Morgan and Morgan

FAMILY COURT OF AUSTRALIA

MORGAN & MORGAN

[2012] FamCA 394

FAMILY LAW – CHILDREN – With whom a child should live – whether the parents should have equal shared parental responsibility – allegations of physical violence – where the mother alleged there was physical abuse by the father against the child – where the mother alleged the father exhibited sexually inappropriate behaviour towards the child which the Court found was not established – whether the child should change schools to one closer to her current residence – where the parties live approximately 35 kilometres apart from each other – where both parties and the child currently receive therapy/counselling.

Family Law Act 1975 (Cth)

Jones v Dunkel (1959) 101 CLR

APPLICANT:

Ms Morgan

RESPONDENT:

Mr Morgan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1175

2010

DATE DELIVERED:

29 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

5 - 9 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Falloon

SOLICITOR FOR THE APPLICANT:

Bolzan & Dimitri

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Shepherds The Family Law Specialists

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The parents have equal shared parental responsibility for the child B Morgan born … September 2002 (“the child”) except as provided for in these Orders.
The child live with the mother at times she is not otherwise living with the father.
The child live with the father as follows:
(a)
commencing on the first weekend after these Orders are made and each alternate weekend thereafter, concluding on 14 July 2012, from

10.00 am Saturday to 10.00 am Sunday
(b)commencing on the weekend of 28 July 2012 and every alternate weekend thereafter, concluding on 22 September 2012, from 10.00 am Saturday to 6.00 pm Sunday
(c)
commencing on the weekend of 5 October 2012 and every alternate weekend thereafter, concluding on 30 November 2012, from the conclusion of school on Friday if this day is a school day or from

3.30 pm if this day is not a school day, to 6.00 pm Sunday
(d)commencing from 14 December 2012 during and thereafter every alternate weekend as follows:
(i)on the days the child is at school from the conclusion of school on Friday to the commencement of school on the Monday
(ii)on the days the child is not at school from Friday at 3.30 pm to Monday at 9.00 am.
(e)from the commencement of Term 1 in 2015 the child’s time with the father as set out in Order 1(d) will extend to the commencement of school on the Tuesday
(f)for a period of two weeks in the December/January 2012/2013 school holidays
(g)       in 2013 and each year thereafter:
(i)for half of Terms 1, 2 and 3 school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods
(ii)for half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years
(h)       every Christmas Day from 10.00 am to 6.00 pm
(i)commencing every Father’s Day, in the event the child is not already spending time with the father, from 10.00 am to the commencement of school the next day
(j)in the event the child is not otherwise spending time with the father pursuant to these Orders on these days, on the child’s birthday and the father’s birthday as follows:
(i)if the birthday falls on a school day, from the conclusion of school to 6.00 pm
(ii)if the birthday falls on a weekend day, from 10.00 am to 2.00 pm
(k)       at such other and further times as may be agreed.
For the purposes of facilitating the child’s time with the father in Order 3 the following shall apply:
(a)on the days the child is at school the father or his nominee will collect the child from and return the child to the school
(b)on the days the child is not at school all changeovers to deliver and collect the child shall take place inside McDonald’s Restaurant, …
(c)in the event of an emergency or that the McDonald’s Restaurant is unavailable for changeovers, then the parties shall immediately advise the other upon the emergency or unavailability becoming known to them and the mother shall nominate the place for changeover by sending the father a text message of a nominated venue within one (1) kilometre of the McDonald’s at … and the changeover shall take place at the nominated place
(d)each parent may nominate another person or persons who may collect or deliver the child for changeover, and such nominees shall only be persons known to the child being members of her immediate family including her grandparents, her maternal aunty and uncle, or the mother’s partner and the father’s partner.
In the event Mother’s Day falls on a day on which the child is spending time with the father, then the father’s time with the child shall be suspended on Mother’s Day from 10.00 am on that day until the commencement of school the following day and in order to facilitate this Order, the father shall deliver the child to the mother at 10.00 am on that day as herein provided.
In the event that the child is not otherwise living with the mother pursuant to these Orders on the mother’s birthday and the child’s birthday, then the father’s time with the child shall be suspended on those days as follows:
(a)if the birthday falls on a school day, from the conclusion of school to 6.00 pm
(b)if the birthday falls on a weekend day, from 10.00 am to 2.00 pm.
The parents are both entitled to attend all events involving the child including sporting events, extra curricular activities that allow for parental attendance and school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
The mother do all things necessary to ensure that the father is entitled to receive copies of school reports, school newsletters and any other documents normally made available to parents, from the child’s school.

Each parent will have telephone communication with the child when she is with the other parent as follows:
(a)when the child is not in the care of each parent each Wednesday and Saturday evening between 7.00 pm and 8.00 pm with the parent who does not have care of the child telephoning the other parent’s mobile telephone or the child’s mobile telephone in the event she has been provided with her own telephone
(b)when the child is spending school holiday time with the other parent, every third evening between 7.00 pm and 8.00 pm with the parent who does not have the care of the child telephoning the other parent’s mobile or the child’s mobile telephone in the event that she has been provided with her own mobile telephone
(c)in order to facilitate this Order, each parent shall ensure that his/hers mobile telephone and the child’s mobile telephone should she have one, are charged and operating and that he/she will facilitate the child using the mobile telephone or the child using her mobile telephone during this period and that he/she will ensure that the child receives and takes the other parent’s call.
Each parent will be obligated to comply with and facilitate any reasonable request by the child to have telephone contact with the other parent whom she is not residing with at the time of such request.
Any overnight time spent by the child with the father pursuant to these Orders for a period of 12 months after these Orders are made shall take place with an adult who is known to the child in the home and shall include either paternal grandparent or the father’s partner Ms D. The father shall ensure that the other adult is the person who provides assistance to the child should she require it when bathing or showering or toileting, and further, the father shall bring this Order to the attention of his parents and Ms D.
The child will continue to be known as and neither parent will do anything or undertake any acts to change the child’s name from B Morgan.
Each parent is restrained from changing the child’s ordinary residence from the Sydney Metropolitan area without the written consent of the other parent or Order of the Court.
The child is to attend P Public School for the remainder of the 2012 school year.
With respect to educational matters the mother is to provide her proposal in writing to the father, allowing the father time to respond in agreement or disagreement with such proposal. The father is to respond to the proposal in a timely manner and afford the mother his reasons for disagreeing if he does in fact disagree and any alternate proposal he has to make. In the event of continuing disagreement the parties are to attend mediation with such mediator as is agreed by them in writing or in default of agreement such mediator as is appointed by the Director of Child Dispute Services. The costs of such mediation are to be paid jointly and equally.
In the event that the parties after mediation referred to in Order 15 cannot reach agreement then the mother shall have the sole parental responsibility to make the decision in relation to education.
Each parent shall notify the other as soon as possible and in any event within two (2) hours of any serious injury or illness suffered by the child whilst in the care of that party.
Except as provided in these Orders the parents shall consult in relation to the attendance of the child on any medical specialist for the child and that such medical specialist include any specialist medical practitioner; any psychologist or counsellor as agreed by the parties in writing or pursuant to these Orders; dentist; orthodontist or other therapist (hereafter referred to as “consultant”) provided that in the event that the child is referred to any such consultant:
(a)the parent obtaining the appointment shall inform the other parent in writing as soon as practical of any specialist medical appointments (and in any event prior to the first such appointment)
(b)the parent obtaining the consultation shall as soon as possible after the initial appointment is made (and in any event prior to the date of the first appointment) authorise the consultant to discuss all matters relating to the child with the other parent
(c)the parent obtaining the consultation shall do all acts and things to ensure that the other parent is provided copies of any test results, letters of referrals, reports, and letters received from and by any such consultant
(d)the other parent is permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device.
Each parent shall, whilst so ever the child is in their care notify the other parent and keep the other parent notified of a mobile telephone number, landline and email address where he/she may be contacted in the event of an emergency involving the child.
Each parent shall notify the other parent in writing or by email no later than

14 days before he/she proposes to do so, of any travel he/she proposes to take with the child interstate and in doing so, he/she shall provide to the other parent the following information:
(a)the identity of the place(s) and/or addresses of where the child and the parent shall stay
(b)the identity of all persons at whose homes it is proposed the child and the parent shall stay.
If either parent wishes to take the child on an overseas holiday, he or she shall, not less than 60 days prior to the intended departure date, provide to the other parent:
(a)a complete itinerary for the proposed travel, including dates and times of departure from and return to Australia, and the approximate dates on which the child is expected to arrive in and depart from any and every overseas country to be visited
(b)a copy of the airline tickets for the child and the travelling parent
(c)a telephone or numbers on which the child can be contacted while she is out of Australia.
With respect to the child’s passport:
(a)each parent shall, within 21 days of a written request from the other parent, do all acts and things as may be necessary in order for a current passport to issue for the child
(b)the mother shall hold the child’s passport when the child is in Australia or travelling with the mother
(c)conditional upon the father’s compliance with Order 22, the mother shall provide the child’s passport to him not less than three days before his and the child’s intended departure date
(d)the father shall return the child’s passport to the mother within three days of returning to Australia.
Each parent shall advise the other parent and keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile telephone number if applicable) and advise the other parent of any proposed changes to these details not less than 21 days prior to such change occurring.
The parents shall each maintain and keep maintained at all times an email address for the purpose of these Orders and keep the other parent informed of such email address.
Neither party shall discuss these proceedings or denigrate the other party, their family or their partner within the presence or hearing of the child or allow the child to remain in the presence or hearing of any other person who is denigrating either party, their family or partner or any other person with whom they may be living in a bona fide domestic relationship, or discussing these proceedings.
Both parties shall be and are hereby restrained from physically disciplining the child for any reason whatsoever and both parties shall as far as possible, restrain any other person from physically disciplining the child for any reason whatsoever.
The parties shall each forthwith do all acts and things necessary to continue to attend upon for a period of two (2) years, and follow through all counselling or therapy, recommendations and directions of:
(a)with respect to the mother, Dr M and/or such other qualified practitioner at “ES” practice or as she may be referred, at a frequency as may be recommended by the mother’s treating practitioner
(b)with respect to the father, Ms F and/or other qualified psychologist as she may recommend, at a frequency as may be recommended by Ms F or the father’s treating practitioner.
The mother and father shall ensure that the child continues to attend upon such therapist, as is recommended by Dr K for a period of time as recommended by the therapist (or other such therapist as may be appointed by that therapist) and at a frequency as may be recommended by the child’s therapist.
A copy of the report of Dr K dated 5 December 2011, these Orders and reasons for judgment be released to the following persons:
(a)the mother’s clinical psychologist, Dr M of “ES” practice or such other qualified practitioner at that practice or as the mother may be referred, noting that Dr M has recently commenced maternity leave
(b)the father’s psychologist, Ms F
(c)the child’s therapist.
The parties authorise the child’s therapist to speak and to freely give information to Dr M and Ms F or any other psychologist, therapist or counsellor providing treatment to either of the parents from time to time about the child and her therapy.
The father’s application to discharge the Independent Children’s Lawyer from the proceedings is dismissed.
It is noted that the Independent Children’s Lawyer has made an application that the mother and father each pay one half of the costs of that lawyer. The amount claimed is $18,716.00. The father has asked for the opportunity to make submissions in relation to those costs on receipt of this judgment. The matter of those costs is listed for mention before the Court for mention at 9.30 am on Thursday, 5 July 2012.
Within twenty eight days of the date of receipt of any further invoice from

Dr K in relation to his cancellation fee to give evidence on

8 March 2012, each party pay one half of such fee.
Within three months of the date of receipt of any further invoice for the attendance of Dr K attending Court and giving evidence on

9 March 2012, each party pay one half of such fee.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1175 of 2010

Ms Morgan

Applicant

And

Mr Morgan

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings between parents with respect to the parenting of the child of their marriage, B (‘the child”), born in September 2002 and now nine years of age.
The child lived with both parents in a shared care arrangement from separation until late February 2010 when this arrangement was stopped by the mother, who then commenced the current Court proceedings. Since that time the child has lived primarily with the mother. The child has spent time with the father but not overnight.
There are allegations of violence perpetrated by the father towards the mother and the child. The mother also deposes of there being sexually inappropriate behaviour displayed by the father towards the child.
The issues in the dispute include parental responsibility, the periods of time the child is to spend with each parent and the manner in which such time with the father is to be increased if at all.
The mother currently works in a professional capacity in the public service, and is also studying a Degree at University. She resides in suburb W with her partner Mr V. Mr V’s three children live with their mother and Mr V and the mother on a week about basis.
The father is an engineer and works for a large corporation. He resides on his own in an apartment in suburb H. He is in a relationship with Ms D.

Application for discharge of the Independent Children’s Lawyer

On the second day of the trial there was an application made by the father to discharge the Independent Children’s Lawyer. It was the father’s submission that the Independent Children’s Lawyer had locked herself into a position by stating the orders that were sought by her at the outset of the trial, and which would not be changed notwithstanding subsequent evidence, and that she would continue with the conduct of the case in a way which is consistent with the Independent Children’s Lawyer proposing that the father have restricted contact with the child. This application was opposed.
The father’s argument was also that the Independent Children’s Lawyer had failed to cause the attendance of Dr S and Ms L, and that therefore notice was thereby given to the mother that it was likely an inference would be sought to be drawn by the failure of Dr S and Ms L to give evidence.
The application was dismissed. The Counsel for the Independent Children’s Lawyer accepted that he had told the Court of the order he was then instructed to seek at the outset of the trial but said it was intended to be a preliminary indication only and that the order that he finally sought would be a product of the evidence as tested before the Court.
The Court accepts that it is not unusual for an Independent Children’s Lawyer to give a preliminary indication of his or her position. That in the Court’s experience does not mean it necessarily remains unchanged. It is equally common for parties to change their position after the evidence is tested and perhaps new matters previously obscured come to light. The Court is not a court of pleading in the traditional sense of that word.

It is the view of the Court that a reasonable person properly informed as to the nature of the obligation generally of lawyers to the Court and of the Independent Children’s Lawyer in particular and the practice before this Court, would not reasonably apprehend that the Independent Children’s Lawyer had locked himself into an unchangeable position or reasonably apprehend that he or she was biased as a result of the matters which had been agitated before the Court.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1980 the mother was born in South America and is now aged 32.
In 1981 the father was born and is now aged 30.
In 1986 the mother and her family migrated to Australia from South America.
In 1988 the mother became an Australian citizen.
In August 2001 the parties met and commenced a relationship. The mother was residing in rental accommodation at the time and studying at university. The father was studying at university.
In February 2002 the mother learnt that she was approximately twelve weeks pregnant.
The mother alleges that on 21 February 2002 the father telephoned her and threatened to get a retired Judge, being a friend of the family, to help him get custody of the child.
On 23 February 2002 the mother alleges that the father was waiting for her at her apartment and told her that his mother was getting him to see a psychiatrist. She also alleges that the father punched her in the stomach as she tried to get around him to get inside her apartment building.
Around February 2002 the father saw a psychologist at suburb Z and a counsellor at Hospital 1 to help clarify his thoughts about the pregnancy.
On 8 March 2002 the mother consulted with a Registered Psychologist and Counsellor, at her university.
On 9 March 2002 the mother vacated her rental accommodation and commenced residing with her father at a western Sydney suburb. She asserts she moved to this accommodation as she was scared of the father and because it was closer to transport and Hospital 2.
At about this time the mother asserts that the father attempted to contact her at her father’s residence, and that he told her father that he had a breakdown and wanted her to attend Hospital 1 to speak to his psychiatrist. The mother refused to go.
On 11 April 2002 the mother organised a transfer of her natal care as a public patient to Hospital 2 from Hospital 3. The mother asserts that the paternal grandmother worked as a nurse at Hospital 3 and that she feared what might happen to her, the baby and her medical records.
The mother asserts that the paternal grandmother regularly worked with an Obstetrician/Gynaecologist at Hospital 3 and had made an appointment for her to see this specialist. The mother asserts that the paternal grandmother told her, “He performs the abortions here”. The mother attended the appointment and was not required to pay a fee.
The father’s mother, Mrs Morgan (“the paternal grandmother”), asserts that the mother had a reference to see a Dr U about terminating her pregnancy. It was her evidence that the mother was thirteen weeks pregnant at the time and that she suggested that she go visit a social worker who could help her make a decision. She stated that she was concerned about her having an abortion and the long term effect this would have on her life.
On 12 April 2002 the father organised an appointment with Relationships Australia (“RA”). The parties attended throughout April and May. The mother asserts that the parties were recommended to attend a “Managing Conflict” session which was to commence on 5 June 2002. The mother asserts that the counsellor recommended that the father undertake anger management counselling which he refused.
The mother asserts that she attended the first two of the four sessions of the “Managing Conflict” course without the father and he refused to attend. The parties also went to a course called “Building Better Relationships”.
In September 2002 the child was born. The mother asserts that she had chosen the name “A” for the child, but that the father told the nurses that her name would be “B”.
The mother asserts that the father offered little help during her labour or birth of the child.
The mother asserts that following the child’s birth she returned to live with her father in western Sydney, and that the father did not assist financially. She asserts that she relied on her father, the Family Tax Benefit and her credit cards. She also obtained a temporary part-time job with the public service to supplement her income.
In October 2002, a month after the birth of the child, the mother was required to have an operation to remove the placenta.
The mother asserts that following the birth of the child the father would telephone her and say, “You have to become Adventist, otherwise you won’t be saved”.
The parties commenced cohabitation in December 2002 at rental accommodation at suburb C. The mother continued to work part-time with the public service.
In about 2003 the parties moved to a unit owned by the father’s parents in suburb C as the father said the rent would be cheaper.
In about late 2003 the child was admitted to Hospital 1 with rotavirus. She was dehydrated and had an intravenous drip. The mother asserts that whilst standing next to her bed and holding her hand that the father pulled her away and told her to leave, and then grabbed her hair and pulled her away from the child. The father asserts that whilst the child was in hospital for four days that he would stay with her during the night and the mother would stay during the day. He denies grabbing the mother by her hair and says he asked her to go home on a number of occasions because he was concerned about her being overly tired.
The father asserts that during 2003 the mother spent approximately six weeks studying in Europe. He asserts the he and the paternal grandmother cared for the child during this period.
During early 2004 the parties moved into the paternal grandparents’ house at suburb SS.
The parties were married in an Adventist ceremony in early 2004. The mother asserts that as the Adventist beliefs did not approve of the parties being unmarried, and also because she had fears for the child and herself, she agreed to marry the father.
At the end of February 2004 the father went to Europe as part of his university studies for two semesters. The father returned in September 2004 for approximately five weeks for the child’s birthday. During this time the mother and the child continued to live at the home of the paternal grandparents.
In 2004 the paternal grandparents sold the SS property and moved to suburb H. The mother and the child moved with them. At the time the mother was working as a paraprofessional and was receiving some Family Tax Benefit. The mother asserts that the father did not support her or the child financially whilst he was in Europe.
In early 2005 the father returned from Europe and the parties continued to reside with the paternal grandparents. The mother asserts that the father’s aggressive and controlling behaviour continued. She also asserts that the father did not work and she supported the parties financially.
Shortly after the father’s return from Europe they went on a trip to the father’s parent’s holiday home on the Central Coast. The mother alleges that there was an incident where the father was hugging the child on the bed and that she saw he had an erection when he stood up. The father denies any sexually inappropriate behaviour.
The mother was completed the requirements to practice her profession in April 2005. The mother also commenced studying for her Masters Degree in 2005.
The father asserts that in late 2005 / early 2006 the parties commenced marital counselling. The mother asserts that the father was recommended to attend Anger Management classes through a Christian counselling organisation.
The father also asserts that in late 2005 / early 2006 the mother admitted attending parties where people were using drugs. The father asserts that he observed the mother unable to perform basic tasks when she returned from those parties.
Sometime in 2006 the parties moved to an apartment in O Street, suburb SS.
In 2006 the father obtained a six month work placement.
During early 2007 the parties moved to a granny flat at X Street, suburb H.
The mother asserts that during 2007 she was attending church every Saturday which she did not enjoy. The mother alleges that the father imposed strict rules such as not being able to watch television or listen to the radio on Fridays, and not being allowed to buy anything on Saturdays, presumably requiring her to act in a manner consistent with Adventist belief, or practice.
In 2007 the father obtained employment as an engineer with Company I.
In 2008 the child commenced school at P Public School.
During 2008 the mother worked for a large professional firm.
In 2008 the father graduated from university with a degree in … Engineering.
In December 2008 the mother commenced working with the Commonwealth public service.
In April 2009 the mother started seeing Dr M, a clinical psychologist.
The parties separated in July 2009.
In July 2009 the mother commenced a relationship with her current partner

Mr V whom she had met in December 2008.
On 18 July 2009 the mother moved with the child to an apartment in suburb G.
For the period July 2009 to 24 February 2010 the child lived with the father from 7.00 pm on Wednesdays until 9.00 am on Sundays and with the mother from 9.00 am on Sundays to 7.00 pm on Wednesdays.
On 23 September 2009 the mother sent the father an email stating that it was inappropriate for the child to sleep in the father’s bed and that she could wash herself, after the child had allegedly told her that “dad showers me”.
On 28 September 2009 the child began attending on Dr S, a Clinical Psychologist. It is asserted that the child told Dr S that the father smacked her. The mother asserts that the father refused to pay half the therapy fees.
On 6 October 2009 the child had two teeth extracted. The mother asserts that the father refused to contribute to half the cost.
On 19 October 2009 the child disclosed to Dr S that the father had hit her during the last visit, but that she was not frightened to return to the father’s.
On 8 November 2009 the father asserts that he went for a walk and returned home at 7.02 pm to find the child standing on the side of the road talking to someone in a car. The mother had dropped her off at the father’s house. The mother alleges this incident occurred in August 2009 and that the child told her the father was not home when she was dropped off and then she became upset.
In late 2009 the mother asserts that the child disclosed to her that the father had hit her because she spilt some paint on a model train. The father denies any such incident occurred.
On 30 December 2009 an incident occurred at changeover whereby the mother alleges the father violently grabbed the child’s hand and pulled her away from the mother and would not let her say goodbye. The father asserts that he had taken some DVDs to the mother and she demanded other DVDs. He alleges that he took the child away from the argument. The police attended the father’s but took no action.
In January 2010 the father commenced a relationship with Ms D.
On 15 February 2010 the mother took the child to Dr O who diagnosed her with Bronchitis. The child did not attend school that day. On 16 February 2010 the child attended school, but returned home sick at 2.00 pm. The mother suggested to the father that the child stay with her on the Wednesday night

(17 February 2010) which the father did not agree to.
On 21 February 2010 the mother alleges that the child disclosed to her that the father had hit her twice; once at his home and once at the paternal grandparents’ home. The mother reported the incident to the police who later interviewed the child. The mother also reported the incident to the Department of Community Services (“DoCS”). The father denies smacking the child. He asserts that he asked the child to turn the television off and when she refused he took her wrist and took the remote from her. He asserts that the child said to him, “Daddy, you hit me. Nobody is allowed to touch me”.
On 22 February 2010 the mother took the child to Dr S. The mother asserts that the child said to her, “I want to live with you all the time Mum”.
On 24 February 2010 the mother advised the father that the child would be living with her until there was a court hearing.
On 25 February 2010 the mother collected the child from school early, after being advised that the father had told the school that he would be picking up the child from school.
On 26 February 2010 the mother filed her Initiating Application, commencing the current Court proceedings.
On 17 March 2010 an Independent Children’s Lawyer was appointed.
On 7 April 2010 Orders were made by Judicial Registrar Johnston (as he then was) providing that the child spend time with the father each Thursday for three hours from after school to 6.30 pm and each Sunday from 9.00 am to noon. The Orders also provided that changeover occur at McDonald’s, and that the child continue to attend on Dr S, and for the father to be able to participate in some sessions.
In June 2010 the child’s consultant psychologist was changed to Ms L, after Dr S commenced maternity leave.
On 23 June 2010 Orders were made by Judicial Registrar Loughnan (as he then was) providing that the mother and father were to contact Relationships Australia or Centacare or similar organisation to arrange attendance at a post separation parenting course. The father completed this course at Relationships Australia in September 2010. As at the start of the trial the mother had failed to complete such a course.
On 23 June 2010 the mother and the child commenced living with Mr V at suburb W in a rented four bedroom house. The child continued to attend P Public School. Mr V’s children aged 14, 12 and 9 lived with the family week-about.
The father deposes that during June 2010 the child told him that the mother and Mr V were moving in together and that they would be living in suburb X. He states that the mother failed to tell him that she and the child were changing residence. The father caused his legal representatives to send a letter dated

29 June 2010 to the mother’s legal representatives seeking confirmation that the mother had no intention to change the child’s school without his prior agreement. In a reply letter dated 8 July 2010 the mother’s solicitors confirmed that the mother did not intend to change the child’s school.
On 3 April 2011 an incident occurred at changeover at McDonald’s, where the mother and the child arrived early and were waiting in the car for the father. The mother alleges the father approached the mother and the child in the car screaming at them to get out, and alleges that both she and the child were very scared.
On 27 July 2011 Dr K was appointed as the single expert.
On 6 December 2011 Dr K’s report dated 5 December 2011 (“Dr K’s report”) was released to the parties.
On 14 December 2011 the mother made an application for the child’s school to be changed to one closer to her current residence at suburb W.
On 16 December 2011 Orders were made by the Court discharging Orders 2(a) and 3 of the 7 April 2010 Orders. The Orders provided that the child spend time with the father from 10.00 am to 6.00 pm each Sunday with the changeover on both collection and return to take place at McDonald’s.

The Issues

Whether the current arrangements whereby the child lives with the mother and has limited contact with the father should continue.
Whether the child’s contact with the father should increase and if so should it be in a gradual way given that she has not spent overnight contact with the father for two years.
Whether the child’s overnight contact with the father shall take place with an adult who is known to the child in the home such as the paternal grandmother or Ms D.
Whether the mother has the capacity to encourage and facilitate a relationship between the child and the father.
Whether the father has the capacity to encourage and facilitate a relationship between the child and the mother.
Whether equal shared parental responsibility is possible at all in a climate with the demonstrated conflict and hostility of this relationship or whether sole parental responsibility should be given to the parent with whom the child lives.
If shared parental responsibility is possible, whether the mother and father should have equal shared parental responsibility with respect to medical and educational matters for the child.
Whether the child should continue to attend P Public School or whether the mother should be permitted to move her to a school closer to her home in suburb W.
Whether the evidence suggests that the father has engaged in sexualised behaviour with the child.
Whether there has been family violence and what if any effect this has on the contact arrangements between the child and the father.

The Orders sought

The mother filed a Minute of Orders on 22 February 2012. In her written submissions filed on 16 April 2012 the mother made slight amendments to her Orders sought, including increasing the time the child is to spend with the father and removing an Order preventing either parent from taking the child to any religious activity. The mother sought the following orders:
(1)The mother shall have sole parental responsibility for the child.
(2)Without derogating from the meaning of sole parental responsibility, in considering a decision about a major long-term issue in relation to [the child], the mother shall:
(a)Before making the decision, advise the father about the need for the decision, and take into account any views he expresses to her about the decision;
(b)Advise the father of the decision she has made, and provide him with all relevant information arising from the decision including, with respect to [the child’s] health care, the names and contact telephone numbers for professionals treating her, and with respect to education, the name and contact details for the educational institution;
(c)Give written authorisation to any school attended by [the child] for the father to receive copies of [the child’s] reports, information about school events including sporting events, and all other material distributed by the school to parents;
(d)Advise the father of all extra-curricular activities in which [the child] is engaged from time to time, including the venues, days and times of those activities;
(e)Give the father not less than 2 months notice of an intended change of residential address for [the child];
(f)Provide [the child’s] passport to the father upon request of the father pursuant to these Orders,
(3)Nothing in these Orders prevents the father and/or the paternal grandparents from attending any school function which such family members ordinarily may attend.
(4)In the event that [the child] suffers illness or injury requiring emergency medical attention:
(a)The parent having her care at that time shall immediately inform the other parent, and provide the other parent with all relevant information, including the location and telephone numbers for the medical facility where [the child] is being treated;
(b)Neither parent shall do anything to prevent [the child] from being visited by the other parent, subject to the discretion of the treating professionals.
(5)[The child] shall live with the mother except when she is spending time with the father pursuant to these Orders.
(6)Commencing from the date of these orders, [the child] shall spend time with the father as follows:
(a)For three calendar months: each alternate weekend, from 10am Saturday until 10am Sunday;
(b)Then for the next three calendar months: each alternate weekend from 10am on Saturday until 6pm on Sunday;
(c)Then for the next three calendar months: from the conclusion of school on Friday, or 3.30pm on non-school days, until 6pm on Sunday;
(d)Thereafter: each alternate weekend from the conclusion of school on Friday, or 3.30pm on non-school days, until the commencement of school on the following Monday, or until 9am on non-school days;
(e)During school holidays:
(i)For three days in the second week of the holidays commencing at the end of the first school term in 2013, from 10am Monday until 6pm Wednesday;
(ii)Thereafter every second week of all succeeding school term holidays, commencing at the conclusion of Terms 1, 2 and 3 from 10am on the first Sunday of the second week of the holiday period, and concluding at 6pm the following Saturday;
(iii)For the first and third weeks of each January school holiday period, from 10am on the Sunday until 6pm on the following Saturday.
(f)On Christmas Day each year: from 10am to 5pm;
(g)On every Father’s Day: from 10am to 5pm if [the child] would not otherwise be spending time with the father on that day;
(h)On [the child’s] birthday if she would not otherwise be spending time with the father on that day: from after school until 6pm if it is a school day, and from 10am until 2pm if the birthday is on a weekend.
(7)Order 6 shall be suspended as necessary in order for [the child] to spend time with the mother:
(a)From 10am until 5pm on Mother’s Day each year;
(b)From 10am to 2pm on [the child]’s birthday, if it is on a weekend when she would not otherwise be with the mother.
(8)On non-school days, changeovers of [the child’s] care from one parent to the other, as required by these Orders, shall be at McDonald’s Restaurant, …, unless otherwise agreed between the parents in writing.
(9)During changeovers pursuant to Order 8, neither parent shall raise his or her voice to the other parent, or to any person accompanying the other parent, and if the parents speak to each other they shall do so only with civility and courtesy.
(10)For 12 months following the commencement of [the child’s] overnight time with the father pursuant to these Orders, the father shall ensure that another responsible female adult well known to [the child] also is present in the home (“the other adult”) and that the other adult is the person who provides assistance to [the child] should she require it when bathing or showering or toileting.
(11)Neither parent shall in the [child’s] present or hearing:
(a)Discuss Order 10;
(b)Discuss any other Order, other than in the normal course of conversation with her about dates and times when she will be with the parents;
(c)Speak in a denigrating or demeaning manner about the other parent, or a partner of the other parent.
(12)Neither party shall in any way physically discipline [the child] or permit any other person to do so.
(13)During times when [the child] is with the father, he shall ensure that she attends any extra-curricular activities about which the mother advises him pursuant to Order 2(d).
(14)Each parent shall do everything necessary on his or her part to ensure that [the child] can make a telephone call to the other parent at any reasonable time, and in any event the parent with whom [the child] is not then living shall ensure that [the child] is available to receive a telephone call from the other parent:
(a)Between 7pm and 8pm on Saturdays;
(b)And also during school holidays between 7pm and 8pm on Wednesdays.
(15)The parents shall ensure that they keep each other advised at all times of their contact telephone numbers and email addresses.
(16)Each parent shall give the other not less than 3 days notice of an intention for [the child] to travel more than 200 kilometres from the parent’s home.
(17)If either parent wishes to take [the child] on an overseas holiday, he or she shall, not less than 60 days prior to the intended departure date, provide to the other parent:
(a)A complete itinerary for the proposed travel, including dates and times of departure from and return to Australia, and the approximate dates on which [the child] is expected to arrive in and depart from any and every overseas country to be visited;
(b)A copy of the airline tickets for [the child] and the travelling parent;
(c)A telephone or numbers on which [the child] can be contacted while she is out of Australia.
(18)With respect to [the child’s] passport:
(a)Each parent shall, within 21 days of written request from the other parent, do all acts and things as may be necessary in order for a current passport to issue for [the child];
(b)The mother shall hold [the child’s] passport when [the child] is in Australia or travelling with the mother;
(c)Conditional upon the father’s compliance with Order 17, the mother shall provide [the child’s] passport to him not less than 3 days before his and [the child’s] intended departure date;
(d)The father shall return [the child’s] passport to the mother within 3 days of returning to Australia.
(19)The parents shall each continue to attend upon and follow the recommendations of:
(a)With respect to the mother: Dr [M], and/or such other qualified practitioner at the ‘[ES] practice to whom she is referred;
(b)With respect to the father: [Ms F], and/or such other qualified psychologist as recommended by [Ms F] or the father’s treating practitioner.
(20)With respect to continued therapeutic assistance for [the child]:
(a)The mother shall ensure that [the child] continues to attend upon [Ms L] at the [KC] practice, or such other therapist as may be appointed by that practice, at a frequency and for so long as may be recommenced by that practice;
(b)The father shall forthwith attend upon a therapist at the [KC] practice, in accordance with the recommendation of the single expert Dr [K] in his report dated 5 December 2011.
(21)Copies of these Orders and the report of Dr [K] dated 5 December 2011 shall be provided to:
(a)The ‘[ES] practice, for the attention of Dr [M] and/or any other practitioner with whom the mother may consult at that practice;
(b)The father’s psychologist [Ms F], and/or any other psychologist to whom the father is referred;
(c)The [KC] practice for the attention of any/all therapists providing assistance to [the child] and the father.
NOTATIONS
A.For the purposes of these Orders, writing includes telephone text messages.

In his Case Outline filed on 2 March 2012 the father sought the following orders:
(1)That both parents have equal shared parental responsibility for the child.
(2)That the child live with the father other than when living with the mother pursuant to Order 3.
(3)That the child live with the mother as follows:
(a)Each alternate weekend from Friday afternoon after school (when the mother shall collect the child from school) until the commencement of school on Monday morning (when the mother shall deliver the child to school) plus in the week following the weekend when the child is not living with the mother, from after school Monday afternoon (when the mother shall collect the child from school) until Wednesday morning at the commencement of school (when the mother shall deliver the child to school).
(b)During school holiday periods:
(i)During the school holidays falling at the end of terms 1, 2 and 3, for one week commencing 9 am on the first day of each school holiday period (with the first day being the day immediately following the last day on which the child attends school during the preceding school term).
(ii)During the school holiday period commencing at the end of Term 4, for three weeks commencing at 9 am on the first day of such school holiday periods commencing in even numbered years and commencing at 9 am on 5 January of such school holiday periods commencing in even numbered years.
(c)That commencing immediately on the making of these Orders, in the event Father’s Day falls on a weekend when the child is not living with the father pursuant to these Orders, the child shall spend time with the father from 5 pm Saturday until 5 pm Sunday. In the event that Mother’s Day falls on a weekend when the child is living with the father pursuant to these Orders, the child shall return to living with the mother at 5 pm on Saturday of the relevant weekend.
IN THE ALTERNATIVE TO ORDERS 2 AND 3 ABOVE:
(4)That the child live with the mother and spend time with the father five nights per fortnight and half school holidays on the same routine set out in 3 above.
(5)That each parent shall keep the other parent informed of their current residential addresses and mobile and fixed line telephone numbers and email addresses.
(6)That neither parent shall denigrate the other, their family or any other person with whom they may live on a bona fide domestic relationship within the presence or the hearing of the child or allow the child to remain in the presence or hearing of any other person who is denigrating the other parent, their family or any other person with whom they may be living in a bona fide domestic relationship.
(7)Each parent shall notify the other as soon as possible and within two (2) hours of any serious injury or illness suffered by the child whilst in the care of that parent.
(8)Whilst the child is in each parent’s respective care, the parents shall advise each other as soon as reasonably practicable of any major medical issue involving the child and each parent shall keep the other properly informed of any required treatment or medication in relation to the child and each parent shall ensure that proper administration of such medications and treatments is necessary.

The Independent Children’s Lawyer filed their Submissions and Proposed Minute of Orders on 19 March 2012. The Orders sought are as follows:
TIME LIVING WITH THE MOTHER
(1)The child of the marriage [A MORGAN] born … September 2002 (“[the child]”) shall live with her mother [Ms Morgan] (“the Mother”) at times [the child] is not otherwise living with her father [Mr Morgan] (“the Father”).
TIME LIVING WITH THE FATHER
(2)[The child] shall live with the Father as follows:
(a)Commencing on the first weekend after these orders are made and each alternate weekend thereafter, concluding on 1 July 2012, from 10.00am Saturday to 10.00am Sunday;
(b)Commencing on the weekend of 14 July 2012 and every alternate weekend thereafter, concluding on 21 October 2012, from 10.00am Saturday to 6.00pm Sunday;
(c)Commencing on the weekend of 2 November 2012 and every alternate weekend thereafter, concluding on 27 January 2013, from the conclusion of school on Friday if this day is a school day or from 3.30pm if this day is not a school day, to 6.00pm Sunday;
(d)Commencing from 8 February 2013 during and thereafter every alternate weekend as follows:
(i)on the days [the child] is at school from the conclusion of school on Friday to the commencement of school on the Monday;
(ii)on the days [the child] is not at school from Friday at 3.30pm day to Monday at 9.00am if [the child] is not at school;
(e)From the commencement of Term 1 in 2015 on the child's time with the Father as set out in order 2.4 will extend to the commencement of school on the Tuesday;
(f)For three (3) days in the second week of the Easter/April 2013 school holidays as agreed and if no agreement from 10.00am Monday 22 April 2013 to 6.00pm Wednesday 24 April 2013;
(g)In 2013:
(i)for one (1) week of the school holidays commencing at the conclusion of Terms 2 and 3 in 2013 from the second Saturday at 6.00pm to the following Saturday at 6.00pm;
(ii)for a period of two weeks in the December/January 2013/2014 school holidays being from 5 January 2014 at 10.00am to 6.00pm 11 January 2014 and from 19 January 2014 at 10.00am to 6.00pm 25 January 2014;
(h)From the end of Term 1 2014:
(i)During school holiday periods for half of the April, July and September public school holidays, such halves to be agreed between the parties and in the absence of agreement for the second half of each of these school holiday periods;
(ii)For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years;
(i)Every Christmas Day from 10.00am to 6.00pm;
(j)Father's Day:
(i)In 2012 in the event [the child] is not already spending time with the Father on Father's Day from 10.00am to 6.00pm;
(ii)Commencing every Father’s Day from 10.00am to the commencement of school the next day.
(k)In the event [the child] is not spending time with the Father pursuant to these orders on these days, on [the child's] birthday and the Father's birthday, as follows:
(i)If the birthday falls on a school day, from the conclusion of school to 6.00pm;
(ii)If the birthday falls on a weekend day, from 10.00am to 2.00pm;
(l)At such other and further times as may be agreed;
(m)The parents will both be entitled to attend all events involving [the child] including sporting events, extra curricula activities that allow for parental attendance and school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
(n)From commencement of the school holidays at the end of Term 2 2013 [the child’s] time with her Father in orders 2.4 will be suspended during school holidays and will be resumed on the first weekend of school term if [the child] has spent time with her Father during the first half the school holidays and on the second weekend of the school term if [the child] has spent time with her Father during the second half of school term.
(3)For the purposes of facilitating [the child's] time with the Father in order 2 the following shall apply:
(a)On the days [the child] is at school the Father or his nominee will collect [the child] from and return [the child] to [the child's] school;
(b)On the days [the child] is not at school all changeovers to deliver and collect [the child] shall take place inside McDonald’s Restaurant, …;
(c)In the event of an emergency or that the McDonald's Restaurant is unavailable for changeovers, then the parties shall immediately advise the other upon the emergency or unavailability becomes known to them and the Mother shall nominate the place for changeover by sending the Father a text message of a nominated venue within one (1) kilometre of the McDonalds … and the changeover shall take place at the nominated place.
(d)Each parent may nominate another person or persons who may collect or deliver [the child] for changeover, and such nominees shall only be persons known to [the child] being members of her immediate family including her grandparents, her maternal aunt and uncle, or the Mother's partner and the Father's partner.
BIRTHDAYS and MOTHER'S DAY
(4)In the event Mother's Day falls on a day in which [the child] is spending time with the Father, then the Father's time with [the child] shall be suspended on Mother's Day from 10.00am on that day until the commencement of school the following day and in order to facilitate this order, the Father shall deliver [the child] to the Mother at 10.00am on that day as provided in Order 3.1, 3.2, 3.3 and 3.4.
(5)In the event that the mother's birthday and [the child's] birthday falls on a weekend day that [the child] is spending time with the Father, then the Father's time with [the child] shall be suspended on those days from 10.00am to 2.00pm and in order to facilitate this order, the Father shall deliver [the child] to the Mother at 10.00am on that day and thereafter collect [the child] from the Mother at 2.00pm that day as provided in order 3.
TELEPHONE COMMUNICATION
(6)Each parent will have telephone communication with [the child] when she is with the other parent as follows:
(a)When [the child] is not in the care of each parent each Wednesday and Saturday evening between 7.00pm and 8.00pm with the parent who does not have care of [the child] telephoning the other parent’s mobile telephone or [the child's] mobile telephone in the event she has been provided with her own telephone.
(b)When [the child] is spending school holiday time with the other parent commencing from Term 2, 2013, every third evening between 7.00pm and 8.00pm with the parent who does not have care of [the child] telephoning the other parent’s mobile or [the child's] mobile telephone in the event she has been provided with her own mobile telephone.
(c)In order to facilitate this order, that each parent shall ensure that his/hers mobile telephone and the child's mobile telephone should she have one, are charged and operating and that he/she will facilitate [the child] using the mobile telephone or [the child] using her mobile telephone during this period and that he/she will ensure that [the child] receives and takes the other parent's call.
PARENTAL RESPONSIBILITY
(7)Except as provided for in these orders the parents will have equal shared parental responsibility.
(8)The child [A] will continue to be known as and neither parent will do anything or undertake any acts to change the child’s name from [A Morgan].
(9)Each parent is restrained from changing [the child’s] residence from the Sydney Metropolitan area without the written consent of the other parent or order of the Court.
(10)Commencing from Term 2 2012 the Mother be permitted to enrol the child at [AV] Public School.
(11)Not less than 12 months before [the child] commences secondary school the parents will consult with each other as to which secondary school [the child] will attend and make a genuine effort to reach a joint decision, and in the event the parents cannot reach a joint decision they will do all things necessary to participate in family dispute resolution with a person authorized under section 10G of the Family Law Act.
(12)Each parent shall notify the other parent in writing or by email no later than 14 days before he/she proposes to do so, of any travel he/she proposes to take with [the child] interstate and in doing so, he/she shall provide to the other parent the following information:
(a)the identity of the place/s and/or addresses of where [the child] and the parent shall stay;
(b)the identity of all persons at whose homes it is proposed [the child] and the parent shall stay;
(13)Each parent shall advise the other parent and keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other parent of any proposed changes to these details not less that 21 days prior to such change occurring.
(14)The parents shall each maintain and keep maintained at all times an email address for the purpose of these orders and keep the other parent informed of such email address.
(15)Each parent shall notify the other as soon as possible and in any event within two (2) hours of any serious injury or illness suffered by [the child] whilst in the care of that party.
(16)Except as provided in these orders the parents shall consult in relation to the attendance of [the child] on any medical specialist for [the child] and that such medical specialist include any specialist medical practitioner; any psychologist or counsellor as agreed by the parties in writing or pursuant to these orders, dentist; orthodontist or other therapist (hereafter referred to as “consultant”) PROVIDED THAT in the event that [the child] is referred to any such consultant:
(a)the parent obtaining the appointment shall inform the other parent in writing as soon as practical of any specialist medical appointments (and in any event prior to the first such appointment)
(b)the parent obtaining the consultation shall as soon as possible after the initial appointment is made (and in any event prior to the date of the first appointment) authorise the consultant to discuss all matters relating to the child with the other parent.
(c)the parent obtaining the consultation shall do all acts and things to ensure that the other parent is provided copies of any test results, letters of referrals, reports, and letters received from and by any such consultant.
(d)the other parent is permitted to attend on such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device.
(17)Each parent shall, whilst so ever [the child] is in their care notify the other parent and keep the other parent notified of a mobile telephone number, landline and email address where he/she may be contacted in the event of an emergency involving [the child].
OTHER ORDERS
(18)Any overnight time spent by [the child] with the Father pursuant to these orders for a period of 12 months after these orders are made shall take place with an adult who is known to [the child] in the home and shall include either paternal grandparent or the Father's partner [Ms D]. [The child] will bath or shower herself and, should she need assistance with this task, she shall be assisted by the paternal grandmother or [Ms D] AND FURTHER, the Father shall bring this order to the attention of his parents and [Ms D].
NON-DENIGRATION
(19)That neither party shall denigrate the other party, their family or their partner within the presence or hearing of [the child] or allow [the child] to remain in the presence or hearing of any other person who is denigrating either party, their family or partner any other person with whom they may be living in a bona fide domestic relationship.
NO PHYSICAL DISCIPLINE
(20)That both parties shall be and are hereby restrained from physically disciplining [the child] for any reason whatsoever and both parties shall as far as possible, restrain any other person from physically disciplining [the child] for any reason whatsoever.

CONTINUING THERAPY
(21)That the parties shall each forthwith do all acts and things necessary to effect the following:
(a)Continue to attend upon for a period of two (2) years, and follow through all recommendations and directions of:
(b)With respect to the Mother, with Dr [M] and/or such other qualified practitioner at "[ES]" practice or as she may be referred, at a frequency as may be recommended by the Mother's treating practitioner;
(c)With respect to the Father, with [Ms F], and/or other qualified psychologist as she may recommend, at a frequency as may be recommended by Ms [F] or the Father's treating practitioner.

(22)That the Mother shall ensure that [the child] continue to attend upon her therapist, [Ms L] at [KC] practice (or other such other therapist as may be appointed by that practice) for a period of time as recommended by Ms [L] (or other such other therapist as may be appointed by that practice) and at a frequency as may be recommended by [the child's] therapist.
RELEASE OF DR [K'S] REPORT
(23)That a copy of the report of Dr [K] dated 5 December 2011, these orders and any reasons for judgment for these orders be released to the following persons:
(a)The Mother's clinical psychologist, Dr [M] of "[ES]" practice or such other qualified practitioner at that practice or as the Mother may be referred, noting that Dr [M] has recently commenced maternity leave;
(b)The Father's, psychologist, [Ms F];
(c)[The child's] psychologist, [Ms L] at [KC] practice;

(24)The parties authorise [Ms L] or any other psychologist at [KC practice] who may treat [the child] to speak and to freely exchange information with either Dr [M] and [Ms F] or any other psychologist, therapist or counsellor providing treatment to either of the parents from time to time about [the child].
(25)The Father authorises [Ms F] or any other psychologist, therapist or counsellor providing treatment to him from time to time to speak with Dr [M] any other psychologist, therapist or counsellor providing treatment to the Mother and [Ms L] or any other psychologist at [KC practice] who may treat [the child] about him.
(26)The Mother authorises Dr [M] or any other psychologist, therapist or counsellor providing treatment to her from time to time to speak and to freely exchange information with [Ms F] or any other psychologist, therapist or counsellor providing treatment to the Father and [Ms L] or any other psychologist at [KC practice] who may treat [the child] about her.

PROCEDURAL ORDERS
(27)That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(28)That all interim orders previously made in these proceedings be and are hereby discharged.

The Independent Children’s Lawyer also sought orders in relation to costs for the provision of an Independent Children’s Lawyer and the cost of the Court Expert Dr K. The Orders sought are as follows:
(1)Within three (3) months of the date of these orders the mother will pay the sum of $9,358.00 to Legal Aid NSW as payment of the costs of the Independent Children’s Lawyer.
(2)Within three (3) months of the date of these orders the father will pay the sum of $9,358.00 to Legal Aid NSW as payment of the costs of the Independent Children's Lawyer.
(3)Within twenty eight days of the date of receipt of any further invoice from Dr [K] in relation to his cancellation fee to give evidence on 8 March 2012, each party pay one half of such fee.
(4)Within three months of the date of receipt of any further invoice for the attendance of Dr [K] attending Court and giving evidence on 9 March 2012 each party pay one half of such fee.

The father made submissions that he was unaware that the Independent Children’s Lawyer was seeking an Order for costs. The father opposes an Order for costs, save for Dr K’s fees. The father seeks the opportunity of making submissions in relation to the costs of the Independent Children’s Lawyer once judgment is delivered. The Court will make an Order allowing the father to make submissions on costs at a date as specified in the Orders.

The Evidence

Allegations of Violence

The father deposes that in the early part of the relationship the mother would often speak to him in a critical fashion stating things such as:
“You are not good enough for me. You are worthless”
“dumb Anglo”
“Stupid child”
“I will break up with you the next time you put a foot wrong”
The father asserts that the mother’s criticism of him caused him to suffer from anxiety and on some occasions this caused him to involuntarily vomit.
The mother alleges that during the relationship the father was violent, abusive and intimidating towards her. She deposes that as a result of the father’s behaviour she was frightened of him and submitted to his will.
Dr K reports that the father admitted that he had smacked the mother on the bottom or on the face on about three occasions. The father asserted that it was not to hurt her; it was to short-circuit her yelling and behaving irrationally, to wake her up to herself. He stated that it worked in that she would stop, pause and then sometimes back off. The Court notes that the violence took place in a relationship which was failing but the Court’s view is that the suggestion of the father is not an excuse for violence or abuse.
The father’s submission is that Dr K’s evidence as to the father striking the mother in the face has to be disregarded when against the father’s definitive memory that he gave no such statement to Dr K, and Dr K has not made a detailed note of this. The Court accepts this submission.
The father stated in his oral evidence that he only ever hit the mother on her bottom on two occasions in the eight years of the relationship. He denied hitting her elsewhere other than on the bottom. He stated that these incidents happened approximately a week apart and was in 2007 whilst they were living in suburb H. He admitted that the mother cried after these incidents. He was remorseful for hitting the mother and stated that he apologised to her soon after the incidents. The Court does not excuse the father’s violence, but does accept that he is remorseful for such behaviour.
The father also admitted to Dr K that he had “lost it” and shouted, and that he threw some clothes on the floor. The father stated in his oral evidence that he and the mother had an argument about her spending money. He stated that the mother attacked him for not earning enough money for these things and he drew her attention to the fact that she had been buying expensive clothes and threw them on the ground. He denied that he was in a rage. The Court finds that the exchange does not reflect well on either party.
The father admitted that when he was much younger he had periods of time when he did not argue in a calm voice, but that he now avoids arguments. The father denied that the mother had suggested to him to get help to manage his anger.
The paternal grandmother swore an affidavit and gave evidence at the trial on behalf of the father. It was her evidence that when the mother and father were living in her house that there were not regular arguments between them. This witness impressed as truthful. Her evidence was direct and had an element of balance notwithstanding her relationship with the father.
The mother alleges that the first incident of violence occurred on 11 January 2002. She asserts that she asked the father to help her buy some groceries one morning and that he appeared to lose his temper and pulled out a medium sized pocket knife and came towards her with it.
On or about 20 February 2002, on the day of the first natal care visit, the mother alleges that she told the father she was going to keep the baby and asked how they could support the baby. She alleges that the father became infuriated and he started slamming his head and fists into the walls of her bedroom and kitchen, and refused to leave. She asserts that she called both the maternal and paternal grandmothers for help. She also asserts that she tried to call the police on her mobile telephone and that the father smashed her mobile telephone and blocked her way to the landline. The mother asserts that when the maternal and paternal grandmothers arrived that the father collapsed instantly on the floor and the paternal grandmother had to persuade him to leave. The father admits that there was an argument and to hitting the walls, but denies that he collapsed or smashed the mother’s phone. He nevertheless reacted entirely inappropriately under the circumstances.
The paternal grandmother asserts that she recalls the mother telephoning her and asking her to come because the father “is of no use to me anymore”. She denied that the mother called her for help. She stated that she suggested to the father to go see a psychologist and believes he went at least once.
The mother asserts that the father was verbally abusive about the cost of rent and utilities. She also alleges that the father pulled her hair one time when she was breastfeeding the child in their bed, and told her that the child needed to be in a cot.
The mother alleges that the father verbally abused her constantly, and often became so enraged that he would punch walls and hit his head against them. She asserts that on one occasion he tried to pry the child from her arms and pulled her away which caused the child to cry.
The mother alleges that the father continued to have angry outbursts. She alleges he would grab his hair with both hands and pull it; clench his hands into fists and clench his jaw and grind his teeth.
The mother asserts that there was an incident where the father found one of her credit card statements and had a violent outburst. She alleges he yelled and abused her and slammed his head and fists into the doors and walls. She alleges he grabbed a knife and came towards her with it and she begged for forgiveness. She alleges the father then cut himself twice on his leg. The father admits that the parties argued but denies that he came towards the mother with the knife or slamming his head into the doors and walls. The father admits that he scratched himself with the knife.
The mother asserts that the father would call her “fat and ugly” and say to her “If you don’t become Adventist you won’t be saved. You’ll be damned”. The mother asserts that she started to believe this and that she commenced lessons with two pastors from the Adventist Church who would attend her unit frequently. She asserts that she became scared of the Second Coming and Doomsday prophecies of which they spoke. The mother asserts that she agreed to be baptised as an Adventist as she was scared of the father and to go against the pastors.
The mother deposes that sometime in 2005 she asked the father for financial assistance and suggested he get a part-time job. The mother states that the father reacted violently, knocked over a wardrobe in the child’s room and tore through her toys. The mother asserts that the child was crying and standing there watching the father, and that the father hit her in the chest with his hand. The maternal grandmother came downstairs and the mother asserts that she didn’t call the police, didn’t tell the father to stop nor did she call for help, and she took the child upstairs. The mother then alleges that the father charged towards her, hit her body, threw her to the ground and knelt over her and grabbed her hand. The mother alleges the father then smashed her hand into her forehead. After about an hour the father took the mother to the Hospital Emergency where the mother had her hand checked. The father’s evidence and submission is that the mother injured her hand whilst striking his head. Exhibit 17 contains the records from the Hospital which state that the father hit the mother’s hand against his forehead. The Court notes that Exhibit 17 indicates this incident occurred on 20 January 2006.
The paternal grandmother denies ever seeing the father push the mother.
The paternal grandmother asserts that there was a time in approximately 2005 where the child went to see her because she was concerned about an argument between the mother and the father. She deposes that she heard the mother yelling and a couple of minutes later the child ran upstairs and told her that the parents were fighting. She recalls the father telling her that the mother had hurt her hand and he was taking her to the hospital.
The father alleges that during an argument in about late 2005 or early 2006 the mother jumped on to the father’s back and shouted at him, pulled his hands away from his ears and hit him on the back of the head and neck. The father deposes that the mother insisted on having the argument in the child’s presence, but that he told the child to go upstairs to the paternal grandmother.
The father asserts that sometime in 2006 the mother shouted at the father and threw plates at his head, which missed him and shattered after hitting the wall.
The mother deposes that during 2006 after moving to the SS property that the father had bouts of rage and verbal and physical abuse towards her. She states that the father would complain about the manner in which she hung the clothes on the line, the way she washed the dishes, and complain about the house not being clean enough. The mother deposes that the father would come after her whilst she had the child in her arms, and would slap her and throw drinks in her face. The mother deposes that he would also push her violently while she had the child in her arms and that on more than one occasion she fell and landed on her backside.
The maternal grandmother, Ms R (“the maternal grandmother”), swore an affidavit and gave evidence in the trial on behalf of the mother. She deposes to an incident that occurred in approximately 2005 or 2006 where the mother called her crying and asked her to come to the house. The maternal grandmother’s evidence is that when she arrived the mother’s clothes were on the floor, her books were all over the room and the chair at the desk was turned up. She states that she asked the father what he had done to her and states that he was red in the face and yelled at her, “this is none of your business”.
The mother alleges that during 2008 the father constantly verbally and physically abused her, including smacking her hard on the back and bottom, making the mother distraught, and doing so in the presence of the child.
The father admitted to Dr K to smacking the child twice when she was really young, “just a tap as a social signal”.
The father deposes that in early 2008 the child had taken the wooden spoon and other cooking utensils into her bedroom to play. He states that the mother appeared frustrated about this and hit the child repeatedly on the arms and legs and that the child began to cry. The father says that he comforted the child and told the mother not to hit the child ever again.
It is the mother’s evidence that in late 2009 the child had told her that the father hit her because she spilt some paint when she was painting a model truck. The mother asserts that the child was very upset and she told her to write down what happened, and that she discussed the incident with Dr S. The mother produced the note written by the child which became Exhibit 14 and had the date “14 October” written on it.
The mother stated that the child was crying when she told her about this incident and that she said to her, “It is okay…no one has the right to touch you because it is your body and it is not right what happened”.
The mother stated that after the child had given her the note that she did not ask her about it and did not show it to the father. She stated that she did not tell the father about this as she feared that the child might get into trouble for telling the mother that the father had hit her and that she did not want to enrage the father.
The mother also stated that she did not ask the child where she was hit or how many times, nor ask her anymore questions about the incident as she did not want to inflame the situation. The mother deposed that she did not see any bruises or markings on the child.
It was highlighted in the mother’s cross-examination that 14 October 2009 was a Wednesday and that the child had been in the mother’s care since the Sunday but had only told her of this incident a few days later. It was suggested to the mother whether it may have been possible that the child made up this incident, which the mother denied and stated that she believed what the child said.
The father asserted in his oral evidence that he does not recall the child spilling paint, smacking her or sending her to her bedroom.
The mother reports another incident when she dropped the child to the father on 30 December 2009. She asserts that whilst she was still holding the child’s hand the father pulled the child violently away from her and towards his home. She states that the child was crying and calling to her and that the father prevented her from saying goodbye to the mother. The mother reported this incident to the police. The police attended the father’s home and reported to the mother that they checked on the child and she was asleep.
The father asserts that at changeover on 30 December 2009 he had arranged to give some DVDs to the mother which she had asked for. He asserts that the parties had an argument about the DVDs and that he did not want the child to observe any tension between them so he took her inside the home.
The mother asserts that upon returning from time with the father on Sunday,

21 February 2010, that the child told her that the father had hit her twice, once at home and once at the paternal grandmother’s house. She asserts that the child said to her, “I don’t know why he did. I didn’t disobey him. I told him to stop but he didn’t”.
The mother asserts that after the child told her about the incident she contacted the Police and she also called DoCS to make a report. The mother asserts that the DoCS officer said to her, “You are doing the right thing. You shouldn’t let her go back to him. If anything else happens give us a call and quote the case number and let us know”. Two policemen attended the mother’s house and spoke to her and the child. The mother asserts that the police told her that she should get some urgent custody orders from the Court and that if the father behaves violently when the mother does not make the child available for changeover that she should call the police.
The mother’s evidence is that on Wednesday, 24 February 2010 she sent a text message to the father indicating that the child was upset about the father hitting her and that she does not want to stay with him or see him. She also told him that she had informed the Police, DoCS, the school and her solicitor, that she was going to Court and that the child was to live with her until they have a custody hearing. The mother asserts that the father then sent her two text messages and an email stating that she was in breach of their parenting agreement, that she had no right to prevent the child from seeing him, that she was emotionally abusing the child and that this behaviour is destructive to the child’s health and wellbeing.
The father denies hitting the child and asserts that he never hit her. He asserts that during the preceding week when the child was living with him he told the child two times to turn off the television which she refused to do. He then took hold of her wrist and took the television remote control out of her hands. He asserts that the child said to him, “Daddy, you hit me. Nobody is allowed to touch me”. He asserts that he said, “You were being naughty. I asked you to turn the television off and you didn’t so I took the remote control off you”. The father asserts that the child was upset and went to her room. After approximately five minutes he asserts that he took the child for a bushwalk and then to his parents’ house and played with a train set there. His evidence is that the child was happy and appeared to have forgotten the incident.
The father stated in his oral evidence that it was unreasonable for the child to tell the mother that he hit her, and that it was unreasonable for the mother to react in the way that she did.
Documents were produced under subpoena from the NSW Police Force which contained notes from the mother’s report on 21 February 2010. This material became Exhibit 2. It was put to the mother in her cross-examination that she reported to the police that she had no concern for her own welfare, and that this would have been the opportunity to tell the police that she needed protection. It was also put to the mother that the police notes do not state that the child should be removed from the father’s care, and nor do they say that the child is at risk of sexual abuse in his care. The mother admitted that this was so. It was also suggested that the police notes indicated that she had no fear of the father, which she denied.
The police notes recorded that the child did not display any signs of physical or mental abuse, that there were no immediate concerns for the mother or the child and that no further police action was required.
The police notes also recorded that the mother stated to police that she had been advised by a colleague to report all matters to police, details of which may be alleged in future custody hearings before the Family Court. It was put to the mother in cross-examination that at that point in time there were no current proceedings before the Family Court and that she had lied to the police. The mother stated that she had spoken to a family mediator who had given her a certificate to say that it was not possible to mediate because of violence. The mother stated that she could not recall whether she used the word “proceedings”.
On the following day, Thursday, 25 February 2010, the mother asserts that she received a telephone call from the Principal at the child’s school who advised her that the father contacted the school and informed them that he intended to make arrangements to collect the child that day at 3.20 pm. The mother asserts that she told the Principal that there was an issue with violence and the child’s safety and told her that they cannot let the father take her. The Principal proposed that the mother let the child go to after school care as she does every Thursday and that they work out between themselves what they are going to do. The mother collected the child early from school that day.
The father admitted to speaking to the Principal at the child’s school on Thursday, 25 February 2010. He asserts that he wanted to confirm that the child attended school that day. He asserts that the Principal telephoned him later that day and advised that the mother had removed the child from school at 2.00 pm.
The child did not see the father for approximately ten weeks from February 2010 until Orders were made by the Court in April 2010. The mother was questioned as to whether she thought that the child would have been shocked by being removed from her father’s care and might have grieved during that period. The mother stated that she did not think of this and was only concerned for her safety.
During her cross-examination the mother admitted that she did not make a report in her affidavit material of any violence or hitting of the child perpetrated by the father in 2011.
A report from the child’s psychologist Dr S dated 18 June 2010 became Exhibit 1 in the proceedings. The father accompanied the child to some sessions with Dr S. At the session on 29 May 2010, Dr S reported when he raised the issue of domestic violence towards the mother the father denied it.

The mother originally sought an order preventing both of the parents from requiring the child to attend any church service or function or religious activity. This order was omitted from her updated minute of orders filed with her submissions on 16 April 2012.
The father’s faith is a part of who the father is. It is in the Court’s view that providing that there is no element of duress that the child should be permitted to join with the father in his expression of his faith. If the child wishes to attend Church whilst in the father’s or mother’s care then that should be permitted and there will be no order preventing or prohibiting it.
The mother is originally from South America. She and her mother are able to provide some cultural enrichment from that background.
(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
This is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Dr K reported that the mother displays a strong and committed attitude to the child and to the responsibility of parenthood.
It is the mother’s submission that the father said in his evidence that he would talk to the child about long-term parenting decisions, as well as talking to the mother, and that thus his proposal for equal shared parental responsibility would keep the child central to the parenting disputes rather than remove her from them.
The mother submits that only she has invested time and energy to researching the child’s school and education matters. She states that the father, while aspiring to make parenting decisions jointly with the mother, has not made a reasonable effort to educate himself about the options.
The mother also submits that the father’s approach to parenting responsibility in relation to the child’s emotional welfare is singularly lacking in insight, and dismissive of professional opinion, and fails to acknowledge the care provided to the child by the mother, including in securing professional assistance, largely at the mother’s expense. The father submits that this is a submission not open to the mother and that the father himself has sought therapeutic intervention and that his therapist was on affidavit and not challenged. The Court notes, however, that the mother has primarily been responsible for dealing with the child’s medical needs and regrettably without input from the father as to decision making and support in money.
The mother submits that Orders that would require shared parenting decisions about the child’s health therefore would be another critical area in which the child would very likely remain the subject of dispute. The Court does not accept this as inevitable. The parties need to cooperatively parent and that process will not be assisted by not requiring them to do so. The Court will make an exception in the case of education where there has been significant difference between the parties in the past.
Orders were made on 23 June 2010 by Judicial Registrar Loughnan (as he was then) for the parties to participate in a parenting course. The Court notes that the mother had not complied with this Order and she asserts that the times of the courses were not suitable to her and her work schedule.
The mother submitted that she gave evidence that she had attempted to arrange her participation in such a course, but had encountered practical difficulties about doing so on the days and times offered by the course providers. The Court is not satisfied that the mother pursued the opportunities to comply with the Order made and thereby demonstrated an attitude to the Court’s order and the responsibilities of parenting which was inappropriate.
The mother however stated in her oral evidence that she was now enrolled in a Parenting After Separation course with Unifam and was due to start the week after the trial finished. A copy of her Certificate for completion of this course was filed together with her submissions on 16 April 2012. The Court notes her compliance, albeit somewhat belatedly with its Order.
The conduct of the mother has not been perfect in relation to the exercise of her parental responsibilities but again the father is not without some defects in this regard, including his violence to the mother as set out hereafter. Conflict between parents in the presence of a child is not a demonstration of proper parenting.
(j)any family violence involving the child or a member of the child’s family
The evidence outlined above suggests that the child was exposed to family violence prior to separation, and this is Dr K’s view also. Dr K states that the violence involved a lot of shouting arguments between the parents, and some physical violence and melodramatic threats of violence to self from the father, and perhaps some violence from the mother to the father. Dr K stated that the experience of this family violence has likely contributed to the child’s anxiety disorder and to her parentified stance towards the adults in her life.
Dr K made recommendations that each party agree not to use any physical discipline. The Court will make an Order to this effect.
It was put to Dr K by counsel for the father in cross-examination that there was a lack of evidence as to the alleged violence that occurred during the marriage, and that there may be a level of untruth in what the mother is saying and the possibility of exaggeration. Dr K accepted that could be a possibility.
The mother’s submission is that Dr K was not persuaded away from his assessment about violence in the parental relationship merely because the mother had not complained about the father’s behaviour to police. It is submitted that Dr K agreed that while there was more often evidence of injury and police involvement in relation to allegations of family violence, he observed also that often the violent nature of a party is not seen outside the intimate relationship.
The mother also submits that Dr K stated in his cross-examination that whatever were the physical actions by the father against the mother, they had a similar purpose, which was to “wake the mother up to herself”, without understanding that the mother may have experienced those actions “quite differently”.
Dr K noted in his report that the father’s disciplinary rule in relation to the child was that he would “praise publicly, reprimand privately”.
The mother submits that Dr K did not agree with the proposition of the father’s counsel that the mother had exaggerated the father’s violence. He noted that the mother had referred to the abusive relationship in discussions with her clinical psychologist Dr M in 2009, and did not raise allegations as an “afterthought”.
The mother submits that the fact that she did not report that the father had hit her, other than to a Hospital in April 2005, is consistent with her evidence that she felt compelled to obey him. She submits that it is also consistent with Dr K’s assessment that the mother turned her anxiety inwards into “ruminating on and seeking to meet the father’s idealistic and controlling expectations, thus unwittingly colluding with that control agenda”.
The mother’s submission is that the father, in his comments to Dr K and in his oral evidence, has sought to diminish and minimise the true nature and impact of his behaviour. One thing is certain, that the admitted behaviour is seen quite differently by each of the mother and the father and that may involve both elements of exaggeration and minimisation.
The mother’s submission is that the evidence of the father’s behaviour, taken as a whole, would lead the Court to conclude that viewed objectively, his actions would cause a female person of the mother’s build, and in that domestic situation, reasonably to fear, or reasonably to be apprehensive about, her personal well-being or safety. It is submitted that such behaviour is clearly within the definition of family violence in s 4 of the Act. The Court accepts that the violence as described is within the definition.
The mother also submits that the presumption of equal shared parental responsibility should not apply, even if the Court determines that there is no family violence, as it would not be in the child’s best interests. In the circumstances of this case the Court has come to a different view given inter alia the evidence of Dr K as to the environment in which it occurred.
In his submissions the father denies the allegations made by the mother. He submits that the mother does not bring any objective evidence in support of her claims other than her reporting to a hospital her hand had been hurt when the father caused her to hit her head with her own hand. The father asserts that she hit him in the head. He submits that Exhibit 2, being the mother’s admission to police that she was not fearful of the father five months after separation, is corroborative of the father’s denials.
It is the father’s submission that the lack of evidence from institutions such as hospitals and/or the police means that the Court is simply left with the mother’s assertions of violence. He submits that it would seem no one in the wider community finds the father, nor those close to him, to have the personality as described by the mother. The father’s own admissions give verisimilitude to some at least of the mother’s assertions of violence.
It is the father’s case that the mother is a person of violent disposition, with particular references made to Exhibit 8, the father’s statement dated 5 March 2012. He deposes in this statement at paragraph 2.3.2 that the mother told him he would have to kill his parents otherwise they could not be together. He also refers to paragraphs 5 and 6 of the statement where he deposes that on two occasions during 2008 the mother screamed in his face, “You are worthless, you are not providing for [the child], you are a terrible husband and a terrible father”. This was not a relationship made in heaven and as the parties’ happiness dissolved and they descended into the mire of dispute, argument, disrespect and lack of trust there were no doubt examples of reaction to the situation in which they found themselves. The Court finds that the probability is that each of them was responsible for some violence toward the other be that verbal, physical or psychological violence.
The Court also has doubts about the truthfulness of all of the mother’s evidence given the discrepancies in her evidence and that contained in the police reports. The Court notes the view of Dr K that the discord and violence had a contextual base which no longer exists.
The Court does not excuse the father’s conduct but notes the attitude of the father in conceding wrong behaviour and finds his expression of remorse for it to be genuine. It is noted that there are no assertions of any such behaviour in 2011 or currently.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of any such order.
(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
It is always undesirable for children to be the subject of litigation between parents, and it is evident in this matter that there have been significant effects on the child as a result of this litigation.
The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do in such circumstances where the mother has sought to restrict the child from seeing her father regularly.
The Orders provide for a graduated increase in time between the father and the child which Orders will reflect the child’s wishes and maintain a regime which the Court sees as being one which should serve the child’s needs during her minority.
(m)any other fact or circumstance that the court thinks is relevant
The child is currently in counselling with Ms L. Ms L reported to Dr K that they are in a maintenance phase with appointments every six weeks. Ms L reported that the child had improved in self-confidence, in speaking up. Ms L said that previously the child had anxiety, low self-confidence, would not speak up to express her own feelings or to advocate for herself.
Dr K stated that the most important factor for the medium to long-term management of the child’s anxiety will be each parent moving forward positively with their individual new lives, aided by a positive resolution of the current conflict around family law matters.
In his view, Dr K stated that the individual and parenting therapy treatment has been appropriate, focussed on both child and parent growing in understanding of anxiety and other emotion, and the child becoming “brave”, that is facing her fears in a graded way, gaining mastery and self-esteem.
Dr K stated that a vital element of treatment has been each parent addressing their own mental health difficulties, which provides a context for the child to recover.
In his oral evidence Dr K stated that therapy is about goal setting and insight, and stated that he would not want the child to continue unless she needed it, and to limit it to be about four appointments in two years.
Dr K made recommendations for both the father and the mother to continue to see their individual therapists for the next two years at a frequency recommended by that therapist, and that a copy of his report be provided to these therapists.
Dr K also made recommendations that the child and mother continue to see her therapist for the next two years at a frequency recommended by the therapist. He recommended that the father see either a separate therapist at

KC practice or Ms F alone for parenting work and with the child for the next two years as recommended by the therapist. Dr K recommended that these two therapists be given permission to talk to each other and that they be given a copy of his report.
In his submissions the father opposes the child further seeing Ms L but is agreeable to another therapist being recommended by Dr K. He submits that the mother’s interference and the acceptance by Ms L of that interference make the counselling for the child with Ms L problematic. The Court will make such an Order for Dr K to recommend a therapist for the child. The Court finds it not helpful for such therapy to be lacking in acceptance by both parents.
The father also opposed Orders 24, 25 and 26 of the Independent Children’s Lawyer, stating that this concept was not discussed with Dr K and that there are no submissions supporting it or evidence. These Orders provide for the therapists of each of the parents to communicate with each other, and for the child’s therapist to communicate with each of the parents’ therapists.
It is the Court’s view that Dr K’s recommendation is interpreted as meaning that the child’s therapist communicate with each of the parents’ therapists.
As part of the recommendations of Dr K the Court will make Orders for the parties to authorise the therapist or psychologist who may treat the child to speak and to freely exchange information with both Dr M and Ms F or any other psychologist, therapist or counsellor providing treatment to either of the parents from time to time about the child.
It is the Court’s view that this will ensure that there is effective communication between the therapist treating the child and each of the parents’ therapists about matters relating to the way in which positive child/parent interaction can be maximised and facilitated.
The father makes submissions that there are issues in the relationship between the mother and Mr V. He submits that Exhibit 6, comprising notes which were produced in answer to a subpoena by Dr M involving the mother and therapy indicate that the mother and Mr V have fundamental issues within their relationship which include the mother’s desire to marry and have more children, which Mr V does not wish to do. The father submits that

Dr K indicated in cross-examination that there were fundamental issues in the mother's relationship after reading those notes. The father also submits that the Independent Children’s Lawyer made no comment as to the long-term relationship between the mother and Mr V notwithstanding the fundamental issues that exist in their relationship and the failure by the mother to be able to cause Mr V to give evidence raises a question over their relationship.
Interpersonal relationships and their maintenance or dissolution are a fact of life. It is not in the Court’s view a submission which has much relevance at this time. The Court will order that the child primarily live with the mother. She has her relationship with Mr V as part of her life and there is no certainty that it will either continue or fail. The same can be said for the relationship between the father and his partner.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
A consideration of the evidence shows that neither parent has behaved in an exemplary fashion since separation. Mutual antagonism, disrespect and misunderstanding have been evident in relation to changeovers.
A consideration of the evidence suggests that the father had made many attempts to participate in making decisions about the child’s schooling and medical issues.
The evidence suggests that the mother has lacked the willingness and has failed to facilitate the father’s involvement and participation in particular with the child’s educational and medical issues.
The father has also demonstrated willingness and has embraced all opportunities to spend time with and communicate with the child.
A consideration of the evidence suggests that the mother lacks the willingness and has failed to facilitate the father spending more time with and communicating with the child. The mother has shown an improvement over time and throughout the proceedings to encourage this relationship and amended her minute of orders to reflect her acceptance that the child should spend more time with the father.
The mother submits that attribution of blame for post-separation difficulties entirely to the mother would be unwarranted. The Court agrees. She also submits that her reactions are explained as being founded in her fear of what the father might do.
The Court has had regard to the circumstances which have arisen since separation has occurred including those set out in this judgement.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in s 60CC and the evidence recited in these reasons I conclude that the Orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for her parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case the mother seeks sole parental responsibility for the child and the father seeks equal shared parental responsibility.

It was Dr K’s recommendation that the mother and father make a good faith attempt to consult with each other and endeavour to reach agreement about major long-term decisions in relation to the education, health and religion of the child.
Dr K also recommended that the father be appropriately informed about educational and medical matters in the child’s life, for example receiving copies of school reports, and that he be given adequate notice of and be free to attend relevant functions such as school assemblies, or sporting events. The Court will make Orders to this effect.
The father submits that there is nothing to indicate that there should not be a finding that the parents have equal shared parental responsibility.
The mother seeks orders for her to have sole parental responsibility for the child, but with obligations to consult the father before making decisions, and advise him about the parenting decisions she has made.
The Independent Children’s Lawyer seeks that the parents have equal shared parental responsibility and that there be orders that clearly define the nature and responsibilities each parent has for such matters.
There has been a capacity for the parties to agree in the past. It is the view of the Court that on the finalisation of these proceedings that capacity can be reborn. However, it is important that there be as little opportunity for disagreement as possible in the interests of the child. It is therefore proposed that there will be a limitation on the decision making in relation to schooling only. In short, there will be a need for consultation and mediation but in the event that it is unsuccessful the mother will have the right to make the decision.
It is hoped that the parties will avail themselves of the opportunity to behave in a way which recognises the importance of each of them in the shaping of the child’s future.
It is not proposed that otherwise there be other than an equal shared parental responsibility Order and the Court finds that it is in the best interest of this child that her parents are required to change their attitude and conduct and cooperate in her parenting. The Court has some confidence that the effect of these proceedings on the parties will provide a disincentive to do otherwise.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The father submits that each of the parties should have substantial and significant time with the child and it is conceded that an equal shared care arrangement would not be appropriate for the child.
Dr K recommended that the father build up in a graded way to substantial and regular contact, but well less than fifty per cent of the time, using the example as every second weekend and half of the holidays. He recommended that it is best for the child as she grows up to minimise the number of handovers, and if pragmatics allow, for handovers to be to and from school rather than requiring arrangements between parents.
The Order I propose to make will not afford the parties close to equal shared time with the child but will provide substantial time with the father as time passes and I find that to be in her interest and in accord with the expressed wishes of the child.
The Orders proposed to be made will provide a gradation in extension of time with the father so that the parties can have a finalised basis for the development of a new approach to cooperative parenting by the end of this year.

The Orders to be made

The Court therefore proposes to make the Orders in relation to parenting as set forth above which it finds are in the best interests of this child.

I certify that the preceding four-hundred and twenty-one (421) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 29 May 2012.

Associate:

Date: 29 May 2012

[2012] FamCA 394

29 May 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

Injunction

Procedural Fairness