Morris and Somers

FAMILY COURT OF AUSTRALIA

MORRIS & SOMERS

[2016] FamCA 808

FAMILY LAW – CHILDREN – Best Interests – Where there is one child who is 11 years of age – Where the child has lived primarily with the mother but where arrangements for the child have been inconsistent and varied – Where there are competing claims for sole parental responsibility and residence – Where both parents propose that the child spend no time with the other parent – Where the child has been exposed to family violence – Where there has been family violence between the mother and the father and between the mother and her new husband – Where the mother has a history of serious mental health issues – Where the child is attached to both parents – Where it is not practicable to require or allow the parents to share parental responsibility – Orders made for the father to have sole parental responsibility – Orders made for the child to live with the father and spend no time with the mother unless agreed to in writing.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
Champness & Hanson (2009) FLC 93-407 McCall & Clark (2009) FLC 93-405

APPLICANT:

Ms Morris

RESPONDENT:

Mr Somers

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

745

2009

DATE DELIVERED:

8 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

30 November – 3 December 2015

REPRESENTATION

APPLICANT MOTHER	In Person
COUNSEL FOR THE RESPONDENT:	Mr Fermanis

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The father shall have sole parental responsibility for the child B (“the child”), born … 2004.
The father shall provide the mother with timely notice of any major long term decisions to be made by him in relation to the child and of the ultimate decisions made.
B shall live with the father.
Except as may be agreed between the parents in writing, the child shall spend no time with the mother.
Except as is provided in Order 6 or as may be agreed between the parents in writing, the mother shall have no communication with the child.
The mother is at liberty to forward letters, cards and gifts to the child by mail to the father’s home address.
The father shall ensure that any letters, cards or gifts received for the child from the mother are passed on to the child provided that the father considers them to be appropriate.
The mother is authorised to obtain at her expense from any school at which the child is enrolled, the following:
(a)       A copy of the child’s school reports;
(b)       A copy of any general school newsletters;
(c)       A copy of any school photograph order forms.
The father shall use his best endeavours to ensure that the mother is advised of any change in the child’s school.
The father shall use his best endeavours to advise the mother as soon as practicable in the event that the child is hospitalised or suffers any major illness or injury.
The father shall use his best endeavours to advise the mother as soon as practicable in the event of any change in the child’s residential address.
The father shall ensure that the child continues to attend counselling with Dr C or another therapist as requested by that therapist in accordance with the arrangements made and under the conditions specified by the orders of 3 December 2015.
The father has leave to provide a sealed copy of these orders to the child’s current school and any future school attended by the child.
The mother has leave to provide to any treating psychiatrist consulted by her, with:
(a) A sealed copy of these orders;
(b)A copy of the reasons for judgment published on the date of these orders;
(c)A copy of Associate Professor D’s reports dated 29 January 2010, 11 June 2013 and 18 November 2015.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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.
The Registry is requested to forward a copy of the reasons for judgment in these proceedings to the Department of Family and Community Services in relation to the child J born … 2012.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and to each other, in relation to the wording of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morris & Somers 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: SYC745 of 2009

Ms Morris

Applicant

And

Mr Somers

Respondent

And

Legal Aid New South Wales

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings about B (the child), who is 11 years of age. The dispute between his parents involves competing claims for sole parental responsibility and for residence. Each of the parents proposes that the child spend no time with the other parent. The important issues in the proceedings involve the risks for the child arising from mental health issues for the mother and substance abuse, anger management and violence associated with each of the parents.

Applications

The orders sought by the mother were to the following effect:
·That the mother have sole parental responsibility for the child B, born in 2004;
·That the child live with the mother and spend no time with the father;
·That the mother not be required to provide her residential address to the father;
·That the father be restrained from approaching the child or the mother.
Although the Case Outline submitted in the father’s case for the commencement of the trial sought different orders, ultimately the father sought orders in similar terms to those sought by the Independent Children’s Lawyer (“ICL”).
The ICL’s proposals were set out in a minute[1] submitted during final submissions and as to final relief, were to the following effect:
[1] Exhibit 20
·That the father have sole parental responsibility for the child and that the child live with him and spend no time with the mother.
·That the mother be at liberty to forward letters, cards and gifts to the child by post to the father’s address but that otherwise, she have no communication with the child.
·That the mother be at liberty to obtain information from the child’s school.
·That the father tell the mother of any change of the child’s school, of the child being hospitalised or otherwise suffering any major illness or injury or of any change of the child’s residential address.
·That the father arrange for counselling for the child with Dr C to support the child in relation to parenting arrangements and obtain Mental Health Care Plans for himself and the child to support that counselling.
·That it be noted that the mother may apply to vary the orders if she has evidence of a material change in her circumstances, including (but not limited to) the following:
oThat the mother has engaged with a psychiatrist in the terms recommended by Associate Professor D in her report of 18 November 2015 for at least six months;
oThe mother has maintained stable housing for at least 12 months;
oThat the mother and Mr H have engaged in relationship counselling;
oThat there has been no family violence between the mother and Mr H for at least 12 months.

Written Evidence

The applicant relied on:
·Affidavit of the mother filed 29 April 2010
·Affidavit of the mother filed 22 November 2011
·Affidavit of the mother filed 20 December 2011
·Affidavit of the mother filed 29 February 2012
·Affidavit of the mother filed 17 April 2012
·Affidavit of the mother filed 24 February 2015
·Affidavit of Mr H filed 29 February 2012
·Proof of evidence of Mr H adopted on 30 November 2015
·Affidavit of Ms F filed 30 March 2009
·Affidavit of Ms F filed 12 May 2010
·Affidavit of Ms E filed 26 March 2009
·Affidavit of Mr G filed 1 April 2009
At the commencement of the trial the mother indicated that she only relied on her most recent affidavit. However, at the conclusion of the trial the mother indicated that she relied on all of the affidavits filed in her case since 2010. Ultimately there was no objection to that change, albeit that it occurred after the close of the mother’s case.
The father relied on his affidavit filed 20 October 2015.

Expert Evidence

The expert evidence was that of the single expert forensic psychiatrist, Associate Professor D. Her reports were dated 29 January 2010, 11 June 2013 and 18 November 2015.

The Hearing

The trial was listed for four days commencing on 30 November 2015.
For reasons given on 23 November 2015, orders were made on that day peremptorily placing the child with the father and suspending any time with the mother until the close of business on 30 November 2015.
At the trial the father and the ICL had legal representation and the mother represented herself. On the first day it was necessary to deal with an issue about the living arrangements for the child over the course of the trial. The father and the ICL sought that the orders of 23 November 2015 continue until the end of the trial, being 3 December 2015. The mother opposed the continuation of those orders. After taking some evidence in chief from the mother and her husband, Mr H and for reasons given on the day, orders were made in the same terms as the orders of 23 November 2015 but extending their operation until 8.00 pm on Thursday 3 December 2015. Under those orders, during the trial the child continued to live with the father and had no time with the mother.
The mother was late to Court on 1 December 2015. She said that she and Mr H were involved in a car accident on the way to Court. As a result, hearing time was lost that day. When they arrived at Court, the mother and her husband both appeared shaken but agreed to continue with their roles in the hearing. On 2 December 2015 the mother tendered a medical certificate indicating among other things that she was “unfit for work” until 4 December 2015.[2] Despite that certificate the mother said that she would proceed with the trial and so she did. With time lost on both 30 November and 1 December it was necessary to impose restrictions on the time allocated for each phase of the trial. I should also record, however, that the parties and legal representatives cooperated with the revised trial plan, allowing the trial to conclude on 3 December 2015.
[2] Exhibit 5
It is important to note that because the mother represented herself at the trial she was at a significant disadvantage. That is not to say that learned counsel for the father or the advocate for the ICL took advantage of the mother’s difficulties. Indeed, to my observation and without derogating from his obligations to the Court and to his client, the father’s counsel took a practical and cooperative approach to objections, cross-examination and submissions. For example, he gave up time allocated for his submissions, to allow the mother additional time for her submissions. The advocate for the ICL was patient, helpful and professional despite some very excitable and uncooperative behaviour by the mother and at times, unfair criticism of her from the mother.
It is an agreed fact that the mother has poor mental health. Dr D opined that the issues were in the nature of Bipolar Disorder or a severe Borderline Personality Disorder. The mother rejected that opinion but said she believed that she suffers from Post Traumatic Stress Disorder. Perhaps as a symptom of one of those disorders, the mother was unable to consistently follow directions from the bench and much of the process of cross-examination (both when she was cross-examined and when she cross-examined others) and her submissions were in the form of uncontained diatribes or impassioned speeches. When challenged by objection or directly from the bench, rather than trying to correct the problem so as to ventilate the intended subject in cross-examination or submissions, the mother often went on to a new topic.
At the conclusion of the trial on 3 December 2015 the following orders were made:
1.Orders are made in the terms of paragraphs 1 to 13 under the heading Interim Orders in the document titled “Orders Proposed By ICL” (Exhibit 20 dated 3 December 2015), as set out hereunder:
1.That, until further Order of this Court, the child, [B], born … 2004, live with the father.
2.That, until further Order of this Court, [the child] is to spend supervised time with the mother as follows:
a.The time is to be supervised by Connecting Families;
b.The time is to occur on one occasion prior to Christmas Day 2015 for a period of 2 hours;
c.The father is to pay the cost of supervision on the occasion referred to in Order 2(b);
d.The Court NOTES that the father agrees to [the child] spending time with his mother after Christmas 2015, on one occasion each calendar month for a period of 2 hours, supervised by Connecting Families, and agrees to pay the cost of such supervision, provided that there are no significant concerns reported by the supervisor after the time spent in December 2015.
3.That the mother be at liberty to forward letters, cards and gifts to [the child] by mail to the father’s home address.
4.That the father ensure that any letters, cards or gifts received for the child from the mother are passed on to the child provided that the father considers them to be appropriate.
5.That the father forthwith contact [Dr C], Psychologist, or such other therapist recommended by the Independent Children’s Lawyer, and make the earliest available appointment with [Dr C] for counselling to support [the child] in relation to the current parenting arrangements.
6.That the father forthwith obtain a Mental Health Care Plan for himself and [the child] so as to be entitled to the Medicare rebate in respect of [Dr C’s] fees.
7.That the father be responsible for payment of [Dr C’s] fees, subject to any Medicare rebate.
8.That the father ensure that the child attends counselling with [Dr C] as requested by her.
9.That the father attend any counselling sessions with [the child] (or alone) as requested by [Dr C].
10.That the father follow all reasonable directions made by [Dr C] for the purposes of assisting and supporting the child.
11.That the Independent Children’s Lawyer have leave to provide to [Dr C]:
a.A sealed copy of these Interim Orders.
b.A copy of [A/Prof D’s] reports dated 29 January 2010, 11 June 2013 and 18 November 2015.
12.That the counselling conducted by [Dr C] pursuant to these Orders shall be confidential and unreportable, expect that the Independent Children’s Lawyer may have discussions with [Dr C] from time to time in relation to the progress of counselling and any recommendations Dr C may have.
13.The Court NOTES that [Dr C] may communicate with the mother if [Dr C] considers it beneficial to her the child’s treatment.
2.Until further order the mother be restrained from attending at any school which the child, [B] is enrolled.
3.Otherwise judgment is reserved.
Reasons for those further interim orders were published on 8 December 2015.
On 14 April 2016 the ICL gave notice to the Court and the parents of her request that the proceedings be relisted in relation to machinery orders to give effect to the mother’s supervised time with the child under order 2 made on 3 December 2015. As a result the matter was listed on 21 April 2016 with notice being given to all parties on 19 April 2016. The parties were also advised that unless otherwise ordered, judgment would be delivered in the final parenting proceedings on 21 April 2016.
On 21 April 2016 the mother appeared in person and the father and the ICL were legally represented. The mother was very upset when she addressed the Court but I ultimately understood from her that she sought that the ICL be removed from the proceedings; that I be recused and presumably only in the event that I was not recused, that the mother be permitted to re-open her case prior to the delivery of judgment in order to address three categories of matters:
i.that the mother was not provided with any notice or adequate notice of the orders sought by the father in the substantive proceedings, was not served with the affidavit relied on by him and in any event, that affidavit was filed outside the terms of directions made for the filing of the parents’ evidence;
ii.that the Court and the single expert did not read all of the affidavits relied on by the mother, being every affidavit filed by her since 2009; and
iii.that since the conclusion of the trial there have been significant changes in the circumstances of the mother that would bear on the outcome of the proceedings.
The mother said that she anticipated instructing a barrister to act for her in relation to those issues and by arrangement with the parties and the chambers of that barrister, 20 June 2016 was identified as a suitable date for hearing any application filed in relation to those issues.
As to the issue that caused the ICL to restore the matter to the list, it was conceded on behalf of the father that he had not completed and forwarded the intake form for the supervising agency until 20 April 2016. Ultimately there was an agreement to an order proposed by the ICL seeking to address the timely commencement of the supervised sessions. The mother and the ICL also agreed, subject to the availability of the agency and the consent of the father, to the sessions under order 2 of 3 December 2015 being extended from two hours to three hours.
As a result of those matters, on 21 April 2016 the following orders were made:
1. The proceedings are adjourned to 20 June 2016 for the purpose of hearing any application filed and served on behalf of the mother by the close of business on 6 June 2016, being an application seeking that:
i.the trial judge be recused; and in the alternative
ii.the wife be permitted to re-open her case in the proceedings which were the subject of a final hearing conducted on 30 November to 3 December 2015 inclusive; and in any event
iii.the ICL be removed
2.The father shall file and serve any response to such an application by the close of business on 15 June 2016.
3.The Court Noted that:
i.delivery of judgment in the substantive proceedings will be deferred to a date to be nominated after the determination of any application filed by the mother pursuant to order 1; and
ii.in relation to the mother’s supervised sessions with the child pursuant to order 2 made on 3 December 2015, the father did not complete the required intake form and forward it to the supervising agency until 20 April 2016.
4.By consent an order is made in terms of exhibit 1, as set out hereunder:
That each party as soon as practicable do all acts and things necessary including signing all documents and engaging in all intake procedures to enable time between the mother and the child to occur in accordance with order 2 of the orders made on 3 December 2015.
5.By consent of the mother and the ICL but subject to the availability of the supervising agency and the written consent of the father, the mother’s sessions with the child pursuant to order 2 of 3 December 2015 shall be extended to 3 hours on each occasion.
6.While the proceedings remain part-heard, any application filed by either party seeking that the other be dealt with for a contravention of orders is to be heard by a judge other than Justice Loughnan.

By 20 June 2016 no application had been filed by the mother and on that day her counsel informed the Court that no application would be made by her for recusal or to discharge the ICL. However, an oral application was made on behalf of the mother for permission to re-open the mother’s case in these proceedings. That application was heard and judgment was reserved. On the date of judgment in these proceedings, that application was dismissed and reasons for judgment were published in relation to that decision.

Short history

The mother was born in 1974 and at the time of the trial was approaching 41 years of age. The father was born in 1979 and at the time of the trial was 36 years of age. They commenced their relationship in 2002 and started living together in 2003. They were married in 2004 and separated in 2007. B was born in 2004 and he is the only child of the parents’ relationship.
On 25 January 2012 the mother married Mr H. They have a son J who was born in 2012 and is three years of age. Mr H has an older son, K who is about the child’s age.

Credibility and Submissions

The mother was a poor witness. She was often unresponsive and most of the time was unable to contain her answers to the question asked. Despite numerous warnings the mother persisted in making a speech after most questions. The mother’s initial response to questions in cross-examination was often to reject a proposition put to her even though her ultimate answer to the question was “yes”. For example, one of the first questions asked of the mother was whether she sought orders for the father to have no time with the child because she considered that the child was at risk in the father’s care. The mother answered “No” and went on to speak about the process that she understood the Court would go through to consider what was in the child’s best interests. She then said something to the effect that, of course the child was at risk in the father’s care.
In my opinion, the mother consistently understated any circumstances that she thought might be seen to disadvantage her parenting case. On the other hand it is likely that the mother exaggerated other aspects of her evidence. In the latter regard, for example, the mother said that on 18 August 2013 at her home, 13 police officers jumped on her and assaulted her, leaving her with a broken nose, a broken finger or fingers, two black eyes, broken ribs and bruising. I have set out the evidence about that incident later in these reasons and there is no doubt that the mother was physically restrained by police and taken into custody. However, the police record does not support the mother’s claims about an unprovoked assault and it seems unlikely for example, that 13 officers could have physically intervened with the mother at the same time. In the latter regard, the Computerised Operational Policing System (“COPS”) entry suggests that at one point, four officers restrained the mother. I was taken to no medical records to verify the extent claimed by the mother of her injuries. In any event the mother took no action against the police and so the incident was never ventilated before a Court or other tribunal.
Given that the instability of the child’s accommodation and schooling arrangements while living mainly with the mother is an important issue in the proceedings, it was of concern that the mother said that she could not recall how many residences she had lived in over the six months immediately prior to the trial. If the mother was candid in this regard, that suggests that her memory is significantly compromised.
Mr H conceded that he does not have a good memory. He was therefore hampered in addressing historical events. As with the mother, Mr H asserted that the police overreacted and misreported events at premises occupied by the mother and him. There were inconsistencies in Mr H’s evidence. For example he explained that the internal doors at one set of premises occupied by the mother and him were so flimsy (“made of cardboard”) that he was able to accidentally put a hole the size of a basketball, in a door with his fist. On the other hand he contended that when there were arguments between him and the mother and the police were called, the children were asleep and were not disturbed by the noise. It seems unlikely that the internal structure of the premises was both flimsy and soundproof.
It is likely that Mr H understated the reasons for his attendance at a six week residential counselling and detox course with a rehabilitation centre. I understand the proposed rehabilitation centre to be a Christian based, not-for-profit organisation providing long term residential treatment and rehabilitation services for young men wanting to overcome addiction and other life controlling issues. Mr H initially recalled that he had attended the course in late 2014 but ultimately said that he undertook that course in about March 2015.
The father presented as very subdued and controlled during cross-examination. He did not resile from any significant aspect of his testimony and was not otherwise successfully challenged about any issue. However, his cross-examination left me with serious doubts about him being truthful as to some aspects of his conduct over the years. For example, he was somewhat coy about the nature of the accommodation of his girlfriend, Ms L at the M University, accommodation shared with him and the child on occasions. The father ultimately conceded that it was shared student accommodation. Of greater moment, he gave a complete denial when the mother cross-examined him about any current or past use of illicit drugs. However, in that regard his counsel did not challenge the evidence of Mr G about the father’s intensive past drug use. The father did not concede that there was anything wrong with his behaviour at N Hospital when, employed at the hospital, he interrupted hospital staff interviewing the mother in January 2009, presumably as part of a mental health assessment. Finally, it was of concern that the father did not call evidence from any corroborating witness. For example, he has lived at the same address as his parents for many years and they were presumably in a unique position to rebut key aspects of the mother’s case against the father and to corroborate elements of his evidence. I raised this issue with the father’s counsel during the trial and I am entitled to assume that their evidence would not have assisted his case.
Mr G was called to give evidence in the mother’s case. He said that he had not seen the father since 2009. He was therefore not in a position to assist with probative evidence about events since then. However, Mr G was not challenged about his evidence, including evidence about very extensive and intensive drug use by the father in the past.
Ms F and Ms E were not required for cross-examination. Given the time constraints imposed on the parties, I cannot and told the parties that I would not, draw any inference adverse to the father’s case from that fact alone.
Associate Professor D gave evidence as a single expert and her credit is not in issue.

Background Facts

The parents commenced a relationship in 2002, started living together in 2003, and they were married in 2004.
B was born in 2004.
When the child was approximately 12 months old the parents became concerned that his speech and motor skills were delayed.
The parents separated in 2007. It is the mother’s evidence that the father was removed from the home by police due to domestic violence. The father denied this and stated that he left on his own accord after numerous allegations of domestic violence and associated police attendances. I was not taken to any independent evidence that would assist in resolving this dispute.
After separation, the mother deposed that she and the child stayed at a women and children’s refuge and then moved into a unit in Suburb O. It was the mother’s evidence that after separating from the father, she felt that she should offer to take the child to see him. She said that she soon realised that the father was using illicit drugs. In addition, she found the father to be unreliable. Nevertheless, the child commenced spending time with the father as arranged, which was generally for three nights each week.
The father had a motor bike accident on 20 December 2007. More evidence about that incident will be set out later in these reasons. The mother deposed that after the accident she assisted the father to find accommodation. I gather that the accommodation was at a farm at Suburb P.
In April 2008 the child was seen by the Child Development Unit at Q Hospital. On the history given and observations made, it was concluded, among other findings that “B demonstrated qualitative impairment in social interaction, communication and behaviour consistent with a DSM-IV diagnosis of autism.”
The mother researched, sourced and engaged therapy for the child and she worked intensively with him. There has been a significant improvement in the child.
The mother was admitted to N Hospital from 3-5 January 2009. The child was cared for by the paternal grandmother.
On 12 February 2009 the mother made an application to the Federal Magistrates Court for the father’s time with the child to be supervised.
On 4 March 2009 the parties attended the Court and entered into interim consent orders which included an order for the father to undertake urinalysis testing. The father gave samples on 19 and 23 March 2009, and in both cases the screens were clear.
In April 2009 the father commenced spending supervised time with the child at Relationships Australia Children’s Contact Service at Suburb R.
In May 2009 the father commenced a relationship with Ms S.
The father’s time with the child ceased in September 2009 when contact was cancelled by Relationships Australia.
On 8 December 2009 the parties attended upon Dr D for the purposes of the preparation of an expert’s report. This was the first contact between the father and the child since contact was cancelled.
On 3 February 2010 the parenting proceedings were concluded when Federal Magistrate Walker made final parenting orders by consent. The orders provided for the child to live with the mother and for the father to spend increasing periods of time with the child throughout school terms on weekdays and weekends, as well as school holidays and special occasions. It is the mother’s evidence before me that she was bullied by her lawyers to agree to those orders and that she told the Federal Magistrate that she did not agree to them. Importantly, I do not accept the mother’s evidence on this issue. The fact that orders were made and were expressed to be by consent, means that the Court was told that the proposed orders were agreed and that the mother did not communicate to the Court that she did not consent to the orders. The question of consent is of fundamental importance in respect of Court orders and I do not accept that the learned Federal Magistrate would have recorded the orders as being by consent if she was told or had any indication to the contrary.
After two to three weeks the parents first agreed to informal variations in the ordered arrangements. For example, on the weekend of 27 March 2010 the child stayed with the father for the whole weekend.
In approximately March 2010, the child was assessed by NSW Health psychologist Ms T who reported that in her opinion, the child no longer met the criteria for a diagnosis of autism.
On 8 April 2010 the mother gave a statutory declaration to Suburb U police. She declared that on 29 March 2010 the father rang and abused her and later threatened to drown her and then threatened to kill her. The mother declared that on 30 March she moved out of her home to a safe location, moving back to her home on 6 April 2010.
On 28 April 2010 an interim Apprehended Violence Order (“AVO”) was granted against the father for the protection of the mother and the child. The AVO restrained the father from assaulting, molesting, harassing, threatening, intimidating or stalking them. The father was restrained from approaching the child’s school save insofar as he was complying with the current parenting orders. The AVO proceedings were listed for hearing on 13 July 2010.
On 29 April 2010 these proceedings were commenced when the mother filed an Initiating Application in this Court. The Initiating Application included an application for urgent interim relief which came before the Court on 30 April 2010. On 30 April 2010 the mother was represented, the ICL in the just completed proceedings in the Federal Magistrate’s Court appeared as a friend of the court and the father briefly attended by telephone. Directions were made for the father to file responding material and for the restoration of the ICL’s appointment. The proceedings were adjourned to 12 May 2010 and until then, the father’s time with the child was suspended.
On 12 May 2010 the proceedings were further adjourned to 6 July 2010 and the suspension of the father’s time with the child was continued until that date. The Court noted that the father would endeavour to commence an anger management course as soon as practicable.
On 6 July 2010, the father’s time with the child was ordered to resume by way of variation in relation to school holiday time. In the July 2010 school holidays the father spent four nights with the child.
On 18 September 2010 the parents’ divorce became final.
On 24 August 2011 the proceedings were transferred to the Federal Magistrates Court.
On 16 November 2011 orders were made requiring the return of the child to the mother and the resumption of the orders of 3 February 2010.
On 22 November 2011 an AVO sought against the mother was dismissed at Suburb O Local Court.
Also on 22 November 2011, the parties attended at the Family Law Courts Registry in Sydney. There was a physical struggle over the child in the Registry. The mother suffered bruising and an injury to her shoulder. The mother deposed that the child too was bruised. Although at that time the proceedings were in Federal Magistrates Court, after the incident in the Registry, Johnston J of this Court permitted the mother to leave the Registry with the child. The father was later charged with assault. He was subsequently convicted but on appeal the conviction was overturned and the matter was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no conviction being recorded. The father was required to enter into a bond.
On 22 December 2011 orders were made for the father to spend time with the child from 9.00 am on 23 December 2011 until 5.00 pm on 25 December 2011, and from 10.00 am on 27 December 2011 until midday on 14 January 2012. Orders were also made by consent for the mother and father to facilitate the child’s attendance upon Dr V for the purpose of an assessment in relation to the child’s earlier autism diagnosis.
On 24 April 2012 the child attended upon Dr V for the purposes of a psychological assessment in relation to his autism diagnosis. Dr V concluded, among other findings that:
[B] is a nearly 8 year old boy in year 2 at [W School]. He has a history of language impairment and autistic features and has received much intervention over the past years with good benefit. With increasing language development [the child’s] autistic features have decreased over time.
And
Autism specific assessment including history, observation in two settings (clinic and school) and formal testing, was not consistent with a diagnosis of ASD [Autism Spectrum Disorder][3]
[3] Report of 2012 Dr V, Q Hospital Children’s Hospital 2012 – annexure Z to the father’s affidavit
On 1 June 2012 the proceedings came before the Federal Magistrates Court and were transferred back to this Court.
On 20 June 2012 Dr V attended the child’s school for the purpose of conducting further assessments on the child in a classroom setting. Dr V reported that the child’s autistic features had decreased but that he had significant learning difficulties and attention and concentration impairments.
On 31 January 2013 the father became aware that the mother had withdrawn the child from W School and enrolled him at X School at Suburb Y.
On 5 March 2013, orders were made for an updated report from Associate Professor D and requiring that the father undergo urinalysis.
On 11 June 2013, orders were made to expedite the hearing and to fix the final hearing for 3-6 December 2013 and (again) the Court asked the Department of Family and Community Services to intervene in the proceedings.
On 19 August 2013 an AVO was put into place protecting the child from the mother.
In August 2013 the Department of Family and Community Services advised that it would not intervene in the proceedings.
On 22 October 2013 the father and his partner, Ms CC, separated. The father said that they argued as a result of these proceedings.
On 19 November 2013, the hearing listing on 3 – 6 December 2013 was vacated.
The father said that the mother withheld the child from spending time with him during the first half of the 2014/2015 school holidays. He said that the child came into his care on 5 January 2015, three weeks after the arranged time. The child remained in the father’s care until school recommenced on 2 February 2015.
The father said that the child lived him with from 4 to 24 February 2015, and between 27 February and 3 March 2015.
On 4 March 2015 the mother was admitted to Z Hospital. The father understood that the admission was for mental health treatment.
The father contends that the child stayed with him from 13 March until 30 March 2015, with the mother from 30 March until 1 April 2015, and with him from 1 April until 9 June 2015. Without giving any detail, the mother rejected that evidence. I accept the father on this issue. The father said that during the time from 1 April 2015 when the child was in his care, the mother was difficult to contact and spent time with the child on several occasions for one to two hours at a time. He said that on 9 May 2015 the mother dropped the child’s belongings off at his house. The mother, Mr H and J stayed at a hotel in Suburb AA for approximately one month from this time. Since that time the mother has not informed the father of her place of residence.
On 3 June 2015, the final hearing was fixed for 30 November to 3 December 2015 and an updated report from Associate Professor D was ordered.
On 18 June 2015 the mother told the father that she had withdrawn the child from his school.
The father said that on 10 September 2015 the mother contacted him and told him that she was at a women’s shelter and that the mother asked him to care for the child on 10 and 11 September 2015.
On 15 September 2015 the mother did not attend a scheduled appointment with the single expert, Dr D.
The father said that on 18 September 2015 the mother asked him to have the child in his care for the entire school holidays. In fact the child remained in the father’s care until at least 20 October 2015.
Importantly, the mother arranged with the father for the child to stay with him during the week of 23 November 2015. The mother said that was in order that the father could help the child with a school assignment.
The latest report of Associate Professor D was completed and on the application of the ICL, the proceedings were listed on 23 November 2015 in advance of the release of the report. On 23 November 2015, Dr D’s report was released, initially to the ICL and later that day, to all parties. For reasons given on the day, the following orders were made:
1.The updated report of Associate Professor [D], Consultant Psychiatrist dated 18 November 2015 be released to the Independent Children’s Lawyer, the parties and their legal representatives.
2.Leave is granted to the Independent Children’s Lawyer to make an oral application for an order suspending until 4.00 pm on Thursday next the existing orders in relation to the child [B] born … 2004 (“[the child]”) and put in place in lieu of those arrangements that [the child] reside with the father and have no contact with the mother.
3.That Application be listed for hearing at 10.00 am on Monday 30 November 2015.
4.Until 4.00 pm on Monday 30 November 2015 the current arrangements in relation to [the child] under existing orders are suspended.
5.That [the child] reside with the father until 4.00 pm on 30 November 2015 and have no contact with the mother during that period.
6.The Court notes that these are orders for the personal protection of [the child].
7.Leave is granted to the Independent Children’s Lawyer to serve a copy of these orders on the principal of the school attended by [the child].

The Expert Evidence

The single expert was Associate Professor D. Dr D is Conjoint Associate Professor in the School of Psychiatry. She also conducts a private practice as a Consultant Forensic, Child and Family Psychiatrist. Dr D was made a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1973.
Dr D’s work experience includes many senior appointments in psychiatric facilities.
Dr D prepared reports in this matter dated 29 January 2010, 11 June 2013 and 18 November 2015.

The Legislation

The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if s 65DAA is not relevant, assess the proposals against the best interests criteria;
f.consider and make findings about living arrangements; and
g.make orders.

The Parties’ Proposals

There were changes in the positions of the parties in the period leading up to and during the trial. By the time for final submissions the orders sought by the parties were as follows.
As earlier set out, the mother proposed that she have sole parental responsibility for the child and that he live with her and spend no time with the father.[4] She also sought orders that she not be required to provide her residential address to the father and that he be restrained from approaching the child or the mother.
[4] Exhibit 2
As is set out earlier in these reasons, the ICL’s proposals were to the following effect:
·That the father have sole parental responsibility for the child and that the child live with him and spend no time with the mother.
·That the mother be at liberty to forward letters, cards and gifts to the child by post to the father’s address but that otherwise, she have no communication with the child.
·That the mother be at liberty to obtain information from the child’s school.
·That the father tell the mother of any change of the child’s school, of the child being hospitalised or otherwise suffering any major illness or injury or of any change of the child’s residential address.
·That the father arrange for counselling for the child with Dr C to support the child in relation to parenting arrangements and obtain Mental Health Care Plans for himself and the child to support that counselling.
·That it be noted that the mother may apply to vary the orders if she has evidence of a material change in her circumstances, including (but not limited to) the following:
oThat the mother has engaged with a psychiatrist in the terms recommended by Associate Professor D in her report of 18 November 2015 for at least 6 months;
oThat the mother has maintained stable housing for at least 12 months;
oThat the mother and Mr H have engaged in relationship counselling;
oThat there has been no family violence between the mother and Mr H for at least 12 months.
Ultimately the father supported the orders proposed by the ICL.

Section 60CC Considerations

As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings[5]. These proceedings were commenced before that date. As the legislation related to these proceedings the section specified the following considerations:
[5] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”

Primary considerations

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[6] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[6] McCall & Clark (2009) FLC 93-405
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[7]
[7] Champness & Hanson (2009) FLC 93-407
Although the parents did not acknowledge it in respect of each other, on any view, the relationships between the child and each of his parents are important, significant and valuable. I have no doubt that the mother is the child’s primary care giver and primary attachment figure.
The father too has a substantial attachment to the child and has a very close relationship with him.
In the normal course and if it is safe to do so, any orders made in these proceedings should promote those relationships.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

“Abuse” and “family violence” are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings, s 4 of the Act included the following definitions:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
I will deal will the parties’ allegations in more detail later in these reasons but there is no dispute about the fact that the child has been exposed to violence by his parents. For example, on 22 November 2011, there was a physical struggle over the child between the parents in the Registry of the Court.
During her cross-examination, the mother conceded that there has been violence in the relationship between her and her husband, Mr H. She conceded that the child has been affected by that violence.
The police have been called to attend on one or other of the parents or both, on many occasions. In recent years those attendances have mainly been at the mother’s premises or on the mother. There have been violent arguments in the child’s presence and in premises occupied by him on many occasions.
As is referred to earlier in these reasons, the mother consistently understated circumstances that might be seen to disadvantage her parenting case. In particular, she sought to understate the import of various incidents between herself and Mr H in recent years. She blamed neighbours for calling the police as a result of what she described as innocuous noises or events at their home. She deemed it unremarkable that glass had been broken by her or Mr H affecting entry or moving about in their residence in recent years.
The mother alleges that through members of the husband’s family on the NSW Police force (the father’s brother and cousin), officers of the NSW Police have acted against her and her husband in a biased, unfair and at times, physically abusive manner. She was very critical of the police for attending at her home unnecessarily, making false reports of what they were told and observed and for overreacting. In the latter regard, for example, as I have referred to above, the mother said that on 18 August 2013 at her home, 13 police officers jumped on her and assaulted her, leaving her with a broken nose, a broken finger or fingers, two black eyes, broken ribs and bruising. There are no medical records to verify the mother’s injuries and the mother took no action against the police. On the mother’s own case, one way or another, the child was exposed to that incident. Although the police record suggests that the mother’s evidence is exaggerated, for example as to the number of attending police, there is no doubt that there was an incident of the character of the incident identified by the mother. The mother was arrested, handcuffed, taken to a police station and then to a hospital for a mental health assessment.
Over the last few years there have been many violent incidents involving the mother and her husband. The child was exposed to those incidents.
The mother’s friend, Ms F deposed that in August 2005 she witnessed the paternal grandparents intimidating the mother, yelling at her and demanding to see the child[8]. Importantly, the mother has not given evidence about such an incident. Ms F went on to say that the paternal grandparents then came to her (Ms F’s) house and started making derogatory comments about the mother. Apparently in relation to her support of the mother, Ms F deposed that the paternal grandfather said to her “It will come back to bite you in the bum”. As is recorded above, although Ms F was not cross-examined, in the circumstances of this case I cannot draw any inference from that fact alone. Neither of the paternal grandparents were called in the father’s case. The allegations are concerning but no definitive findings are available about the alleged incident in August 2005.
[8] Affidavit of Ms F filed 30 March 2009.
There is also evidence to suggest that the mother subsequently relied on the paternal grandmother to care for the child. For example, in January 2009 the mother told hospital staff, apparently to reassure the staff, that while she was in hospital, the child was being cared for by the paternal grandmother.

Additional considerations

(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

B has regularly and consistently expressed a strong preference for living with his mother. However, based on Dr D’s opinion, there is reason to doubt that his expressed views are his alone or that in any event, those views should be given any significant weight.
In her most recent report dated 18 November 2015, Dr D said that in her interview with the child alone, he was very keen to emphasise that he should not be separated from his mother and to present the current situation of his residence with her as good in all respects. When she asked him about his preference for future living arrangements, the child looked very puzzled and spent a long time thinking about it. Dr D had the impression that the child was being very careful to recall what he needed to say. Dr D opined that it was quite evident that the child felt under some pressure to present the case for his mother. She was not confident that the child was expressing his own views. Dr D opined that the child is afraid that he will be denied contact with his mother if he resides with his father and because of that fear, he expressed a wish not to be separated from the mother.
When asked by Dr D what the best living arrangement might be, the child said he would stay with mum and see dad “like every other weekend; mum can’t cope without me”. When asked about that last comment, the child said “because we really love each other”. Dr D reported her impression that the child had been cautioned that if he was to stay with his father he would not see his mother. Dr D expressed concern that the child appeared to feel that he needed to take care of his mother.
Dr D noted that the child’s presentation when observed with the father was at odds with his protestations about spending time with his father after her September 2015 interviews with the family. She observed a warm reunion between father and son and an apparently affectionate relationship. In spite of the earlier protestations, the child was immediately settled with his father and seemed quite relaxed with him.
Dr D was not directly challenged in relation to her opinion. However, I accept that in these proceedings, where the mother acted on her own account, that does not mean that the mother agrees with or accepts that opinion.
B has strongly expressed the wish to live with his mother. I accept Dr D’s observations and her opinions on this issue. In those circumstances, the child’s expressed views will not be accorded significant weight. Of course, to the extent that the child expressed a wish to spend some time with the father, I take it that the mother would herself argue that no significant weight be given to that wish.

(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);

The Court has the advantage of three reports from Dr D and they provide an independent perspective on the interactions between the parents and the child in 2010, 2013 and 2015.
In her 2010 report, Dr D recorded her observations of the family made at interviews conducted in late 2009. She concluded that the child was primarily attached to his mother, that she was very devoted to him and in particular was focussed on his special needs. Dr D also noted a strong attachment between the child and his father and that he was extremely keen and excited about seeing his father on the day of their assessment. She reported that the father was warm and appropriate and focussed on the child throughout the assessment. Dr D also noted a warm bond between the child and his paternal grandmother. She observed Ms Somers (senior) to reciprocate those feelings and that she was warm, appropriate and focussed on the child.
In her 2013 report Dr D noted that the child had a strong attachment to his mother and to Mr H. She also opined that there was a significant attachment to his maternal grandmother and to a maternal aunt and her family. Dr D observed a developing and appropriate sibling attachment between the child and his baby brother, J and also to his stepbrother, K. She found that the child was developing significant bonds with Mr H’s family. For the purposes of the 2013 report Dr D did not observe the father with the child as the child refused to meet with his father. Nevertheless, Dr D reported that she anticipated that the child would have a significant attachment to his father. She noted that such an attachment was evidence to her from her observations in 2009. She opined that it was likely that the attachment between father and son had become insecure and ambivalent because of the trauma and conflict that had come to be associated with their relationship. Dr D did note however, that the trauma might be as described by the mother or, most likely, it may be that there was some combination of actually distressing experiences that had been reinforced and exaggerated by the mother and Mr H.
For her 2015 report Dr D noted some differences in the observed interaction between the child and each of his parents from those referred to in her earlier reports. Dr D booked appointments to see the parties, the child and other adults on 15 September 2015. She reported that negotiating with the mother proved difficult and that various reasons were given for the mother’s inability to attend. Ultimately a medical certificate was provided for the mother. At that time the child was living with the father and they attended together at the appointment. The mother did not attend.
In her 2015 report, Dr D noted a warm interaction between father and son. She reported that they appeared to have an affectionate relationship. As is referred to above, despite the child protesting only minutes earlier about being with his father, he was observed to become immediately settled when interviewed with his father and seemed quite relaxed with him. Dr D concluded that the child has a warm and secure attachment to his father.
Dr D booked a further appointment with the mother and saw her and Mr H with the child on 28 October 2015. She reported that on that day the child became quite clingy and protested when it came time to separate from his mother. The mother said that he was “always like this”. Dr D concluded that the child is anxiously attached to his mother. She opined that he feared that he would be separated from her and Dr D thought that most likely related to his recent experiences of the mother suddenly leaving him. It also appeared that the mother had been suggesting to the child that if he was placed with his father then he may not be able to see her.

(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

B has spent time with both parents since he was born. Until the final stages of the proceedings on many occasions each of the parents has agreed to him spending time with the other parent and made arrangements for that to happen. The child has a close relationship with his mother. That suggests that the father has been willing and able to promote the mother to him.
The mother made arrangements for the child to spend time with the father, including times not prescribed by court orders or by any pre-existing agreements. On those occasions at least, the mother was willing and able to promote the father to the child. However, as Dr D observed in her latest report, there have been many occasions when the mother was neither willing nor able to promote the father to the child.
Ultimately, in these proceedings the parents each seek orders excluding any time between the other parent and the child. That suggests that in the future each of them may have difficulty in promoting the other parent to the child.

(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

In her 2015 report Dr D concluded that while the child was fearful of separation from his mother, he is also at risk of emotional harm in her care. She went on to say that in recent times when the child has been in the father’s care the father had maintained regular contact between the child and his mother and half brother. Dr D did not then know of the father’s ultimate proposals in the proceedings but she considered that the father is likely to continue providing that contact and that such contact would be adequate to deal with the child’s fears of separation from his mother. That said, Dr D went on in her report to recommend a suspension in the mother’s contact with the child until she engaged in ongoing psychiatric treatment and was compliant with a prescribed medication regime. Even then the contact recommended by Dr D would be very brief until the mother’s life became stable and safe.
For reasons given on 23 November 2015 and 8 December 2015, since late November, the child has lived with the father and has had little time with the mother. He was to have supervised time with the mother for two hours before Christmas and that was to continue once a month, thereafter. Therefore the potential change for the child arising from the orders made at the conclusion of these proceedings under the proposals of the father and the ICL, would be that he have absolutely no time with his mother, or under the mother’s proposal, a return to living with the mother and spending no time with the father.
On any view those changes would be very significant for the child. Dr D recommended counselling assistance for the child in relation to the separation from his mother recommended by her.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

The main issues in this case do not relate to practical difficulties and expense. The background facts suggest that the mother has had financial difficulties but sadly, the child has far greater problems than issues about financial support. At times the parents have lived close to each other and at other times, some distance apart. The father lives in Western Sydney and at the time of the trial I understood that the mother also lived in that area.

(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

There is extensive evidence going to the capacity of the parents and of Mr H to provide for the child’s needs.
The mother said that during her relationship with the father, he was violent and regularly consumed illicit drugs. The mother said that the father smoked marijuana every 10 to 20 minutes, throughout the day.
It was the mother’s evidence that after separating from the father, she felt that she should offer to take the child to see him. She said that she soon realised that the father was still using illicit drugs. In addition, the father was unreliable. On one occasion the mother says that the father was smoking marijuana when he attended to see the child. He said to the mother something to the effect that he would have someone kill her.
I turn to the evidence of specific incidents[9]. The police records show that they were called by the mother on 1 and 14 April 2007 and 28 May 2007 in relation to disputes between the parents. On 18 June 2007 the father attended at Suburb AA Police Station to report that the mother had on several occasions threatened to seek an AVO against him. On 22 June 2007 the father called the police to report that the mother had threatened to commit suicide.
[9] Exhibit 15
The mother said that on 20 December 2007 the father rang her at 7.00 am and said “happy fucking birthday I am going to ride my bike into a truck and kill myself”. The father was then involved in a motor vehicle collision. The mother’s friend Ms F deposed that she received a telephone call from the mother on that day and was told of the father’s threat. The mother deposed that at about 9.00 pm the father rang her and said words to the effect that he “almost did it” and was then going to work (at a hospital) to get some insulin to finish the job. The mother says that she begged him not to do that. The mother deposed to ringing her sister on the day and that her sister rang the hospital where the father worked. The mother’s sister, Ms E does not address that matter in her affidavit. The mother says that the father later rang her from the hospital and said that he had just had an accident. The mother deposed that the father’s motorbike was destroyed in the accident. This issue is not addressed in the father’s evidence.
The mother deposed that she thereafter assisted the father to find accommodation. I gather that the accommodation was at a farm at Suburb P. The mother deposed that the father started screaming at her, words to the effect of “I will shoot you in the head in front of the child”. She said that he called the child “a retard”. The mother says that she sought an AVO; that police inaccurately recorded the facts and when she complained, police laughed at her.
Mr G had been a friend and neighbour of the father from about 2002. He was living at the Suburb P farm in 2008 when the father lived there. He witnessed the father being angry and abusive to the mother and insulting her. He observed the father consuming marijuana. He said that out of 100 days at the farm there would have been only six days when he did not see the father consume marijuana. The father typically smoked four cones in a session but sometimes smoked eight cones. Mr G said that the father spoke of using drugs he obtained at the hospital where he worked and that he stole milk and batteries. Mr G deposed that in 2008 the father threatened him with words to the effect of: “you better look out”. Mr G said that he was afraid of the father.
At some point the father arranged to have the child’s hair cut very short and the mother says that when she complained, the father threatened to drown her.
Constable BB made a formal statement[10] to the effect that on 30 October 2008 he received a complaint from the paternal grandmother about the father yelling at the child excessively. The Constable recorded that he observed no injury to the boy. This evidence is of particular concern and reflects badly on the father but on a positive note it also suggests that the paternal grandmother was capable of being independent of and able to criticise, her son.
[10] Exhibit 15
The mother alleges that the father tried to break her neck on 3 January 2009. She drove or was driven from Sydney’s Suburb GG to N Hospital. The father contends that the mother admitted herself to the Psychiatric Emergency Unit. At that time the father worked at the N Hospital. On the mother’s version she underwent a mental health assessment but was not admitted to the mental health ward. The mother was however, admitted to N Hospital from 3-5 January 2009. The mother made allegations about the father to the police relating to drug use and domestic violence. The hospital records refer to the mother being aware that the father was having extra marital affairs but wanting him back. That information is most likely to have come from the mother.
It is agreed that while at N Hospital, the mother was undergoing an interview or assessment and that the father interrupted and spoke to the attending hospital staff. The hospital notes record that the father arrived and the interview with the mother was suspended. The notes record that the mother quickly became upset and that the father threatened her. The father told the attending staff that the mother was “borderline” and that his mother (the paternal grandmother) was “borderline” and that they conspired together. The notes record that the father said “She needs to know that I can go to the school anytime and take him [B] away.” On the agreed evidence it was highly inappropriate for the father to intervene during the mother’s assessment as he did.
The N Hospital notes for the mother made on 5 January 2009 include comments to the following effect[11]:
[11] From the records of N Hospital being part of exhibit 9
·Self-presented self-harm thoughts and autistic son;
·Settled well with 2 day admission;
·Paternal grandmother willing to look after the child for a few days;
·Goals: help for the child; and counselling to sort out relationship problems;
·Wants to go home;
·Denies suicidal ideation;
·Denies depression; mania or psychotic ..;
·Cooperative, good eye contact, normal speech, settled mood, reactive, reasonable insight and judgment;
·Long term risk assessment – medium.
The notes included in the evidence do not refer to the mother’s admission relating to or having followed an attempt by the father to break the mother’s neck. The mother’s records from N Hospital[12] include a form aimed at screening for domestic violence that was apparently completed on her admission on 3 January 2009. On that form the response “No” was endorsed in relation to the following questions:
1. Within the last year have you been hit, slapped or hurt in other ways by your partner or ex-partner?
2. Are you frightened of your partner or ex-partner?
[12] From the records of N Hospital dated 3 January 2009 being part of exhibit 9
However, those hospital records also reveal that on 4 January 2009 the mother mentioned to nursing staff that her right shoulder, at the top of her arm, was sore. She said that she was not sure if that was from her husband grabbing her or from him pushing her to the ground. Later in the day the mother said that two years before, she had left the marriage in fear of her life, stating that the father was a polysubstance user, he continually threatened her, assaulted her, on one occasion breaking her ribs, and when she threatened to leave he said that if she saw any other man, he would kill her.
On 17 March 2009 the mother’s sister, Ms E wrote to the mother’s solicitor[13] setting out her observations of the previous two years. She said that the mother had reported to her, fears for her safety because of the “horrific” behaviour of the father. She reported that the mother told her that the father had shouted to the mother, in the presence of the child, that the mother was “a slut” and “a whore”. She reported that the mother said that the father had called the child “a retard” while screaming at the top of his voice. Ms E said that the child had told her that he was afraid of and upset by his father and worried about being kept from his mother. Ms E said that the father had not provided proper financial support to the mother and that she witnessed him “humiliate” the mother in a “revolting fashion” by throwing money at her in public. Ms E stated that on 20 or more occasions the mother had fled from the father to her (Ms E’s) home. By her affidavit sworn 23 March 2009, Ms E confirmed the accuracy of those representations. Ms E was not cross-examined but as I have mentioned above, no inference is available from that fact alone.
[13] Contained in the affidavit of Ms E filed 26 March 2009
Between June and August 2009 the father received four letters of complaint[14] from Relationships Australia regarding alleged breaches of contact centre rules by him. The concerns identified were: having whispered communication with the child; challenging centre staff; not disciplining the child when he threw a piece of trash (a sultana packet) over a wall; not cleaning up rubbish left by him and the child; pressing sugary foods on the child when the child himself resisted them; and remonstrating with the child in the presence of other centre users in the style: “get out from under the bloody table”. On 4 September 2009 Relationships Australia cancelled the father’s contact due to breaches of contact centre rules. They indicated that contact could be reinstated if the father attended a parenting course provided by Relationships Australia. The father deposed that he felt bullied by the contact centre staff. The father said that he did not attend the suggested course. He said that he discussed the matter with the ICL, identified an alternate contact supervision centre and underwent an eight week (one night per week) course with another provider. The facts are contested to some extent but in the context of these proceedings, the issues arising from the father’s conduct at the Relationships Australia centre are not significant.
[14] Three letters are at Annexure C to the father’s affidavit
According to the father, between 30 September and 31 October 2009 the mother made numerous calls to him during which she made threatening remarks about the father, the child and the father’s family. No findings are possible arising from that evidence.
On 25 October 2009 there was an incident where the mother called the father numerous times during the afternoon. The father deposed that in each call, the mother said words to the effect of “[B] needs to see you. You need to come to where we are” and that on each occasion she claimed to be in a different part of Sydney. The father said that each time he responded with words to the effect of “no you need to drop [the child] off at my house because there is an AVO in place and I don’t want you making allegations I have breached it”. The father said he was then advised by the paternal grandfather that the mother had attended his house. The reported facts are confusing and again, in the context of the serious issues raised in these proceedings, the issues arising from those allegations about the mother’s conduct, are not significant.
The father deposed that on 31 October 2009 the mother sent pictures of herself naked, to the father’s mobile phone. The father says that he was embarrassed by the photos but showed them to his then partner, Ms CC the following day. The mother did not challenge the father about that evidence. The mother’s conduct in this regard was puzzling but again and sadly, there are more important issues in these proceedings.
The mother alleged that during 2010 the father caused the child to have a very short haircut, against his will. The father deposed that the child was happy with the haircut and that it was not forced on the boy. It is not possible to make findings about that issue save to observe that in the environment of distrust and conflict between separated parents it would have been wise for the father to consult with the mother and to secure her prior agreement about such a matter. Again, given the serious nature of the issues in these proceedings, the resolution of the dispute about this issue would be of no assistance in determining the best arrangements for the child.
The mother said that in August 2011, the child made a disclosure that the father had punched him in the face and grabbed him by the hair. She took the child to the police station however no further action was taken. No findings are available from that evidence.
On 4 June 2010 the mother withdrew the child from Suburb O Public School and enrolled him at W School. The mother deposed that she did this because the child was being bullied as the result of a haircut the father had caused him to have.
The father deposed that on or around 11-13 November 2011, he noticed bruising on the child’s arms and that the child disclosed that the mother had caused it. The mother deposed that she never caused bruising to the child. No probative findings are available based on that evidence.
The father said that on 14 November 2011 the mother requested that the child remain in his care. The father took the child to the doctor and the police regarding the alleged bruising. The father retained the child in his care, without the mother’s consent. On 15 November 2011 the police conducted a welfare check on the child at the mother’s request. I assume from the absence of evidence to the contrary, that the police were satisfied as to the welfare of the child with the father.
On 16 November 2011 orders were made requiring the return of the child to the mother and the resumption of the orders of 3 February 2010. The father said that later that day when he returned the child to the mother, the mother said words to the following effect “for taking the child to the police station I’m going to have you both killed and as for the child, he won’t be speaking to the police ever again because he won’t be breathing”. The mother denies this occurred. The father reported his allegation to the police who applied for an AVO against the mother.
It is the mother’s contention that on 16 November 2011 the father tampered with her car. She deposed that she and the father were before the Federal Magistrates Court and parked opposite each other on the roof of a nearby multistorey car park. The mother deposed[15] that Mr H discovered that her car’s oil filter had been loosened and the vehicle had lost oil. Presumably intended as corroboration, the mother annexed to her affidavit a copy of a statement given by her to Suburb U police on 14 February 2012[16]. In the statement the mother asserted that some two and a half months earlier the mother and the father had parked near each other in a car park. The mother stated that upon returning to her car she noticed that the front grill and mounting bolts were removed from her car. The mother said that she drove away and not long thereafter, an engine mount on her car, snapped. The mother asserted in her statement that her car had been tampered with. Suffice it to say that the annexed statement does not corroborate the mother’s deposition about the loosening of an oil filter.
[15] Paragraph 22 of the mother’s affidavit sworn 28 February 2012
[16] Annexure Q to the affidavit of the mother filed 28 February 2012
The mother deposed that on 17 November 2011, the child told her that the father had told him to say certain things under the threat of withdrawing access to ice cream and to his martial arts classes.
The mother said that on 21 November 2011 the father attended the child’s school and collected him, contrary to the orders.
On 22 November 2011 the AVO sought against the mother was dismissed at Suburb O Local Court.
Also on 22 November 2011 the parties attended at the Family Court Registry in Sydney. The father deposed that while he was at the Registry with his partner and the child for the purposes of filing documents, he lost sight of the child. The father deposed that he subsequently found out that the mother and her partner had taken the child from the waiting area of the Registry. The mother deposed that she found the child by himself in a Registry waiting area. She deposed that she embraced the child and he told her that the father had been hurting him. The father arrived and there was an altercation between the parents including a physical struggle over the child. The mother deposed that the child was crying and yelling while the father tried to pull him out of the mother’s arms. The mother deposed that she fell over and that both she and the child suffered injuries as a result of the struggle. There is independent evidence that the mother suffered bruising and an injury to her shoulder. The mother deposed that the child too was bruised. The mother attached to her affidavit[17] a copy of one page of a record of largely indecipherable notes purportedly made by a Dr DD and stamped on 15 December 2011 at Suburb EE. Attached to an affidavit of the mother sworn on 20 December 2011 is a copy of an imaging request for the mother, said to be for “rotator cuff tear from assault” dated 24 November 2011 but distractingly signed “2 November 2011”. In any event, the father was later charged with assault.
[17] Affidavit of the mother sworn 28 February 2012 – paragraph 28, annexure T

It is likely that the father abused illicit drugs in the past. The evidence of the mother and of Mr G about that drug abuse was not challenged on behalf of the father. Mr MM is a psychologist in Western Sydney. He said he saw the mother from July 2007 and says that she reported to him that she had suffered abusive language from the father and that the father abused marijuana and other illicit drugs on an ongoing basis. On the other hand the father has maintained stable accommodation and I am satisfied that he has generally promoted the child’s school attendance. Importantly, the mother has relied on the father to care for the child in the last few years and did so as recently as the week of 23 November 2015.
There is no doubt that the mother loves the child and she has maintained a focus on promoting his health and welfare. However, taken together, the evidence about the mother’s care of the child reveals that:
·there were an unfortunate and excessive number of changes of accommodation and school for the child while substantially in the mother’s care;
·there is evidence of concerning behaviour by the father, including illicit drug use and violence;
·in the last several years however, there have been many occasions when the mother relied of the father to care for the child and her complaints about his behaviour were significantly reduced;
·there has been an extensive history of conflict and violence in her relationship with Mr H and the child has been exposed to that conflict and violence;
·there have been an extraordinary number of interventions by the police in relation to the mother and in particular over the last few years, in respect of her relationship with Mr H;
·B’s school attendance was unsatisfactory while he lived substantially in the mother’s care; and
·the mother’s proposals in these proceedings are inconsistent with her conduct. Notwithstanding her earlier and ongoing allegations against the father, there were many occasions when at the mother’s initiative, the child went to live with the father. Those occasions were on an unsupervised basis, overnight and for block periods. Importantly, the mother voluntarily sent the child to the father for several days in the week leading up to the trial. She said that she did that in order that the father could help the child with a school assignment. Only days later and without any explanation, the mother sought orders in these proceedings whereby the child would spend no time with the father.
In her November 2015 report, Dr D noted that the mother has not been able to maintain stability in her living conditions, her marriage or her mental state for at least the past year. On that basis she considered that it would be unrealistic to make any arrangement that relied on the mother’s commitment to a regular schedule. Dr D opined that the mother’s abrupt changes of accommodation and schools and to arrangements with the father, pose a significant risk to the child’s mental health and wellbeing. Dr D concluded that it is unlikely that the mother can be relied upon to adhere to any parenting arrangement that she proposes. I agree with Dr D’s opinion and conclusions.
In her November 2015 report, Dr D noted that the father has shown an ability to adhere to Court orders and that he offers a realistic proposal which would be the best option for the child. Again, I agree with Dr D’s opinion and conclusions.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

On 24 April 2012 the child attended upon Dr V for the purposes of a psychological assessment in relation to his earlier autism diagnosis. Dr V concluded, among other findings that “[B] is a nearly 8 year old boy in year 2 at [W School]. He has a history of language impairment and autistic features and has received much intervention over the past years with good benefit. With increasing language development the child’s autistic features have decreased over time.” And “Autism specific assessment including history, observation in two settings (clinic and school) and formal testing, was not consistent with a diagnosis of ASD [Autism Spectrum Disorder].”[29]
[29] Report of 2012 by Dr V, Q Hospital – annexure Z to the father’s affidavit
For the purposes of her 2013 report Dr D interviewed the parents and the child in May 2013. She reported: “Once engaged in this history and distracted from the issue of his father, the child was quite personable and responsive. He did not impress as having any features of autism.”
In relation to the father, Dr D opined in her 2015 report that he “has had some difficulties in intimate relationships and perhaps at work also and he would benefit from counselling for himself….” She recommended that he have counselling with a clinical psychologist.
On admission to N Hospital on 3 January 2009 the mother included in her history that she had a “rough childhood”, having alcoholic parents who physically abused her. She said that she was sexually harassed by her father and that she left home at 12 years of age and lived in a refuge.
On 3 November 2014 the mother was referred by her general practitioner to a psychologist in relation to “PTSD and Domestic Violence + OCD”. I take it OCD is was intended to indicate “obsessive compulsive disorder”.
Dr D addressed the question of the mother’s mental health in her final report. At page 39 she observed:
At interview, [Ms Morris’s] affect was overly cheerful, elevated and accelerated and her thinking was unrealistic. This may indicate the hypomanic phase of a bipolar disorder or it may be consistent with a severe borderline personality disorder – often it is difficult to distinguish between these two conditions – and/or it could be the result of stimulant drug use. Police observations of [Ms Morris] in November 2012 suggest that she was then in a state of hypomania and had delusional ideas, which would support the diagnosis of bipolar disorder, but in August 2013 her presentation suggests serious mental disturbance plus alcohol abuse which might be consistent with any one of or a combination of the aforementioned conditions. It is of considerable concern that [Ms Morris] is not in psychiatric treatment at present.
And later on that page Dr D reported:
Whether the mother’s condition is bipolar disorder or borderline personality disorder, both are serious disorders with a significant impact on parenting capacity (Laverton et al, 2003; Newman et al, 2007); she needs ongoing psychiatric treatment. Substance abuse may be an issue too, but if so it is likely comorbid with or secondary to one of the other two conditions.
During her cross-examination by the mother, Dr D was taken exhaustively through a number of propositions about the relevant history. The propositions included matters of agreed fact, matters of contention and matters that were not previously addressed in the evidence relied on by the parties. At the conclusion of that process, the mother asked Dr D if those propositions caused her to change her recommendations to the Court. Dr D replied to the effect that they did not.

(3)(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 criterion is not relevant.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

The mother provided significant support and intensive assistance to the child. NN Centre, which is part of North Sydney, Central Coast Health confirmed that she provided support for the child’s therapy, was highly committed and was reliable and proactive in that regard.
Otherwise, these issues have been traversed under other criteria.

(3)(j) any family violence involving the child or a member of the child's family;

It is an agreed fact that the child has been exposed by his parents to family violence.
There are more than the usual problems in making probative findings about violence involving these parents. Often family violence occurs in private and often a victim is unwilling or unable to report the violence or to seek treatment for resultant injury at the time. That can mean there is no independent record of the violence. In addition to those problems, in these proceedings the mother contends that the police have acted in a partisan way. She contends that they have been aligned with the father and biased against her. As a result, it is particularly difficult to make meaningful findings in these proceedings beyond the agreed facts. That said, for obvious reasons I cannot simply adopt the mother’s general rejection of the reliability of the police record.
The mother alleged that in July 2006 the father kneed her during an argument, injuring her ribs. In his affidavit the father specifically denied that allegation. The mother attached to an affidavit, what purports to be a copy of a medical certificate from Dr OO of the Suburb HH Clinic. The copy bears typescript and handwriting. The typescript refers to a presentation by the mother on 6 July 2006 during which the mother alleged that her husband kneed her during an argument. It refers to her complaining of sore right ribs and the fact that Dr OO found tenderness over her right anterior ribs. The handwriting seems to be dated March 2008 and records “Clinically she may have suffered fractured right ribs.” I take it that the certificate as presented is not a contemporaneous document. The certificate was attached to one of the mother’s affidavits that she formally relied on only after her cross-examination had closed. As I indicated to the parties, in those circumstances no adverse inference can be drawn from the failure to cross-examine the mother about that piece of evidence. No findings are possible as a result of this evidence.
The mother made general allegations that during the marriage the father grabbed her and hit her. No findings are available as a result of that evidence.
The mother deposed that on one occasion before separation she could not find her asthma puffer and the father became enraged. He used violent and abusive language at her and then taped her asthma puffer to her neck. According to the mother, when the police were called the father told them that she had mental health issues and they took no action. The mother said that the father screamed at her and the child. There is no corroborative evidence about this specific allegation.
The parents separated in 2007. It is the mother’s evidence that the father was removed from the home by police due to domestic violence. The father denied this and stated that he left on his own accord after numerous allegations of domestic violence and associated police attendances. I was not taken to a record of the police removing the father from any premises.
Mr MM is a psychologist in Western Sydney. He said he saw the mother from July 2007 and says that she reported to him that she had suffered abusive language from the father and that the father abused marijuana and other illicit drugs on an ongoing basis.
On 11 September 2007 the mother called police to report that the father had hurt the mother’s hand when he snatched his mobile phone from the mother. Ultimately the mother refused to provide the police with any details of that allegation.
On 16 September 2007 the mother called the police to report an assault by the father four days earlier and to seek an AVO. The police refused to take urgent action because the mother had not cooperated with them when they had been called on the day of the alleged assault. The police applied for an AVO and that application came before Suburb AA Local Court on 10 October 2007. On that day the mother told the Court that the father had broken her rib on 6 July 2006 but she did not want to make a statement about that. She told the Court that she had no fears (in respect of the father) and that she had resolved her differences with the father. She said that she did not like the fact that the AVO application included: “The PINOP has a history of mental health issues and will mislead Police, along with making an allegation and then not wanting to proceed with the matter.” The COPS entry recorded that the mother again withdrew and that she appeared “paranoiderratic, hyperactive and possibly still had mental health issues”.
On 8 October 2007 the mother saw a GP at Suburb HH complaining of bruised arms and a sore neck after an altercation with the father. She was treated with Panadol and Voltaren gel, counselled and referred to a local psychologist.
The mother deposed that after the father tried to kill himself in late 2007, she assisted him to find accommodation at a farm at Suburb P. The mother deposed that the father started screaming at her, words to the effect: “I will shoot you in the head in front of the child”. She said that he called the child “a retard”. The mother says that she sought an AVO; but that the police inaccurately recorded the facts and when she complained, the police laughed at her.
Mr G lived with the father at the Suburb P farm. He witnessed the father being angry and abusive to the mother and insulting her. Mr G deposed that in 2008 the father threatened him to the effect: “you better look out”. Mr G said that he was afraid of the father. During cross-examination Mr G said words to the effect that he was still afraid of the father.
The mother contends that on 3 January 2009 the father physically assaulted her by trying to break her neck. The mother thought that the father was on the drug known as “ice” (methamphetamine). She said he was sweating, very strong, agitated and constantly licking his lips. She said that he said he would kill her and that he tried to break her neck. The father denies that allegation. He was not charged with such an offence. There is no medical evidence to support the mother’s allegation. The mother was admitted to N Hospital for a few days. There is no reference in the mother’s discharge summary to an allegation that the father tried to break the mother’s neck. There is no specific mention of this allegation in the hospital discharge summary in respect of the mother’s 3-5 January 2009 admission. There are references to domestic violence issues in the hospital records from that admission, including threats to kill, as has been detailed in paragraphs 138-142 of these reasons, however there is no specific mention of an allegation that the father tried to break her neck. In the police records from 3 January 2009, there is mention that the father tackled the mother to the ground but again, no specific mention of him trying to break her neck.
The father deposed that on 7 February 2009 the mother attended his residence while the child was in his care and kicked the front door. The police attended and checked on the child. The police records note that during the night of 7-8 February 2009 the child was spending time with the father. Both the mother and the father contacted the police at various points throughout that night. The mother attended upon the father’s home in an effort to get the child. The father reported to police at 1.30 am on 8 February 2009 that the mother had attended his home and that she was “attempting to kick down his door”. The mother had left the location by the time police arrived. During the course of that night, the police checked on the child at least twice. Firstly, at night on 7 February 2009 when they observed the child to be “clean, clothed and happy”, and then in the early hours on 8 February 2009 when they observed the child to be asleep in the father’s care.
On 9 February 2009 the mother enlisted the help of some young men to remove the child from the father’s care. The father deposed that he was physically threatened by the men. He said that the mother was present at the time, and ran towards them and took the child. The father called the police. There is no evidence that anyone was charged in relation to that incident.
On 8 April 2010 the mother gave a statutory declaration to Suburb U police. She declared that on 29 March 2010 the father rang and abused her and later threatened to drown her and then threatened to kill her. The mother declared that she did not immediately seek an AVO because she did not want to aggravate the father. The mother declared that on 30 March 2010 she moved out of her home to a safe location, moving back home on 6 April 2010.
On 28 April 2010 an interim AVO was granted against the father for the protection of the mother and the child. The AVO restrained the father from assaulting, molesting, harassing, threatening, intimidating or stalking them. The father was restrained from approaching the child’s school save insofar as he was complying with the current parenting orders.
Since separation there have been violent confrontations between the parents. For example, in November 2011, there was a physical struggle over the child between the parents in the Registry of the Court, as referred to earlier in these reasons. The father was charged and convicted of assault. However, on appeal, no conviction was recorded against the father but he was placed on a bond. The father conceded in cross-examination in these proceedings that he could have acted more appropriately in that he could have “stepped back”.
I will not again set out the detail of the violent disturbances involving the mother and Mr H over the last few years. The mother conceded that there has been violence in her relationship with her husband, Mr H.

(3)(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;

As referred to above, on 28 April 2010 an interim AVO was granted against the father for the protection of the mother and the child. The AVO restrained the father from assaulting, molesting, harassing, threatening, intimidating or stalking them. The father was restrained from approaching the child’s school save insofar as he was complying with the current parenting orders. The AVO proceedings were listed for hearing on 13 July 2010. I do not know the outcome of that hearing.
On 19 August 2013 an AVO was put into place protecting the child from the mother.
On 7 September 2015 an AVO was put in place for the protection of the mother. I understand this to be an AVO in relation to Mr H regarding the events at their home on 31 August 2015 where the police were called. The mother said that there may be an AVO in place for her protection (applied for by the police, against Mr H) but that there was currently no AVO with her listed as the defendant.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

No matter what order is made, I am not sanguine about the parties avoiding further litigation about the child. One would think that placing the child with one parent and excluding the other would reduce the risk of further proceedings but the parents have had a highly conflictive relationship and, particularly in the case of the mother, a very unstable history.

(3)(m) any other fact or circumstance that the court thinks is relevant.

Nothing else comes to attention here.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.

An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.

Discussion

In the context of this case, s 61DA requires that I apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for him unless there are reasonable grounds to believe that the father or the mother have abused him or engaged in family violence. The parents have engaged in family violence and therefore the presumption does not apply.
Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child, which in turn is determined by reference to s 60CC of the Act.
Going to the exercise of parental responsibility, the parties do not have a good relationship and their communication is poor. The parents both argue that the child should live with one of them and spend no time with the other. If that is to be the situation it would be sensible and necessary that the parent with whom he lives should have parental responsibility for the child. In my view it is not practicable to require or allow the parents to share parental responsibility.
For reasons developed below, the child will live hereafter with his father. I will order that the father have sole parental responsibility. I will provide for him to keep the mother advised about significant decisions.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does not apply. The proper order is one that places parental responsibility with the father. I will make an order in the terms proposed on behalf of the ICL.

Living Arrangements

In that the Court will not make an order that the parents have equal shared parental responsibility, it is not necessary to consider any particular pattern of living arrangements.
The recommendations in the most recent report of Dr D were to the effect that the child live with the father and that his contact with his mother be suspended until she engages in ongoing psychiatric treatment, and is compliant with a prescribed medication regime. Even then the contact recommended by Dr D would be very brief until the mother’s life becomes stable and safe. Dr D was not successfully challenged about her recommendations and did not resile from them.
Sadly, the mother’s circumstances in recent years have been very unstable. She has not been able to maintain secure accommodation, consistent access to schooling or protection from family violence for the child. The mother has suffered poor mental health and has not been under consistent medical care or indeed, any significant medical care.
The orders proposed by the ICL and supported by the father are to the effect that the child spend no time with the mother. Those proposals are consistent with the suspension recommended by Dr D. Complete physical isolation from his mother will be very difficult for the child. The orders made on 3 December 2015 will hopefully have provided a protective transition to that separation. Those orders provided for the child to spend supervised time with the mother for two hours each month; for the transmission of letters, cards and gifts to the father for the child; and for the establishment of a therapeutic relationship for the child with Dr C or another therapist. There should have been a number of supervised occasions under those orders since 3 December 2015. It transpired when the matter was relisted in April 2016 that prior to that time the necessary arrangements had not been put in place. I understood however, that a therapeutic relationship between the child and Dr C was in train.
As to the circumstances that would or should allow a restoration of time between mother and son, Dr D recommended that the suspension continue until the mother engages in ongoing psychiatric treatment and is compliant with a prescribed medication regime. If the parents agree about those conditions being met then there is no problem. Otherwise there is a judgment to be made about whether the conditions have been met. Properly informed, a treating psychiatrist could express an opinion about this issue but if there was a dispute then the matter would inevitably come back to Court.
The ICL and the father have sought to address the issue by in effect, leaving it to the mother to bring the matter back to Court after certain criteria are established. To that end they propose that the Court make certain notations as to the circumstances that should apply before the mother can bring the proceedings back to Court to seek the resumption of her time with the child as follows:
That it be noted that the mother may apply to vary the orders if she has evidence of a material change in her circumstances, including (but not limited to) the following:
a)That the mother has engaged with a psychiatrist in the terms recommended by Associate Professor [D] in her report of 18 November 2015 for at least 6 months;
b)The mother has maintained stable housing for at least 12 months;
c)That the mother and [Mr H] have engaged in relationship counselling;
d)That there has been no family violence between the mother and [Mr H] for at least 12 months.
One can readily understand the motivation behind the proposed notation which would mean that no application could be made for at least 12 months. The ICL would have in mind that the parents and the child need a substantial period of respite from what has been stressful and long running litigation and that the mother should be aware of particular matters that she would need to address in making any application to restore her physical contact with the child.
As a practical matter the conditions referred to by Dr D would necessarily take some time to establish. It would presumably take something like six months to establish to a clinician’s satisfaction, a pattern of ongoing psychiatric treatment and compliance with a prescribed medication regime. Similarly, it would be difficult to establish that the mother’s life was stable and safe in much under 12 months.
That said, it is not possible to prescribe with certainty the circumstances that would need to exist before the mother would be able to successfully apply. In any event, a formal notation in the terms proposed would give the false impression that there are barriers to either parent accessing the Court, beyond the legal ones[30].
[30] See Rice and Asplund above
I will provide for no time between the mother and the child subject to an agreement in writing between the parents. Consistent with the order for sole parental responsibility, that will leave the father able to put in place a resumption of time between the child and the mother at such times and on such conditions as he considers appropriate. In that regard I note that for significant periods during the last six years the parents were able to agree about the child spending time with each of them. If there is no agreement then it will be for the mother to bring the matter back to Court if she feels “that there are circumstances which require the court to consider afresh how the welfare of the child should best be served”[31].
[31] See the discussion in Rice and Asplund above
On any view the mother dearly loves the child and she wants the best for him. The child is entitled to expect to enjoy a lifelong relationship with his mother and she has much to offer him. I am strongly of the opinion that, provided the mother is well and living in stable circumstances and provided that it can be done in a way that is safe for the child, a close relationship the between mother and son should be restored.

Conclusion

I will make orders in terms of the orders proposed on behalf of the ICL, providing for no physical contact between the mother and the child subject to expressly identifying the parents’ capacity to agree to a resumption of time.

Other Orders

The ICL also proposed that the following orders be made:
4. That the mother be at liberty to forward letters, cards and gifts to [the child] by mail to the father’s home address.
5. That the father ensure that any letters, cards or gifts received for [the child] from the mother are passed on to [the child] provided that the father considers them to be appropriate.
It is important that the child maintains a positive image of his mother and his relationship with her. He needs to understand that he has not been abandoned by his mother and that she continues to love him and to maintain a close interest in his well-being. I will make those orders.
6. That the mother be and hereby is authorised to obtain, upon her request, from any school at which [the child] is enrolled the following:
a. A copy of [the child’s] school reports;
b. A copy of any general school newsletters;
c. A copy of any school photograph order forms.
The mother should be able to follow the child’s progress at school. I will make those orders.
7. That the father use his best endeavours to ensure that the mother is advised of any change in [the child’s] school (noting that he currently attends [JJ School] at [Suburb KK]).
8. That the father use his best endeavours to advise the mother as soon as practicable in the event that [the child] is hospitalised or suffers any major illness or injury.
9 That the father use his best endeavours to advise the mother as soon as practicable in the event of any change in [the child’s] residential address.
The mother should be kept informed of significant events in relation to the child’s schooling and health. I will make the suggested orders.
10. That the father forthwith contact [Dr C], Psychologist, and make the earliest available appointment with [Dr C] for counselling to support the child in relation to the current parenting arrangements.
11. That the father forthwith obtain a Mental Health Care Plan for himself and the child so as to be entitled to the Medicare rebate in respect of [Dr C’s] fees.
12. That the father be responsible for payment of [Dr C’s] fees, subject to any Medicare rebate.
13. That the father ensure that [the child] attends counselling with [Dr C] as requested by her.
14. That the father attend any counselling sessions with [the child] (or alone) as requested by [Dr C].
15. That the father follow all reasonable directions made by [Dr C] for the purposes of assisting and supporting [the child].
16 That the Independent Children’s Lawyer have leave to provide to [Dr C]:
a.            A sealed copy of these Final Orders;
b.            A copy of Justice Loughnan’s reasons for judgment;
c.A copy of A/Prof [D’s] reports dated 29 January 2010, 11 June 2013 and 18 November 2015.
17. That the counselling conducted by [Dr C] pursuant to these Orders shall be confidential and unreportable.
18. The Court NOTES that Dr C may communicate with the mother if [Dr C] considers it beneficial to [the child’s] treatment.
These are very sensible proposals and in fact were acted upon in the interim orders of 3 December 2015. In her final submissions the mother spoke of the child’s resilience and strength of character. Accepting those matters, the child’s world will have been turned upside down by the events since November 2015 and he required professional support to assist in making sense of the new arrangements. Dr C is a very experienced clinician and should be able to provide that support. The orders of 3 December 2015 having been made, it is not necessary to re-make them. I will make an order in the following form:
The father shall ensure that the child continues to attend counselling with [Dr C] or other therapist as requested by that therapist in accordance with the arrangements made and under the conditions specified by the orders of 3 December 2015.
19. That the father have leave to provide a sealed copy of these orders to the child’s current school and any future school attended by [the child].
This is a sensible proposal and will assist the child’s school to understand his circumstances. I will make an order in the proposed form.
21 That the mother has leave to provide to any treating psychiatrist with:
a. A sealed copy of these Final Orders;
b A copy of Justice Loughnan’s reasons for judgment;
c A copy of A/Prof [D’s] reports dated 29 January 2010, 11 June 2013 and 18 November 2015.
This is a sensible proposal and will assist the mother’s treating psychiatrist. I will make an order in the proposed form.
These proceedings are about the child. J (born in 2012) too has been exposed to the circumstances of the mother’s household. I will order that these reasons be referred to the Department of Family and Community Services in respect of him. There were a number of Risk of Serious Harm reports about J referred to in these proceedings, and therefore his situation has been brought to the attention of the Department. One subtext from these proceedings is arguably, the intergenerational effects of the neglect and abuse of children. The mother was abused as a child and left home at 12 years of age. At only three years of age, J has no capacity for self-protection, is therefore more vulnerable than the child and would greatly benefit from any support that can be given by the Department to him and to his parents.
Leave will be granted to the parties to bring the matter back the Court within 28 days, or such further time on which the parties may agree, in relation to the precise wording of the orders.

I certify that the preceding two hundred and ninety eight (298) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 8 July 2016

Associate:

Date: 8 July 2016

[2016] FamCA 808

8 July 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Jurisdiction