Merino & Artigas (No 2) - [2022] FedCFamC1F 742

Federal Circuit and Family Court of Australia
(DIVISION 1)
Merino & Artigas (No 2) [2022] FedCFamC1F 742

File number(s): SYC 6408 of 2018

Judgment of: ALTOBELLI J

Date of judgment: 29 September 2022

Catchwords: FAMILY LAW – PARENTING – Risk of harm assessment – Allegations of sexual assault of the child –Credit issues – Finding of no sexual assault – Discussion of expert evidence opining the mother’s mental health – Presumption of equal shared parental responsibility rebutted with respect to matters of health

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 102NA

Cases cited:
Merino & Artigas [2022] FedCFamC1F 544

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Division: Division 1 First Instance

Number of paragraphs: 233

Date of hearing: 15–17 June 2022

Place: Sydney

Counsel for the Applicant: Mr O’Reilly

Solicitor for the Applicant: Doolan Wagner Family Lawyers

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 6408 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MERINO

Applicant

AND:
MS ARTIGAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

29 September 2022

THE COURT ORDERS THAT:
Parental responsibility
1.Subject to Orders 2 and 3, Mr Merino (“the father”) and Ms Artigas (“the mother”) have equal shared parental responsibility for the child X born 2013 (“the child”).
2.The father have sole parental responsibility in relation to the child’s health.
3.The father:
(a)notify the mother of any proposed decision relating to the child’s health and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the mother about the proposed decision; and
(c)advise the mother in writing of his decision as soon as reasonably practicable.

Live and spend time with
4.Unless the mother and the father otherwise agree in writing, the child shall live with and spend equal time with the mother and the father, as provided for in Orders 5, 6, 7 and 8 below.
5.The child live with the father as follows:
(a)during school terms:
(i)from the beginning of Term 4 2022, each alternate weekend from after school on Friday (or, if the child has not attended school that day, from 6 pm) until the start of school on Wednesday (or, if the child will not be attending school that day, from 8 am);
(ii)from the beginning of Term 1 2023:
A.in all years ending in an odd number (eg. 2023), each alternate week from after school on Friday (or, if the child has not attended school that day, from 6 pm) until after school on the following Friday (or, if the child has not attended school that day, from 6 pm), commencing on the first week of the school term; and
B.in all years ending in an even number (eg. 2024), each alternate week from after school on Friday (or, if the child has not attended school that day, from 6 pm) until after school on Friday (or, if the child has not attended school that day, from 6 pm), commencing on the second week of the school term;

(b)during the school holiday periods at the end of Terms 1, 2 and 3:
(i)in all years ending in an odd number (eg. 2023), from the end of the school day on the last day of term that the child is required to attend school (or, if the child has not attended school that day, from 6 pm) until 6 pm on the second Sunday of the school holiday period;
(ii)in all years ending in an even number (eg. 2024), from 6 pm on the second Sunday of the school holiday period until the start of school on the first day of school that the child is required to attend in the following term (or, if the child will not be attending school that day, from 8 am);

(c)during the school holiday periods at the end of Term 4:
(i)where the school holiday period commences in a year ending in an even number (eg. 2022), from the end of the school day on the last day of Term 4 that the child is required to attend school (or, if the child has not attended school that day, from 6 pm) until 6 pm on the first Sunday after New Year’s Day; and
(ii)where the school holiday period commences in a year ending in an odd number (eg. 2023), from 6 pm on the first Sunday after New Year’s Day until the start of the school day on the first day of Term 1 that the child is required to attend school (or, if the child will not be attending school that day, from 8 am).

6.The child live with the mother at all other times.

Special occasions
7.On the following special occasions, Orders 4, 5 and 6 are suspended, and the child shall spend time with the parties as agreed between them in writing, and failing agreement, if the child is not already spending time with either party, then the child shall spend the following time:
(a)With the mother on Mother's Day from the conclusion of school on the Friday preceding Mother's Day (or 6 pm if not a school day) until the commencement of school (or 8 am if not a school day) the day immediately following Mother's Day;
(b)With the father on Father's Day from the conclusion of school on the Friday preceding Father's Day (or 6 pm if not a school day) until the commencement of school (or 8 am if not a school day) the day immediately after Father's Day;
(c)With the mother on the mother's birthday from after school (or 6 pm if not a school day) to the commencement of school (or 8 am if not a school day) the following day;
(d)With the father on the father's birthday from after school (or 6 pm if not a school day) to the commencement of school (or 8 am if not a school day) the following day;
(e)On the child's birthday, with the parent she is not spending time with, if on a school day from the conclusion of school until 6 pm, or if a non-school day from 12 pm until 6 pm; and
(f)On Christmas, the child shall spend time with the parent with whom the child is not living during the first half of the school holiday period, commencing 4 pm on 24 December and concluding at 4 pm on 26 December.

Changeovers
8.For the purposes of these orders, unless otherwise agreed between the father and the mother, changeovers shall occur as follows:
(a)for changeovers which occur at the start of a school day, the parent with whom the child has been living or spending time prior to the time of changeover shall ensure that appropriate arrangements are made for the child to arrive at school in time for the commencement of the school day;
(b)for changeovers that occur at the end of the school day, the parent with whom the child will be living or spending time after the time of changeover shall ensure that appropriate arrangements are made for the child to be collected from school following the conclusion of the school day; and
(c)except where changeover occurs at school on school days or as otherwise agreed, the father shall collect the child from the mother outside Coles in B Town Centre at the commencement of the child’s time with him and the mother shall collect the child from the father outside of Coles in D Shopping Centre at the conclusion of the child’s time with the father

9.For the purposes of Order 8, if either parent is unable to facilitate changeover personally, they are at liberty to nominate an alternate person known to the child to attend changeover, provided that they give the other parent no less than 24 hours' notice and where 24 hours' notice cannot be provided, notice must be provided as soon as possible.

Communication
10.Until the child commences high school:
(a)each parent will facilitate communication between the child and the other parent at 6.30 pm each Wednesday, 25 December and 1 January, when the child is in their care, by telephone, for a maximum period of 60 minutes.
(b)each parent will facilitate all reasonable requests made by the child to communicate with the other parent by telephone at times when the child is in their care.
(c)for the purposes of Orders 10(a) and (b):
(i)the parent with whom the child is living with shall instigate the telephone by contacting the other parent, on the parent's nominated mobile telephone number; and
(ii)the parent who is facilitating the communication, shall provide the child with privacy to speak with the other parent.

11.From the first day the child commences high school, the father shall provide the child with her own mobile phone, to enable the child to communicate directly with each parent and each party shall do all acts and things to facilitate such contact.
12.Unless otherwise specified in these orders, both parents shall communicate with each other by email.

Extracurricular and social activities
13.Each parent shall be solely responsible for facilitating the child’s attendance at and collection from school, parent/teacher interviews, doctor(s) appointments, extra-curricular activities such as parties and any other appointments whatsoever whilst the child is living with them in accordance with these orders.
14.The parties are forthwith permitted and authorised to attend all events and activities and to liaise directly with all school and extracurricular activity the child may attend, and that both parents shall do all acts and things necessary to authorise any school and organisation to release such information as requested by the other parent to the extent permitted by law and each parent is to ensure that the other parent’s details are provided to the school or organisation.
15.The parties refrain from enrolling the child in any extracurricular activity (including but not limited to sporting, religious activities, play-dates) which would require the child to attend such activities while they are living with the other parent, without the other parent’s prior written consent.
16.Without prior consent of the other parent, a parent is not to accept invitations for the child to attend any events that will require the child’s attendance at such activity while living with the other parent. The parent receiving any invitation for the child to attend an event while the child is in care of the other parent, must notify and forward the invitation to the other parent as soon as they receive the invitation.
17.Should the parties agree in writing to enrol the child in any extracurricular or social activity, then the parents must ensure that they do all things to ensure that the child attends upon and participates in the activity and each parent is not to terminate the child’s attendance without the other parent’s consent.
18.Both parents shall authorise any school attended by the child to provide to both parents copies of their reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
19.By this order each party authorises all organisations attended by the child to inform both parents of any injuries sustained by the child whilst the child is in attendance.
20.The parties shall be at liberty to provide all and any schools attended by the child with a copy of these orders.

Authorisations and provision of information
Health
21.The father shall:
(a)provide the mother with and keep the mother advised of the names and addresses of the child’s treating doctors;
(b)inform the mother in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and
(c)ensure that the mother is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of their receipt of the report.

22.Both the father and mother shall be entitled to:
(a)attend any appointments with any treating doctor or specialist medical consultant relating to the child; and
(b)discuss the child’s condition with such treating doctor or specialist medical consultant,

however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
23.The father shall ensure that the mother is notified within one hour if, while in his care:
(a)the child is admitted to hospital; or
(b)the child is involved in a medical emergency; or
(c)the child will be required to take any new medication when she moves into the care of the mother, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following the child’s move into the mother’s care.

24.The mother shall ensure that the father is notified within one hour if, while in her care:
(a)the child is admitted to hospital; or
(b)the child is involved in a medical emergency; or
(c)the child will be required to take any new medication when she moves into the care of the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first 72 hours following child’s move into to the father’s care.

Education
25.These orders authorise any school which the child is attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the father and the mother in relation to the child.

Contact details
26.The mother and the father notify each other of any change in telephone contact number, address/or email address, such notification to be made in writing and within three days of any change.
27.The mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than 14 days prior to the proposed change.

Other issues
28.For the purposes of communicating information concerning care of the child or issues relating to parental responsibility between the parents, the mother and the father shall:
(a)communicate by telephone or text message for matters of an urgent nature; and
(b)otherwise communicate by writing or email.

Passport and travel
29.Within seven days of the date of these orders, the mother shall deliver the child's Australian, Country E and Country F passports (“the passports”) to the father for him to retain in his possession until the child attains 18 years of age.
30.In the event that the mother travels with the child, the father must provide the passports to the mother to facilitate such travel no later than 21 days before departure. The mother must return the passports to the father within seven days of returning to Australia.
31.Upon the child's Australian Passport expiring, within 14 days, the parties shall do all acts and things and sign all necessary documents to ensure that an application is made to renew the child's Australian Passport.
32.The parties shall be at liberty to travel domestically and internationally with the child, provided that the following occurs, unless otherwise agreed by the parties in writing:
(a)Where domestic travel is intended, the travelling parent shall give the other parent no less than 14 days’ prior notice in writing of their intention to undertake such travel with the child and the travelling parent shall provide itinerary details simultaneously with such notice;
(b)Where international travel is intended, the travelling parent shall give the non-travelling parent no less than 30 days’ prior notice in writing of their intention to undertake such travel with the child;
(c)With respect to international travel, the travelling parent must not take the child to any country which is not part of the Hague Convention on the Civil Aspects of International Child Abduction unless provided with written agreement by the non-travelling parent;
(d)In the case of international travel, the travelling parent must provide copies of return flight tickets and a valid travel insurance policy for the child not less than two weeks prior to the proposed travel;
(e)The travelling parent shall keep the non-travelling parent informed of full itinerary and contact details during all periods of travel with such information to be provided to the non-travelling parent no later than 14 days prior to any international travel and no later than 14 days prior to any international travel and no later than five days prior to any domestic travel;
(f)The travelling parent shall facilitate communication between the child and the non-travelling parent on arrival and every two days during the trip;
(g)Any domestic and/or international travel with the child is to occur during the travelling parent’s time in accordance with these orders and shall not occur during the school term; and
(h)In the event any domestic and/or international travel occurs when the child will be living with the non-travelling parent, the non-travelling parent shall be entitled to make-up time as agreed by the parties in writing.

Restraints and injunctions
33.The mother and the father take all reasonable steps to ensure that the child is not exposed to cigarette smoke.
34.The mother and the father take all reasonable steps to ensure that the child’s use of electronic devices and the internet is appropriately monitored, including, where possible, use of parental network monitors/restrictors.
35.The mother and the father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;

(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

Communication of these orders to the child
36.The Independent Children’s Lawyer is requested to explain these orders to the child as soon as practicable after the making of these orders and is thereafter discharged.

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

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merino & Artigas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction

This case is about a child, X, born 2013 (“the child”) who is nine years old, lives with the respondent mother (“the mother”), and currently spends supervised time with the applicant father (“the father”). These reasons for judgment explain why the Court has ordered that the father’s time with the child move to unsupervised immediately, and that over a short period his time increases to equal time.
Background
The father was born in 1975 and is aged 46 years. The mother was born in1978 and is aged 44 years. They both reside in suburbs of Sydney. They were both born overseas, and met and commenced cohabitation in 2000. They married in 2002 and lived overseas for a period for the purposes of the father’s employment, but relocated to Australia in 2011. Even at that time it seems that the relationship was in difficulty. The parties attended counselling.
In about mid-2016 the mother made the first of a series of accusations against the father about his inappropriate interactions with the child. The details of these allegations will be discussed below. Conflict between the parents resulted in the making of an apprehended domestic violence order (“ADVO”) in mid-2017. Separation had commenced about a month earlier. Notwithstanding this, the parents were still spending time together and the father was spending regular time with the child.
Further disclosures and allegations were subsequently made, resulting in the father physically separating from the mother and the child on 1 June 2018. Between June and September 2018 the father was not allowed to spend any time with the child. The Department of Communities and Justice (“DCJ”), the police, and the Joint Investigation Response Team (“JIRT”) (as it was then known) became involved. The father commenced spending supervised time in mid-2018.
The present proceedings commenced in October 2018, and the first set of consent orders were entered into on 14 December 2018, again providing for the father to have supervised time. Dr C was appointed as a single joint expert in 2018 and his first report was received in 2019 (“the first expert report”). A second one was prepared in 2022 (“the second expert report”). In June 2020, the father’s partner was substituted as an appropriate supervisor of the father’s time with the child. The parties attended a family dispute resolution conference twice but were unable to reach agreement.
The matter was listed for hearing before me on 14 June 2022 and the hearing progressed over four days. The mother, who was initially in receipt of a grant of aid under s 102NA of the Family Law Act 1975 (Cth) (“the Act”), discharged her legal representative on the first day of the hearing. Her application for an adjournment was dismissed (Merino & Artigas [2022] FedCFamC1F 544). The matter was adjourned to the next day, 15 June 2022, with the mother representing herself. In effect, the mother’s case was that supervision needed to be continued for the time being because there was an unacceptable risk of abuse from the father but, as will be seen, by the time of closing submissions the mother’s concerns seem to have evolved into something more subtle and less pernicious than concerns about sexual abuse. Both the father and the Independent Children’s Lawyer contended that there was no unacceptable risk of abuse of any kind in the father’s care and that his time should forthwith progress to unsupervised time and then gradually increase thereafter.
The Applicable Law
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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 views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(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;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Evidence
In support of his case, the father relied on the following material:
(a)Amended Initiating Application filed 20 May 2022;
(b)His affidavit filed 6 June 2022;
(c)Affidavit of Ms G filed 6 June 2022;
(d)Affidavit of Ms H filed 6 June 2022;
(e)Amended case outline filed 10 June 2022; and
(f)Documents tendered and marked as exhibits A1–13.

In support of her case, the mother relied on the following material:
(a)Amended Response to Initiating Application filed 20 May 2022;
(b)Her affidavit and accompanying bundle of annexures filed 1 November 2018;
(c)Her affidavit filed 8 November 2019;
(d)Her affidavit and accompanying bundle of annexures filed 24 June 2020;
(e)Documents tendered and marked as exhibits R1–R72.
In support of their case, the Independent Children’s Lawyer relied on the following material:
(a)Documents tendered and marked as exhibits ICL1–4.
The Competing Proposals
By the time of closing submissions the cases presented before the Court were as follows.
The Independent Children’s Lawyer’s case
The child was represented by an experienced Independent Children’s Lawyer, and experienced counsel. On behalf of the Independent Children’s Lawyer it was submitted that there was no unacceptable risk of harm to the child, except from the mother. Counsel pointed out that in cross-examination the mother had reduced her concerns to the husband allegedly crossing boundaries, but this was based on vague, historical allegations and observed behaviours, none of which the Court would be concerned about, especially in circumstances where the father gave clear evidence of how he had gained insight, and acknowledged the inappropriateness of his past behaviour.
One of the allegations was that the child had been exposed to the father’s erect penis, but counsel submitted that the evidence indicated that this was inadvertent, and there was nothing to suggest it was due to sexual arousal of the father by the child. Counsel submitted that even the mother ultimately acknowledged the event (which will become known as the “[genitals]” event) was inadvertent, and that the Court would accept the father’s plausible explanation for the event.
Counsel submitted that the Court would be concerned about the mother’s recording of an interview with the child which clearly did not implicate the father specifically, but in any event seemed to confirm that the child had never seen an erect penis. Counsel submitted this was a highly inappropriate interview and was a manifestation of the mother’s hypervigilance and hypersensitivity.
It was further submitted that the Court would be concerned about the mother’s behaviour which in itself gave rise to concerns about emotional abuse to the child in her care. A concern was the risk that the child was being raised in a fear-based environment. This fear could be managed by increasing the father’s time with her. The Independent Children’s Lawyer was sceptical about the mother’s ability to contain her hypervigilance and hypersensitivity. There were underlying issues of poor communication and trust between the parents. The Independent Children’s Lawyer submitted that whilst the child should continue to live with the mother, the father’s proposal that his time progress to immediate unsupervised time and eventually progress to equal time, was in the best interests of the child.
The father’s case
The father was also represented by an experienced family lawyer and family law counsel. Most of the orders proposed by the Independent Children’s Lawyer were accepted by the father. Counsel for the father submitted that this was a case where the Court would have real concerns about credit issues. There was a strong contrast between how the mother and father gave evidence. Whereas the father was open, honest, responsive, and even volunteered evidence about another incident of inappropriate conduct, the mother was quite different. Even allowing for what was described as a mild language barrier, she was frequently unresponsive, gave inconsistent and changing evidence, and was often evasive.
Of particular concern was the dissonance between the mother’s evidence in cross-examination about the alleged incidents of abuse, and her sworn evidence. For example, counsel submitted that the evidence showed that in her affidavit evidence the allegation was one directed to the father specifically, but in her oral evidence, and indeed in her case, there was no suggestion that the father specifically had acted inappropriately.
The submission was made that the mother’s actions were deliberate, and part of her campaign to limit the father’s involvement in the child’s life. The mother’s insistence on continued supervision reflected an attitude of wanting to exclude the father. The Court would be comfortably satisfied that there was no unacceptable risk of abuse, a finding which was quite consistent with the reports of Dr C. Counsel submitted that the Court would be concerned that the mother is prone to catastrophising events, had engaged in doctor-shopping for the child, and was likely to continue to do so.
The mother’s case
The mother’s case by the time of final submission was put on the basis that supervision was needed despite improvements in the father, who had himself identified inappropriate behaviour in the past. She emphasised that the Court would continue to be concerned about the past incidents of inappropriate behaviour and the ADVO. She accepted that the parents struggled to agree in relation to health issues for the child. She contended that supervision needed to continue for a period.
The Expert Evidence of Dr C
Dr C provided two reports in this case in 2019 and in 2022. Whilst the focus will be on the second expert report, the first expert report will be summarised.
In the first expert report the issues raised by each parent against the other were not significantly dissimilar to those presented in the second expert report. While some concerns faded into the background, the mother’s substantive concerns about what she frequently described as the father’s inappropriate behaviour towards the child was the prevalent theme.
In the first expert report at paragraphs 29–33, Dr C briefly outlines the parents’ proposals. In short, the father sought equal shared parental responsibility and that the child continue living with the mother. He also sought that the child spend time with him on alternate weekends plus one weekday in between until the child reaches six years of age. Such time would then gradually increase to a week-about arrangement. The mother’s proposal is outlined at paragraphs 64–65. The mother sought equal shared parental responsibility and that the child live with her and spend unsupervised time with the father on alternate weekends during the day for five hours and an afternoon in between.
In the first expert report, Dr C recommended equal shared parental responsibility, and that the child continue to live with the mother. Dr C noted that the mother’s proposal was that the father have unsupervised contact every second week for five hours on both Saturdays and Sundays plus an afternoon in the alternate weeks. However, before supervision was lifted she wanted a review of the father’s engagement and progress with his treating psychologist. Dr C observed that this proposal would not be considered sufficient in terms of the child’s relationship with the father. It might be reasonable to use it as a starting point from which to build up time, as contended by the father, but was not itself sufficient.
Dr C accepted the need for the father to complete additional parenting courses and, subject to that, overnight time should be introduced from 2020 onwards subject to ongoing clinical review of the father, together with clear undertakings from him. He observed that the parents had serious communication difficulties that they needed to address.
The second export report was undertaken at a time when (pursuant to orders made 14 December 2018) the child was living with the mother and spending time with the father each Sunday for four hours and each Wednesday for two hours, with his time supervised by a private supervised contact service. The orders in question did, however, provide for progression including to overnight on weekends and in school holidays, but in each case the child’s time with the father was to occur in the presence of the father’s current partner, Ms G. The orders in question, which the Court will describe as “the current orders”, are reproduced in Schedule A to these reasons for judgment.
The mother’s proposal at the time of the report interviews was, in effect, for there to be a substantial reduction in the father’s time with the child, removing all overnights, and with his time to be supervised at all times by a professional supervision agency or a certified social work/carer as agreed between the parents.
The father’s proposal was that the child live with the parents on an equal time basis after a period of 15 months of gradually increasing his time with the child.
Throughout Dr C’s interviews with the father it is clear that he was impressed by the progress that the father had made since the first interview, the insight that he had gained, and his self-reflective ability. Dr C believed that he had embraced and implemented the recommendations made in the first expert report. The father was motivated by wanting to be an appropriate male role model for the child who maintains appropriate boundaries. He demonstrated an understanding of his past failures to maintain appropriate boundaries.
The mother’s presentation to Dr C was problematic. For example, during the interview she was observed reading off what seemed to be prepared written notes on an additional screen. He had to repeatedly prompt the mother to remain focused, and she continued to refer to well-traversed historical events throughout the assessment. There are close parallels, the Court observes, between what Dr C experienced with the mother in interview, and what the Court experienced in cross-examination. She was unresponsive to the questions asked, and had to be reminded many times to listen to the question and answer the question that was asked. It was very difficult for the mother to remain focused. In cross-examination, as in the interview with Dr C, she was very much focused on historical events.
At paragraph 54, Dr C observes the mother in effect seeking to control the interview process. In many ways, the mother sought to control cross-examination as well, so that her agenda was addressed, rather than that of the cross-examining counsel, or the Court.
The mother had a tendency with Dr C, as she had during cross-examination in Court, to go over historical events and issues that were no longer relevant because the behaviours no longer persisted.
Dr C then identified a number of further concerns raised by the mother. At paragraph 59, for example, the mother raised issues about medical treatment for the child and concerns about whether the father could attend to this. This is a theme of her case. When pressed at paragraph 60 about whether she had raised her concerns with the father, Dr C found her to be contradictory. A theme apparent from the evidence in its totality is that the mother often raised concerns about issues including the child’s health which had not necessarily been raised with the father. Indeed, she raised several concerns in cross-examination but ultimately concede that they were no longer issues.
At paragraph 61 she raised concerns about the child getting changed in a disabled toilet, and not the female toilet, after her father took her to swimming lessons. The context was the mother’s sexualisation concerns. It is clear from paragraph 61, and indeed the cross-examination of the mother on this issue, that not only did the mother make the assumption that the father was present in the disabled toilet when the child was getting changed, but she did not even raise it with the father. Ultimately she conceded with Dr C that the child was probably alone inside the toilet getting changed, with her father outside. In closing submissions counsel for the father referred to this as the mother’s catastrophisation of otherwise innocent and innocuous events. Dr C deals with this issue later in the second expert report. Having heard the totality of the evidence, counsel’s submission correctly describes a disconcerting trait of the mother in terms of the child’s relationship with the father.
At paragraph 63 the mother raised a concern about isolation and reported that the child had told her that she is not allowed to play certain games when she is with the father. She later conceded to Dr C that “it is a trivial issue”. Indeed it is. With the greatest respect to the mother, her cross-examination, examination-in-chief, and re-examination were littered with examples of trivial issues that were disproportionate to the risk that she alleged, but which consumed much court time.
At paragraph 64 the mother’s complaints continue: that the father did not allow her to attend the child’s birthday; that the father did not appreciate the Father’s Day card that she had helped the child prepare; that she felt like she was abandoning the child because she was spending so much time with the father; and that the child was being forced to eat things she did not like. In cross-examination by counsel for the Independent Children’s Lawyer, notwithstanding these complaints, the mother showed a glimpse of insight in conceding that all of these complaints, which were dependent entirely on what the child told her, may not reflect reality and may represent what the child believed that the mother wanted to hear. That is unsurprising in a case like this which is characterised by high conflict and low trust between the parents.
At paragraph 65 there is another disturbing example of the mother’s tendency to exaggerate and prevaricate. In the context of telling Dr C that the child had complained to her that she was being forced to eat things that she does not like, the mother reported that she “contacted a specialist and they said I shouldn’t be forcing her to eat.” When Dr C asked who this specialist was, the mother provided a name, and then explained: “It was just general information as I haven’t seen him, rather watched videos of them.”
Other areas of concern raised by the mother included issues of safety in the father’s care because the child has “gotten lost on three opportunities” and a concern about finances. The concern about finances is, like the mother’s concern identified at paragraph 65 of the second expert report, yet another example of prevarication and the mother’s tendency to make allegations without any firm basis. She told Dr C at paragraph 68 that the father was applying financial pressure on her, including not paying the mortgage for six months, ceasing child support payments, and withdrawing money from the home loan account. The mother conceded, however, that the father had been unemployed for 12 months, that the child support was up to date, and that she did not even know whether school fees had been paid.
The parental conflict in relation to health issues has already been observed. At paragraph 67 Dr C noted that despite his efforts to contain the mother’s narrative, she again spoke of the father’s scepticism regarding the asthma medication that the child has been prescribed. In the course of doing so, however, the mother mentioned to Dr C that she had to take the child to the hospital because she would not see the doctor. Dr C asked the mother why she was not firmer with the child. The mother is quoted as saying: “She didn’t want to get in and saying, ‘I’m not feeling comfortable. I don’t want to see him.’ And I tried many times, but she said, ‘No, stop’.” It is of concern to the Court that the mother could not get the child to see a doctor, a concern that needs to be understood in the context of an aspect of the father’s case, which is that the mother has taken the child to multiple doctors and is, in effect, “doctor shopping”. The Court notes that the mother denies this, but what is clear from the totality of the evidence is that the child has seen a large number of different doctors during her lifetime.
At paragraph 80 Dr C considers the mother’s psychological functioning. He states:
Though that said, [Ms Artigas] appears reluctant to acknowledge personal limitations and will tend to repress or deny distress or other internal consequences that might arise from such limitations. For [Ms Artigas] she appears afraid of precipitously losing her self-coherence and abruptly feeling like nobody rather than somebody. This fear appears to be displaced into a preoccupation with her physical health and hypochondriacal preoccupations.
This continues at paragraph 81:
Noted in the assessment was that despite the level of identified defensiveness, there were some areas where [Ms Artigas] described problems of greater intensity than typical of defensive respondents, which included rumination and worry and physical signs of anxiety. Temperamentally, [Ms Artigas] presented as intense and hypersensitive, and her characteristic style of managing such intensity is through avoidance. As noted in her treating psychologist notes, avoidance was identified as a means through which she was managing her trauma symptoms. [Ms Artigas] described a tendency to interpret events as resulting in the worst possible outcome with little relationship to what had been occurring. For example, her issue with the disabled toilets (alleging [Mr Merino] may have been present with [X] whilst she was getting changed) could have easily been clarified simply by asking [X] herself. [Ms Artigas] appears therefore to identify one aspect of an event which becomes magnified to the point of perceived extreme or catastrophic outcome, and any disconfirming evidence to the contrary ignored.
It is interesting that Dr C identifies avoidance as a means through which the mother was managing her trauma symptoms. The clearest manifestation of this in the mother’s cross-examination was her denial that she had been diagnosed with mental health issues. The mother resolutely insisted that she was unaware of such a diagnosis, even though Dr C, and almost all of the mental health care professionals who treated the mother, had diagnosed her as such. The mother’s explanation was that although the relevant business records of these mental health professionals indicated the diagnosis of mental health issues, no one had told her. The Court does not accept this. It is implausible that after a period of treatment covering several years the mother was unaware of what she was being treated for. This was clearly the avoidance that Dr C was identifying. It was also quite disingenuous of the mother in the context of the present proceedings. The strong inference to be drawn is that she denied knowledge of the diagnosis because she felt it could harm her case.
At paragraph 82 Dr C refers to the mother’s tendency to mischaracterise and misrepresent situations. The example identified earlier in Dr C’s report about misleading statements concerning consultation with a specialist on eating behaviour, is an example of the same.
At paragraph 83 Dr C states:
[Ms Artigas's] self-concept appears to involve a generally positive, but at times, perhaps uncritical self-evaluation. She describes approaching life with a clear sense of purpose and distinct conviction, but this contrasts significantly when considering she continues to remain unemployed. Responsibility of setbacks that do occur appear to be attributes externally than to personal failings in an effort to maintain the positive self-image. Indeed, during the interview there was no self-reflection or identification of how she is contributing to the continuance of the current proceedings rather a refinement of previously stated arguments
The clearest example of the mother’s lack of self-reflection and inability to identify how she was contributing to the continuance of the current proceeding was the mother’s evidence about the video-recorded interview of the child that she conducted. This interview was inappropriate, manipulative, and emotionally abusive of the child. When in cross-examination the mother was given the opportunity to reflect on the appropriateness of her behaviour in the interview, no self-reflection or insight was apparent.

Dr C interviewed the child, albeit by Zoom. He observed that despite her relatively young age she was quite articulate and coherent in her responses. He noted little evidence of disturbance in affect or mood when discussing matters pertaining to the parental separation. He observed a relatively uninformed perspective about all matters pertaining to the court proceedings, a matter that reflected well on both parents.
In discussion with Dr C the child showed a remarkable clarity of insight into the very different parenting styles manifested by her mother and father. She gave the example of different bed routines, and the food they eat. This very perceptive child observed differences in parenting style which, in the view of this Court, is an underlying contributor to the parental conflict.
At paragraph 88 she expressed clear frustration that she did not get to spend time with her father, and a preference for week about equal time.
Dr C discusses the psychological functioning of the child at paragraphs 92 and 93. The latter is the more concerning one for present purposes:
Of importance though, is that in terms of potential problems associated with obsessive thoughts and engaging in compulsive behaviours, [X] scored in the elevated range. This indicates that [X] may have an elevated tendency to experience fears of contamination, excessive checking, repetitive or ritualistic actions and scrupulosity - or be at considerable risk of developing these. Also within the elevated range was the physical symptoms of anxiety, specifically having irregular heartbeats, sweaty or cold hands, jumpy, highlighting that [X] is also experiencing the physical symptoms of anxiety. Noting her mother's elevated level of anxiety coupled with her persistent tendency to engage in catastrophic thinking, such a finding is hardly remarkable. What it would suggest however, is that rather than directing [X] to psychological assistance, instead [Ms Artigas] should resume therapy with her psychologist [Ms J] with a specific focus on improving her anxiety management skills.
(As per the original)
The psychological risk of harm of the child living with the mother without the balancing perspective of living with the father, is indicated in this evidence.
The father’s partner, Ms G, was interviewed. Dr C was clearly impressed by her, as was the Court after hearing her evidence. She was very conscious of the father’s boundary issues as regards the child.
Dr C’s summary and evaluation commences from paragraph 109. He commented that both parents continue to demonstrate poor levels of communication between the households. For the mother, her anxious disposition coupled with her ability to catastrophise exacerbates the underlying disharmony in the relationship. For the father, his avoidant nature means that issues are not addressed and accumulate. Their poor communication practices contribute to the child’s difficulty in adjusting to changed circumstances.
At paragraph 110 Dr C states:
A concerning aspect of the current matter is that the issues have merely continued and protracted out for a significant period of time. Despite [X] being largely unaware of the current Court proceedings, her wellbeing is being used by both parents to form arguments against the other parent. For [Ms Artigas], [X] is exhibiting anxious behaviour which she attributes to [Mr Merino] and the changing parenting arrangement. For [Mr Merino], he believes [X] is coping well and it is instead a reflection of [Ms Artigas’] mental health. The impact of this, is a child who is relying on herself to manage her distress and utilising maladaptive behaviours to do this. That neither parent acknowledged the ways in which their specific behaviours has led to the problematic environment in which [X] is growing up is most concerning.
At paragraph 111, commencing at page 34, Dr C states:
Ensuring that the deficiencies or unavailability of one parent are readily compensated for by the other attachment figure is important. Indeed, meaningful involvement by both parents means that children have access to the unique psychosocial resources that each parents provides. In the case of the current matter, there are differences in the strengths which [Mr Merino] and [Ms Artigas] have. For example, due to the efforts of [Ms G], [Mr Merino]shows signs of developing an authoritative approach to parent, whilst [Ms Artigas] focuses on the emotional aspects of parenting, characterised by features of anxiety and risk avoidance. Thus, in the case of [X] it would be extremely beneficial for her to be given the opportunity to have meaningful relationships with both parents as it will further enrich her world.
(Footnotes omitted)
Dr C considered whether the child was at risk of physical and/or psychological harm, commencing from paragraph 112. He referred to the mother’s concerns previously identified in the report including: the child getting changed in the disabled toilets; the father not ensuring that chlorine was washed off the child after swimming lessons; the differences of approach in relation to properly attending to the child’s medical needs; the previous substantiated claims of physical and verbal aggression which the mother reported were not continuing; and the greatest concern (the words of Dr C) of the father’s alleged repeated boundary violations in his relationship with the child, including the child playing with and sucking the father’s nipples, the father obtaining erections at inappropriate times, and the mother’s concern of the father’s alleged grooming behaviour towards the child’s friends.
Dr C was clearly concerned about the boundary violations which appeared to be driven by distorted attitudes about children and relationships. He acknowledged that the father had ceased this behaviour, and that protective behaviours on the child’s part had been instigated, including consistently sleeping in her own bed when staying at the father’s home.
Dr C noticed that the father did not raise concerns in relation to the mother’s care of the child, despite raising the issue of the child seeing multiple different medical professionals. His review of the subpoenaed material indicates that the child went to 18 different medical centres from mid-2015 to early 2020, across 37 different appointments.
Dr C observed that the relationship between the child and the father was developing positively. This was being assisted by the father’s engagement in therapy and parenting courses, coupled with the guidance of his partner, Ms G. There was little to no evidence of distress associated with movement between households, and the child’s desire for more time with her father was a positive indicator.
As for the child’s relationship with the mother, Dr C was impressed by the high degree of positivity and sensitivity in the relationship between mother and daughter. He was concerned, however, that there appeared to be difficulty in enforcing boundaries such as seeing more healthcare professionals when the child was not compliant. There were also concerns about the child’s diet in the mother’s care.
The child’s relationship with Ms G was also positive.
Dr C was critical of both parents for failing to facilitate the child’s communication with the other parent, when the child was with them.
Dr C considered the impact of change on the child. At paragraph 128 he states:
Given [X] reported a desire for the current parenting arrangement to change, coupled with her ability to cope with changes well it would be anticipated that whilst there would be an initial level of distress associated with any change, it would be expected that this would quickly subside. Furthermore, slow incremental changes could be implemented to alleviate the extent of this distress. However, research has shown that exposure to new and/or continued interparental conflict is associated with poorer adjustment so it is therefore anticipated that the mental health outcomes for [X] is very much dependent on the ability of the parents to manage conflict and ensure continuity between the households.
In terms of parenting capacity of the parents, he noted the concerns that had been raised by both parents. In relation to the mother’s concerns that the child was not safe in the father’s care, Dr C was satisfied that the claims were not substantiated to a degree which would suggest the father was not ensuring her safety. In relation to the mother, however, Dr C noted at 135:
[Mr Merino] did not raise any concerns related to [Ms Artigas’] ability to ensure [X's] safety. During the assessment it appeared that [Ms Artigas’] anxious disposition has meant that she more readily interprets situations as being more dangerous than what they are in actuality and therefore will ensure [X] is not placed in these situations. This means that while she is ensuring [X's] safety, she risks becoming such a 'helicopter' parent as to constrain [X's] development of independence and resilience.
Further, at paragraph 140, Dr C expressed concern that whilst the child appears to be relatively unaware of the current proceedings, she is clearly aware of the entrenched nature of the parental conflict, and the divide that exists between her mother and father.
Dr C acknowledged that in the past the father had modelled inappropriate behaviour which most would consider to have crossed boundaries. As a result of substantial intervention and monitoring from services, as well as input from Ms G, the necessary intervention to correct the father’s behaviour as it relates to the child has taken place.
At paragraph 142 Dr C expressed concerns about the mother:
A concerning aspect of the current matter relates to the burden of responsibility being placed on the child to equip her with skills to better [manage] her response to the environment rather than the parents seek to improve the environment in which she inhabits. [Ms Artigas’] insistence on [X] seeking psychological therapy despite her lack of engagement in therapy for herself remains of considerable concern to this clinician. Indeed, it was specifically noted in subpoenaed material by the psychologist of the psychological distress in disclosing trauma and associated avoidance, both of which are cardinal symptoms of unresolved trauma issues. Studies have shown that parental mental health problems have enduring impacts on a child's distress and the increased level of distress associated with this is stable even into adulthood[.] The unresolved and enduring impact of [Ms Artigas’] mental health extends beyond herself and must therefore be more directly addressed.
(Footnotes omitted)
At paragraph 144 Dr C deals with the views expressed by the child, and the weight that should be attached to those. He states:
[X] specifically stated that she wanted to change the current care arrangement to a shared care parenting arrangement. Displayed within her reasoning was a lack of reliance on concept of fairness which children her age can become preoccupied with. [X] appeared to base her decision on a different set of decision-making principles which highlights a degree of sophistication in her thinking and would mean the Court could place confidence in the view expressed by this Child. However, whilst this is the child’s wishes conceptually it is hard for a child at this age to fully realise and comprehend the extent of such changes and what they would mean. Therefore, the means through which to achieve this goal needs to be carefully considered, but overall is supported and can be implemented on an incremental basis.
In terms of parental attitudes to the responsibility of parenthood, Dr C at paragraph 145 appeared impressed by what he described as the father’s “considerable development in his understanding of parenthood and the requisite responsibilities and behaviours required.”
In relation to the mother, however, Dr C states at 146:
For [Ms Artigas] there appears to be a strong sense of loyalty to, and protection of [X]. This is to such an extent however, that there does not appear to many friendships or interests for [Ms Artigas] outside of caring for [X]. Of concern, there appears to be a lack of family leadership, as such roles shift within the family unit and decision making. Examples of [Ms Artigas]not seeing a health professional for herself to address her elevated anxiety, and not ensuring [X] consistently sleeps in her own bed only compound [X's] role confusion. Such behaviours are concerning because a key sign of relationships becoming dysfunctional is when they impede the separate function of the individual and boundaries and differentiation are confused. Furthermore, the lack of engagement in parent education courses which would actively benefit [Ms Artigas’] parenting, highlight a lack of insight towards addressing issues which had previously been identified.
(As per the original)
There was a clear allusion above to earlier stated concerns about enmeshment.
Dr C noted that in his first report there had been substantiated claims of family violence, but those claims have not been repeated since then. The risk factors have been largely addressed as the parents rarely come into contact with each other. The father demonstrated self-reflective behaviours.
The father was not diagnosed to be exhibiting any significant mental distress. With therapy he has been able to identify boundaries much better.
In relation to the mother, however, Dr C had concerns about her mental state. At paragraph 149 he states:
Like[Mr Merino], [Ms Artigas’] psychological profile as assessed indicated that there were no significant concerns related to her mental state. This is largely unremarkable given in the last assessment [Ms Artigas] denied any psychiatric history for herself. As reported in subpoenaed material from 2018, [Ms Artigas], 'is suffering from [multiple mental health issues]... she is at times emotionally very distressed and anxious she has migraines and stomach aches.' In the absence of any significant intervention since this time it remains difficult to presume that such issues would have resolved but illustrates her elevated predisposition to anxiety with associated somatoform symptoms. The impact of this on her parenting capability is that she is interpreting her environment through a generalized sense of fear and the only sense of safety and security can be found within an increasingly enmeshed mother-daughter relationship. For the child, this means she is not learning how to manage her distress independent of the mother in an appropriate manner. Rather it would be anticipated that [Ms Artigas] may inadvertently facilitate contamination and ritualistic actions which [X] uses to manage her distress.
(As per the original) (Emphasis in original)
The Court notes that the totality of the evidence supports Dr C’s concerns in this regard.
Dr C noted that if the father’s orders were implemented there would be an increase in stress experienced by the child, but spending more time with her father is consistent with her clearly stated request.
By contrast, if the mother’s orders were made the effect on the child would likely be negative as it is contrary to her expressed wishes, and would reflect a significant step back from the progress of the current orders. The continuation of supervision would place a significant burden on the father and overall will make it difficult for the child to develop a relationship with her father.
At paragraph 152, Dr C made clear recommendations for the mother to complete an in-person Parenting After Separation course given that, in his opinion, it appeared that the key lessons of this course had not been learned by her. In addition, she should complete a number of named courses including Triple P, Magic 1-2-3, and Emotionally Attuned Parenting courses. When the mother was cross-examined, it was apparent that she had not fully considered these recommendations.
Similar recommendations were made in relation to the father, but in contrast to the mother, the evidence indicates substantial adoption of the recommendations. The contrast is discussed further at paragraph 156 where Dr C opines that the mother has neither learned nor applied any of the skills taught in the courses which would have the capacity to substantially improve the working relationship between the parents ultimately for the benefit of the child.
Dr C made some recommendations for the parents to address the elevated levels of anxiety in the child, and to address the issue of parental differences about the use of medical professionals.
At paragraph 160 he sets out his recommendation:
Moving forward, I can suggest there are three possible care options available for the Court to weigh. Each will be explored respectively;
a)That the current arrangement continue; This approach carries with it the advantage that it is both stable and supportive of [X's] needs and has allowed for [Mr Merino] to address the issues of concern about his behaviour. The biggest advantage of this approach is that it is not wholly reliant on the ability of the parents to communicate to ensure stability and consistency of care. The disadvantage of this option is the significant burden of supervision that has been placed on [Mr Merino] and the impact on [Ms G] to be able to implement this, coupled with the limited time spent with [X] which is hindering the relationship.
b)That the mother's arrangement be pursued; This approach carries the advantage in that it would suit the expressed wishes of [Ms Artigas]. The disadvantage of this approach is that supervision would have to be done by a professional and the time spent with [X] would be even more disjointed and artificial and would result in substantially less time than it is currently agreed upon. Thus, this would represent a regression in the absence of worsening behaviour on behalf of [Mr Merino]. Given this proposal is also against the expressed wishes of the child this would be this Clinician's least favoured approach.
c)That the father's arrangement be pursued; the advantage of this approach is that it is aligned with the child's expressed wishes. Another significant advantage is that [Mr Merino] has shown considerable progress in his development and parenting skills whilst [Ms Artigas] has not. Therefore, the relative strengths that [Mr Merino] offers, appears to address the relative weaknesses of [Ms Artigas]. Furthermore, this approach would allow for [X] to further develop her relationship with her father. The biggest disadvantage of this approach, however, is that it will be more reliant on the parents to communicate. Given the centrality of this issue in the continuation of Court Proceedings it may mean that significant responsibility is placed on the child to adapt herself to cope with her parents, rather than the parents learning how to unify their approach for the betterment of the child.
At paragraph 161 he confirms that the third option is the most desirable one because it represents the child’s explicit wishes, it correlates with the father’s progress and the lack of evidence to suggest he is a significant risk of harm to the child. The third option, which was the father’s proposal, should be implemented on a gradual incremental basis.
Dr C was not required for cross-examination.
The Court accepts the evidence of Dr C.
The Evidence in the Mother’s Case
The mother relied on her three affidavits filed 1 November 2018, 8 November 2019, and 24 June 2020 as well as the proof of the evidence she would give in chief, at the hearing. As the mother was representing herself, the Court considers it appropriate to discuss her earlier affidavits in order to better understand her case.
In her affidavit filed 1 November 2018 she confirmed the father’s allegation in an earlier affidavit that the mother had been sexually abused at the age of eight years, when her cousin had exposed his erection to her on a number of occasions. She acknowledged that throughout her relationship with the father she recalled these incidents and became frustrated and concerned. She eventually sought help from therapists and specialists. At paragraph 16 of the affidavit she deposes: “I am grateful that I now recognise this is a form of abuse and grooming.” At paragraph 17 she states: “I now hold some serious concerns about Mr Merino’s behaviour towards [X].” The Court observes that the mother drew a direct link in her evidence between her experience of being sexually abused as a child by way of exposure to an erection, and the father’s behaviours towards the child.

Orders 1–3 as proposed will be made. This means that the parents have equal shared parental responsibility, save in relation to the child’s health where the father will have sole parental responsibility but with obligations to notify, consider and advise the mother. By contrast the mother proposed sole parental responsibility with the exclusion of education and schooling, religion and cultural upbringing, and health and medical treatment.
The Court has concerns about the capacity of these parents to implement an order for equal shared parental responsibility. The pervasive lack of trust and inability to communicate will make this problematic. However, to give the mother sole parental responsibility in relation to any aspect of the long-term care, welfare and development of the child is problematic. The mother’s judgment has been shown to be flawed in so many parts of the evidence. The Court is concerned that the mother has engaged in doctor-shopping. It is appropriate to give the father sole parental responsibility in relation to the child’s health. The father seeks sole parental responsibility in relation to no other area of decision-making. On that basis, and having regard to the eventual progression to equal time, equal shared parental responsibility appears the only other alternative.
Orders 4–7 of the Independent Children’s Lawyer’s proposed minute deals with where the child will live and the time she spends with the other parent. Having regard to the reasons set out above, the Court considers these orders to be in her best interests. Order 7 will need to be redrafted to incorporate the specific orders proposed by the father at order 7 of his minute.
Order 8 will need to reflect the changeover arrangements determined above.
Proposed Order 9 refers to Orders 15, 16 and 17 of the father’s minute of order, however there appears to be an error as the orders relating to communication in the father’s minute were in fact Orders 12, 13 and 14, and the Court will proceed on this basis. The Court considers it appropriate to make these orders. The remaining orders are relatively uncontentious. The Court is satisfied that each of these orders are necessary, in the best interests of the child, and are a proportionate response to the issue raised.
The Court considers it appropriate that the Independent Children’s Lawyer explain these orders to the child and an order will be made to that effect.
It follows from the above that the Court has determined that equal shared parental responsibility in relation to aspects of the child’s health are not in the child’s best interests. The presumption in this regard is rebutted.

I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated:       29 September 2022
Schedule A
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY   File No. (P)SYC6408/2018
BETWEEN
MR MERINO   (Applicant)
AND
MS ARTIGAS  (Respondent)
14 December 2018
Before ACTING SENIOR REGISTRAR …
UPON APPLICATION made to the Court AND UPON HEARING, BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT
1.That by consent and pending further order, orders are made in terms of the document headed ‘BY CONSENT IT IS ORDERED AND PENDING FURTHER ORDER’ signed by all parties and marked Exhibit 1, set out herein:
1.That the child, X born 2013 live with the mother.
2. That the child shall spend time with the father:
2.1Each Sunday for a period of up to four (4) hours as agreed and failing agreement from 12pm to 4pm with changeover to occur at the BB Family Services contact centre in Suburb CC.
2.2Each Wednesday for a period of two (2) hours as agreed and failing agreement from 4:30pm until 6:30pm with changeover to occur at the mother’s residence with the father not to be in attendance at changeover.

3.That the father’s time with the child pursuant to Order 2.1 be suspended for one Sunday of the mother’s choosing each month subject to:
3.1The father having make-up time on the Saturday immediately preceding and/or following the suspended Sunday visit, with such time to be equivalent to the time set out in Order 2.1 in terms of hours.

4.That the father’s time with the child pursuant to Order 2 be suspended for a period of up to ten (10) days of the mother’s choosing during the 2018/2019 Christmas school holiday period, subject to:
4.1The father having make-up time during the four weeks immediately preceding and/or following the ten (10) day school holiday period, with such time to be equivalent to the time set out in Order 2 in terms of hours.

5.That without admission as to the necessity of supervision, the father’s time with the child shall be supervised at all times by BB Family Services (or such other professional supervision organisation as the parties may agree upon in writing) and each party shall do all acts and things and sign all necessary documents to facilitate such supervision and the father shall pay the full cost of such supervision.
6.Further to order 5, that an N Language speaking supervisor be present during each supervised visit. Should an N Language speaking supervisor not be available, the father is to refrain from speaking to the child in N Language.
7.That the father immediately do all acts and things necessary to remove the Facebook page and/or social media account set up in the name of the child and be restrained from creating any further account with Facebook or any other social media service.
8.That the mother and father be restrained from posting any photos or videos on any social media of the child.
9.Leave be granted to the party’s legal representatives only to photocopy the material produced by Ms DD pursuant to subpoena for the sole purpose of obtaining an official translation of the material produced pursuant to that subpoena and that the material is not distributed to the parties.
10.That pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr C be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the child and that in preparing his report to the court, Dr C be requested to consider the following matters:
10.1The benefit to the child of having a meaningful relationship with both of the child’s parents;
10.2Whether the child is at risk of being exposed to any physical and/or psychological harm including being subjected to or exposed to abuse, sexual abuse, neglect or family violence;
10.3The relationship between the child with each of their parents and any other relevant persons (including any grandparent, new partner or other relative of the child);
10.4The extent to which each of the parents has taken, or failed to take the opportunity to:
10.4.1Participate in making decisions about major long term issues in relation to the child; and

10.4.2 Spend time with the child; and
10.4.3 Communicate with the child.
10.5The extent to which each of the child’s parents has fulfilled, or failed to fulfil the parents obligations to maintain the child;
10.6The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other person (including any grandparent or other relative of the child) with whom the child has been living;
10.7The practical difficulty and expense of the 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;
10.8The capacity of each parent or 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;
10.9The 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 Single Expert thinks are relevant;
10.10The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person including any grandparent or other relative of the child);
10.11Any family violence involving the child or a member of the child’s family and the effect on the child of any family violence to which they may have been exposed;

10.12   The mental state of the Father in so far as it relates to parenting issues;
10.13   The mental state of the Mother in so far as it relates to parenting issues;
10.14   Any other matter the Court Expert considers relevant.
11.That the parties shall facilitate the preparation of the Report including attending on and arranging for the child to attend upon the Single Expert Witness.
12.That the parties shall each pay one half of the cost of the fees associated with the preparation of the expert report.
13.That until further order the father and the mother and their servants and/or their agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
14.That by close of business on Monday 17 December 2018 the father shall provide to the mother a translation of the 53 minute video recording referred to at paragraph 98 of the Mother’s affidavit filed 1 November 2018 and by 4pm on Thursday 20 December 2018 the mother shall provide any comments as to the accuracy of that translation. In the event that there is any disagreement as to the father’s translation the father shall thereafter instruct New South Wales Translation services to provide a transcript of any sections of the translation that are in dispute at the father’s expense.

Notation
A.The mother requests that the father not attend the school attended by the child and the father agrees not to do so unless agreed between the parties in writing. The father will only communicate with the school by email and telephone.
B.The parties intend to attend upon Dr C on 29 January 2019 for interviews for the preparation of the Expert Report.

Schedule B
Parental Responsibility
1.That the mother, MS ARTIGAS born in 1978 have sole parental responsibility of the child X, born 2013, in relation to decisions concerning her long term care, welfare and development, including but not limited to:
(a)The child’s education and schooling;
(b)The child’s religion and cultural upbringing; and
(c)The child’s health and medical treatment.

2.At all times, the parents prior to making a long-term major decision, shall:
(a)Advise the other parent in writing, by email to an email address nominated by them of any major long-term decisions they intend to make for the child and must give at least more than one alternative on the proposal to be chosen by the other parent.
(b)If the other parent provides the parent who made the proposal with a written response to the long-term major decision within seven (7) days, the parent who made the proposal must consider the response from the other parent as the ultimate decision.
(c)If the other parent does not provide a written response within 7 days, the parent who made the proposal will make the final decision.
(d)If the other parent rejects the alternatives proposed, then must provide at least two new alternatives, until they reach an agreement.

3.That the child will continue attending R School, Suburb EE.
4.The parent who intends to change the child from school must commit to pay the new school fees and propose at least two private or religious schools alternatives within a range of no further than 20kms from R School. The parent who made the proposal must consider the choice made from the other parent as the ultimate decision.

Supervision
5.The time that the child spends with the father pursuant to order 6 is to occur in the presence of an alternative carer until X turns 12 years-old or in the presence of a nominee of BB Family Services.

Live with and Spend time with
6.That the child shall live with the parties as agreed between them in writing and failing agreement, during the school term as follows:
(a)From the date of these orders, the child shall live with the mother and spend time with the father, each alternate weekend, from after school on Friday (or 3pm if not a school day) to the commencement of school on Monday (or 8am if not a school day)
(b)From Term 3 2022, the child shall live with the mother and spend time with the father in a two-week arrangement:
(c)Week-one:
(d)Each week from the conclusion of the school on Friday (or 2:40pm if not a school day) to the commencement of school on Monday (or 8am if not a school day);
(e)Week two:
(f)Each Wednesday from the conclusion of the school on Wednesday (or 2:40pm if not a school day) to the commencement of school on Thursday (or 8am if not a school day)

Changeover
7.That except where changeover occurs at school on school days or as otherwise agreed, the parents shall collect the child from the other parent outside Coles B Town Centre
8.For the purpose of order 6 herein, if either parent is unable to facilitate changeover personally, that they be at liberty to nominate an alternate person known to the child, to attend changeover, provided that they give the other parent no less than 24-hours notice.

April, June/July and September/October school term holidays
9.With the provision of order 6 herein being suspended, during those times, the child shall spend time with the father and mother as agreed between the parties in writing and failing agreement as follows:
(a)In the first half of the school holiday period, commencing at the conclusion of school (or 3pm), with the parent who did not have the child in their care on the last day of the term that the child is required to attend the school, by the school
(b)In the second week of the school holiday period, commencing at 6pm on the second Sunday following the cessation of the school term, with the parent who did have the children in their care on the last day of the term that the child is required to attend the school by the school.

December/January long summer holidays
10.With the provision of order 6 herein being suspended, during this period the chid shall spend time with the father and mother as agreed between the parties in writing and failing agreement, the child shall live with the father and spend time with the mother as follows:
(a)In even numbered years, during the first half of the school holiday period, commencing at the conclusion of school (or 3pm) on the last day of the school term that the child is required to attend school by the school, and concluding on the first Sunday after New Year’s Day at 6pm; and
(b)In odd numbered years, during the second half of the school holidays period, commencing on the first Sunday after New Year’s Day at 6pm and concluding at the beginning of the school day on the first day that the child is required to attend school by the school.

Special Occasions
11.On the following occasions, the above orders 4,5 and 6 to be suspended, and the child shall spend time with the parties as agreed between them in writing, and failing agreement, if the child is not already spending time with either party, then the child shall spend the following time:
(a)With the mother on Mother’s Day from the conclusion of school (2:40pm) on the Friday preceding Mother’s Day (or 6pm if not a school day) until the commencement of school (or 8am if not a school day) the day immediately following Mother’s Day.
(b)With the father on Father’s Day from the conclusion of school (2:40pm) on the Friday preceding Father’s Day (or 6pm if not a school day) until the commencement of school (or 8am if not a school day) the day immediately following Father’s Day.
(c)On the child’s birthday, with the parent she is not spending time with, if on a school day from the conclusion of school until 6pm or if a non-school day from 12 until 6pm

12.Each parent shall at all times keep the other parent informed of their mobile telephone number, email address, landline telephone number and residential address.
13.Each parent shall ensure that they inform the other parent of any change of details in relation to their mobile telephone number, email address and landline telephone number within 48-hours of such change.
14.Each parent shall ensure that they inform the other parent of any change of details in relation to their residential address no less than seven (7) days prior to such change.

Communication
15.That until the child commences high school:
(a)That each parent will facilitate communication between the child and the other parent at 6pm each Monday, Thursday, 25 December and 1 January, when the child is in their care, by telephone.
(b)That each parent will facilitate all reasonable requests made by the child to communicate with the other parent, with friends and extended family by telephone at times when the child is in their care.
(c)For the purposes of orders 15(a) and 15(b) herein:
(i)The parent with whom the child is living with shall instigate the phone by contacting the other parent, on the parent’s nominated mobile telephone number; and
(ii)The parent who is facilitating the communication, shall provide the child with privacy to speak with the other parent

16.From the first day the child commences high school, the father shall provide the child with her own mobile phone, to enable the child to communicate directly with each parent and each party shall do all acts and things to facilitate such contact.
17.That unless otherwise specified in these orders, both parents shall communicate with each other by email

Heath Matters
18.From the date of these orders, each parent shall notify the other parent by telephone of any medical emergency, serious illness or hospitalisation with respect to the child within one (1) hour of becoming aware of such emergency and shall provide the other parent with details of the healthcare service and/or institution managing the child’s health
19.That from the date of these orders, that unless in the case of a medical emergency, the parents are restrained from scheduling any medical procedure involving the child which requires the child to undergo any medical procedure requiring local or general anaesthetic, without first obtaining the prior written consent of the other parent
20.From the date of these orders, the parents are restrained from scheduling any specialist appointment involving the child, without first obtaining the prior consent of the other parent.
21.That from the date of these orders, unless agreed to by the parties in writing, the parents are restrained from taking the child to any mental health practitioner, including counsellors, therapists, psychologists or psychiatrists, without obtaining prior written consent from the other parent.
22.That each parent shall ensure the other parent is kept informed of the following matter within 24-hours of becoming aware of same:

(a)Any medical problems or illnesses suffered by the child whilst in their respective care
(b)Any medication or treatment that has been prescribed for the child, including any instructions relating to any ongoing treatment or medication
(c)Any name and contact details of anu medical and allied health practitioners to be attended upon by the child whilst in their respective care
(d)The outcome of any attendance by the child on any medical or other health profession, including copies of any medical reports provided by that professional within seven (7) days of receipt of such report
(e)That each parent shall be permitted to attend (via teleconference when the child is not under their care) any medical or specialist appointments the child is scheduled to attend and that the parent making the appointment shall notify the other parent as soon as an appointment is made and by no later than 24-hours of the date of the scheduling of the appointment (as long as the notice period is prior to the appointment) Or, if not so, no less than 12-hours prior to the appointment.
(f)That the parties shall do all acts and things to authorise any medical practitioner, dentist, counsellor, psychologist, psychiatrist, or other allied health practitioner who treats the child, to provide information to the other parent upon request by the other parent, to the extent permitted by law and shall provide the details of the other parent to the practitioner. This Order authorises any treating health professionals to release the child’s medical information that they are lawfully able to provide about the child, to the other parents at the requesting parents’ expense.
(g)That the parties shall notify each other in writing in the even the child is not attending school as a result of illness with such notice to be provided by 11:30am on the morning of each day of non-attendance at school.

Extracurricular and Social Activities
23.That each parent shall be solely responsible for facilitating the child’s attendance at and collection from school, parent/teacher interviews, doctor(s) appointments, extra-curricular activities such as parties and any other appointments whatsoever whilst the child is living with them in accordance with these orders.
24.That forthwith, the parties are permitted and authorised to attend all events and activities at and to liaise directly with all school and extracurricular activity the child may attend, and that both parents shall do all acts and things necessary to authorise any school and organisation to release such information as requested by the other parent to the extent permitted by law and each parent is to ensure that the other parent’s details are provided to the school an organization.
25.That the parties refrain from enrolling the child in any extracurricular activity (including but not limited to sporting, religious activities, play-dates) which would require the child to attend such activities while they are living with the other parent, without the other parent’s prior written consent.
26.That without prior consent of the other parent, a parent Is not to accept invitations for the child to attend any events that will require the child’s attendance at such activity while living with the other parent. The parent receiving any invitation for the child to attend an event while the child is in care of the other parent, must notify and forward the invitation to the other parent as soon as they receive the invitation.
27.Should the parties agree in writing to enrol the child in any extracurricular or social activity, then the parents must ensure that they do all things to ensure that the child attends upon and participates in the activity and each parent is not to terminate the child’s attendance without the other parent’s consent.
28.That both parents shall authorise any school attended by the child to provide to both parents copies of their reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
29.That by this order each party authorises all organisations attended by the child to inform both parents of any injuries sustained by the child whilst the child is in attendance.
30.That the parties shall be at liberty to provide all and any schools attended by the child with a copy of these orders.

Travel
31.That upon child’s Australian, Country E or Country F Passport expiring, within fourteen (14) days, the parties shall do all acts and things and sign all necessary documents to ensure that an application is made to renew the child’s Passport
32.That the parties shall be at liberty to travel domestically and internationally with the child, provided that the following occurs, unless otherwise agreed by the parties in writing:
(a)Where domestic travel is intended, the travelling parent shall give the other parent no less than fourteen (14) days prior notice in writing of their intention to undertake such travel with the child and the travelling parent shall provide itinerary details simultaneously with such notice
(b)Where international travel is intended, the travelling parent shall give the nontravelling parent no less than thirty (30) days prior notice in writing of their intention to undertake such travel with the child
(c)In respect to international travel, the travelling parent must not take the child to any country which is not part of the Hague Convention on the civil Aspects of International Child Abduction unless provided with written agreement by the nontravelling parent
(d)In the case of international travel, the travelling parent must provide copies of return flight tickets and a valid travel insurance policy for the child not less than two (2) weeks prior to the proposed travel.
(e)The travelling parent shall keep the non-travelling parent informed of full itinerary and contact details during all periods of travel with such information to be provided to the non-travelling parent no later than fourteen (14) days prior to any international travel and no later than fourteen (14) days prior to any international travel and no later than five (5) days prior to any domestic travel
(f)The travelling parent shall facilitate communication between the child and the nontravelling parent on arrival and every two days during the trip.
(g)Any domestic and/or international travel with the child is to occur during the travelling parents time in accordance with these Orders and shall not occur during the school term; and
(h)In the event any domestic and/or international travel occurs when the child will be living with the non-travelling parent, the non-travelling parent shall be entitled to make-up time as agreed by the parties in writing.

Restraints
33.That on a without admission bases each party, their servants, and agents, be hereby restrained by injunction from the following:
(a)Denigrating the other party, their partner, or any member of the other party’s family to the child, within the earshot of the child, or in the presence of the child;
(b)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, the child or any family members or partners of the other party;
(c)Undermining the child’s relationship with the other party;
(d)Discussing the Court proceedings or showing the child any document relating to the Court proceedings;
(e)Discussing financial arrangements concerning the parties and the child or any disputes between the parties, within the earshot of the child, or in the presence of the child;
(f)Impeding and interrupting the child’s communication with the other parent.

34.That the parties are hereby restrained from allowing any photographs of the child to be posted on any social media platform.
35.That the parties or the alternative carer mentioned in order 5 are hereby restrained from consuming any substances while in the care of the child.

Other
36.That both parents be at liberty to provide a copy of these Orders to the child’s treating practitioner and school to ensure compliance with the Orders.
37.That the parties conduct themselves in a civilise way by greeting each other when meeting face to face in the presence of the child.
38.Should a parent cohabitate with any other person for a period longer than seven (7) days that parent must inform the other parent of details of the name, age, and gender of that person in writing.
39.That the parties shall direct their treating psychiatrists, psychologist and/or mental health practitioner, to provide information in respect of their treatment including frequency of attendance, to the other party, on no more than two (2) occasions per year.
40.That within fourteen (14) days of the date of these Orders, the parties shall provide details of their treating psychologist and/or psychiatrist to the other party and must continue to attend their treating psychologist and/or psychiatrist until deemed by their treating psychologist and/or psychiatrist that each parent is no longer required to attend. Each party must ensure that they comply with all recommended therapies.
41.That the parties must both provide to their psychologist and/or psychiatrist a copy of these Orders and of the two reports issued by the Court-appointed Single Expert on their first session after the making of these Orders.
42.That the parties are hereby required to provide the child with complete privacy when showering and bathing.
43.That the parties are hereby required to ensure the child sleeps alone in her designated bed and bedroom.
44.That within two (2) months from the date of these Orders, the parties shall do all acts, share the costs of material required and things to ensure that the child is enrolled in the FF Program and attends all required sessions and completes the program.
45.That within three (3) months from the date of these Orders, the parties must enrol into the Triple P, Magic 123 and Emotionally Attuned courses and provide a certificate of completion within fourteen (14) days of completing the courses.
46.At least until property proceedings are finalised, father to provide payment in first instance for:
(a)Fees for school, school excursions and extra academic activities,
(b)School, school excursions and extra academic uniforms,
(c)Utensils and electronic devices for school, school excursions and extra academic activities,

47.The mother is to pay the father at the end of the property proceedings or be taken as part of the family property shared portion, the total sum of $10,750 as reimbursement for funds paid by the father on behalf of the mother in relation to the following invoices:
(a)Dr C Pty Ltd Invoice … dated early 2019; for the sum of $5,662.50
(b)Dr C Pty Ltd Invoice … dated early 2019; for the sum of $1,237.50
(c)Dr C Pty Ltd Invoice …, dated late 2021; for the sum of $3,850.00

File number(s):	SYC 6408 of 2018
Judgment of:	ALTOBELLI J
Date of judgment:	29 September 2022
Catchwords:	FAMILY LAW – PARENTING – Risk of harm assessment – Allegations of sexual assault of the child –Credit issues – Finding of no sexual assault – Discussion of expert evidence opining the mother’s mental health – Presumption of equal shared parental responsibility rebutted with respect to matters of health
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 102NA
Cases cited:	Merino & Artigas [2022] FedCFamC1F 544 MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division:	Division 1 First Instance
Number of paragraphs:	233
Date of hearing:	15–17 June 2022
Place:	Sydney
Counsel for the Applicant:	Mr O’Reilly
Solicitor for the Applicant:	Doolan Wagner Family Lawyers
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 6408 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MERINO Applicant
AND:	MS ARTIGAS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	29 September 2022