MICHAUD & DANE

[2020] FCCA 1111

FEDERAL CIRCUIT COURT OF AUSTRALIA

MICHAUD & DANE [2020] FCCA 1111

Catchwords:
FAMILY LAW – Parenting – where each parent raises concerns about the others capacity to parent and risk of harm to the child – where the evidence raises concerns about the mother’s mental health and parenting capacity – orders in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR v GR [2010] HCA 4

Applicant: MR MICHAUD

Respondent: MS DANE

File Number: SYC 6172 of 2013

Judgment of: Judge Altobelli

Hearing dates: 29 – 30 April 2020

Date of Last Submission: 30 April 2020

Delivered at: Wollongong

Delivered on: 1 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Solicitors for the Applicant: MDV Family Lawyers

Counsel for the Respondent: Ms Rebehy

Solicitors for the Respondent: Rita Thakur & Associates

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law

ORDERS

1. All previous orders of the Court be discharged.

2. The Father have sole parental responsibility for the child X (born 2011) (‘the child’).

3. The child live with the Father.

4. The child spend supervised time with the Mother not less than 6 times per year at a supervised contact centre like Contact Centre V or another alterative supervised service provider as agreed in writing with the Father at times agreed and provided for by the Service as arranged by the centre (‘identity contact’).

5. For the purposes of the identity contact above the parties do all things necessary to ensure the child’s time with the Mother occurs on the closest day or weekend to align with the following special occasions:

   (a)Mothers Day;

   (b)The child’s birthday; and

   (c)Christmas Day.

6. All changeovers take place at the supervised contact service provider used for the purposes of facilitating the child’s identity contact with the Mother in accordance with Order 4 above unless otherwise agreed in writing with the Father.

7. Either parent shall notify the other parent if they change address or telephone number and are to provide those details to the other party within 24 hours.

8. The Father shall facilitate the child communicating with her mother via letter or cards for the purposes of celebrating special occasions and the Father shall ensure that all letters and cards sent by the Mother are passed onto to the child provided the content contained therein is age appropriate.

9. The Father will ensure that the Child remains enrolled in School A for the remainder of her primary school education.

10. The Father shall ensure that the child remains engaged with an appropriately qualified child psychologist for as long as is recommended by the child’s treating general practitioner in conjunction with any recommendation of the child’s treating psychologist.

11. The Father be granted leave to provide a copy of the Family Report dated 24 January 2020 prepared by Family Consultant C to the child’s treating psychologist.

12. Both parties shall be restrained by injunction from consuming alcohol, drugs or any illicit substances in the presence of the child, within 12 hours of coming into contact with the child or be in any way effected by them whilst the child is in that person's care or control.

13. Each party is restrained from denigrating or criticising the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

IT IS NOTED that publication of this judgment under the pseudonym Michaud & Dane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 6172 of 2013

MR MICHAUD

Applicant

And

MS DANE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X born 2011.  X is 8 years old.  The Court had to decide where X lives, and what time she spends with her parents.  This is a very sad case, and a difficult decision to make.  These Reasons for Judgment explain the Orders that the Court has made.

Background

1. X's father is 40 years old.  He describes himself as a healthcare worker.  X's mother is a healthcare worker.  She is 36 years old.  They both live in the E region of New South Wales.  They met and commenced cohabitation in 2010.  They married shortly after X was born.  The parental relationship before separation appears to have been tumultuous at times.

2. The Mother had another child to a previous relationship, Ms D.  Ms D is now 18 years old and lives independently of the Mother, but after the parents in this case separated both X and Ms D remained living with the Father.

3. The case about X has a lengthy litigation history.  The first set of final Orders were made by consent on 25 October 2013.  The parents agreed that the Father would have sole parental responsibility, that X would live him and spend time with her mother.  Whilst Ms D was not, of course, referred to in the Orders, she was living with the Father and X at the time these Orders were made.

4. On 27 February 2017, however, the parents entered into further final consent Orders.  These Orders provided for equal shared parental responsibility, for X to live with her mother, and spend time with her father.

5. By 18 December 2018, however, the situation in relation to X had changed once again.  An Order was made on an interim basis that X live with her father and spend time with her mother.  The Mother was ordered to return X to the Father's care, failing which a recovery order would issue.  The matter was listed for Interim Hearing on 15 March 2019.

6. On 15 March 2019 the Court made a further interim Order.  Equal shared parental responsibility was ordered, with X to live with her father, and spend time with her mother.

7. Based on all the evidence before the Court it seems that the actual care arrangements for X between 2013 and December 2018 were not necessarily in accordance with the Orders.  Thus, as a general proposition, at times when the Orders provided for X to live with her father, and spend time with her mother, it seems as if X spent far more time with her mother than was ordered.  Conversely, when the Orders provided for X to live her mother, it seems that X spent far more time living with her father.  No criticism is intended by making this observation.  The fact is that until about 2018 X's parents seemed to have the capacity to cooperate with each other in relation to X's parenting arrangements in a manner that reflected the needs and circumstances of both parents.

8. The evidence indicates, moreover, that between 2013 and 2018 both of X's parents re-trained in different occupations, and experienced mental health issues.  In the case of X's mother, there were other personal challenges that she experienced.  The Mother re-partnered, and then that marriage broke down.  The Mother's mental health deteriorated and she attempted suicide several times.  The Mother had a number of mental health admissions.

9. By about 2018, the largely cooperative relationship that had existed between the parents began to deteriorate.  Despite the Order then in place for X to live with her mother, X increasingly lived with her father, and the evidence suggests that whilst the Mother dealt with struggles in her own life, she was not a consistent presence in X's life.  The evidence suggests that the Father became increasingly concerned about the Mother's capacity to care for X.  The evidence suggests that the Mother tried to take X out of school without the Father's consent a number of times that year.

10. Since the interim Orders made 15 March 2019, X has lived with her father, and spent substantial and significant time with her mother.  There have been issues between the parents, which form the more recent background to the present litigation.  Thus, part of the Mother's present case was that the Father's mental health impacts on his ability to meet the needs of X, especially her hygiene needs.  It was the Mother's case that the Father could not meet X's hygiene needs, and frequently presented as dirty and unkempt.  The Father's case was that the Mother lacked capacity to care for X, and that she continued to struggle with her mental health, and consumption of drugs and alcohol.  He was clearly concerned about her erratic behaviour.

Competing proposals

1. When this Hearing commenced on 29 April 2020, the Father's proposal was set out in his Amended Application filed 15 April 2020.  He proposed that he have sole parental responsibility, that X live with him and spend time with her mother from after school on Friday to 5:00pm Sunday each alternate week, for half the school holidays, and on special occasions.  He sought an order that X continue to attend the school that she was presently attending.

2. The Mother's proposal was set out in her Amended Response filed 16 April 2020.  She proposed that there be equal shared parental responsibility, that X live with her, and spend time with her father each Wednesday from after school to before school on Thursday, as well as each alternate weekend from after school on Friday until before school on Monday.  She also proposed that school holidays and special days be shared.  She sought a specific order that she be permitted to enrol X in a different school, closer to where the Mother was living.

3. X was represented by an Independent Children's Lawyer.  At the commencement of the Hearing, there was no proposal by the Independent Children's Lawyer.  This was appropriate.

4. The Court records that by the time the evidence had concluded on 30 April 2020, the Independent Children's Lawyer had made a proposal, and the proposals of both parents had changed.  The Court will discuss the evidence, and then explain the proposals that were advanced before final submissions were made.

5. It is important to record, however, that the Family Report dated 24 January 2020 that had been prepared in this case by a very experienced Family Consultant, contained what the Court considered to be quite clear recommendation for X to continue at her current school, for X to continue to live with her father, and spend time with her mother each alternate weekend from Friday to Sunday.

6. From the Court's perspective, one of the saddest aspects of this case is the missed opportunities to settle.  The Court urged all parties to seriously consider the recommendations made by the Family Consultant in the Family Report, before the Hearing commenced.  This recommendation was made after the Court had read all the evidence filed by the parties.  The recommendation for the parties to consider settlement was repeated at the conclusion of the Father's case.  At the conclusion of the Mother's evidence, the Court once again urged the parties to consider settlement and explained that it was not bound by the proposals advanced by the parents or the Independent Children's Lawyer.  It is most regrettable, as it turns out, that the Mother did not take advantage of the opportunities afforded to her to settle this case.

The Hearing

1. The Hearing was conducted during the COVID-19 pandemic.  Thus the Hearing took place by videoconference using Microsoft Teams technology.  The Mother gave evidence from her home.  The Mother's solicitor and Counsel participated from her solicitor's office.  The Father gave evidence from his solicitor's office.  The Father's Counsel participated from her Chambers.  The Independent Children's Lawyer, and the in-house advocate appearing on behalf of the Independent Children's Lawyer, each participated from their respective offices.  The technology worked quite satisfactorily.  The Court notes that the Mother had the advantage of being able to give evidence from what appeared to be the comfortable settings of her own home.  The Court recognises the difficulties for all litigants to give evidence in a case that is clearly very important to them.  The Court accepts that giving evidence in the formal context of a courtroom can be an additional level of stress on litigants.  Both parents were spared this stress, but more so the Mother because she gave evidence from her own home.

2. X, her father and her mother were all represented by experienced family lawyers and family law counsel.

3. The Family Consultant gave evidence from her office.

The evidence

1. In the Father’s case, he relied on the following documents:

   a)Amended Initiating Application filed 15 April 2020;

   b)Affidavit of Mr Michaud affirmed and filed 17 April 2020;

   c)Notice of Risk filed 13 December 2018; and

   d)Case outline document filed 23 April 2020.

2. In the Mother’s case, she relied on the following documents:

   a)Amended Response to Initiating Application filed 16 April 2020;

   b)Affidavit of Ms Dane sworn 15 April 2020 and filed 17 April 2020;

   c)Case outline document received 22 April 2020.

3. The Independent Children’s Lawyer relied on her case outline document filed 27 April 2020.

4. The Father, the Mother and the Family Consultant each gave evidence and were cross-examined during the course of the proceedings.

5. The following material was tendered as evidence during the course of the proceedings:

   a)Family Report dated 24 January 2020;

   b)Tender bundle prepared on behalf of the Independent Children’s Lawyer; and

   c)Tender bundles prepared on behalf of the Respondent Mother (3 batches).

The applicable law

1. The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘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.

2. 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.

3. 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.

4. 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)    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)    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; and

   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) 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.

1. 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.

   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.

2. In MRR v GR [2010] HCA 4, 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".

3. 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.

4. At [15] the High Court emphasised the need for a practical approach:

   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 of the Family Consultant

1. It is convenient to deal with the evidence of the Family Consultant early in these Reasons for Judgment.  That is not because the evidence that the Family Consultant has some primacy, but it was the only expert and independent evidence given in this case.  The Family Consultant gave evidence last, and thus the Court was able to consider her evidence with the benefit of having observed both parents in cross-examination.  In discussing the Family Consultant's evidence below, the Court will take opportunity to discuss the other evidence that was presented before the Court.  The provisions of the Family Report, therefore, as well as the evidence of the Family Consultant in cross-examination, will be considered in the broader context of the other evidence before the Court.

2. The Family Report was ordered on 15 March 2019, is dated 24 January 2020, and was released on the same day.  It is based on interviews that were conducted before the COVID-19 pandemic, both in person and by telephone, on 18 November 2019, 29 November 2019 and 17 December 2019.  The Family Consultant had available to her the documents filed by the parties as at that time.  The Family Report was prepared by an experienced Family Consultant.

3. The Family Consultant noted the competing contentions between the parents about who, in fact, was the primary carer for X after separation in 2013.  The Family Consultant also observed that the Orders in place did not necessarily reflect the consistent arrangements for the care of X.  At the time of the report interviews both parents proposed that X live with them, and spend time with the other parent.  The Family Consultant noted that each parent raised concerns about the care of X in the other's home.  The Father seemed concerned about emotional abuse in the Mother's home, whereas the Mother seemed concerned about emotional abuse, physical neglect and inadequate supervision.  Both parents acknowledged past problematic alcohol abuse and previous mental health issues.  Both parents described their current mental health as stable and good.

4. When the Family Consultant met with the Father she records his view that whilst X is settled living in his care, that were the Mother able to provide a more stable or positive care situation for X, he would readily agree for X to live with her mother.  He was, however, concerned about X in her mother's care.  From the Court's perspective, this is a view that he maintained throughout his evidence.  The Father even admitted that X, being a girl growing into womanhood, was probably better off in her mother's care, but he did not believe that it was emotionally safe for this to happen.  There was almost a sense of reluctance in the Father's application, and a sense of sadness in having to pursue the litigation.  Having made this observation, however, the Court notes that there is an intense of level of conflict between the parents.

5. The Father explained to the Family Consultant that the current parenting orders provided for stressful logistical difficulties, particularly in terms of X's uniforms which, according to the Father, the Mother refused to return with X, causing X unnecessary embarrassment at school, and the Father unnecessary additional cost.  The Father reported to the Family Consultant that X was increasingly expressing reluctance to spend time with her mother.  He articulated concerns about the Mother sharing inappropriate information with X.

6. When the Father met the Family Consultant the risk issues raised by the Mother in relation to him were firmly refuted.  He seemed to acknowledge his weaknesses as a father, but denied that X was in any way neglected or deprived in his care.  He denied that there were any hygiene issues pertaining to X in his care.

7. The Father made a number of serious allegations about the Mother which bear recording.  For example, at paragraph 29 the Father alleged that: “Ms Dane commonly shifts blame for matters, describing her having ‘blame transfer’.”

8. At paragraph 30 the Father described the Mother as: “A highly manipulative person, who fabricates events and then appears to believe her own stories.”

9. He described the Mother as a person who "will lie compulsively".  The Court observes that these are serious allegations to make and, potentially counterproductive and indeed self-destructive if not borne out by the evidence.  It is sadly the case that the Mother, in cross-examination, established the veracity of each of these allegations.

10. The Father acknowledged to the Family Consultant his own past mental health and alcohol issues.  He agreed that there was a family history of alcoholism, including himself, and that he was anxious person.  He had experienced a period of depression following his separation from the Mother and continues to take anti-depressant medication.  He had been sober for 10 years.

11. The Family Consultant met with the Mother who she described, at paragraph 32, as presenting: “As earnest on the day of interviews, at times appealing to the writer to view the situation from her perspective.”

12. The Family Consultant recorded that the Mother "expressed serious concern for X" in her father's care, and that X "has been coached and poisoned" by him.

13. At paragraph 32, the Family Consultant observed the Mother in the following terms: “At times in her account, Ms Dane was highly emotive and tangential, moving between topics.” The Court observed that the Mother behaved in the same fashion in cross-examination, a matter that will need to be discussed below.

14. The Mother's concern about the school that X attends is described at paragraph 33 of the Report, which bears reproduction in full:

    Ms Dane would like X to return to her fulltime care and change schools to attend School F in Suburb G. She said that Mr Michaud has “badmouthed” her to the School A community, telling people she is a “drug addict” and a “slut” and said that it is now uncomfortable for her to attend there. She said that X is herself bullied at the school and teased for her appearance. Ms Dane argued that she cannot afford to maintain X in a private school and has been impressed by the more relaxed atmosphere available at School F. Ms Dane said that she was concerned that X was attending school counselling at her current school which Ms Dane considers offers “religious based psychotherapy”. Ms Dane said that she believes that X should attend counselling outside of school which is more removed from her school life.

15. As will be seen from the evidence below the Mother did not enjoy a good relationship with X's school, but the Court will find that this was because of the Mother's actions and not because of anything the school, or any of its personnel had done, or had failed to do.

16. The Mother's concerns about X's appearance and demeanour are recorded at paragraph 34.  Once again, this paragraph bears reproduction because it summarises the Mother's perspective and concerns:

    Ms Dane said that she is distressed at X’s current appearance and demeanour. She said that X appears overweight, with frequent skin rashes and is often constipated and unkempt. She said that X smells and does not appear clean or with her teeth and hair brushed. She said that X is often disorganised and has poor self-care, having to be reminded to pull up her underwear and pants. She argued that Mr Michaud and his family have very poor social and life skills and poor attention to their own personal hygiene and care. She said that, when she met Mr Michaud, he was living in a car and that she and her father assisted both Mr Michaud and his family to improve their life situation. 

17. After considering all the evidence the Court will find that there is no objective evidence to support the Mother's concerns about X's appearance and demeanour.  In fact, on any objective appraisal of the totality of the evidence, whenever X has presented at school in an unkempt or untidy fashion, she has come from her mother's home.

18. The Mother reiterated her concerns about X's emotional wellbeing in her father's care, and especially in terms of coaching.  She refuted that she would place similar pressure on X.  Moreover, the Mother refuted any contention that X would be at risk in her care.  This is recorded at paragraph 36 of the Report: 

    Ms Dane refuted that X would be at any risk in her care. In relation to her alcohol use, she said that she has no plans to return to Alcoholics Anonymous as she does not drink and does not want to. She appeared to attribute some blame to Mr Michaud for her past drinking and misuse of prescription medication, stating that Mr Michaud took her to the doctor at a vulnerable time in her life, after the death of her sister, and was “feeding me pills”. Of her alcohol use, Ms Dane stated “I barely drank”, and said that she simply had low tolerance to alcohol, and when she did drink she would have no street sense and was naïve, getting herself into bad situations. She said that there have only been a few times when she has been intoxicated, and at those times, things would deteriorate and she was caught Driving Under the Influence. Ms Dane said that she attended H rehabilitation centre (a rehabilitation centre) primarily as a respite from the maternal grandmother and periodically attended Alcoholics Anonymous but that it was a bad fit for her. She denied anything other than recreational use of drugs such as marijuana and amphetamine, and said that she ceased this use prior to having X.

19. The Court observes that when the more objective evidence about the Mother's consumption of alcohol and use of drugs is considered below in these Reasons for Judgment, it will be seen that the Mother has substantially minimised the issues set out above.

20. At paragraph 37 the Family Consultant records what the Mother explained about her mental health history:

    In relation to her mental health history, Ms Dane said that she does not consider that she has any current mental health concerns, and instead described herself as a strong and resilient person. She described the men who have been around her as her main problem, rather than her mental health per se. She said that she had no diagnosis of Personality Disorder, Bipolar Disorder or Postnatal Depression, but rather the difficulties she has had were situational. She said that her diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) three years ago “finally made sense” and she was prescribed Dexamphetamine, which she no longer takes. She said that she sees Dr I monthly, but stays well by the fact that she does not now “see bad men”. When asked about claims that she had been suicidal or admitted for psychiatric treatment, Ms Dane said that she was taken to hospital by her ex-husband after Mr Michaud, as he “locked me up” but said that she was released into the care of her family. She said that she had felt suicidal after the breakdown of that marriage. (The subpoena material appears to indicate that there may have been a number of occasions when Ms Dane has made suicidal comments and been taken to hospital).

21. The Family Consultant refers to the subpoenaed material which will be discussed below and, again, presents a significantly different perspective on the Mother's mental health history.

22. At paragraph 38 the Family Consultant records the concerns that the Mother raised about the Father's parenting capacity, particularly his alleged lack of protectiveness towards her daughter Ms D, in allowing her to use the internet unmonitored.  This paragraph also bears reproduction:

    Ms Dane raised concerns about Mr Michaud’s parenting capacity, stating that he gambled and had previously had a significant drinking problem. She said that he was inept in acting protectively towards her daughter Ms D, allowing her to use the internet unmonitored and form online connections with older men and allowing her to access pornography in his care. (The subpoena material appears to indicate that Ms D first accessed inappropriate material and made inappropriate connections, while staying with extended maternal family on a holiday. While Ms Dane appears to attribute blame to Mr Michaud for Ms D’s difficulties, this does not appear to be fully supported by the subpoena material and may need further exploration by the Court).

23. The subpoenaed material referred to by the Family Consultant will be discussed below.  Her observation that the Mother's allegations do not appear to be fully supported by the subpoenaed material is understated.

24. The Family Consultant met with the maternal grandfather, and step-grandmother, and her observations are set out at paragraphs 40 to 42.  As neither of these persons gave evidence at the Hearing no weight can be placed on these paragraphs of the Family Report.

25. At paragraph 43 and 44 the Family Consultant discusses the paternal grandfather but, for the same reasons as above, no weight can be placed on these paragraphs.

26. The Family Consultant made observations about the adult relationships at paragraphs 45 to 50.  The Father was wary and mistrustful about having any contact with the Mother.  He had "given up" on trying to work cooperatively.  He was fearful of the Mother making false allegations.  The Mother described the Father as a controlling person.

27. The Family Consultant met with X, and her observations are recorded at paragraphs 51 to 54 inclusive.  These are important paragraphs and are reproduced below:

    [51] X presented as a reserved and quiet little girl. When she met the writer initially she appeared uncertain, had limited eye contact and had many questions about the interview process, but she engaged positively and at times spoke in a somewhat pressured manner with nervous energy. X seemed cautious about what she should say in interview and how such information may be responded to by her parents. She seemed burdened at times.

    [52] X was noted to be dressed in a casual manner. She wore jeans and a long sleeved sweater. Mr Michaud explained that X had been sunburned the day before on her shoulders, (the writer noted that the day prior had been overcast) and Mr Michaud appeared keen to show the writer the sunburn and discuss this rather than it being raised later by Ms Dane. When the writer met X in the waiting area, she noted that X appeared to have her shoes on the wrong feet. When the writer pointed this out to X and Mr Michaud, he quickly assisted X to change her shoes to the other foot.

    [53] X seemed aware that the purpose of the interview was to discuss “how it’s like at Dad’s and how it’s like at Mum’s”. X spoke in an animated manner about neutral topics such as what she had done on the weekend prior to the Report interviews and of her experiences at school. X spoke positively of school. She said that she likes her teachers and has good friends and said “if I feel upset, nice people help me”. X spoke of feeling somewhat different to some of her friends, as unlike many of her peers, her parents are “divorced” and she has to “go to these lawyers” and appointments. X seems aware of the conflict between her parents, expressing concern about them coming into contact and arguing. She spoke of comments her mother has told her about her father, such as that her father is “stealing stuff” that “your Dad (may) go to gaol if he doesn’t stop stealing” or that X should “protect herself”. X appeared guarded about sharing information with the writer at times, saying that she did not want to talk about certain topics and that she did not want to make either of her parents angry. She said that she would likely speak with her school counsellor, Ms J, if she were upset.

    [54] X said that she sometimes has “bad thoughts”, commenting to the writer that she was even having one, during interview, about the writer. X spoke of her worries; her fear of the dark, her fear of what the Court may do and of believing the things her mother says to avoid her mother getting angry. X acknowledged that she feels some pressure about where she should live. She conveyed that she would miss her friends were she to change schools and said that she would, ideally, like her parents to live together and be friends, a common desire of children her age in this context.

1. In paragraph 52 above, the Family Consultant observed X as having her shoes on the wrong feet, when meeting her in the waiting area.  In cross-examination, the Father explained that X had taken her shoes off, on arrival at the Court, and then hurriedly put them on when she was to meet with the Family Consultant.  There is no reason not to accept this plausible explanation of what occurred.  The Father’s explanation was not challenged in cross-examination.  The Court does not accept that because X appeared to have her shoes on the wrong feet when she first met the Family Consultant, that this is in any way consistent with the Mother’s assertion about X presenting as unkempt.

2. In cross-examination of both the Father and the Family Consultant, Counsel for the Mother focused on the observation in paragraph 51 that X spoke at times “in a somewhat pressured manner...” The theme of the cross-examination was, consistent with the Mother’s case no doubt, that the Father had coached X, and this was the explanation for the “pressured manner”.  The Father refuted this.  Moreover, the Family Consultant could see no evidence of this.  The significance of this, of course, is X’s statements to the Family Consultant recorded at paragraph 53, in which X:

   ...spoke of comments her Mother has told her about her Father, such as that her Father is ‘stealing stuff’, that ‘your dad [may] go to jail if he doesn’t stop stealing’ or that X should ‘protect herself’.

   One may understand from a forensic perspective why Counsel for the Mother would have to explore the issue of coaching in circumstances where firstly, there seems little doubt that X said those things to the Family Consultant and, secondly, if what X said is in fact true, it would be of significant concern to the Court.

3. The Court notes that at paragraph 54 of the Report, X is reported as having “bad thoughts”, including about the Family Consultant.  The Court had the benefit of evidence from X’s school counsellor, in which X said almost exactly the same thing.  The Court is not so much concerned about the fact that X seems to have “bad thoughts”, including about those engaged with her in a professional capacity.  The Court’s concern is that X is having “bad thoughts” at all and why this is likely to be the case.  It is important to recognise that her school counsellor made a number of observations about X in relation to her psychological wellbeing.  In the email of 5 February 2020, found in the school records, the counsellor states:

   Her tics had become worse, e.g., saying sorry all the time, continually worried about hygiene, washing hands all the time.  She is saying a lot of silly things and is becoming more switched off.  We’re really concerned.

   Thus, X was presenting not just to the Family Consultant but to her school counsellor as being under emotional pressure.

4. At paragraph 55 of the Report X described her relationship as being a close one with her father, indeed describing herself as a “daddy’s little girl”. 

5. The observations of the interactions between X and her parents are set out at paragraphs 57 to 61.  Whilst this passage is lengthy, it is very important and will be reproduced in full:

   [57] During a formal observation of X with Mr Michaud, they both sat together on the floor settling up a farm yard scene with animals, fences and props. The pace of the play was calm, slow and relaxed and they worked cooperatively, smiling and passing figures to one another with easy discussion about the play. X seemed confident, telling her father ‘knock knock’ jokes and there was free flowing conversation as they negotiated the scene. X led the play and called for Mr Michaud’s attention at times “Wait, Dad Look!” and “Let’s do..” “I know what we can do, wait Dad, Can you help me?”. X appeared assertive and enthusiastic in the play and Mr Michaud was encouraging of her efforts.

   [58] When the observation was ending and it was explained that Mr Michaud would leave for a period and X would be observed with her mother, X immediately protested, saying “I’m really tired, I want to go” and then “I want to go home” “I don’t want to go to Mum’s”. Mr Michaud encouraged X to participate in the observation with her mother and assured her that he would wait for her outside.

   [59] As the formal observation of X with Ms Dane was beginning and they were settling in the room, X said to her mother, “You’re not allowed to ask me anything I said to the counsellor”. Ms Dane responded neutrally and redirected X by commenting on the Pokemon figure on her clothing. X made a number of comments early in the play which Ms Dane appeared taken aback at, and looked pointedly at the writer, such as X saying “I’m not a girly girl”  or “I remember Mr K said things to me, he actually did”, or “Remember one time you spit on me, spit the (x) out”. Ms Dane gently challenged X on these comments, before focusing on X’s appearance, pointedly asking her if she had been brushing her teeth and washing her hair, and then saying “have not, show me” and sarcastically responding to a comment of X’s by saying “I’m always abusing you X”. The tone of the interactions appeared somewhat emotionally laden and tense, even intrusive. Ms Dane seemed to take an inquisitorial tone, which led X to redirect the discussion at one point, saying (in what appeared to be an attempt to lighten the mood), “I don’t know what I’m talking about” before getting up and moving to play with Lego, asking her mother for assistance. Ms Dane and X briefly played with the figures, which X and Mr Michaud had played with earlier, before X commented “remember when I vomited..” and Ms Dane stated “No, that didn’t happen”, discussion then moved on to their trip to a theme park before Ms Dane asked X about her You-Tube viewing, asking “You been watching You-Tube? Talking to people on the internet you don’t know? Look at me”. “You told me..” X appeared to recoil somewhat at these questions and said “I don’t want to talk about it, I’m only talking to people from school I know”. Repeatedly X initiated new areas of discussion, but it seemed to head in a direction of questioning and accusation. At one point, X asked the room, “Has it been almost half an hour?” (the writer had earlier advised them they would be observed for about half an hour).

   [60] When the writer joined X and her mother at the table to discuss activities they enjoyed and their usual routine, there was discussion of movie watching and meals before again there appeared to be some tension and Ms Dane challenged X’s comment, and goaded her for lying, telling her playfully; “poke your tongue out, stick your tongue out, pants on fire” as she playfully reached for X’s leg. There appeared to be an intensity in the interaction and Ms Dane appeared to be inwardly angry despite outwardly smiling. When the observation concluded Ms Dane requested a cuddle, which X complied with and then she asked X to ensure she put her uniform in her bag when she next came to stay. When the writer opened the door to lead them out of the room, X asked “Can I come?”

   [61] In a debrief after the observation, Ms Dane commented that it was very upsetting for her to see X looking neglected and commented that X seemed more guarded than usual, stating “our bonds been destroyed”. She questioned the writer about whether a child protection report would be made based on X’s appearance.

6. Paragraph 58 was the subject of cross-examination by the Mother’s Counsel, both with the Father and the Family Consultant.  In cross-examination, X’s reluctance was sought to be portrayed as something that it clearly was not.  The Family Consultant was very clear in cross-examination – X’s reluctance was to being observed with her mother.  The Court declines to extrapolate in some fashion from this evidence, a broader reluctance by X to spend time with her mother generally that was somehow attributable to the Father’s influence.

7. The Court observes that it must have been very difficult for the Mother when X made the comments that are recorded at paragraph 59 of the Report.  When X said to her mother: “You’re not allowed to ask me anything I said to the counsellor”, the Court does not know whether this was a demand or a plea, but the inference was plain – X was expecting her mother to do just that.  The Mother did well to respond neutrally and by redirecting X.  When X made the further comments referred to at page 18 of the Report, the Mother was understandably taken aback.  What happened thereafter is of great concern.  The Mother’s transition from “gently” challenging X about comments, to focusing on X’s appearance – which clearly is a central issue in the Mother’s case – is problematic.  The Family Consultant described the Mother’s questioning as being pointed, and the Mother using sarcasm.  The tone was “somewhat emotionally laden and tense, even intrusive.”  When the Mother adopted what the Family Consultant described as “an inquisitorial tone”, the Court notes with interest that it was X who seemed to redirect the discussion at one point.  There seemed to be, at least from the Court’s perspective probably influenced by an appreciation of the totality of the evidence, a profound disconnect between what was happening, and the Mother’s understanding of the same.  It was not X’s role to redirect the conversation; it was the Mother’s role, something she clearly failed to do.  When the Mother said to X, “I’m always abusing you, X,” she failed to understand how what she was doing was precisely that – a form of emotional abuse.  That it took place during an observation by a Family Consultant who was tasked to prepare a forensic report is extraordinary.  That which is recorded in the rest of paragraph 59 is consistent with these observations of the Court.

8. At paragraph 60, the Family Consultant observed the appearance of “an intensity in the interaction, and Ms Dane appeared to be inwardly angry despite outwardly smiling.”  This is an interesting observation because it reflects the Court’s own observation of the Mother during extensive cross-examination.  From the Court’s perspective, and despite the fact that the Mother was giving evidence from the comfort of her own home, her answers in cross-examination were intense, and she was frequently smiling, even at inappropriate times, even though manifestly angry about the matters being put to her. 

9. Paragraph 61 is another example of the disconnect between the Mother’s perception and reality.  There is no evidence to suggest that X was neglected or that there were reasons for a child protection report to be made based on her appearance.

10. At paragraphs 62 to 65 of the Report the Family Consultant discusses the subpoenas to which she had access at the time of her Report.  The documents in question were not in evidence, and thus the Court will place no weight on these paragraphs.  Paragraph 66, however, is useful because it purports to summarise the Family Consultant’s communication with X’s school.  Paragraph 66 is reproduced in full:

    Contact was made with X’s school, School A, Town L on 17 December 2019. The school principal Ms M said that there have been absolutely no concerns in relation to X’s presentation when coming from her father’s care and said that the school have observed a close and positive connection between X and her father. Ms M said that, in contrast, when X attends school from her mother’s care she is often late, not in the correct uniform, seems distressed and is often uncertain of her arrangements. She said that the school have been concerned with Ms Dane’s presentation and behaviour at times and said that Ms Dane has seemed erratic on occasion. Ms M said that Mr Michaud has been very receptive to feedback from the school and it has been suggested to him that X may benefit from referral to a psychologist.

11. The school records were also in evidence, and the Court observes that the Family Consultant’s summary is consistent with these documents. 

12. The Family Consultant’s evaluation is found at paragraphs 66 to 77.  The Family Consultant, with respect correctly, observed that this was a difficult and complicated matter in which both parents had raised very significant concerns for X and suggested that the other is placing X at serious psychological and potentially physical harm. 

13. At paragraph 66, X was noted as presenting as a vulnerable girl who seemed burdened by the adult issues.  The Family Consultant was concerned about the major deterioration in the co-parenting relationship, given the past history of mutual help and cooperation between the parents.  At paragraph 70, the Family Consultant observes:

    The current arrangements of a shared care plan whereby X moves between her parents each week, spending five nights per fortnight with her mother and nine with her father, may also be contraindicated by the very poor parental relationship, distance and X’s apparent placement at the centre of dispute. It may be less stressful for X to be based primarily in one home and routine and have time with the other parent with fewer transitions, for example on alternate weekends. This may also lesson associated conflict and tension between the parents regarding practical matters such as uniforms.

14. The Family Consultant observed the different views between the parents about who had been X’s main carer.  This was an important issue in determining X’s future care arrangements.  The Family Consultant thought that the Father’s account of X’s parenting seemed to be more consistent and was supported by the information provided on subpoena from the school and from X herself.  The Mother’s account was inconsistent with this. 

15. In terms of X’s views, at paragraph 74, the Family Consultant notes:

    X, herself, seemed reluctant to express a clear wish so as to not upset her parents. She did give a clear impression, however, that she is settled living with her father and attending her current school. She spoke of feeling well connected and supported and these peer and educational supports are likely to be protective in the context of parental conflict. Although Ms Dane raised concern with X experiencing bullying, there was no indication of this from X or from the school. Ideally, it would seem appropriate for X to continue at her current school and maintain the friendships and supports she has there.

16. At paragraph 75, the Family Consultant records:

    Both parents have acknowledged a history of addiction and mental health. In interview, each reported that their mental health concerns were primarily reactive, with Ms Dane especially seeming to externalise these. The subpoena material however, seems to indicate the existence of a more concerning, substantial history than she acknowledged. It may be useful to have records from Dr I and other hospital records in relation to self-harm/scheduling. If the Court needs more information it may be appropriate for a mental health assessment to be undertaken.

17. This is an important paragraph.  The case about X’s physical presentation really goes no higher than the Family Consultant’s observation that X did “appear somewhat dishevelled”.  The Family Consultant correctly noted, and consistent with the Court’s own study of the school reports, that the school has not raised any concerns about X’s physical presentation when coming from her father’s home.  The Family Consultant then, correctly with respect, pointed to the real issue, which was about X’s emotional wellbeing, particularly in the context of intense parental conflict and the Family Consultant’s concerns that X may have been exposed to adult information or denigration. 

18. The Family Consultant acknowledged the history of addiction and mental health problems of the parents.  She was clearly concerned about the Mother’s minimisations of these issues and externalisation of responsibility.

19. At paragraph 77, the Family Consultant expressed that there would be advantages to X continuing in her current school and living arrangement, though the Father could perhaps access family support services to assist him in practical ways.

20. The Family Consultant’s recommendations are found at paragraph 78 to 80:

    [78] It is recommended that X continue at her current school, School A Town L

    [79] Unless there is evidence to the contrary, it is recommended that X continue to live with her father and consideration be given to his having sole parental decision making in relation to education and health

    [80] Unless there is evidence to the contrary, it is recommended that X spend time with her mother on alternate weekends from Friday to Sunday, with changeover taking place in a neutral location. It is recommended that X spend time with her mother on special occasions such as Mother’s Day and for half of school holiday periods.

21. The Family Consultant was cross-examined as the final witness in this case.  It is important to record that before the Family Consultant gave evidence, the Independent Children’s Lawyer had not formulated a proposal, and neither of the parents had changed their proposals, though, as will be seen below, the Father was clearly formulating one.

22. The Advocate for the Independent Children’s Lawyer confirmed with the Family Consultant that she had read the parents’ trial Affidavits and the tender bundle prepared by the Independent Children’s Lawyer.  The Family Consultant confirmed that she had.  When asked to explain in what way X was a vulnerable child, as described in the Family Report, she explained that X was emotionally vulnerable in her presentation and appeared to be under significant pressure and felt caught between the conflict between her parents.  Specifically, the pressure seemed to be to say and not say things, and she appeared constrained in speaking freely.  In her opinion, X felt greater pressure from her mother than from her father.  The Family Consultant felt that X had been exposed to comments from her mother placing pressure on her.

23. The Family Consultant felt that it was important to make orders as clear as possible, which emphasised and maintained stability for X.  X was very much aware of the dispute.  From the Family Consultant’s perspective, other than the issues raised in the Mother’s account, there was nothing to be concerned about X.  She spoke glowingly of school life, and her school was considered a protective factor for her.

24. The Advocate for the Independent Children’s Lawyer asked the Family Consultant whether there was anything to suggest concerns about the Mother’s mental health.  The Family Consultant quickly explained that she was not qualified to provide diagnoses.  She observed that the Mother was emotional.  She was often off on tangents.  The Family Consultant’s greatest concern about the Mother was in relation to her observations with X. 

25. The Court pauses here to observe that both the question and the answer were legitimate and appropriate.  Much more will need to be said about the Mother’s presentation during cross-examination and what appeared from the Court’s perspective to be the rapid deterioration in her presentation.

26. The Advocate for the Independent Children’s Lawyer went on to explain that from her perspective in cross-examination the Mother had presented as having no faith in the Father; as being convinced that the Father was involved in grooming young girls in Country N;  and as being convinced that her daughter Ms D had accessed inappropriate online content whilst in the Father’s care.  In addition, the Mother believed that Ms D’s inappropriate sexual encounter was the Father’s fault due to his failure to supervise her.  The Mother believed that Ms D was at risk of harm whilst in the Father’s care.  The Advocate suggested to the Family Consultant that cross-examination of the Mother indicated that she had had a number of conflicts with X’s school and was indeed contemplating legal action against them in future.  In addition, the evidence of the Mother in cross-examination suggested she had been recording telephone conversations with X.  The Advocate asked the Family Consultant whether she would have any concerns about this evidence, if the Court accepted that this is what the Mother had indicated in cross-examination. 

1. Before setting out the Family Consultant’s answer, it is appropriate for the Court to record here that the summary given of the Mother’s evidence in cross-examination by the Advocate was a fair and correct one.  The Court finds that all of the matters set out above were in fact views expressed by the Mother in cross-examination.  The Family Consultant answered that, if this was correct, it suggested distorted thinking on the Mother’s part about these issues.  The concern was if her views and perspectives of the world were being projected onto X.  This was a risk to X if the Mother had views that were not based on reality.  It would be confusing to X and causing her to question her own views about reality.

2. In relation to parental responsibility, the Family Consultant confirmed that she recommended sole parental responsibility to the Father.  In response to matters put to her by the Advocate, she accepted that a possible outcome would be that the Father have sole parental responsibility in relation to issues of health and education, which, historically, appear to have been the greatest issues in dispute between the parents, and with equal shared parental responsibility for other issues.  The Family Consultant agreed that it would be better for X to have fewer changeovers and, given the issues about school uniforms, the changeovers be timed so that school uniform issues were not likely to occur.  She explained that from X’s perspective, she was at an age where she was acutely conscious of how her peers viewed her, and it was very important not to be different.  Moreover, it was important for X to continue to have some counselling support, possibly even the Anchor program, and that it might be better that it be a counsellor outside of the school, given the Mother’s mistrust of the school.  She emphasised the benefits to the Father of engaging in a family support scheme and indicated that she could make an appropriate recommendation in this regard.

3. The Family Consultant was cross-examined by Counsel for the Father, who commenced with what was set out in paragraph 59 of the Report.  Referring to X saying to her mother:  “You’re not allowed to ask me anything...”, the Family Consultant described this as if it were almost a pre-emptive strike on the part of X.  When it was suggested that X did this because it was X’s experience of her mother, the Family Consultant confirmed that it was her impression that there had been some questioning of X by her mother.  Moving on to the Mother’s questioning about X brushing her teeth, Counsel asked the Family Consultant whether, in response to the Mother’s question, X had responded affirmatively, but this had not been reported.  The Family Consultant referred to her notes, set out the dialogue between X and her mother, and then commented about what X said during her debrief, after the observation.  The Family Consultant explained that X indicated that she had in fact brushed her teeth and invited the Family Consultant to smell her breath.  The Family Consultant observed that X felt like she needed to defend herself against these allegations.

4. Counsel asked the Family Consultant about the Mother challenging X’s comment at paragraph 60 and the reference to “…pants on fire…”.  The Family Consultant accepted Counsel’s characterisation that the Mother was suggesting that X had lied.  In the circumstances, Counsel asked, was this an example about the risk to X of questioning her own reality?  The Family Consultant agreed and went further to suggest that X felt the need to agree or acquiesce with her mother.

5. Counsel asked if the Court formed the view that the Mother does have very fixed views about things, for example, the Father’s role with Ms D, but the Court is satisfied that there is no objective basis for the Mother’s view: what would be the risk if the Mother could not contain these feelings from X?  The Family Consultant explained that if that were the case, it would place X in a very difficult position.  A cognitive dissonance could be created.  X needs to look to her parents for guidance about what is safe and what is not, and if one parent creates a false picture about this, it places X in a difficult position.

6. Counsel asked the Family Consultant what indicia would the Court look for?  The Family Consultant explained that if a parent cannot contain their own emotions, is unable to empathise with the child, and assist the child to regulate their own emotions, this does not bode well in terms of the child’s development.  There would certainly be a risk of harm to the child.  The child might shut down.  The child might align with that parent or reject that parent.  The child might accept that distorted view or reject that distorted view.

7. The Court pauses to set out this observation of the Mother.  At the time of this questioning, the Court observed the Mother to have picked up a book and to be reading the same.  There are many possible ways of interpreting this behaviour.  It would not have been easy for the Mother to hear this evidence.  The Mother’s behaviour could have been a stress reaction.  Another interpretation is that she was dismissive of the Family Consultant’s evidence.  The latter is a plausible interpretation of the Mother’s actions, given the way that she instructed her solicitor and Counsel to run her case, and which was particularly evident in closing submissions.

8. Returning to the cross-examination, the Family Consultant acknowledged the possibility that the Child would experience cognitive dissonance.

9. Counsel for the Father took the Family Consultant to the email dated 5 February from X’s counsellor at school.  The Family Consultant explained that if the behaviour set out therein (tics, saying sorry all the time, washing hands all the time, etcetera) are true, these are very concerning behaviours.  It reflected he vulnerability.  It suggested an anxiety about hygiene issues that was troubling.  It was a real concern if X was apologising all the time.

10. Counsel for the Father then raised the possibility of making an identity contact order that would result in X spending time with her mother in a supervised contact centre perhaps six times each year.  The Family Consultant explained that if the Court formed the view that the risk of harm to her was so great due to the Mother’s emotionally-abusive behaviour, then a possible outcome would be supervised time with her mother, albeit on a less frequent basis.  She emphasised, however, that a careful balancing exercised needed to be undertaken.  Whilst such a proposal provided protection to the Child, it was a very minimal amount of time to spend with her mother.  However, if there was evidence to suggest that the Mother could not commit to appropriate behaviour with X, and if there was evidence of the Mother’s distorted thinking, it was certainly an option for the Court, but there would be disadvantages as well.

11. Counsel asked whether a parent who takes photos of a child’s teeth and hands is undertaking behaviour that could be emotionally abusive.  The Family Consultant explained that if this is happening in the context of other types of behaviour, it can create great discomfort for a child.  If it formed a pattern of behaviour it would be of even greater concern.  If this was taking place when there was no objective reality, then it could be potentially damaging for X.  It could leave her emotionally unsafe and anxious.  X would likely be experiencing behaviour from her parents in two homes that is very different.  In one home the message is that in the other home you are clearly uncared for and unsafe. 

12. The final line of questioning from Counsel for the Father explored issues about a risk of harm to X as a result of inappropriate access to the internet.  The Family Consultant was reminded of the Mother’s evidence at paragraph 77 of her trial Affidavit filed 17 April 2020 in which she deposes to what X told her on Christmas Day 2018 about seeing inappropriate things on her iPad.  The Mother also deposes to X making another disclosure in January 2019.  The Family Consultant warned that it was difficult to say much without understanding the context of these disclosures.  Indeed, the Court notes very little context is provided in the Mother’s evidence.  The Family Consultant observed that the Mother had jumped quite quickly to a conclusion that X had been exposed to pornography, without considering issues of context and other alternatives, and this might be suggestive of a fixed view of this risk and a search for evidence to support her view.

13. The Family Consultant was cross-examined by Counsel for the Mother.  The Family Consultant agreed that it would be appropriate for any parent to be alert about issues of a child being exposed to inappropriate material on the internet. 

14. Turning to the suggestion of an order for recognition contact, Counsel suggested to the Family Consultant that it would be impossible for X to have a meaningful relationship with her mother in those circumstances.  The Family Consultant agreed that it would be challenging, but in this case the order would place limits on an existing meaningful relationship.  Counsel suggested that there was evidence from the school records indicating that X liked to go to her mother’s house.  With respect, that is not entirely correct, though no objection was taken.  The record in question makes it clear that X preferred to go to her mother’s house in preference to her maternal grandfather’s home.  This was a matter observed by the Family Consultant.

15. The Family Consultant agreed with Counsel that if X’s time with her mother were reduced there would be a potential for X’s self-esteem to be damaged.  Her sense of being different would be acute and of concern, and X may well need to be supported if such a change were made.

16. Counsel suggested that in relation to taping conversations and taking photos, the context must be significant.  The Family Consultant accepted that, but stated quite firmly that it was not advisable in most cases. 

17. The Family Consultant agreed that up until the family report interviews the Father’s proposal was for equal shared parental responsibility, but then changed to sole parental responsibility.  She agreed that there were periods in the past when the parents appear to have worked quite cooperatively as parents, but this then deteriorated.

18. The Family Consultant did not rule out equal shared parental responsibility, or sole parental responsibility limited to education and health.  The Family Consultant explained, however, that whatever order for parental responsibility was made by the Court, it was important that in the exercise of parental responsibility more stress on X was to be avoided.  When it was suggested to her that there was potential detriment to a child if a parent had sole parental responsibility, the Family Consultant explained that with some issues children simply do not need to know, as the decisions are adult matters relating to the child. 

19. As foreshadowed before, the Family Consultant did not support any hypothesis that suggested that the pressure that X manifested during the observation was attributable to the Father.

20. Counsel cross-examined the Family Consultant about allegations that the Father made in relation to the Mother about her violence and drug use.  Clearly this line of questioning was designed to explore to what extent the Family Consultant had relied on assumptions as to the veracity of the Father’s assertions, in coming to her conclusion.  The cross-examination was ultimately unsuccessful, but it is necessary for the Court to explore these issues because they are, regrettably, other examples of the Mother’s distorted thinking.  The Court has no doubt that Counsel was instructed to raise these issues.

21. For example, at paragraph 7 the Father makes an assertion that the Mother’s post-separation relationship with her partner Mr K resulted in an Apprehended Violence Order against the Mother after she had assaulted him.  To the extent that the Father was criticised for not also telling the Family Consultant that the AVO was not made final, and that the assault charge did not result in a conviction, then, if the Father was aware of these things, the criticism was appropriate.  The Court is even prepared to accept that the Father knew these things but did not disclose them.  The difficulty the Court has is that when the independent and objective evidence about the incident between the Mother and Mr K is examined, what becomes quite clear is that the Mother did violently assault her partner by biting him on the right side of his chest.  The COPS entry for 18 January 2019 records the Police observing the victim lifting up his shirt and there being a bite mark on the victim’s right chest that was duly photographed.  Having regard to this evidence, it is hardly surprising that an AVO was issued and that the Mother was charged with assault.  The fact that the AVO was not made final, or that the conviction was not made, does not detract from the physical evidence.  The significance of this incident is not whether the Mother was convicted or not.  Moreover, the significance is not whether the Father advertently or inadvertently sought to mislead the Family Consultant.  There is evidence to suggest that the assault took place in the post-separation period during a time, it will be seen, when the Mother’s life was quite dysfunctional and she was, in particular, struggling with her mental health.  Moreover, it will be seen, in cross-examination the Mother both minimised the events in question, and all concerns about her mental health.

22. The second issue in respect of which there was criticism of the Father in terms of his disclosure to the Family Consultant was his assertion that the Mother had failed a drug test.  There is no question about this.  She tested positive to amphetamines to a drug test on 16 January 2020.  There was implicit criticism of the Father for not disclosing to the Family Consultant that the Mother had (by inference, plausibly) explained the result for the positive test by reference to medication she was on for Attention Deficit Hyperactivity Disorder, which she suffers.  The difficulty in the Mother’s case, however, is that it is by no means clear that she had been taking her medication at the relevant time.  This will be discussed below.  Not only, with respect to the Mother’s case, was it open for the Father to reasonably suspect that the Mother’s explanation for the positive drug test was inadequate, but even this Court will conclude, after examining all the relevant evidence, that there is a real doubt about the veracity of the Mother’s explanation. 

23. In any event, two observations can be made about the issues discussed above.  Firstly, the Family Consultant does not appear to have been in any way unduly influenced by the Father’s representations to her on the above issues.  Indeed, she made the observation that when the Father raised these things he presented as being “weary” of the matters he had experienced rather than accusatory of the Mother.  The second relevant observation is how this reflects on the Mother’s case and the concerns about her distorted thinking.  For example, the Mother presented at all relevant times as being genuinely surprised that anyone, let alone the Court, could be concerned about her issues of mental health and drug and alcohol use.

24. Returning to the cross-examination of the Family Consultant, Counsel correctly pointed out to the Family Consultant that the Father in cross-examination had said that one positive aspect of the Mother’s parenting, was that X was generally well dressed.  The Family Consultant accepted that in some respects this was surprising, particularly in relation to the issues of how she presented at school from her mother’s home.  The Family Consultant reminded the Court that the uniform issues have to be weighed up with all the other issues.  It is certainly a big issue for her, and this was something the orders should take into account, but there are other issues pertaining to X.

25. The Family Consultant was asked to explain why her Report suggested a reduction in the Mother’s time, compared to the existing arrangement.  She said quite firmly and clearly that the current arrangement was not working, and placed too much pressure on X who, she thought, was not coping.  She emphasised the need for X to be free to work on her developmental tasks.  One option was to limit the contact between the parents and to seek to address the school uniform issues, but the Family Consultant was clearly concerned about the Mother’s behaviour around X.

26. The Advocate for the Independent Children’s Lawyer briefly re-examined the Family Consultant.  She was asked whether the risk of harm considerations in relation to X had achieved the point where an identity contact type order was needed.  The Family Consultant explained that it was very difficult for her to say.  She was concerned about the matters that had been put to her.  She was concerned about the information from the school about her current functioning, and her presentation.  Indeed, the Family Consultant agreed that there was a consistency in the Mother’s behaviour around X, but that it did appear to be more extreme.  Indeed, her impression was that the Mother was manipulative, if the matters put to her were correct.

27. The Family Consultant agreed that X will feel a measure of self-guilt whatever outcome is imposed by the Court.  It was her parents’ responsibility to make this satisfactory for her.

28. The evidence given by the Family Consultant was considered and comprehensive.  Nothing was put to her which would cause the Court to reconsider the evidence she gave.  It is clear that if the Court accepts the matters put to the Family Consultant about the Mother’s behaviours, she had distanced herself from her own recommendations, and was not ruling out the possibility of a recognition contact order. 

Credit issues relating to the parents

1. There are issues in this case where it is, regrettably, necessary for the Court to make credit findings.  The allegations made are serious.  On some issues the fact is that both parents cannot be right.  The Court concludes that where the evidence of the Mother and the Father differ, as a general proposition, the Father’s evidence is to be preferred unless there is independent corroborative evidence supporting the Mother.

2. These credit findings are based on a number of considerations.  Even taking into account the importance of this case to both parents, and the circumstances in which the Hearing was conducted, both parents were unresponsive in cross-examination, but in different degrees.  The Mother was pervasively unresponsive.  As a general proposition the Father acceded to the Court’s multiple reminders to him that he was to listen to the question, answer the question, and just answer the question.  The Mother was afforded the same courtesy.  When she persisted in her unresponsiveness to the questions asked in cross-examination, the Court reminded her of the possible credit implications if she were not more responsive.  The Mother persisted, and the Court informed her that there would be no further warnings.  The Mother persisted and, unfortunately, presented as wanting to advocate her case in cross-examination even though she was more than capably represented.  Whilst the Father was unresponsive, it could not be said that was uncooperative.  The Mother was both unresponsive, and uncooperative.  To be frank, the Mother was out of control in cross-examination.  It was not at all surprising in submissions to hear the Mother’s evidence in cross-examination described as “unusual” and “extraordinary”.  Counsel for the Father submitted that the Mother’s credit “is highly problematic”.  Even the Mother’s Counsel had to valiantly address the problem in closing submissions by referring to the need to discount the evidence of the Mother “as a product of the litigation...”

1. There is another concern about Dr I's evidence.  There is no hint that he was aware of the Mother's mental health problems in March 2018 when she was scheduled, appears to have been drinking to excess, described herself as not coping and having thoughts about self-harm.  It is possible, but highly unlikely in this Court's estimation, that Dr I's rather optimistic assessment of the Mother would remain the same if he knew about the 2018 mental health episodes.  The Court doubts whether Dr I would have not mentioned these, had he been aware of them.  One hypothesis, and probably the most likely hypothesis, is that the Mother did not tell him about her difficulties in March 2018.

2. From the Court's perspective, the most significant point is that the March 2018 mental health episodes demonstrate the accuracy of Dr I's guarded longer-term prognosis in his report of 20 February 2017.  Dr I correctly identified that the Mother's disorder "has had a fluctuating course".  Indeed, a major fluctuation occurred in March 2018.  It is true, as Counsel for the Mother submitted, that this episode was in the context of a relationship break-up with her then partner Mr K.  From the Court's perspective, however, this does not provide much reassurance in terms of the risk of relapse for the Mother.  On any objective view of the evidence, both of the Mother's own evidence and presentation, and the independent evidence from Dr I and the hospitals, there must continue to be serious concerns about the Mother's mental health.

3. There are many aspects of the mother’s evidence that are problematic from the court's perspective, and from X's perspective. X needs her mother to be a consistent  and constructive presence in her life.  X needs her mother to be able to constructively communicate and cooperate with her father, particularly in relation to major decisions such as medical treatment.  X needs her mother to be a stable presence in her life, rather than to be erratic and to experience extremes in her emotional regulation.  X needs her mother to understand how she, X, experiences her mother’s behaviour at times.  X needs her mother to contain whatever concerns she might have about her father, especially when those concerns have a subjective, rather than objective basis.  X needs her mother to prioritise her in decision-making, and not make decisions based on a purely adult agenda.  X needs her mother to have a good understanding and insight of her own mental health, and to be consistently engaged with the services that are available to help her.

What are the orders in the best interests of X?

1. X has a meaningful relationship with each of her parents. That meaningful relationship is important to her, and will continue on both the Mother and Independent Children’s Lawyer’s proposal.  The Father’s proposal which is, in effect, recognition contact, may make maintaining a meaningful relationship difficult, but not impossible.  The Family Consultant explained in cross-examination that if the Courts concern was about a risk of harm to X, recognition contact was an option for the Court, particularly in circumstances where a meaningful relationship already existed between X and her mother.

2. Is there a risk of harm to X?  In closing submissions different perspectives were presented to the Court about the risk of harm issue.  The Father’s submission was that the Court could have no confidence that the Mother was able to regulate her own emotions, and prioritise the needs of X.  Counsel reminded the Court that the Mother could not regulate her behaviour towards X in front of the Family Consultant and this dysregulation was repeated in front of the Court.  The Mother’s evidence gave no reassurance that she recognised that there was an issue to be addressed, let alone willingness to do something about it.  All of this presented a risk of emotional harm to X.  The Family Consultant presented clear evidence to the Court about the risks to X of her mother’s distorted thinking.  The Father’s case emphasised that the current situation for X was untenable, and that unless a very significant change was made to the time she spends with her mother, X would continue to be exposed to a risk of emotional harm from her mother.

3. The Independent Children’s Lawyer’s case frankly acknowledged the Mother’s unusual behaviour and accepted that X was entitled to safety and structure in her life.  It was suggested that the Mother’s behaviour was actually nothing new. In closing submissions the Independent Children’s Lawyer accepted that the Court could come to the view that the Mother presented an extreme risk to X.  The Independent Children’s Lawyer, however, was of the view that the situation had not yet reached the point where X’s time with her mother needed to be supervised.  The Independent Children’s Lawyer, whose detailed proposal will be considered below, suggested that limiting X’s time with her mother was the answer, but not to the drastic extent suggested by the Father.  One option was, for example, to maintain alternate weekend time between X and her mother, and to continue this through the school holidays so that there were no extended periods between them.

4. Mr Alexander represented the Mother in this case.  He had a difficult case and did the best he could do under the circumstances.  It is hard to imagine what else he could have said on the Mother’s behalf.  The Mother’s evidence was what it was.  He suggested that her behaviour could be discounted by reference to the pressure of the litigation.  In relation to any risk of harm issue, particularly from the Mother’s mental health, he submitted that the Court could be reassured by the Mother’s existing relationship with Dr I who described her mental health as stable.  The cessation of the litigation would reduce stress for the Mother.  In any event, when X’s life is seen in context, she has lived with parental conflict and the uncertainty in the mental health of both parents, for a long time.

5. The Court must decide whether there is a present risk of harm to X.  Based on the evidence, the Court concludes that there is a risk of emotional and psychological harm to X that arises from her relationship with her mother, and for the reasons identified elsewhere in this Judgment.  Insofar as the Mother’s case suggested that there was a risk of harm in the Father’s home, there is no evidence to suggest that.  The Court finds there is no risk of harm to X in her father’s care.

6. The Court must have regard to any views expressed by X.  This case will not be decided by reference to any view that has allegedly been expressed by X.  X has been exposed to intense parental conflict for quite some time thus rendering unreliable any expression of her views to either parent.  Notwithstanding this, the strong impression formed from the evidence is that X is happy living with her father, but wants to spend time with her mother.  It is also apparent, especially from the Family Report, that X does not want her mother to have inappropriate conversations with her.

7. The Court must consider the nature of X’s relationship with her parents.  The Court finds that X has a happy and healthy relationship with her father.  The relationship with her mother is much more complex and problematic.  The mother seems to struggle with boundaries in her relationship with X. The Mother cannot keep her emotional fluctuations to herself.  The Mother struggles to contain and regulate the enmity she feels towards the Father, and her deep suspicions about him, thus exposing X to this.  The Mother loves X, and X loves the Mother but, as the Family Consultant warned in cross-examination, the unhealthy aspects of the Mother’s thinking and behaviour presents a risk to X.

8. The Mother and the Father’s proposals both present the prospect of quite significant change in X’s circumstances which will probably have an effect on the other parent.  The Mothers initial proposal, for X to live with her, would be a significant change, as would be the Father’s proposal for recognition contact.  The Independent Children’s Lawyer’s proposal is more measured in this regard.  The fact remains, from the Court’s perspective that if there is a risk of harm then the impact on X of changed circumstances is a relevant but not determinative consideration.  If the Court comes to the view for example, that X can still have some form of relationship with her mother even with recognition contact, then the likely effect of change on X is considered and is actually found to be beneficial to her.

9. There are no issues of practical difficulty and expense in this case.  Even the expense of supervised contact is not significant having regard to the relatively low frequency of the same on the Father’s proposal.

10. One of the most significant issues in this case relates to parental capacity.  The Court is satisfied from all of the evidence that the Father has the capacity to provide X’s needs, including emotional and intellectual needs.

11. The Court does have serious concerns, however about the Mother’s capacity to provide X’s emotional needs.  The dilemma was poignantly depicted in cross-examination of the Family Consultant.  Given the Mother’s views about the risks of harm to X in the Father’s household, her lack of faith and attribution of blame to the Father, her trenchant belief that her daughter Ms D is at risk of harm in the Father’s home, the Mother’s inability to manage conflicts with X’s school, and her inappropriate involvement of X in these proceedings, the impression created is of distorted thinking around these areas by the Mother.  If these views are not based on reality, as the Court so finds, this would create for X an untenable situation where, when she is with her mother, there are thought patterns and beliefs that are inconsistent with reality.  The gravity of these risks is accentuated by the fact that the risks are attributed to her father.  The evidence suggesting the Mother’s questioning of X, vividly demonstrated during the Family Report interviews, again suggests an incapacity to meet X’s emotional needs.  The Court observes that none of these concerns are likely to abate as X grows through adolescence.  The risk to X in this regard include that she will either be drawn increasingly into the web of her mother’s distorted beliefs, or will react by resistance and rejection, or in some other form.

12. The Court must consider the maturity, sex, lifestyle and background of X and her parents.  Regrettably, a disturbing picture emerges of a chaotic lifestyle experienced by her mother and with that problematic relationships with partners, fluctuations in her mood and mental health, and conflict with those around her, even those whose role it is to assist and support her.  Whilst X was described in submissions by the Independent Children’s Lawyer as a resilient child, the Court is not prepared to prognosticate into the future on the basis that she will remain resilient.  The most recent evidence from her school suggests current concerns about her well-being.  X thus needs to be shielded from her mother’s chaotic and occasionally dysfunctional life.

13. The Court must consider parental attitudes towards the child, and to the responsibilities of parenthood.  On the evidence, it is hard to be critical of the Father in this regard.  At times he did present as weary, and somewhat resigned to the parental conflict, and the Mother’s erratic and fluctuating behaviour.  Having regard to the evidence, it is an understandable attitude on his part.  He made it very clear that he would not have wanted the Court to make an order that X live just with him save for the concerns that he has about the Mother which have been amply demonstrated in the evidence.  The Mother’s attitude towards X is perplexing.  The Court does not doubt the deep love that she has for her.  There is an underlying attitude of possessiveness that is reflected in her primary application which was for X to live with her, a primary position that was maintained right throughout the Hearing.  This underlying attitude of possessiveness was reflected in much of the evidence she gave, which on one view suggests she was primarily focused with her entitlements as a parent, rather than her daughter’s needs.

14. The Court must try to make an order that is least likely to lead to the institution of further proceedings in relation to X.  The Court reluctantly concludes on the evidence that the proposals of both the Mother and the Independent Children’s Lawyer are in fact the more likely proposals to lead to further litigation in the future, if orders are made in those terms.  The Mother’s proposal does not address any of the concerns that are raised in the evidence about her capacity as a parent, and her attitudes.  The Mother’s proposal does not address concerns about her mental health. It is reasonably likely that these issues will resurface in the future, because she manifests no insight into her own condition and behaviour, and thus the need to address them.  The Independent Children’s Lawyer’s proposal is optimistic insofar as it suggests that merely limiting the Mother’s time somehow adequately manages the risk of emotional harm to X.  Whilst the Father’s proposal marks a significant change in X’s life, it is also the proposal that will most adequately protect her from the risk that is unfortunately presented by her own mother.  On that basis, it is the order least likely to lead to further litigation between the parents.

Orders in the best interests of X

1. By closing submissions the Independent Children’s Lawyer proposed that the parents have equal shared parental responsibility except in relation to X’s health and education where the Father would have sole parental responsibility, moderated by some obligations to consult.  X would live with her father, and spend time with her mother each alternate weekend from 4:00pm on Friday until 4:00pm on Sunday, half of the shorter school holidays and then week about during the December January school holidays.  These orders are reproduced in the First Schedule to these Reasons for Judgement. 

2. The Father’s proposal has already been foreshadowed.  He proposed sole parental responsibility, and that X live with him.  She would spend supervised time with her mother not less than six times each year at a supervised contact centre.  Those occasions would coincide, as much as possible, proximate to special days such as Mother’s Day, Christmas Day, and X’s birthday.  The orders sought by the Father are also reproduced in the First Schedule to these Reasons for Judgement.

3. The Mother’s proposal was explained by her Counsel in closing submissions.  Her first position remained that X should live with her.  Her alternative proposal was that there should be a shared care arrangement.  The Mother’s counsel made it very clear that he was instructed to communicate these proposals to the Court, but offered no submission so in support of them.  In doing so, the Mother’s Counsel acted consistently with his duty to the Court.  It would have been futile to make submissions in support of these proposals given the evidence before the Court.  It reflects sadly on the Mother’s lack of insight that she instructed her Counsel to maintain a position which was so obviously inimical with the best interests of X.  The Mother’s second alternative proposal was that the existing orders be maintained.  With some tweaking, Counsel suggested, some of the issues that had been experienced by the parents and X could be circumvented.  One alternative, Counsel suggested, was that X be picked up by her mother after school on Thursday, and be returned to school on Monday mornings.  Counsel indicated that the Mother would accept an order that she continues so consulting with her psychiatrist Dr I.

4. The Court does not to accept that the Mother’s proposal is in the best interests of X.  It fails to address what the Court considers to be the obvious issues in the case.  It reflects an attitude on the part of the Mother that there are no problems pertaining to her, that there is no risk to X from her, and that business as usual should prevail.

5. The Court does not accept the Independent Children’s Lawyer’s proposal as being in the best interests of X.  In some respects the proposal was inconsistent with the submissions made. The Mother’s unusual behaviour was noted.  The Mother was described as an “extraordinary witness”.  In describing the Mother’s behaviour as not being anything new, there seemed an acceptance that X would somehow continue to be resilient.  Perhaps the Independent Children’s Lawyer’s real concern was about the perceived extreme nature of the Father’s proposal?  The inference might be drawn from the Independent Children’s Lawyer’s submissions that the proposal goes too far to address the risk issues identified in this case, and undermines the relationship between X and her mother.  The Independent Children’s Lawyer’s submissions suggested that the Family Consultant was in fact not comfortable with recommending the recognition contact proposal of the Father.  The Court accepts this as a general description.  The Family Consultant was clearly reluctant, but nonetheless endorsed the suggestion that an option for the Court was recognition contact, if findings were made consistent with the risk issues put to her.  The problem from the Court’s perspective with the Independent Children’s Lawyer’s proposal is similar to that of the Mother.  There is insufficient change which would suggest confidence that X’s experience with her mother would be different in future than it has been in the past.  The proposal is from the Court’s perspective an inadequate response to the dilemma confronting X.

6. The Father’s proposal does bring about a stark and significant change in X’s life.  She will see her mother far less regularly.  As there is already a meaningful relationship between them, the Court is reasonably satisfied that such relationship can be maintained through the recognition contact proposed in the Father’s orders.  The benefits to X are greater safety, security and structure to her life.  She will no longer be involved in, or exposed to, parental conflict.  She will no longer be exposed to her mother’s questioning, and erratic behaviour.  She will be free to go through an important developmental stage with as few external distractions as possible.  In every difficult decision about what is in the best interests of the child, there is a balancing of competing considerations. The Court is satisfied that the ultimately the benefits to X outweigh the disadvantages to her.

7. The Father’s orders will be made. The statutory presumption of equal shared parental responsibility does not apply and is rebutted.

8. The difficult decision having been made, therefore, these orders should be implemented immediately.  The Independent Children’s Lawyer will be requested by the Court to meet with X in order to explain the difficult decision that the Court has made, and the orders that will be implemented.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the Reasons for Judgment of Judge Altobelli

Associate:

Date: 1 June 2020

Schedule One

Orders proposed by the Independent Children’s Lawyer

1. That all prior parenting Orders be and are hereby discharged.

PARENTAL RESPONSIBILITY:

1. That the parties have equal shared parental responsibility for all decision making (save and except for health and education) in relation to the child X born 2011, hereinafter “the child”).

2. That the Father have sole parental responsibility for decision making in relation to the child’s health and education.

3. That notwithstanding Order 3 above:

   4.1.That the Father shall advise the Mother in writing of the necessity to make any major health or educational decision and shall provide the Mother with any documentation available to assist with the making of such decision;

   4.2.The Mother will reply in writing to the Father within seven (7) days of receipt of such written advice and inform him therein of any information relevant to the making of such decision;

   4.3.The Father will give consideration to the Mother’s reply in the making of the decision;

   4.4.Upon the Father having made the decision, the Father will write to the Mother and advise the Mother of the decision made and the reasons for that decision;

   4.5.Within seven (7) days from the date of these Orders, the Father will sign the appropriate authority at X’s school to authorise provision to the Mother, at her expense, of copies of school reports, newsletters and any other document ordinarily provided to parents.

1. The Father will:

   5.1.Keep the Mother informed of the name and addresses of the child’s treating medical and / or other health practitioners;

   5.2.Do all acts and sign all necessary documents to authorise any treating medical or other health practitioners to provide to the Mother any information that they are lawfully able to provide about the child;

   5.3.Inform the Mother as soon as reasonably practicable of any medical condition lasting more than 24 hours and any significant health issues or illnesses suffered by the child;

   5.4.Do all acts and sign all necessary documents to authorise staff at the child’s school and educational facilities to provide to the Mother information and the child’s educational or other progress and school related activities.

2. A copy of these Orders will be deemed as sufficient authority for:

   6.1.Any of the child’s treating medical or other health practitioners to release information to the Mother upon her request; and

   6.2.Staff at the child’s school or education facilities to provide such information to the Mother as she may request. 

LIVE WITH:

1. That the child live with the Father.

SPEND TIME WITH / COMMUNICATION WITH THE CHILD:

1. That the child spend time and communicate with the Mother as agreed between the parties and failing agreement:

   8.1.During the school term and commencing on the first weekend of each term, from 4:00pm on Friday until 4:00pm on Sunday and thereafter each alternate weekend;

   8.2.During term 1, 2 and 3 school holiday periods in even years from 10:00am on the first Saturday of the holidays until 10:00am on the following Saturday and in odd numbered years from 10:00am on the second Saturday of the holidays until 10:00am on the following Saturday;

   8.3.During term 4 school holiday period on a week about basis, in even years commencing at 10:00am on the first Saturday of the holidays and in odd years commencing at 10:00am on the second Saturday of the holidays;

   8.4.On Christmas in odd years, from 2:30pm Christmas Day until 2:30pm Boxing Day;

   8.5.On Christmas in even years, from 2:30pm Christmas Eve until 2:30pm Christmas Day;

   8.6.On Easter in odd years, from 2:30pm Easter Saturday until 2:30pm Easter Sunday;

   8.7.On Easter in even years, from 2:30pm Easter Sunday until 2:30pm Easter Monday;

   8.8.If Father’s Day falls on a weekend when the child is not already spending time with their Father, then the Father shall spend time with the child from 4:00pm on the Saturday before the day until 4:00pm on that day;

   8.9.If Mother’s Day falls on a weekend when the child is not already spending time with the Mother, then the mother shall spend time with the child from 4:00p.m on the Saturday before the day until 4:00p.m on that day.

CHANGEOVERS:

1. All changeovers are to occur with the Father delivering the child to the Mother at Suburb U at the commencement of time and the Mother shall return the child to the Father at Suburb U at the conclusion of time.

SCHOOLING:

1. That X shall continue to attend at School A in Town L until the completion of Year 6.

2. That both parties shall ensure that X attends school regularly, in a clean school uniform and otherwise appropriately presented for school.

3. That leave be granted to the Independent Children’s Lawyer to provide a copy of these orders to School A.

4. That leave be granted to the Father to provide a copy of these orders to any High School that X attends.

RESTRAINTS:

1. That each party be restrained from discussing the current proceedings with the child or from discussing her views regarding the proceedings.

2. That each parent be and is hereby restrained from consuming alcohol, drugs or any illegal substance in the presence of the child or be in any way affected by alcohol, drugs or any illegal substance whilst the child is in their care or control.

3. That the Mother be restrained from signing the child out of school early without the written consent of the Father.

4. That the Mother be restrained by injunction from covertly filming the child.

5. That the Mother be restrained by injunction from taking the child to any medical and / or educational appointment without the written consent of the Father.

COURSES / CHILD’S TREATMENT:

1. That forthwith the Father shall arrange for the child to be engage with an appropriately qualified Child Psychologist for as long as is recommended by the child’s treating General Practitioner in conjunction with any recommendation of X’s treating psychologist.

2. That leave be granted to the Father to provide a copy of the Family Report dated 24 January 2020 prepared by Family Consultant C to the child’s treating Psychologist and General Practitioner pursuant to order 19 above.

3. That forthwith the Father arrange for the child to enrol in the Anchor Programme and provide written confirmation of her enrolment to the Mother’s Legal Representative and the Independent Children’s Lawyer;

4. That the Father engage with a Family Support Worker or such other service as nominated by the Independent Children’s Lawyer;

5. That in order to facilitate Order 22 above, the Independent Children’s Lawyer shall remain appointment for a period of three (3) months from the date of these orders being made.

Orders proposed by the Applicant Father

THE COURT ORDERS:

1. That the father have sole parental responsibility for the child, X born on 2011.

1. That the child live with the father.

1. That the child spend supervised time with the mother not less than six (6) times per year at a supervised contact centre like V Contact Centre or another alterative supervised service provider as agreed in writing with the father at times agreed and provided for by the Service as arranged by the centre (“identity contact”).

1. That for the purposes of the identity contact above the parties do all things necessary to ensure the child’s time with the mother occurs on the closest day or weekend to align with the following special occasions:

a.   Mothers Day;

b.   The child’s birthday; and

c.   Christmas Day.

1. That all changeovers take place at the supervised contact service provider used for the purposes of facilitating the child’s identity contact with the mother in accordance with orders 3 above unless otherwise agreed in writing with the father.

1. That either parent shall notify the other parent if they change address or telephone number and are to provide those details to the other party within 24 hours.

1. That the father shall facilitate X communicating with her mother via letter or cards for the purposes of celebrating special occasions and the father shall ensure that all letters and cards sent by the mother are passed onto to the child provided the content contained therein is age appropriate.

1. That father ensure that X remain enrolled in School A for the remainder of her primary school education.

1. That the father shall ensure that X remains engaged with an appropriately qualified child psychologist for as long as is recommended by X’s treating General Practitioner in conjunction with any recommendation of X’s treating psychologist.

10.  That the father be granted leave to provide a copy of the Family Report dated 24/01/2020 prepared by Family Consultant C to the child’s treating psychologist.

11.  That both parties shall be restrained by injunction from consuming alcohol, drugs or any illicit substances in the presence of the child, within 12 hours of coming into contact with the child or be in any way effected by them whilst the child is in that person's care or control.

12.  Each party is restrained from denigrating or criticising the other in the presence or hearing of the child and from permitting the children to remain in the presence or hearing of another person denigrating the other.