independent Children’s Lawyer urges the Court to deal with this matter expeditiously given the protracted proceedings to date, and that Y is now refusing to be educated by her mother, and given the deeply troubling recent events surrounding Y emotional wellbeing, the intervention of the Police and Y being taken by Police to hospital regarding her mental health instability and thoughts of self-harm or violence.  Y made her views known both to the mother and the Family Report Writer as seen in the final Family Report.

    THE TRIAL

29. During this trial, there has been unwarranted and misplaced criticism directed to the Independent Children’s Lawyer by Ms Harris, solicitor for the mother, and the mother, on and off throughout the trial. I am well satisfied that the very experienced Independent Children’s Lawyer, Ms Feeney, has upheld her full responsibilities as Independent Children’s Lawyer for Y and X and always been focused and sensitive in representing their best interests to the Court. In this matter, Ms Feeney has worked tirelessly in her efforts to best represent the interests of Y throughout the litigation and throughout the trial. The mother and her solicitor seem to have the high-handed erroneous view that the Independent Children’s Lawyer would run their case for them.  Every time the mother changed her case, the mother or her solicitor directed comments suggesting it was up to the Independent Children’s Lawyer to bring in the evidence that the mother subsequently wanted to rely upon to fill the gaps in their own case. This criticism was entirely unwarranted and ill conceived.

30. Mention must also be made by me that Counsel retained by the Independent Children’s Lawyer, Mr Todman, has been unfailingly polite, diligent, patient, and professional, throughout the trial and used his best efforts to get the trial to finality despite endless obstruction and time-wasting distractions emanating from the mother and, at times, her solicitor.

31. When this matter was listed for a two (2) day hearing, there was no hint as to the epic blow out on the time frame that was going to effect this trial.  Nor did Mr Todman have any warning of the herculean difficulties which lay ahead of him in cross-examining the mother when he estimated that the mother’s cross examination would take two (2) hours on his doomed trial plan.

32. The evidence in this trial has been vast and covered many issues. The Independent Children’s Lawyer and the father each made oral submissions at the conclusion of the trial. The mother was the last to make her oral submissions which the Court listened to for two (2) hours and twenty (20) minutes. The mother requested, and the Court agreed, to allow a further week for the mother to put in written submissions after she had the opportunity to go through all the exhibits and the tender bundles. The mother’s written submissions total 54 pages. The father and Independent Children’s Lawyer were invited to put in submissions in response as to factual errors or matters of law. I have taken account of all of these submissions.

33. This trial has been prolonged and there is a vast amount of evidence. In accordance with the observations in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 I am not required to address every submission or all of the evidence raised in this case in these reasons. The material and evidence in this matter is substantial, however, I will nonetheless attempt to make reference to the most relevant evidence which has resulted in my final analysis and determination in making Orders for the best interests of X and Y.

34. When the trial commenced in February 2022 there were still strict COVID-19 limitations on who could enter the court building and specific requirements for unvaccinated litigants and lawyers. The mother and her lawyer were both unvaccinated. Special arrangements were made for their appearance first in a witness room, and then at the home office of the solicitor, Ms Harris, given the mother was not only unvaccinated, but she also had an exemption from wearing a mask. By Day 4 of trial, the mother and her solicitor had returned to the Court building and then to the Courtroom.

35. Weeks prior to the trial, Ms Harris wrote to the child psychologist, Ms G, upon whom Y had been attending for over twelve (12) months.  In the correspondence Ms Harris authored, she raised the issue of Y potentially having autism, with Ms Harris saying that having spoken to the mother about Y, all sorts of alarm bells went off for me as she had a child with autism.  Regrettably, during the trial it became clear that Ms Harris had become over-involved in this matter and with her client; and that included giving answers for the mother under cross‑examination when they were either appearing by phone from the solicitor’s home office or in the witness room within the Court precincts appearing via video (due to the COVID-19 restrictions).

36. During the trial, the Court, with the assistance of the Independent Children’s Lawyer, called for additional evidence including a representative from C School. Ms E at C School was interposed to give evidence on Day 4 of trial as there were such diabolically different views about what the school could do or offer according to the mother (all negative), as opposed to the father’s position and evidence he had gathered regarding C School.

37. Similarly, a representative from U School was organised as this became the foundation of the mother’s final orders sought.  The director, Ms CC, was organised by the Independent Children’s Lawyer to give evidence. Ms CC was also interposed on Day 4 of trial as again the mother had strong views about what was on offer at that entity (all positive) and all the Court had was the mother’s opinions and a brochure, rather than evidence from an appropriate officer from that entity. Ms Cc is a registered teacher (since 2017) however she explained she does no teaching at U School and there are no teachers at U School. Ms CC also has no qualifications in special education. Ms CC organises the activities and other programs.

1. As I have mentioned earlier, this proposal for Y to attend U School was not in any of the mother’s Amended Applications or trial material, it was included in her Case Outline filed at 4.47pm on the evening before the trial. The mother’s solicitor arrived on Day 1 of the trial with a brochure from U School and gave evidence from the bar table, which was the mother’s very-last-minute changed proposal; introduced at the commencement of the trial. Several times Ms Harris for the mother submitted that the mother was on a “search for evidence” at this point in time.[5] The search for evidence was the basis for an application by the mother for an adjournment of the entire trial which was refused for all of the oral reasons given including issues arising from Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 as to the waste of the Court resources. To the extent that it could, the Court accommodated the mother’s shift in position whilst trying to continue with the hearing.

   [5] For example, transcript of Day 1 at page 12.

2. There was agreement at a point between the parties that during the break in trial days the parties would acquiesce to the mother’s request to have Y assessed for Autism,[6] albeit the father gave evidence that he does not experience the issues with Y that the mother complained about. The father knew she had problems with her learning and reading, but was not prepared to agree that Y is autistic.

   [6] Based on a tentative suggestion by Ms G.

3. Ms G had identified some deficits in Y’s conversational style (not being able to go back and forth in exchanges) and being fixated on a conversation topic and that she was not able to read social cues. These concerns had been raised with the mother as they are similar to symptoms of autism spectrum disorder (ASD). No further assessment progressed however as Ms G observed that as Y’s sessions with Ms G continued Y became more comfortable and less anxious and the social deficits that she demonstrated in the initial sessions also improved.

4. The father’s position has been that Y is not receiving appropriate, or enough, schooling under the home based program taught by the mother in conjunction with O School and that Y was under-stimulated, bored, and becoming introverted with the limited opportunities for socialising and genuine regular engagement with children her own age.

5. Given the complexity of all the testing required and the time frames it needed to be completed within, Ms G co-opted the assistance of Ms F who held the requisite qualifications to do part of the testing. I accept that Ms F has the appropriate qualifications. When the reports were prepared and filed, the Court gave the mother (who was under cross-examination) the opportunity to speak with her lawyer in order to go through all of the reports. The father has remained self-represented throughout the trial.

6. The mother was given another opportunity to speak with her newly appointed barrister, Mr Gunn, on Day 6 of trial, 26 October 2022, together with her solicitor, to go through her final (at that stage) orders sought and to then enable a document to be filed with her final position, which had been asked for by the Court on an ongoing basis since Day 1.

7. Throughout the trial the mother has repeated many mantras. One of them was that “I haven’t been able to talk with my lawyer from February to October” and a variation being “I couldn’t get legal advice whilst I was being cross-examined” and another variation “I couldn’t get legal advice as I was cross-examined for 5 days.”  In her Final Written Submissions five (5) days of cross examination became seven (7) days. Apart from the fact that litigants generally are not permitted to “get legal advice” during the process of cross examination, the mother’s protests are false. 

8. The facts are that the mother spoke with her lawyer(s) on several occasions during the trial once she had started her cross-examination, and that the mother went in and out of the witness box at various times so that the Court could interpose evidence of other witnesses who had limited time and opportunity. Other events happened such as the mother and her solicitor being directed to relocate from the Court building to the home office of her solicitor on the afternoon of Day 1; cross-examination occurred for only two (2) hours on that whole day. There were other times the matter was stood down to allow the mother to talk with her lawyers from time to time.

9. In addition, without the Court’s leave, the mother had discussions with her solicitor when she was under cross-examination, and ought not to have been discussing her case with her lawyer or talking to her lawyer. This occurred for some hours (2-3 hours) as advised by her lawyer, and included emails, and phone calls, and the mother dropping off documents to her lawyer. The mother’s solicitor explained that she “did not know” she couldn’t talk or engage with her client whilst her client was under cross-examination without the leave of the Court.[7] Nor did Ms Harris know that she ought to have raised such a matter with the other parties. Ms Harris explained how she took thorough instructions about how the mother felt under cross‑examination as the basis for her application (made on Day 3 of the trial) for a section 102NA order to be made and for trial then to be adjourned accordingly. The application was refused for the oral reasons given.

   [7] Transcript of Day 3 at page 204.

10. After the mother’s solicitor withdrew when the matter was mentioned on 15 March 2023 (between Days 9 and 10 of the trial), the mother was also given the opportunity to speak with a duty solicitor[8] prior to her finishing the final part of the cross-examination of the father (noting the father had been cross-examined by Mr Gunn for two (2) days prior to this). The mother was then granted further time to consider her final position and her proposed submissions from Thursday through to the following Monday (Day 10 of trial). After the trial concluded, the mother was then given a further week to consider her position, get legal advice (if she wanted to), examine all of the exhibits and tender bundles, and make further final written submissions after she had given oral submissions for over two (2) hours. As I have said, the mother’s final written submissions are 54 pages long.

    [8] As organised by the Court.

11. It also became apparent during the trial that the mother and her solicitor were discussing schools they were considering proposing (not included in the mother’s Application) with Ms G including one that was a school for students with a serious diagnosis of Autism. This discussion was happening unbeknown to the father prior to the trial. The mother’s choice of one (1) school was considered by Ms G to be a school that Y would not even qualify for. The mother described it as dark and has bars on the windows. This was the same day that the mother decided to take matters into her own hands, on the day prior to the trial, by taking Y for a tour of C School. These decisions were made without reference to, or agreement from, the father and Independent Children’s Lawyer. The mother does not agree that Y can attend C School which makes the mother’s decision to take Y to the school seem somewhat strategic with no regard to the effect on Y. Page 4 of the mother’s Case Outline shows the attempt to have evidence accepted (with quotes from the mother and Y) on this topic. No affidavit was prepared about the visit; only written into a Case Outline. Subsequently, the mother gave evidence that was entirely negative of C School and said that “[Y] didn’t like it all.” This conduct is also to be viewed in light of all of the evidence before the Court by the end of the trial, including the mother threatening X and Y with the punishment of being sent to a mainstream school unless they do all their homework. Overall, I consider it to be a very cynical move by the mother.

12. Another issue that surfaced during the trial was that the mother had kept the father out of significant information regarding Y. This included the Psychprofiler Report conducted by O School on Y. The father only knew that this had occurred and a report existed when it was referenced in a Family Report. Yet another significant issue that was revealed during the trial, was the mother’s own solo application through Assistance for Isolated Children (AIC) for funding for herself arising from Y having a learning disorder based on a provisional diagnosis provided by Ms G. This happened in May 2022 whilst the trial was in progress. Financial disclosure called for during the trial showed the mother now receiving $1,100 per month from Centrelink and having already received some $5,000. The Centrelink application forms states that AIC is a payment for parents of children who cannot go to a local state school because of geographical isolation, disability, or special needs. The assistance provided for Y resulted in an immediate payment of $2,195.85 on 15 June 2022; a further payment of $1,116.10 on 6 July 2022; and another payment of $1,116.10 on 5 October 2022.  It seems to be an ongoing payment. The mother had been trying to hand up those AIC documents to the Court, however they were filed on 25 August 2022.

13. Typically on any day, the solicitor for the mother would appear and state from the bar table that she had something new to tender, or to show the mother (under cross-examination) so that she could comment on it, or something new to show the father (under cross-examination), which had never been introduced by way of evidence-in-chief. It was clear that the mother and her solicitor were still putting their case together, and trying to fill gaps and get addendums, to back up their ever-changing position.

14. Similarly, a document would materialise overnight while the father was under cross‑examination and be handed to the mother’s barrister with some preamble by him that the mother had been going through her emails and realised that an email the mother thought she sent to the father must have been missed, and she has just noticed when she was going through her outbox overnight. The mother’s position was explained that she must have missed sending this on to the father (some months earlier). The father had never been included in the various arrangements, or assessments, had no knowledge of them, and not seen the application(s) lodged by the mother. This all happened in the background whilst the trial was in progress.

15. During the period the matter was adjourned from the first two (2) days in February until 6 May 2022, the mother changed Y’s learning arrangements by enrolling and having her attend U School three (3) days a week. The mother did so without any agreement from either the father or the Independent Children’s Lawyer and whilst the very issue of what kind of schooling or educational institution or support would be suitable for the child was in contention and being decided by the Court.  

16. The mother took this action in the face of the current Consent Order which provides for the mother and father to share equal parental responsibility for Y. The father filed a contravention and ultimately it was decided that the issue could be dealt with as part of the evidence in the trial, so as to avoid yet more delay.

17. There was further time lost on Day 2 of the trial when a benign question was asked by Mr Todman of Counsel for the Independent Children’s Lawyer of the mother as he was moving to the end of his cross-examination. The question was whether or not the mother supported having the children vaccinated. The mother’s reply interestingly was “Ms Harris, do you want to answer this question?” and “I am nominating Ms Harris.” Immediately after the mother made these responses the sound of an emotional reaction by the mother’s solicitor was heard on the phone. The solicitor intervened, started crying, and saying words to the effect that “I don’t know the human rights aspect of the question.”[9] Ultimately, the Court, having removed the mother and father from the hearing and spoken with the solicitor for some time, called a halt to the trial shortly after 4.00pm to allow further professional support to be given to Ms Harris. The Court, with the assistance of Mr Todman of Counsel, organised a counsellor from the Queensland Law Society to immediately contact the solicitor, and to then confirm that this contact had occurred. 

    [9] Transcript of Day 2 page 165 line 10 and line 30.

    THE LAW

18. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).

19. In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations at Sesction 60CC (2) described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. I am to give greater weight to the second of the primary considerations.

20. Her Honour stated: The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).

21. When deciding what parenting Orders to make, Section 60CA provides that a Court must have regard to the best interests of the children as the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC in the context of the objects and principles referred to in section 60B of the Family Law Act.

22. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.  In this case, by the end of the trial, neither party is seeking an Order for equal shared parental responsibility.

    THE EVIDENCE – THE WITNESSES

    The Mother

23. The mother is an argumentative, domineering, witness who shows no understanding of complying with any conversational norms such as allowing another person to talk without talking over them. The mother took every opportunity she could to avoid answering a question or used distraction methods when it didn’t suit her to answer. The mother spoke over the top of Counsel routinely and repeatedly ignored all polite requests (and hand signals) to stop, or to listen, or to answer the question rather than reverting to what at times could only be described as ranting. The mother has a habit of not only repeating what she wants to say over and over (regardless of the question), but she then adopts her own distorted and false accounts of an incident as fact. This occurred with a myriad of events, as seen in the cross-examination.  Having formed a false and distorted narrative, the mother adds repetition to her armoury saying certain mantras over and over, such as “I sent the father 500 videos he didn’t look at any of them” and also “the father blocked me.” Another strategy of the mother when answering a question, is to pose questions, formulated by herself, to herself, and repeat this while she is working out what she will say next (for example, “why would I do that, why would I do that”).  The mother then proceeds to answer her own question with a long self-serving answer which typically would bear no relevance to the question asked by Counsel in the first place.

24. The transcript will show over and over Mr Todman of Counsel for the Independent Children’s Lawyer being unfailingly polite, but extremely frustrated, and asking the bench at times to please get the mother to stop or to listen or to just answer the question, after Counsel had done so many times adopting normal methods without any success. Often, and generally, the mother spoke over him even whilst Counsel was trying to, or was, addressing the bench and equally she spoke over me when I was discussing matters with Counsel. In my dialogue to the mother to attempt to have her be responsive to Counsel’s questions, many times the mother persisted in talking over the top of me or argued or denied doing what had caused the frustration for Counsel in the first place. Also at times the mother then resorted to a monolog of distorted facts and commentary about other unrelated matters.

25. Mr Gunn of Counsel for the mother, entered the trial on Day 6. In that time he managed to properly formulate, in the correct document, the mother’s Final Orders Sought, as the mother’s position seemed to be an evolving one (the mother’s position did change again after this). It took Mr Gunn quite some time to even have the mother (his own witness) agree to the formulation of her final orders albeit he had been through all her proposals when the matter was stood down during Court time to allow this to occur. The mother at times argued with her own barrister and didn’t listen to him even though he was also firmly trying to guide her and trying to assist her.  Mr Gunn did ask the Court at one point to suggest to his witness that things would go smoother if his own witness was advised to listen to the question before giving her answers and then answer rather than talking over the question. I agreed this was good idea, however, observed that Counsel should not think that this had not been tried before.

26. Mr Gunn did his best to try and control his own witness, however routinely, he used the word stop and/or would hold up his hand to say stop, stop[10] to try and contain the mother, however, the mother paid little to no regard of such requests. The mother routinely gave lectures whenever she could in lieu of giving a straight, honest, reply to a simple question.

    [10] Transcript page 569 line 25 as an example.

27. The mother will not concede the truth when it is put to her, and she is prepared to hold strong to a denial under oath even when it is obviously false. Examples of this include the mother’s cross-examination of her decision to enrol Y in U School when she gave answers falsely claiming to have been told to specifically do this by both the father and the Independent Children’s Lawyer. The mother was asked by Counsel for the Independent Children’s Lawyer, “[Ms Medwin], nobody asked you to enrol [Y] into [U School] did they?;” the mother replied, “no they asked me to do more for [Y] and [U School] is fitting everything that they have been asking me to do.”

28. The mother then told Mr Todman of Counsel that “I simply did what I’ve been asked to do, and I went over and above of what I’ve been asked for- to do- for about two years and so I have done everything in my power to oblige with everything that I was asked to do, and now being crucified for it, seriously.”[11]

    [11] Transcript page 215.

29. It was suggested to the mother that she didn’t ask the father because she “knew he would say no.”  The mother responded “how – how - why would I need his permission with for something that he has been asking me to do for so long.”[12]

    [12] Transcript page 217 line 0 to 5.

30. It was then suggested to the mother that she didn’t ask the Independent Children’s Lawyer because she knew “the ICL would say no.”  The mother responded “why would I think that the ICL would say no when she has been asking me to do this.”[13]

    [13] Transcript page 217 line 5.

31. Mr Todman of Counsel challenged these extraordinarily bold, yet false, statements saying “let me stop you right there - the ICL has never asked you to enrolled [Y] into [U School] has she?” 

32. The mother replied, “no but she has asked me to do everything that [U School] is covering everything.” 

33. The ease with which, whilst under oath, the mother has falsely claimed to have had the permission of both the Independent Children’s Lawyer and the father to enrol Y into U School, and to do it during the trial, is deeply disturbing.

1. There has been no physical abuse by the parents towards the children, however, the Report Writer has flagged that the lack of the mother in delivering Y her education amounts to depriving Y of her education; which is abuse.

2. The Family Report Writer was concerned at the mother’s failure to accept or show insight into the well-being of Y, given all of the evidence, and also the mother’s motivations in holding Y in her current disengaged state and whether this is meeting the mother’s own emotional needs and requirement for validation and sense of purpose. A recommendation was made for the mother to seek a specialist psychiatric evaluation and consider whether the mother has a personality disorder; and that consideration also be given with reference to the criteria for Fabricated Induced Illness.

3. The Family Report Writer has set out what the Fabricated Induced Illness disorder involves; which is a parent’s underlying need for their child to be recognised and treated as ill or more unwell/disabled or having developmental disorders and/or cognitive disabilities. The Court has no evidence of this and therefore no weight at all has been placed on this possibility.

   THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY (S.61DA)

4. When making a parenting order, I must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. However, pursuant to section 61DA(2) the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence. Pursuant to section 61DA(4) the presumption may be rebutted by evidence if it satisfies the Court it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

5. In this matter, neither party is now seeking an order for equal shared parental responsibility.

6. The parties are unable to communicate effectively and do not have the capacity to facilitate an ongoing co-parenting arrangement. The mother holds the father in contempt and is openly hostile and critical of him, still in 2023.  Their conflict has continued for years and shows no sign of ceasing. 

7. The parents have very different parenting styles and views. The mother does not deal with the father in good faith, or honestly, so it is impossible to have a genuine dialogue in order to jointly consider and make long term decisions.

8. There are no allegations of abuse of the children and I have made findings regarding there being no family violence. However, if the presumption of equal shared parental responsibility does apply, it is rebutted as not being in the best interests of Y or X to have an order requiring that these parties make long term decisions together. It is not possible for them to work together to make a joint decision given their dynamic and their longstanding and conflicted history. Y’s experiences of years of her parents fighting is sufficient evidence of this.

9. The mother seeks an order that she have sole parental responsibility for X’s long term decisions. X has chosen not to speak with his mother or spend time with her for three (3) years. The mother’s application for sole parental responsibility, given X’s age and in circumstances where he does not speak or wish to engage with her, is entirely unsupported by any evidence. The mother’s proposal is without merit and unworkable. That it is even suggested by the mother, that she would decide his medical issues and educational issues, when X has no desire to speak with her after his experiences in 2020, suggests to me that the mother has an ulterior motive for seeking to have this order. Her request for this order has the appearance of wanting to control X to the exclusion of the father and X’s wishes. I have no confidence that the mother would exercise such an order in a child-focused way.

10. I consider that in light of all the evidence the father should have sole parental responsibility for all long term issues regarding X. The father has effectively been doing this for three (3) years and he has always put X’s best interests first and foremost.

11. Given all the evidence, I consider the mother’s application to have sole parental responsibility for X, thereby excluding the father and herself becoming the decision maker for X’s long term issues, is quite punitive against X in forcing him into a position of being under the control of the mother making his decisions. I also consider the application vexatious given all of the evidence, circumstances, and X’s age.

12. As to Y, again I consider that even if the presumption of equal shared parental responsibility applies, that it is rebutted on the basis of it not being in the best interests of Y to have an order requiring her parents to agree to joint decisions for the reasons stated.

13. The mother lacks child-focus and shows no insight into the young teenager that Y has now become. I am not satisfied that the mother would make long term decisions in the best interests of Y; as opposed to making the decision that suited the mother.

14. I consider that the father should have sole parental responsibility for Y as he can be trusted to always put Y’s interests first. The father is child-focused and in touch with Y’s emotional and intellectual needs. He well-understands Y. He is able to have a proper dialogue with experts and teachers and is open to other points of view.

15. On a topic that only arose late in the hearing, the father spoke of his willingness to work with Y on her newly found knowledge (since attending U School) that some students are going through gender fluidity. I accept that whatever significant decision is to be made for Y, that the father has the insight and capacity to make sole decisions in Y’s best interests.

    CONCLUSION – BEST INTERESTS

16. Having made the decision as to parental responsibility, and that the father is to have sole parental responsibility for both Y and X, I do not need to consider equal time or significant and substantial time.

17. Overwhelmingly the evidence supports X continuing to live with the father.

18. In respect of X it is clear from these reasons that I do not intend to make orders mandating X to spend time with the mother or mandating that the mother can text him or phone him weekly. Knowing how determined the mother was in trying to prosecute unmeritorious breaches against the father in relation to the Domestic Violence Order, it is highly likely that the mother would similarly rely upon non-compliance with such Orders to engage in further litigation through filing contraventions if any orders were made for the mother to be able to contact X. Effectively I consider that the mother is trying, through orders, to force X to have a relationship with her. The possibility of further litigation arising from the mother’s orders sought for X is too great and X is too old to be required to spend time with any adult.

19. I accept the submissions of, and intend to make orders as per the Independent Children’s Lawyer’s and Father’s orders, and that is simply that X spend time with or communicate with the mother only at times of his choosing, and no other time.

20. In terms of Y’s living arrangements, given all of the evidence, I find the mother’s proposal for Y to remain living with her is fundamentally flawed, at odds with all of the expert evidence and pays no respect to Y’s views, her distress, and frustrations. I accept Y’s views are genuine and entirely reasonable in light of all the evidence. As indicated in this judgment, I do not have any confidence in the mother’s capacity to provide for Y or her emotional wellbeing. I consider the mother’s proposal for Y to remain living with her would result in a profoundly detrimental effect upon Y given all the evidence. The mother’s proposal simply ignores the evidence.

21. I accept the recommendation of the Family Report Writer, and the submissions of the Independent Children’s Lawyer, that Y should now be living with the father. Y respects her father and feels that he listens to her. I consider that he has the appropriate capacity to parent Y to ensure that Y’s life has stability and routine, and that her intellectual and emotional needs will be satisfied. The father’s proposal for Y’s long term living arrangements have, as indicated in this judgment, significant advantages for Y. I am satisfied that in living with the father that Y will have the best chance of achieving her full potential in life. I am satisfied that it is in Y’s best interests to live with the father.

22. In terms of Y’s education, the proposal of the mother to continue with schooling delivered by her at home is fraught with difficulty, against the recommendations of the experts, and will likely mean that Y will not achieve her full potential in life.

23. The pattern of Y’s routine of learning, now reduced to two (2) hours a week, is evidence of the lack of education happening in the mother’s home based teaching. The mother’s suggestion that Y should live with her and be schooled by her as Y has a preference for “order and structure” overlooks the fact that the mother does not offer order and structure in Y’s education or life at home with the mother. It overlooks the fact that the mother’s relationship with Y is deeply fractured. The mother’s proposal represents a continuation of what is a tragic and unacceptable situation for 14-year-old Y to be in, as identified by Ms D.

24. I do not have confidence in the mother’s ability to continue to be responsible for the delivery of Y’s schooling. The mother does not accept Y’s refusal to be taught by her any longer. The evidence overwhelming suggests that the mother’s proposal to continue to teach Y is flawed. The mother has constantly changed her proposals and done so without proper inquiry or consideration of Y’s views. Apart from Y refusing to engage with the mother and engage in online teaching at home, it seems, on the evidence, that Y’s behaviour at U School was badly affected by the mother’s presence onsite, as seen in the evidence of Ms CC. Ms CC explained that Y was having meltdowns in the presence of her mother when the mother attended. The mother attributes Y’s “meltdowns” to her difficulty with learning, however, having heard all of the evidence, my strong impression is that Y is fed up with the oppressive environment she has been living in and being taught in by her mother as explained by Y. I am satisfied that Y needs an opportunity to make her own way in her schooling environment well separated from her mother.

25. I am satisfied that the father’s choice of C School is an entirely suitable choice for Y. It is likely that Y may stumble when making her significant transition to mainstream schooling, however, the father has the right attitude towards parenting and Y’s education to be able to support her in partnership with the qualified staff at C School. X will also be supportive of Y and helpful in Y’s transition to mainstream school. I am quite satisfied that whatever lies ahead for Y in her schooling, or medical needs, or learning difficulties, that the father has the capacity and ability to deal with all such circumstances.

26. It was apparent to me that the father’s and children’s descriptions of the mother are correct when they describe that the mother does not listen and argues all the time; including when it is pointless to do so. My strong impression is that it would be impossible for either Y or X to express a view contrary to the views of the mother given her forceful character, personality, and her inability to listen, when she is in disagreement with anyone. Ultimately this behaviour of the mother has made her continued teaching of the children an impossibility and each child has reached a point of wanting much more education and educational opportunities than the mother can provide.

27. The father’s proposal, supported by the Independent Children’s Lawyer, for Y to have the professional intervention of the teaching and other staff at C School may be life-changing for Y. None of the experts consider that Y’s transition will be seamless, however, all experts agree that the proposal of the father (and Independent Children’s Lawyer) has the possibility of enabling Y to have the benefit of the structure around mainstream schooling, and the socialisation that Y needs to go forward in her life and learning, and to be given professional support all the way including if and when she falters.

28. The Report Writer referred to Y’s right to access education as a basic human right in Western Society and neglect of this is considered harmful. Further, “[Y’s] access to academic learning alongside the social connectedness, routine and structure associated with regular attendance and engagement, is fundamental to fostering the development of social understanding and knowledge on how to relate to peers and operate in a social setting.” The Report Writer concludes that currently this is all lacking under the mother’s continued home teaching of Y in a significant way. Y is currently assessed as being extremely isolated. I accept this evidence.

29. As to the two (2) schools the mother has suggested in the event that the Court determines Y should go to a mainstream school, I note the father’s evidence that BB School is out of the catchment area of both homes, and that Z School is a larger school than C School and further away. Moreover, the mother has never agreed that Y could go to a mainstream school, and I have no confidence in the mother actually ensuring that Y would attend a mainstream school, whatever school that was, as she has been strongly opposed to mainstream schooling. I do not accept that the mother could be relied upon to properly ensure that Y attended a mainstream school given this level of opposition.

30. The mother decided before the trial to take Y into C School for an impromptu tour knowing that the mother was never going to agree to Y attending there. The mother then gave evidence that Y didn’t like it at all and was scared. The mother has tried to do all in her power to ensure that Y does not go to C School. These actions by the mother disregard Y’s best interests and have been strategic.

31. In light of all the evidence, I accept that the father’s proposal for Y to attend C School is in her best interests. If in the fullness of time, this school cannot accommodate Y’s education, the father will have sole parental responsibility to choose any other school. I am satisfied that the father is well qualified to make this decision and that he will always act in Y’s best interests.

32. I am satisfied that the mother will not respect the decision for Y to attend at C School (or any other school chosen by the father). I also consider that the mother will not co-operate or respect the boundaries that are necessary to have Y be able to properly engage in her transition to, and attendance at, C School (or any other school chosen by the father) without interference directly with Y or through Y’s teachers and support staff.

33. I therefore intend to make restrictions regarding the mother’s ability to engage with C School or attend there, as raised by me during submissions. I want to make it clear to such institutions that the mother is not entitled to request any and all kinds of information from them and there is no compulsion on any school to provide information requested by the mother. In the past the mother has threatened C School with a Federal Circuit Court Order if they did not provide her with copies of X’s work, contrary to the school’s obligations under their governing legislation. I am quite satisfied that the mother will likely try and interfere with Y’s introduction and attendance at C School. I am not confident either that the mother should be attending at the school to collect Y on a Friday if and when Y spends weekend time with the mother. I am concerned the mother will create unnecessary difficulties for Y and the school staff.  I will therefore Order that any weekend time commence at 5pm on a Friday and that changeover not occur at school.

34. As to the time that Y will spend with the mother, I adopt the recommendation of the Family Report Writer and the submissions of the Independent Children’s Lawyer. Y needs to be able to settle into a living and schooling routine with her father and to recover from the trauma and distress she has experienced living with the mother. The time ultimately proposed for Y to spend with the mother (after a transitional arrangement) is each alternate weekend. That is subject to the mother being able to demonstrate support in the transition of care and Y’s integration into school as provided for in these Orders.

35. The transitional arrangement is recommended by the final Family Report Writer as being limited and with no overnight time with the mother in order to support Y to be able to achieve an appropriate sleep routine which the Report Writer considered imperative in allowing Y to achieve her maximum potential in her education. The transitional arrangement will be for three (3) months where Y will only spend time from 10:00am until 2:00pm Sunday each fortnight with the mother (subject always to Y’s wishes). The alternate weekend time, after the transitional period, will be from 5:00pm Friday until 3:00pm Sunday each fortnight, subject always to Y’s wishes.

36. I accept that this time, subject to Y’s views, may assist Y to maintain a meaningful relationship with the mother, whilst also being able to live in a peaceful and stable environment that observes regular school hours and sleep patterns so that her education is given priority. The relationship between Y and her mother is extremely troubled. It is possible that Y will continue to express a wish not to spend time with her mother, as X has done. As indicated in this judgment, I have serious misgivings about whether or not it is in Y’s best interests to spend time with her mother given the evidence and history of this matter. The Orders I am making for Y’s time with her mother are made in the hope that the mother will undergo the psychiatric assessment and obtain the psychological assistance as recommended in the final Family Report, to help the mother re-build her relationship on a different footing than has occurred in the past. If the mother does not change her interactions with Y and demonstrate support for Y in her living and schooling arrangements as ordered by the Court, the relationship between the mother and Y may be beyond saving. I have confidence that the father will always enable Y to spend time with the mother if Y wishes to do so. Noting Y’s age, lived experiences with the mother, her views and her own levels of distress, I am making any time with the mother referred to in these Orders for Y, as subject always to Y’s wishes.

37. All changeovers will occur as proposed by the father and Independent Children’s Lawyer at McDonalds Suburb B, which is the destination that I consider appropriate for changeovers to occur. If the mother fails to attend at this location (as she has done in the past; just ignoring Orders), the father will not be obliged to do the changeover at other locations nominated by the mother. Given the potential for argument and conflict, I do not consider that it is appropriate for changeovers to occur to and from each parent’s home.

38. I will also state, so that there is no confusion, that the father has sole parental responsibility and will solely decide Y’s future educational choices and all of her health issues (including any assessments to be undertaken for Autism or any other issue). In the event of further assessments involving questionnaires for the parents, the father has leave to provide a copy of these reasons to any medical or other specialist and other institutions at which Y attends.

39. I also most concerned that the mother’s overt anger and argumentative nature may place Y at risk of being the recipient of the mother’s dissatisfaction with the Court’s Orders. I therefore intend to have a period of two (2) weeks following the judgment when no contact will occur between Y and the mother, unless initiated by Y through the father. Thereafter the transitional time will commence, subject always to Y’s wishes.

1. I will not make orders for specific holiday time as there is a long road ahead for Y in making adjustments to her living and new schooling arrangements as well as dealing with the fall-out from her fractured relationship with the mother and her own mental health. I have every confidence that in the event that Y wishes to spend holiday time with the mother that Y will express such wish to the father and he will facilitate such reasonable time.

2. In terms of special days – Mother’s Day and Father’s Day – I intend to make orders that subject to Y’s wishes she will spend the relevant weekend with either party and that may require the weekends to be swapped to accommodate this. I have adopted the proposed orders of the Independent Children’s Lawyer for Christmas, and, as with all Orders, these Orders are subject to Y’s wishes.

3. In terms of overseas travel, it seems unlikely from the submissions of the mother and father that they will be in the position to afford any overseas travel, however, if it is to occur, I am satisfied it should occur in Hague Convention countries only.

4. I have included an Order that any of Y’s items remaining with the mother should be returned to Y, care of the father, in line with Y’s requests.

5. Generally I have made Orders in line with these reasons and the Independent Children’s Lawyer’s draft orders and the father’s draft orders. I consider the Orders made are in the best interests of X and Y.

I certify that the preceding three hundred and ninety-two (392) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM.

Associate:

Dated:       17 May 2023

ANNEXURE A: TIMELINE OF POLICE CONTACT

DATE	EVENT DESCRIPTION
Mid-2014 Ref: Pg. 100-106, ICL Tender Bundle #1	Incident causing protection order – Father allegedly yelling at Mother and children, slammed hand on desk, Mother tried to leave in company car, Father leaves the house. Mother outlines to police controlling types of behaviour, that she worked for the company but got fired so has no income, Father has stopped Mother access to one of their credit cards, Mother says behaviour becoming more aggressive and controlling.
Late 2014 Ref: Pg. 110-112, ICL Tender Bundle #1	Final protection order made by Suburb GG Magistrates Court.
Late 2014 Ref: Pg. 152, ICL Tender Bundle #1	Both parties street checked by Suburb HH Station. Summary says: “ongoing property dispute due to relationship breakdown.” Both parties will make allegations and advice shop between police stations.
Late 2014 Ref: Pg. 151, ICL Tender Bundle #1	Mother calls police seeking variation to DV order to include “not to attend address” – police note that there appears to be no grounds for this to occur – advice offered to make own application for variation – police note Mother not happy with this advice and says she has harassing messages but refused to attend station to show police the messages.
Late 2014 Ref: Pg. 150, ICL Tender Bundle #1	Mother attends police station – not in breach of the DVO, but Mother wanted to report the incident – advice given by police.
Late 2014 Ref: Pg. 149, ICL Tender Bundle #1	Mother’s report to police re disconnection of services. Mother insisted the report be recorded. Police note there is no indication of DV and that the report was only be created due to the Mothers’s insistence. Police further note “the informant [the Mother] has previous for making baseless allegations and advice shopping between police stations to gain advantage. There is no evidence to support any form of domestic violence on this occasion. All allegations have been made on assumptions.”
Late 2014 Ref: Pg. 148, ICL Tender Bundle #1	Police contact Father for his version of events – Mother verbally abusing on phone and causing arguments then reporting him to the police.
Early 2015 Ref: Pg. 99, ICL Tender Bundle #1	Mother attends station to report Father breaching DVO and shows police old text messages – police advise her that it doesn’t constitute a breach – police note, “the allegations are baseless and absurd. She is difficult to deal with and refuses to take advice from the police” – the police further note when she raises the disconnection of services, “she refuses to accept that it is lawful and reasonable for him to cancel his own phone plan. She stated to police that she expects her husband from whom she has been separate from since August 2014 to continue to support her and pay for everything and that if does not he is committing emotional and financial abuse” – police note Father has applied to vary the DVO and believe Mother has attended station in retaliation.  Under cross examination by Mr Gunn the Father explained that he merely cancelled his own services.
Mid-2015 Ref: Pg. 97-98, ICL Tender Bundle #1	Mother attends Suburb HH Police station counter to make a complaint when a temporary protection order was in place.  Police note that the Father quite properly notified the Mother of a health concern for his daughter (he had seen news report of a recall of frozen berries with 4 people showing signs of Hepatitis b and that this was the brand of berries that they used to buy for Y).  Police consider Father’s alert email was a legitimate valid health concern in relation to their 6 year old daughter and that the Father had the defence of emergency justification was readily available to the father.  The email was seen by police as the Father raising a genuine welfare concern for the child and the aggrieved herself admitted to consuming this same brand of berries on four occasions within the last week.  “Firm and robust advice given to [Ms Medwin] that the nature of the communication that had taken place was not of such a nature contemplated under the DFVPA and constituting a breach and that Police would not be commencing any proceedings in relation to this incident. Qprime shows that [Ms Medwin] has attended police establishments on numerous occasions throughout [late] 2014 and [early] 2015 to make complaints in relation to matters that do not constitute breaches of the current order.  It is the firmly held view of the reporting officer that such reports are being made to Police to advance the position of the informant in the lead up to the hearing date for the Domestic Violence applications [in early] 2015.” The mother said to police that she understood it was not a police matter, but that her lawyer had told her to report it.  The report continues – “the Mother prolifically reports matters to police that do not constitute contraventions of the DV Order. This informant has attended a number of police stations to report similar matters and a further email has been received by the R/O from the informant in [mid] 2015 for a similar occurrence will be furnished.   The informant has been advised not to email members of the Service directly and to attend Police Station in person if she has any concerns.” Police refer to Mother as serial complainant – complaint re Father emailing her about berries the child eats – officer notes their firm view that such reports are being made to advance the Mother’s position in the lead up to the hearing date of the Father’s application.
Early 2015 Ref: Pg. 107-109, ICL Tender Bundle #1	Original protection order varied. Effective to 16.09.2016. Conditions: (1) mandatory conditions, (2) not to go, enter, or remain, (3) no contact.
Two dates in mid-2015 Ref: Pg. 41-65, ICL Tender Bundle #1	Mother emails police officer directly to make reports/complaints – this is through Suburb R station – officer refers information to a division (i.e. Suburb HH station) for review – father has sent a text to the mother asking if he could see the children on his forthcoming birthday – mother attempts to have father breached.  Police note no proceedings are to be commenced having regard to public interest test.
Mid-2015 Ref: Pg. 57-59, ICL Tender Bundle #1	The mother has made complaints about Father being at school fair, attending at the counter of Suburb HH Police Station, not prepared to take any action. Police officer notes the M is “making what appears to be vexatious allegations” – possibility of complaints being vexatious raised throughout report.
Late 2015 Ref: Pg. 67-70, and pg. 96, ICL Tender Bundle #1	Mother calls police in relation to recording of changeovers – police provide advice – Mother “not pleased with this response”.
Early 2016 Ref: Pg. 40, ICL Tender Bundle #1	Mother approaches police while they are attending a traffic crash – “heavily flagged as providing vexatious complaints and often shops for information trying numerous police looking for the answer she wants” – police continually repeating themselves – “heavily recorded for vexatious reporting and being unable to accept police judgement on numerous matters, it is the reporting officer’s opinion this is another example of her ongoing behaviour.”
Four dates in mid-2016 Ref: Pg. 30-39, ICL Tender Bundle #1	The Mother sent another email with further medical certificates indicating children still sick.  The Father sent a further response on which was again about the medication for the children and their illnesses and hoping that they would still be seeing him for the forthcoming school holidays.  The mother replied, “Hi [Mr Medwin], please stop contacting me and breaching the DVO.  I will be reporting these breaches”, and she explained that if the Father wanted to communicate with her, he had to go through a solicitor and she would not be responding to his emails. The Mother has sought to have the Father breached for his response. The Police regarded this as an unfounded report, did not regard the emails as being a breach nor in the Public Interest to prosecute such a breach. Their records show the Police have noted a history of breaches of the Domestic Violence Order reported since the DV Order has been in place. All of the breaches to date have been deemed not to be in the Public Interest to prosecute.
Late 2016 Ref: Pg. 26, ICL Tender Bundle #1	Mother attempts to report a breach of the DVO. Father recording changeover. Police ascertained that the matter reported did not constitute a breach and that the actions of the Respondent (the Father) given the number of previous (4) unsubstantiated breaches reported by her. Then attempts to report previous matters to police already investigated. Told complaint will be noted but no action will be taken. DVO was due to expire next day so she told police she wanted to get a new one.  Police are of the opinion that this report to police was reported as a means of getting the DVO extended. However, there is no evidence to support a need to have this order extended.
Late 2017 Ref: Pg. 24, ICL Tender Bundle #1	Mother attends Suburb R Police Station reporting unknown person has sent her scam email advising that she’s visited porn site. Mother informed police she believed it was Father who had sent her the email. Mother advised police they’d previously not charged Father with breaches of DVO. Police checked on these matters and confirmed with Mother they were unsubstantiated. Police advised M to report scam to ACCORN.
Mid-2018 Ref: Pg. 19-20, ICL Tender Bundle #1	Mother calls police about Father texting her to ask her to turn the mobile on so he can talk to the children. Mother reports that Father messaged the son “which is a breach of the custody order”. Mother asserts her number is not known to anyone. Police advise her this does not constitute stalking or threats. While police were attempting to give Mother advice, she kept on interrupting. Mother was asked to leave the station. Police then phoned the Father and he explained he is a transport worker and working so had to call later to speak with the children. Father advises he got the Mother’s number off PLEXUS.
Mid-2019 Ref: Pg. 18, ICL Tender Bundle #1	Mother calls police complaining someone had thrown blocks of wood in her backyard which she believed had been thrown at her pet animals. Police attended address & observed 3 blocks of wood. When police were on scene, 4 year old child said he’d tried to chase animals out of their yard and had thrown toy blocks at them.
Early 2020 Ref: Pg. 17, ICL Tender Bundle #1	Mother making unsubstantiated allegations of DV and complained threats had been made to her 10yo child. “Police spoke with Father who seemed reasonable and at their wits end because of the odious woman.” Advice and referral given to Mother re mediation and neighbourhood disputes – Mother flatly refused referral and demanded police take action against the father despite there being no police matter to investigate. Mother could not be reasoned with and stated she would lodge complaint re attending police because they didn’t do what she wanted.