O’Neill & Kestle - [2022] FedCFamC1F 806

Federal Circuit and Family Court of Australia
(DIVISION 1)
O’Neill & Kestle [2022] FedCFamC1F 806

File number(s): SYC 3308 of 2016

Judgment of: HARPER J

Date of judgment: 20 October 2022

Catchwords: FAMILY LAW – PARENTING – One child of the relationship aged 7 – Brief relationship – Where mother was self-represented throughout proceedings – Allegations made by father that mother has pathologised the child – Where child has half siblings on both sides – Where parties live hours apart – Where mother has been primary carer since separation – Current interim orders for child to spend three weekends per term and half of school holidays with the father – Both parents seek sole parental responsibility and for the child to live with them – Where both parties make allegations of abuse or family violence – Allegations of emotional abuse and coercive control in father’s household – Allegations of sexually inappropriate behaviour between child and step sibling – Allegations of physical discipline inflicted by the father – Where mother’s anxiety and lack of stability in child’s life is said to be psychologically damaging to the child – No findings made of abuse or family violence – Where child has positive relationship with both parents and half siblings – Where mother has a history of contravening Court orders – Where neither parent has willingness nor capacity to co-parent – Unilateral decisions made by the mother concerning the child’s medical treatment – Where child is undergoing numerous forms of intervention – Where it is possible the child has ADHD and behavioural or learning disorders – Presumption of equal shared parental responsibility rebutted – Where disruption to child with behavioural problems likely caused by change of residential parent militates in favour of leaving the child with the mother – Distance between parents’ homes makes equal or significant time impractical with non-residential parent – Orders made for child to live with mother and spend time with father three weekends each school term and half of school holidays – Order made for mother to have sole parental responsibility.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 65D(1), 65DAB

Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
L v T (1999) FLC 92-875; [1999] FamCA 1699
M & S (2006) 37 Fam LR 32; [2006] FamCA 1408
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Division: Division 1 First Instance

Number of paragraphs: 278

Date of hearing: 3–10 August 2022

The Applicant: Self-represented litigant

Counsel for the Respondent: Ms Druitt

Solicitor for the Respondent: Adams & Partners Lawyers

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: Reid Family Lawyers
ORDERS

SYC 3308 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS O'NEILL

Applicant

AND:
MR KESTLE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARPER J

DATE OF ORDER:

20 October 2022

THE COURT ORDERS THAT:
Parental Responsibility
1.The Applicant Mother, Ms O'Neill (“the mother”) shall have sole parental responsibility for major long term decisions affecting the child, X (“X"”), born 2015, subject to Orders 2–8 herein.
2.Except in the case of an emergency, the mother shall, prior to implementing a major decision in respect to X’s long term care, development, or welfare:
(a)contact the Respondent Father, Mr Kestle (“the father”) in writing and provide her views about the decision;
(b)seek the father's views about the decision;
(c)give the father's views due consideration; and
(d)if no agreement is reached between the parties, then within 14 days, the mother shall make the final decision and advise the father in writing of the decision made.

3.As soon as reasonably practicable, but within twenty four (24) hours, each parent shall keep the other informed of any medical illness or injury suffered by X whilst in that parent’s care, including:
(a)Provision of the details of any medical practitioner or hospital attended by X; and
(b)Information about any treatment administered to, or required by X.

4.X shall continue to attend upon the following practitioners for his medical and psychological care:
(a)Dr B, Paediatrician; and
(b)Dr C, Psychologist.

unless and until he is discharged from their care or referred elsewhere by the practitioners themselves.
5.Each parent is at liberty to obtain information, including verbal and written reports, about X’s health and well-being from X’s medical and allied health practitioners.
6.X shall continue to attend D School for his primary school education.
7.Both parents are authorised by these orders:
(a)To obtain copies of all school reports and information about X’s academic progress, including remedial programmes in place to assist X with his learning;
(b)To obtain copies of all school newsletters and school photographs, at their own expense; and
(c)To attend all sports carnivals, speech nights, parent-teacher nights, open days, and events to which parents are usually invited.

from or at any school(s) which X attends from time to time.
8.Each parent shall keep the other informed of their current residential address and contact telephone numbers (landline or mobile), and shall notify the other within 48 hours of any changes to same.

Assessment
9.By no later than the conclusion of Term 4 of 2022, the mother and the father shall do all acts and things necessary to arrange for X to participate in a comprehensive assessment of his developmental needs, and for this purpose:
(a)The clinician undertaking the assessment shall be Dr E or Ms F of G Psychologists in Sydney (“the clinician”);
(b)Each parent shall provide such information requested of them by the clinician to inform the assessment process, including completion of any psychometric testing, surveys, questionnaires, and participation in clinical interviews;
(c)The mother shall provide all necessary authorities and directions to X’s teacher, psychologist, tutors, and other professionals involved in X’s care to provide such information to the clinician as the clinician may request;
(d)Each parent shall do all acts and things necessary to make X available to the clinician for clinical interviews, observations and testing;
(e)The parents and each of them are at liberty to provide to the clinician:
(i)copies of the single expert reports of Ms J dated 13 December 2019 and 26 August 2021;
(ii)Any/all reports prepared by H Psychologists in respect of X;
(iii)Any/all assessments undertaken by the K Clinic in respect of X; and
(iv)Any other written material that the clinician may request in respect to X.

(f)The parents shall equally share the costs of the assessment and report; and
(g)Both parents shall receive a copy of the assessment report.

10.In the event the mother engages with, or continues to engage with, a clinical psychologist, or other health professional for management of her anxiety, the mother may provide to her psychologist, or other health professional, copies of the single expert reports of Ms J dated 13 December 2019 and 26 August 2021, together with a copy of this judgment.

Living arrangements:
11.X shall live with the mother.

Time with orders
12.X shall spend time with his father as agreed between the parties in writing, or in the absence of agreement:
(a)During school terms, on the second, fifth, and eighth weekends of each term:
(i)From the conclusion of school (or 3.00pm if a non-school day) on Friday until 4.30pm on Sunday, unless otherwise agreed between the parents in writing; and
(ii)In addition to the time prescribed in Order 12(a)(i), X shall spend Father’s Day weekend with the father if he is not otherwise spending time with him pursuant to these orders.

(b)During the second half of the school holidays at the conclusion of Terms 1, 2, and 3, such time to commence at 1.00pm on the second Saturday of the holidays until 1.00pm on the third Sunday of the holidays, with that time to be extended to 1.00pm on Monday in the event that it is a pupil free day.
(c)For half of the summer school holidays, alternating between the first and second halves of those holidays each year with:
(i)X to spend the first half of the summer holidays with his mother in 2022-2023 and each alternate year thereafter;
(ii)X to spend the first half of the summer holidays with his father in 2023-2024 and each alternate year thereafter;
(iii)X to spend the second half of the summer holidays with his father in 2022-2023 and each alternate year thereafter; and
(iv)X to spend the second half of the summer holidays with his mother in 2023-2024 and each alternate year thereafter;

and for the purposes of this Order, the summer holidays are defined:
(v)to commence at 1.00pm on the first day after school concludes in Term 4;
(vi)to conclude at 1.00pm one day before school resumes for Term 1 of the following year; and
(vii)the midway point is 1.00pm on 8 January of each year.

13.Notwithstanding any other order, X shall remain in the care of the mother on Mother’s Day weekend, and in the event it is a weekend he is ordinarily due to spend time with the father, that time shall be suspended and occur on the following weekend.

Facilitation
14.All changeovers shall occur at:
(a)X’s school, where the time is specified to commence from the conclusion of school;
(b)Otherwise at the Service Station in L Town, except as provided in Order 14(c);
(c)if the father is collecting his daughter, M, from, or returning her to, Suburb N McDonalds at the same time as X’s time with him is due to commence or conclude, he may elect to collect or return X from Suburb N McDonalds by providing to the mother no less than 48 hours’ written notice of that election.

15.X may communicate with the parent he is not living with by telephone, video call, SMS, or email at any reasonable time that he requests or initiates such communication.
16.The parent with whom X is living shall, on each Wednesday, facilitate a call between X and the other parent, at 5.30pm or at such other time as may be agreed, having regard to X’s extra-curricular activities.
17.Except in the case of an emergency, the parents shall communicate about issues affecting X via an agreed co-parenting application, and for this purpose, and in the absence of agreement, the parents shall register for and subscribe to “Our Family Wizard”, with the costs associated with the use of “Our Family Wizard” to be equally shared.

Travel
18.The mother retain X’s passport.
19.Pursuant to s 65Y of the Family Law Act 1975 (Cth), X be entitled to travel overseas with each parent during school holiday times that they are spending with that parent pursuant to these orders (or as otherwise agreed in writing) upon condition that:
(a)the parent intending to travel overseas with the child shall give the other parent 30 days’ notice of his or her intention to travel overseas with X; and
(b)the travel is to a country that is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction and has an advice level of ‘Level 1 – Exercise Normal Safety Precautions’ on the Department of Foreign Affairs and Trade ‘Smart Traveller’ website.

20.For the purpose of Order 19, the parent intending to travel overseas with X shall provide the other parent with telephone contact details upon which X can be contacted during his time with that parent and during overseas travel.
21.Within seven (7) days of receiving a request by the parent intending to travel internationally with X, the other parent is to sign all documents necessary to facilitate the child travelling internationally pursuant to Order 19 above and, provide the child’s current passport to the other parent if the passport is in their possession.
22.Within fourteen days of returning home with the child from overseas, the father shall return the child’s passport to the mother.

Injunctions
23.Each parent is restrained by injunction:
(a)From denigrating the other parent or any other person in that parent's family or household, to X, or in his presence or hearing; and
(b)Permitting or allowing any other person to denigrate the other parent or any other person in that parent's family or household, to X, or in his presence or hearing.

Costs
24.The mother and the father shall each pay to Legal Aid NSW the sum of $8,800 (GST inclusive) by way of contribution to the costs and disbursements of the ICL, such sum to be paid within two (2) months of the date of these orders.
25.The mother and father shall each pay half of Ms J’s costs for and associated with her attendance at Court on 9 August 2022 for cross examination, within seven days of receipt of Ms J’s account in respect of the same.
26.Any application for costs by either party shall be filed and served within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
27.All outstanding applications be otherwise dismissed.

THE COURT NOTES THAT:
A.It is the Court’s view that the mother would benefit from continued therapeutic intervention.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Neill & Kestle has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

These are final parenting proceedings between the Applicant Mother, Ms O'Neill (“the mother”) and the Respondent Father, Mr Kestle (“the father”), in relation to the child of the relationship, X, born 2015 (“the child”).
A central question in this case was whether the child should move from the mother’s care to live primarily with the father.
The mother filed a final minute of proposed orders on 27 July 2022. As her primary position, the mother sought an order of sole parental responsibility, for the child to live with her, and to spend time with the father on the second, fifth, and eighth weekend of each school term and half school holidays. She also made an alternate proposal if the Court decided the child should move to live with the father. The mother’s proposal is reproduced in Annexure A to this judgment.
The father sought an order of sole parental responsibility, and for the child to live with him and spend term time with the mother on the third and seventh weekends of each term, and approximately half school holidays. His proposed orders are reproduced in Annexure B to this judgment.
The Independent Children’s Lawyer’s (“ICL”) tendered a final minute of proposed orders at the conclusion of the trial. The ICL also proposed that the child should remain living with the mother and spend the second, fifth, and eighth weekends of each school term, and half school holidays with the father. The ICL’s proposed orders are reproduced in Annexure C to this judgment.
It should also be noted that the mother was self-represented for the entirety of the proceedings. She is a professional, having obtained a specialist accreditation in or around 2015, and is currently self-employed.
BACKGROUND
The parties do not agree on the length or nature of their relationship. The relationship began some time in 2014. In 2014, the father separated from his then-wife, with whom he has a daughter, M. He contends that he subsequently began casually dating the mother, but the relationship ended in late 2014. The mother asserts that she met the father in early 2014 on an adult website, and that the relationship began approximately one month later. At this point in time, the mother asserts that they were both still in relationships with their previous partners. The mother states that their relationship ended in August 2015. It is unnecessary to resolve this factual disagreement. It was common ground that the relationship was short.
In or about late 2014, the mother informed the father that she was pregnant with the child.
The child was born in 2015 at O Hospital in City P and was subsequently discharged from the neonatal unit. The father was present at the birth of the child.
In late 2015, the father commenced a relationship with his current wife, Ms Q (“Ms Q”).
In or around late 2015, the father requested that the child undergo a DNA test to confirm the child’s parentage. In early 2016, the results of the DNA test confirmed that he was the biological father of the child. Following the results of the DNA test, the father commenced spending regular time with the child. This time occurred with the mother present, and at times without the mother.
Also in early 2016, the father, Ms Q, and her children commenced residing in a rental property in City P. They returned to Sydney most weekends to spend time with the father’s daughter, M. They lived between their homes in Sydney and City P.
In early 2016, the mother commenced a new relationship.
In early 2016, the mother and the child moved in with the maternal great-grandmother at her home in Suburb R, City P, as a result of financial strain.
In early 2016, the parties attended mediation at AN Family Services in City P. The parties reached an agreement relating to some parenting matters, including that the child would travel with the mother to the United States of America and Country S in mid-2016. Following their return, the mother separated from her boyfriend and father of her second child.
Between early and mid-2016, the father, the paternal grandmother, and his daughter, M, spent time with the child on a regular basis. This occurred both with the mother present and with the mother absent.
The father did not spend time with the child between mid-2016 and mid-2017.
In mid-2016, the mother learned that she was pregnant with her second child, T.
In late September or early October 2016, the mother commenced working in City P.
In or around late 2016, the mother moved back into her home at Suburb U with the child.

In 2017, the mother’s second child, T, was born.
Between mid-2017 and early 2018, the father spent time with the child in a public place on four occasions with the mother or the maternal grandmother present.
In late 2017, the mother met and began dating Mr V, who had a son from a previous relationship, W.
In late 2017, the father married Ms Q. Ms Q has two children from her previous marriage;
(a)AA, born 2010, currently 11 years of age; and
(b)BB, born 2013, currently nine years of age.
The father also has a child from his first marriage, M, born 2010, currently 12 years of age.
The father recommenced spending time with the child at the AN Family Services contact centre in Suburb CC in early 2018. This continued until fresh interim orders were made on 13 December 2018.
In late 2018, the father and Ms Q had a son, DD.
In late 2018, the mother and Mr V moved into a rented premises in Suburb EE, together with the child, T and W.
Fresh interim orders were made on 13 December 2018, for the father to spend unsupervised time with the child each alternate Saturday.
Between early and mid-2019, the child attended upon Ms FF, a child psychologist at GG Health Services.
The father did not spend time with the child from late January 2019 until 21 May 2019, as the mother unilaterally suspended contact, alleging anxiety over the child’s safety whilst in the father’s care.
In or around mid-2019, the mother consulted her GP about her anxiety and was prescribed medication and given a Mental Health Care Plan. The mother began seeing Ms HH, a clinical psychologist.
In or around late 2019, the mother learned that she was expecting her third child.
In early 2020, Final Orders were made with respect to Ms Q’s eldest two children, permitting her to relocate with the children to the JJ Town/KK Town area.
In or around early 2020, the child commenced preschool at AO School.
In early 2020, the father and Ms Q jointly purchased MM Street, NN Town (“the NN Town residence”).
In early 2020, the parties were advised by the OO Contact Centre that due to the Covid-19 pandemic, all visits would be cancelled all until further notice.
The child did not spend time with the father between March and June 2020. The mother had expressed concerns with the Covid-19 pandemic and sought reassurance that the father would take measures to minimise the child’s exposure to the virus. She also harboured concerns about her own safety, as she was pregnant at the time.
In or around the end of early 2020, the mother experienced complications with her pregnancy and was advised not to drive long distances. In early 2020, the mother was made redundant.
In early 2020, the mother was admitted to O Hospital with serious pregnancy complications. The mother was placed on strict bedrest and remained in hospital for approximately a month. The maternal grandmother and great-grandmother moved into the mother’s home to care for the child and T. During this time, the mother separated from Mr V, and he moved out of the home.
In mid-2020, the child was diagnosed with a severe allergic condition.
The mother’s third child, PP, was born in 2020. The mother was discharged a week following PP’s birth. PP remained in hospital for some time.
The father did not spend time with the child from 8 June 2020 until 21 August 2020 due to issues with changeover. The mother had limited capacity to drive, due to her pregnancy, whilst the father, on one occasion, was with Ms Q in hospital.
In or around late 2020, the mother decided to sell the home jointly owned by herself and Mr V. She signed a lease for a rented premises in the same street in early 2021.
In late 2020, Ms HH, the mother’s treating psychologist, made a mandatory report to the Department of Communities and Justice (“the DCJ”) regarding a risk of physical or sexual abuse against the child, M, AA, BB, and DD.
In early 2021, the mother alleged that the child had made disclosures and displayed sexualised behaviours after spending time with the father over Christmas. She made a report to DCJ.
In early 2021, the mother was informed by the Principal at UU School (“UU School”), the child’s primary school, that the child had deliberately hurt peers in the playground. The mother made an appointment for the child to be seen by Dr C, a psychologist at H Psychologists.
In early 2021, the child underwent an initial occupational therapy assessment. The report from this assessment was issued about a month later and appeared to indicate that the child was diagnosed with below age appropriate visual perception skills. The mother organised for the child to attend fortnightly occupational therapy sessions and applied for funding under NDIS Early Intervention Funding. This funding was approved in mid-2021.
By late 2021, the mother ceased taking her medication. She also made the decision to cease attending consultations with Ms HH.
In early 2022, the child attended the K Clinic to undergo a literacy assessment. The mother arranged for the child to commence weekly sessions at K Clinic.
In early 2022, the child underwent an assessment for ADHD and another condition at H Psychologists. The Assessment Report from H Psychologists dated mid-2022 indicated that the child met the criteria for ADHD, combined presentation with strong indications of a learning disorder. An amended report was issued in mid-2022 (“the second ADHD report”) which questioned the diagnosis. A further amended report was issued by H Psychologists a short time after 2022, which effectively stated that all previous reports were no longer reliable and no diagnosis was possible due to the conflicting information provided by both parents.
In mid-2022, the mother resigned from her part-time work.
It should also be noted here that the mother has changed the child’s child care and schools numerous times during his young life.
The child attended five child care facilities between mid-2016 until late 2019:
(1)QQ Centre from approximately mid to late 2016;
(2)RR Centre in late 2016;
(3)SS Centre from early 2017 until 2018;
(4)TT Centre at Suburb AL from early 2018 until approximately early 2019; and
(5)Suburb EE Childcare and Preschool from early 2019 until the child commenced primary school.
The child has subsequently attended three primary schools from 2020 to present;
(1)AO School in early 2020 for the preparatory program;
(2)UU School in 2021 for kindergarten and the first week of Year 1 in 2022; and
(3)D School on 7 February 2022 for the remainder of Year 1 and to present.
PROCEDURAL HISTORY
As mentioned above at [15], the interim parenting plan agreed on 18 March 2016 provided for the child to live with the mother and spend time with the father commencing 2 April 2016, continuing each alternate Saturday in the City P Region. It also allowed for the mother to travel with the child to the United States of America and Country S in mid-2016.
On 27 May 2016, the mother filed an Initiating Application in the Federal Circuit Court of Australia (as it then was) seeking urgent parenting orders to permit the child to travel with her overseas as had been agreed in the interim parenting plan.
The matter was heard by Judge Henderson (as she then was) on 2 June 2016. Interim parenting orders were made by consent. The orders provided that the child would continue to live with the mother and spend time with the father on alternate Saturdays commencing on 11 June 2016 with changeover to occur at Suburb VV, and on alternate Sundays commencing on 19 June 2016, with changeover to occur at in Suburb WW. The orders permitted the mother to travel overseas with the child from 30 July 2016 until 14 August 2016.
On 3 March 2017, the mother filed an Amended Application for Final Orders. The father filed a Response on 14 August 2017, which was later amended on 19 September 2017.
On 28 April 2017, Judge Henderson ordered the parties to attend a Child Dispute Conference. The parties attended on 14 August 2017. It was agreed that the father and his mother would travel to City P to spend time with the child on 19 August 2017.
On 22 September 2017, an order was made appointing an ICL and for the parties to engage with a supervised contact centre in the XX Region, with a view to the father spending time with the child there. On the same date, the mother filed an Application in a Case seeking the discharge of all previous orders, and fresh parenting orders.
Legal Aid NSW was initially appointed as the ICL on 11 December 2017, however withdrew on 21 February 2018. Reid Family Lawyers came onto the record on 26 February 2018.
On 9 July 2018, the father filed an Application in a Case seeking the discharge of previous orders and the making of alternate interim orders as proposed by the father. The mother filed a Response on 26 November 2018.
On 13 December 2018, Judge Henderson made orders providing that the child spend unsupervised time with the father, commencing on 22 December 2018, on each alternate Saturday morning. The orders further provided that the parties and the child attend upon a family consultant for the purposes of the preparation of a family report.
On 5 March 2019, the mother filed an Application in a Case seeking orders, among others, that the case be transferred to the Family Court of Australia and joined with the father’s parenting case regarding his elder daughter, and that the orders of 13 December 2018 be suspended. The father filed a Response on 29 March 2019, seeking that the mother’s Application in a Case be dismissed.
On 1 April 2019, Judge Kemp ordered that the matter be transferred to the Family Court of Australia (as it then was).
On 1 May 2019, the father filed an Application – Contravention alleging failure by the mother to facilitate time with the father on five occasions in March and April 2019. He discontinued this application on 12 August 2019.
On 15 May 2019, the mother filed an Amended Application in a Case seeking the discharge of previous orders and fresh parenting orders. On 21 May 2019, a senior judicial registrar dismissed this application and ordered that the orders made by Judge Henderson on 13 December 2018 continue. Ms J was appointed to produce an independent expert report concerning the child.
On 29 May 2019, the mother filed an Application in a Case seeking a review of the senior judicial registrar’s decision. The mother subsequently withdrew this application.
On 11 May 2020, the father filed a Further Amended Response and an Application in a Proceeding seeking interim orders.
On 4 August 2020, interim orders were made for the father to spend time with the child during school terms on the second, fifth, and eighth weekends of each term from the end of school on Friday until the following Monday in 2020, and from the end of school on Friday until Sunday in 2021. The orders also provided that the child would spend half of the school holidays with the father. This was the regime in place as at the final hearing.
On 13 August 2020, Alstergren CJ ordered that the matter be listed for final hearing with an estimate of five days.
The matter was first listed before me on 12 January 2021. At this hearing, the mother contended that the child had made disclosures of sexualised behaviour in the care of the father. The Court ordered that an updated report be prepared by Ms J.
On 22 October 2021, the Court listed the matter for final hearing to commence on 3 August 2022 with an estimated hearing time of six days.
On 10 November 2021, the father filed an Application in a Proceeding seeking orders regarding Christmas arrangements. The Court made orders on 3 December 2021 for school holiday time.
The final hearing commenced on 10 August 2022 for six days.
CURRENT CIRCUMSTANCES
The child lives with his mother and half-siblings, T and PP, in rented accommodation in Suburb EE. The mother has purchased a block of land in Suburb EE with the intention to build a house for herself and her children.
The mother is currently single and self-employed.
As noted earlier, the mother has two children from other relationships;
(c)T, born 2017, currently five years of age; and
(d)PP, born 2020, currently two years of age.
The mother continues to engage with a counsellor at AM Counselling and has sought further support from LL Family Services, where she has a caseworker, Ms YY.
The father operates and owns a business with Ms Q called ZZ Pty Ltd. The business operates in NN Town. Ms Q works full time as an educator in JJ Town.
The father lives with Ms Q and they have full time care of AA, BB, and DD. The father’s daughter, M, spends time with the father on the fifth weekend of each school term, and half of every school holiday period with alternate Christmas arrangements.
The father resides on a property in NN Town. When the child spends time with the father, he shares a bedroom with BB.
AA and BB attend AB School. It is expected that DD will also commence attendance at AB School in 2023.
Since 4 August 2020, the child has been spending time with the father on three weekends each school term and for half of school holidays.
ISSUES IN DISPUTE
I have already referred to the proposals of the parties in broad outline.
By the end of the trial, the main issues requiring determination were the following:
(a)Whether it is in the child’s best interests to make an order for sole parental responsibility;
(b)Whether it is in the child’s best interest to continue to live primarily with the mother, or undergo a change of residence to live primarily with the father;
(c)Whether the child living primarily with the mother should be conditional upon her attendance on a psychologist;
(d)The time the child should spend with either parents;
(e)The capacity of each parent to meet the child’s needs;
(f)The capacity and willingness of each parent to facilitate and support the other parent's relationship with the child; and
(g)Whether it is in the best interests of the child to undergo a comprehensive assessment of his developmental needs, and whether the assessor should be provided with the single expert reports of Ms J.
EXPERT EVIDENCE
Family Report Recommendations
All parties relied upon the family reports of Ms J. These were referred to as the first expert report, which was dated 13 December 2019, and the second expert report, dated 26 August 2021.
Ms J made recommendations at [111] of the second expert report to the following effect:
(a)Any treating professional (current or future) should be provided with the final orders and a copy of both expert reports to assist with treatment planning and in understanding the complex family history that the child is exposed to, as the parents have shown to be unreliable historians;
(b)The child should continue to live primarily with the mother;
(c)The child should continue to spend time with the father in the same pattern (the third, fifth, and eight weekend of term, and half the school holidays);
(d)The changeovers should ideally occur at the child’s school if possible. Alternatively, all changeovers should occur mid-way between the residences of the mother and the father at the closest McDonald’s if it cannot occur through school;
(e)The parties should endeavour to do all changeovers possible, however, they should be permitted to send pre-nominated representatives to facilitate handovers;
(f)The mother should continue to attend upon a clinical psychologist to address her ongoing anxiety, especially in relation to her assessment of risk in relation to the child. The treatment provider should be provided with a copy of both expert reports;
(g)The mother should continue to seek professional support regarding strengthening her parental authority and following the provided guidance in addressing child’s oppositional behaviours whilst in her care;
(h)The parties should continue to follow all reasonable recommendations made by the child’s paediatrician, including participating in future allied health assessments or interventions as requested; and
(i)The parties should use a communication application such as “Our Family Wizard” to assist them in clear communication strictly focused on the child.
Ms J was cross examined. As noted later in these reasons, she did not change her views or recommendations materially after considering a range of information available since the date of her second report.
The child
The child is currently seven years of age and in Year 1 at D School. He suffers from a number of conditions, and is currently undergoing treatment at AC Hospital.
The mother and some of the child’s educators and caregivers have reported the child has displayed challenging behaviour at home, in pre-school, and school environments to differing degrees since the age of approximately two years old. This includes aggressive and violent behaviour directed towards his peers, mother and half-sister T, expressing a desire to hurt others, hyperactivity, inattentiveness, and sensory seeking.
The father and Ms Q were both adamant that the child does not display these behaviours or indeed any behaviour of concern while in their care.
Nonetheless, the evidence persuades me that the child is displaying challenging behaviour both in the care of the mother and in his school and day care environments. Despite numerous forms of intervention and positive changes in the mother’s parenting, as will be discussed later, the child continues to exhibit problematic behaviour and learning delays. Incident reports from the child’s current school record that the child has been “swinging his lunch box into another students back” and “been hands on” with his peers as recently as June of this year. Further detail is discussed in the course of these reasons.
The child currently attends upon the following medical practitioners and allied health professionals:
(a)Dr B, Paediatrician;
(b)Dr C, Psychologist;
(c)Dr AD, Paediatric Immunologist;
(d)Dr AE, General Practitioner, when in the care of the father;
(e)K Clinic;
(f)Dr AF, General Practitioner;
(g)O Hospital; and
(h)Ms AG, Occupational Therapist at AH Health Service.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child, unless it does not apply or is rebutted in the best interests of the child: s 61DA(4).
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. While the Court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary; the proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what is discussed: Tibb & Sheean (2018) 58 Fam LR 351 at [68] and [87]. Accordingly, in this matter, the relevant considerations will be discussed below.
It is convenient to repeat at this point that, as noted at commencement of these reasons, neither parent nor the ICL suggested an order for equal shared parental responsibility should be made. Each sought an order for the allocation of sole parental responsibility in their favour. It was accepted by all that the mother and father have exhibited limited capacity to communicate effectively or co-parent with each other, and the presumption should be rebutted in the best interests of the child. It was also common ground that the parent with whom the child lived should also have sole parental responsibility allocated to them. I agree this approach is in the best interests of the child. There will be no order for equal shared parental responsibility.
PRIMARY CONSIDERATIONS

In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26] and McCall & Clark (2009) FLC 93-405 (“McCall”) at [115];
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]; and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M & S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287 at [36]; Champness & Hanson (2009) FLC 93-407.
Whichever proposal is adopted by the Court’s order, the mother and the father will continue to live a long distance apart. The driving time between Suburb EE and NN Town is a number of hours. The connection between the risk of impairment to the maintenance of a meaningful relationship with a non-custodial parent and significant distance between households is well recognised. For example, in Franklyn & Franklyn [2019] FamCAFC 256, the Full Court observed at [27] that:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
(Citations omitted)
There was no dispute that the child has established meaningful relationships with both the mother and the father. There was clear evidence that the child has enjoyed a loving relationship with both parents. His relationships with each parent have positive aspects, although, as the later discussion makes clear, both parties have parenting deficits.
Both parties stated that it was their belief that the child would benefit from maintaining a meaningful relationship with each of them. However, the willingness and the capacity of the parties to facilitate and promote an ongoing and meaningful relationship between the child and the other parent is clearly in issue. I will return to this issue below under s 60CC(3)(e).
Each parent has alleged that the other has sought to undermine and frustrate the child having a meaningful relationship with them. I accept this has been an entrenched pattern. It is apparent on the evidence that despite each parent asserting that they wish for the child to have a meaningful relationship with the other parent, both parties have behaved in ways that have directly and indirectly undermined the child’s relationship with the other parent. If this behaviour continues, Ms J, in her second report, opined that there is a significant risk that the child will be unable to safely maintain a relationship with both parents. It was the belief of Ms J that the child is evidently distressed by the impact of his parents’ behaviour and this is manifesting in an increased use of aggression at school and may be contributing to the child’s poor concentration.
Unfortunately, the inveterate parental conflict that continues to exist between the mother and the father imperils the sustainability of a meaningful relationship between the child and both parents.
Section 60CC(2)(b), “abuse” and “family violence”
Both parents made allegations to the effect that the child is at risk of abuse or family violence in the other’s care.
It is helpful at this point to set out some statutory definitions.
The terms “abuse” (see s 4 of the Act) and “family violence” (see s 4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
…
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to an assault or repeated derogatory taunts.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence: s 4AB(3) of the Act. The Act provides in s 4AB(4) examples of situations that may constitute a child being exposed to family violence, which include but are not limited to the child
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family.
A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse: M v M (1988) 166 CLR 69. Section 60CG requires the Court to consider the question of “unacceptable risk of family violence” and appropriate safeguards in making orders.
The Full Court in Isles & Nelissen [2022] FedCFamC1A 97 at [7] has recently made clear that:
risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
The Full Court gave a detailed consideration to earlier authority, and after setting out paragraphs from Sahrawi & Hadrami (2018) FLC 93-857, said at [40]:
The plurality [in Sahrawi] clearly differentiated the proof of asserted facts from the separate question of whether there is an unacceptable risk of harm, confirming the latter enquiry is still evidence-based, but affirming it need only give rise to the conclusion that certain alleged behaviour may have occurred in the past or may occur in the future.
(Emphasis in original)
Finally, the Full Court cited the High Court decision in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [38]–[39], and confirmed at [53]:
The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The Full Court at [46] confirmed that oft cited earlier decisions, namely Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344, do not state the law in this regard.
The relevant allegations of risk are as follows.
Emotional abuse and coercive control
The mother’s account of her relationship with the father, in conjunction with the evidence tendered to the Court, indicates that while there was significant verbal conflict in the relationship between the parties, this conflict was bidirectional and is not suggestive of family violence.
The mother alleged that the father has and continues to denigrate the mother to the child. It appears on the evidence that both parties have denigrated the other to the child and acted in ways that directly and indirectly undermine the child’s relationship with the other parent.
The mother contends that the father has exhibited coercive controlling and abusive behaviour towards Ms Q, and that the child is at risk of being exposed to this behaviour.
The basis for this submission lay principally in hospital admission records of Ms Q dated mid-2016 from the AJ Health Service. The copy of the records in the mother’s exhibit are incomplete, but appear to show the following. At the time, Ms Q had been in her relationship with the father for six months. She was pregnant. The records indicate that she was suffering anxiety. The father and paternal grandmother were also present at the hospital. The documents record that Ms Q told hospital staff she did not want the father in the consulting room with her. He was insistent, became aggressive, and expressed a fear that the maternal grandmother wanted the mother to terminate the pregnancy. There was conflict between the father and the maternal grandmother. The notes record the grandmother saying she believed the relationship between the father and Ms Q was detrimental to the latter’s mental health.
During cross examination, Ms Q was questioned by the mother and the ICL regarding these medical records. In progress notes completed by a nurse, dated mid-2016, among “Multiple stressors” is listed “relationship stress with verbal DV”. Further progress notes completed by a social worker, also dated mid-2016, record that “[Ms Q] reported emotional and verbal DV perpetuated by current partner – unsure if she wants to continue or end relationship.” Under cross examination by the ICL, Ms Q maintained that those references were about her ex-husband. She said that at the time she was very happy in her relationship with the father, and her mother, from whom she is now estranged, said many nasty things.
Ms Q denied that the father has been emotionally or verbally abusive towards her. I accept this evidence.
I note that the mother submitted that in a COPS report dated mid-2016, there are recorded allegations by Ms Q’s parents that the father was trying to take control of her life and manipulating her. These were said to also support her claims that the father was coercive and controlling. It is difficult to draw any reliable inference from this material.
Even taken at its highest, I do not accept any evidence supports the mother’s allegations of historical coercive controlling behaviour by the father either in respect of Ms Q or otherwise.
Sexually inappropriate behaviour
The mother also continues to maintain concerns that the child has engaged in inappropriate sexual behaviour with Ms Q’s son, BB, while at the father’s house.
The mother refers to incidents that the child returned from spending time at the father’s house with a “red, raw, anus”. The mother alleged that the child disclosed participating in sexualised behaviour with BB, and that following the father’s increased time with the child, the child began exhibiting sexualised behaviour towards his siblings and classmates. She accepted that the child made the alleged disclosures in or around late 2020. The mother’s psychologist made a report to DCJ about the alleged sexualised behaviour in late 2021. The mother raised these concerns with the Court in early 2021. She then made two risk of harm reports to DCJ, in early 2021 and early 2022. Caseworkers from DCJ conducted interviews with the father, Ms Q, and Ms J. No further action was taken by the DCJ.
The mother referred to inappropriate behaviour between the child and BB in an email to the ICL dated late 2020. In the final paragraph, she stated:
I propose that [X] cease overnight time until the above can be investigated/addressed. Accordingly, I am offering to drop off and pick [X] up from McDonald's [JJ Town] this Saturday, which will enable him to spend the day with [Mr Kestle] and his family, but not any overnight time. I would prefer that the time take place in a public location and not at [Mr Kestle's] home where [X] and [BB] have been engaging in the inappropriate behaviour described above.
Then, surprisingly, in late 2020, the mother changed her position and proposed that the child move to live with the father, despite being aware of the alleged disclosures, her proposal to cease overnight time, and her asserted concern that the child was at risk of engaging in sexually inappropriate behaviour in the father’s house.
In early 2021, the mother changed her mind and withdrew her offer for the child to live with the father. On 12 January 2021, when the proceedings were before the Court, the mother, appearing for herself, explicitly referred to “several disclosures made recently”.
At [377] of her trial affidavit, the mother gave the following evidence about her withdrawal of the offer for the child to live with the father:
[In early 2021], I received an email from [Mr Kestle's] lawyer which said in part. "I refer to the above matter and your initial email dated [late] 2020 in relation to your struggles in having [X] living with you and your desire for [X] to live with our client ... " I felt that this further demonstrated how [Mr Kestle] (via his Solicitor) would just continue to belittle, insult, taunt, gaslight and basically emotionally abuse me, regardless of if I agreed for [X] to go and live with him. I envisaged [Mr Kestle] telling [X] that I did not want him, I could not look after him and, I could not cope with him and the like. I had no desire for [X] to live with [Mr Kestle], I just wanted the conflict and the disturbing behaviour, to stop.
When it was pointed to her in the witness box that this evidence makes no reference to any risk or mention of disclosures of sexual abuse in the months between October 2020 and January 2021, she said:
I guess I – just my recollection of it. Like, doing this affidavit now, so far later, I think there’s probably things I had forgotten; I didn’t keep a diary. But what I would have told your Honour on [12 January 2021] would have been correct as at – as at that date.
(Transcript 4 August 2022, p.117 lines 35–38)
I further note that the parties’ accounts of the “inappropriate sexual behaviour” was considered by Ms J. She expressed an opinion, based upon her expertise, which was that the child’s behaviour would be considered age-normative and not problematic. Ms J categorised this behaviour, if it took place at all, as “silly sexualised behaviour” occurring between the child and BB, and asserted that it was her belief that the children had all been given consistent messaging that the behaviour was not acceptable and had since stopped.
In cross examination, the mother claimed that the views of Ms J no longer satisfied her because the child’s sexualised behaviours had continued, apparently up to the date of trial. For example, she claimed in cross examination:
[APPLICANT MOTHER]: There has been [X] exposing himself on holidays, taking his clothes off and requesting other children take their clothes off. There has been him returning – he returned from his – from spending time with his father and asked [T] to kiss his penis. They’re probably the two biggest ones, but he continues to make a lot of references to genitalia
[COUNSEL FOR THE RESPONDENT FATHER]: And so what [Ms J] had to say on this topic no longer satisfies you that it needs no further investigation?
[APPLICANT MOTHER]: That’s correct. The children are older now and he’s still engaging in that behaviour and telling me at times that that behaviour is continuing between he and [BB].
(Transcript 4 August 2022, p.110 lines 17–26)
The mother also impugned the investigations by DCJ, because she considered the child and BB should have been interviewed.
Ms J expanded on the issue of sexualised behaviours further in cross examination. She explained that problematic sexualised behaviours in children are often part of a raft of behavioural problems. Inappropriate sexual behaviour can be exhibited as an attention seeking behaviour, as it often elicits a powerful and emotive reaction from the child’s caregivers. Consequently, it was more likely that the child was exhibiting this behaviour as an expression of his distress.
In cross examination, the father and Ms Q rejected the possibility that any sexualised behaviours or inappropriate sexual interaction had ever taken place between the child and BB: “they don’t engage in such behaviour”. The father gave evidence that the layout of his own house made it impossible that the child could have engaged in inappropriate behaviour with BB while in his care. I note the evidence that the child and BB share a bedroom when the child stays with the father, and that BB and the child continue to shower together, though in the presence of the other children. The father has not put in place any protective measures, apart from the reiteration of the house rule “from my head to my toes what I say goes”. He maintained that any inappropriate sexualised behaviour was coming from the mother’s house.
I am not satisfied that the evidence demonstrates any inappropriate sexual behaviour or abuse has actually taken place between the child and BB, or otherwise in the care of the father. I accept the mother may have convinced herself through anxiety that it did. I accept that the child has exhibited problematic sexualised behaviour, which may be continuing. However, he has done so while predominantly in the care of the mother. Based on the opinion of Ms J, it is more likely than not that such behaviour is a result of the child’s distress at the conflict between his parents, not any sexual abuse. I reject the mother’s allegations of risk of sexual abuse in the father’s care.
Physical discipline and the ranking system
The mother has reported concerns regarding the use of physical discipline and a disciplinary “ranking system” employed in the father’s house. A number of risk of harm reports were made to the DCJ between mid-2016 and early 2021, by the mother and other parties, expressing concerns that physical discipline and the withholding of food was occurring in the care of the father and Ms Q as forms of punishment. The DCJ completed a safety assessment in early 2021 and reported the children to be safe in the care of the father and Ms Q.
The father gave evidence under cross examination that he and Ms Q have in place a “ranking system” as a form of discipline and behavioural management in their house. The “ranking system” was an element of concern in the reports made to the DCJ. The father explained that there are “good ranks”, “bad ranks”, and an “ok rank”. A child in the “ok rank” can choose which “horrible job” the children in the “bad ranks” has to complete; the father gave the example of weeding. When the children are in the “bad ranks” they may need to clean all the family’s dishes, whilst the children in the “good ranks” get to assist with cooking and the meal preparation. The names of the ranks are based of the characters of a card game known as “old maid” and not referred to as the “good” and “bad” ranks by the father and Ms Q to the children. The father was confident that this system was suitable for the child’s needs and any behavioural issues that may arise. The father stated that the child has not been involved in the “ranking system” due to the infrequency of his visits, however, the child is aware of it and it would apply of him if he came to live with the father.

The “ranking system”, in my view, is no more than a manifestation of a stricter and more orderly parenting style, and does not constitute or create any risk to the child, if he was to live with the father primarily.
The mother has alleged that the father uses a “rump bump” where he kicks the children in the bottom as a form of physical discipline. The father and Ms Q gave evidence under cross examination that a “rump bump” is a game the children play on the trampoline and not a form of discipline, and the children “love it”. I am satisfied this is an innocuous game.
The father and Ms Q dispute that the children have ever been withheld food or water as a form of punishment. I accept this evidence.
Mother’s anxiety
The father contends that the mother’s anxiety and her focus on “pathologising” the child and “histrionic” behaviour is psychologically damaging to the child. It was argued that the child has experienced trauma in the mother’s household, referencing multiples moves, multiple failed relationships, multiple schools, and being coached and being involved in these proceedings.
There was no dispute that the mother suffers from anxiety. The evidence of Ms J was clear that the mother was “hyperfocused and hyper-controlling” over the child and was prone dysregulated responses: see below at [200] and [212]. However, as explained later in these reasons, while these are parenting deficits, they do not constitute an unacceptable risk in the care of the mother.
Ongoing conflict
The parties have no co-operative co-parenting relationship. Their interactions disclose extreme parental conflict. I find this presents the greatest risk of psychological harm to the child.
Ms J observed in the second expert report at [108] with regards to the parental conflict:
It is my view that the level of conflict [X] is being exposed to is impacting upon his emotional and relational development, and if left to continue will constitute psychological abuse and emotional neglect to the degree that a statutory chid protection response is required. The onus is on both parents to cease their abusive and self-focussed behaviours.
The parties were given access to the second expert report, in which Ms J was unequivocal in her assertion above that the parental conflict must cease, on 21 September 2021. The parental conflict, of which both parties have been active participants, has not abated in the face of Ms J’s stark warning.
In cross examination, the mother maintained that she believed the father and Ms Q had abused the child by running a narrative that she was a “dangerous and malign figure in his life”. She asserted this had been achieved by the father in concert with his family, and that they had achieved this even though the child spent time in their care only three weekends each term, and half of school holidays. I reject these assertions by the mother.
Conclusion
I do not find that the child is at any unacceptable risk in the care of either parent. I am unable find the child has been involved in inappropriate sexual behaviour with another child while in the care of the father. I do not find that the father has an inappropriate parenting style, or that he and Ms Q have convinced the child that the mother is a dangerous person in his life.
I will return to the question of the parties’ respective parenting capacity and the risk to the child of continued exposure to parental conflict below.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(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;
Whilst a child’s views are but one consideration, they ought to be given proper consideration, but their importance depends upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have: Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35].
The child was seven years of age at the time of the final hearing and has only ever experienced the mother as his primary carer. The child has reportedly said to both parents that he wishes to live with them and not the other parent. It was recorded in the second expert report that the child expressed a desire to the expert to live at the mother’s house “always” and visit the father “lots”. If both parties are to be believed, it appears that the child’s views on which parent he wishes to live with are transient, which is consistent with the child’s age.
For example, in her oral evidence Ms J was asked about the father’s evidence that the child was resistant to leaving at the time of transition back to the mother’s home. She agreed children become upset when they
don’t know the next time they’re going to see dad or they don’t know what they’re going to be met with at mum’s. You know, there’s all these kind of other factors that mean that transitions aren’t predictable for [X].
(Transcript 9 August 2022, p.418 lines 1–3)
In light of the child’s young age, the weight of his views is diminished in determining what orders I should make. Accordingly, I give limited weight to the views of the child, save that he clearly wishes to sustain a relationship, and spend time, with both his mother and father.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
The mother has been the child’s primary caregiver for the duration of his life. Despite this, it is apparent that the child has an existing and secure attachment to both the mother and the father. Ms J observed in the second expert report at [110](d) that
Although it is likely [Ms O'Neill] is [X’s] primary attachment figure, his behaviour during the observation and across both assessments did not indicate a clear preference for one parent over the other, and thus, this suggests he feels safe, close and secure with both parents. He was able to be soothed by both parents, enjoyed engaging with them and initiated affection and games with them.
In her second report, Ms J recorded the following about the child’s interactions with the father, Ms Q, and his step and half siblings (at [89]):
The observation period was largely unremarkable. Consistent with the previous assessment, [X] appeared relaxed and happy throughout the observation. He was observed to initiate affection with [Mr Kestle] and [Ms Q], engage in various play activities with each of his siblings at various times, whilst also being comfortable to play independently. [X] was noted to be quiet in his interactions, and less demanding of attention or assertive with his play ideas than [BB] or [M] and seemed content to observe and join in with group games (i.e., uno). He was seen to laugh and joke with his siblings and the adults. He did not mention [Ms O'Neill] or his maternal siblings at any time. Consistent with the previous observation, [Mr Kestle] and [Ms Q’s] parenting behaviours were relaxed and they were observed to follow the children’s lead in choosing activities, and effectively spread their attention amongst the five children of high energy. There were no indications of difficult, defiant or oppositional behaviours and [X] was compliant and happy throughout the thirty-minute period.
Ms J did also note that when compared to the observation of the child with his paternal family, the child appeared “more relaxed and confident” when observed with the mother and his maternal siblings. She records the following observations at [90]:
When compared to the previous assessment observation and the observation with [Mr Kestle] there are several important points to note. Firstly, from the start [X] appeared more confident and relaxed than the time with the paternal family. As he had visited with his father the week before, he was confident and proud to show [T] and [PP] what he had played with previously and was keen to show [Ms O'Neill] the way to the play room. When compared to the observation with the paternal family, [X] was certainly more vocal in his play ideas and free-flowing in his discussions with [Ms O'Neill]. This is likely to be a reflection of the relationship formed with [Ms O'Neill] as his primary caregiver, coupled with the reduction in competition with his siblings (i.e., he is the oldest of three children in [Ms O'Neill’s] home, and the second youngest of five in [Mr Kestle’s] home). [X] was also observed to be gentle and patient with [PP], showing an interest in his brother than he did not demonstrate with [DD]. He was excited to share with [Ms O'Neill] (and myself) when he perceived [PP] could do something new or was looking at things [X] was presenting to him.
Furthermore, Ms J observed at [91] that the child;
…was happy and relaxed as he spoke with enthusiasm to [Ms O'Neill] about the games and toys he had played with the week before, telling her stories about his siblings or father, which [Ms O'Neill] responded to with appropriate enthusiasm and interest. This suggests [X] does not experience anxiety or worry in speaking to [Ms O'Neill] about his father or step siblings.
I am satisfied that the child has a positive relationship with both parents, Ms Q, and his half-siblings on both sides.
(ii) other persons (including any grandparent or other relative of the child);
Ms J observed that the child appears to have “a close and comfortable relationship with [Ms Q] and was responsive to her instructions and keen to engage her in play”.
She also noted that the child “showed fleeting interest in his half-brother [DD] and half-sister [T] during the observations”. This, according to Ms J, was “age-appropriate”, and she predicted the relationships the child has with DD and T are likely to develop as they age.
Ms J noted that the child demonstrated a preference towards his maternal half-sibling PP, with who he “displayed a gentleness, calmness and kindness not always evident in his other sibling relationships”, and towards his paternal step-sibling BB. She observed with respect to the child and BB that “their close, connected and cheeky relationship with each other was evident”.
Ms J noted that the child seemed to have the least developed relationship with his half-sister M, which is consistent with his more limited level of contact with her.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
The mother has clearly made decisions about long term issues relating to the child.
It was readily apparent at trial that the parties’ intractable conflict concerning the child’s health and education, was demonstrative of the extent to which they seek to be involved in the decision-making.
The father asserts that he has been unable to participate in decisions regarding the child’s heath, as he is not informed of the child’s attendance upon medical professionals until after reports have been generated. I do not accept this has been the case.
On the evidence provided, it appears that the mother informed the father of her intention to take the child to the following, prior to the child attending upon:
(a)Dr AD, immunologist;
(b)Dr C, psychologist; and
(c)K Clinic for tutoring.
On the evidence, it appears the father was aware of some of the child’s medical appointments, some being telehealth appointments which the father could attend remotely. However, the father expressed that he felt it was unsafe to attend any appointments or meetings with the mother or any of her family members. The father explained that he feels unsafe in the mother’s presence due to what he categorises as “false complaints made to police, to DCJ and other organisations”, and as a result, he feels he “cannot go anywhere near the mother for [his] own safety”. I note that the complaints to which the father is referring appear to be three police reports the mother made about the father in 2015, and four risk of harm reports the mother made to the DCJ between mid-2016 and early 2022. I further note that there have been additional risk of harm reports relating to the father’s house to the DCJ made by persons other than the mother. Additionally, the mother appears to have contacted Crime Stoppers regarding the father’s alleged breach of Covid-19 restrictions in early 2022.
Irrespective of whether the father was justified or not in his belief that it was unsafe to be around the mother, there were times where appointments were made by the mother or by health care providers that fell during the father’s time with the child, and where the mother offered for the father to take the child to the appointment on his own. In these circumstances, the father gave evidence that he viewed these appointments as an encroachment on his time with the child and a departure from orders, rather than an opportunity to engage directly with the practitioners treating the child. With the exception of Dr B, the father has not independently arranged appointments with the child’s medical providers, nor has he organised for a second opinion to be undertaken by medical practitioners of his choosing.
The father asserts that he has not spoken to anyone at K Clinic regarding the child or his progress, as he disagrees with the child attending the clinic if it clashes with his ordinary school hours. Furthermore, he stated under cross examination that he does not wish to communicate with the providers as he asserts it was unilaterally organised by the mother, and the mother “front loads” service providers with negative accounts about him.
In relation to the ADHD assessments, the second ADHD report indicates that the father was invited to participate in the assessment process following the initial assessment that occurred in April 2022. The father reportedly expressed a preference for only completing the questionnaire and providing information in writing. When questioned about this by the ICL, he indicated that this was because he wished there to be a “transparent interaction” so that he could not be accused of “manipulating the process”.
The father has questioned the validity of assessments that have been conducted by professionals, as he claims he has not been included in the process. The father accepted under cross examination by the ICL that there have been opportunities to be involved that he had not chosen to take. It was noted by Ms J that the father has taken the view that the mother has not provided him with independent evidence in support of the various medical practitioners she has engaged to support the child, however, is then critical of the mother’s attempts to have the child independently assessed. When provided with external and independent observations or reports that would support the mother’s observations of the child, the father has dismissed the findings as being tainted by the mother’s influence and her exaggerated accounts of the child’s behaviour.
The father makes a similar argument with respect to his inability to be involved in the decision of where the child is to attend school, and asserts that the mother unilaterally enrolled and changed the child’s schools with no prior consultation.
I note that with regards to the change of schools from AO School, the mother experienced a change of financial circumstances following her separation with Mr V. She emailed the father in late 2020 to inform him that she would be unable to continue to afford the child’s school fees and asked the father if he or his mother would be willing to pay the child’s fees in lieu of child support. In the alternative, the mother proposed UU School for the child’s kindergarten year. The father responded to this email stating that “my application remains the same – it is a live with, which would see [X] attend [AB School] with his other siblings.” The mother subsequently enrolled the child at UU School for kindergarten. In early 2022, the mother emailed the father informing him of her intention to move the child to D School. The child commenced Year 1 at D School in early 2022, in the second week of Term 1.
I am satisfied that the mother has asserted control over numerous important decisions for the child, especially concerning health issues and schooling. However, I am also satisfied that the father’s complaints about being excluded from the decision making process are exaggerated.
(ii) to spend time with the child; and
Since the child lives with the mother, there is no doubt that the mother spends time with the child regularly.
The father has demonstrated that he is willing to drive long distances in order to be able to spend time with the child. He has demonstrated a desire to spend time with the child consistently throughout the child’s life, and has at times been prevented from doing so by the mother’s non-compliance with orders.
In spite of the interruptions to the child’s time with the father, the child has been able to develop a loving and strong relationship with his father and paternal family.
The mother’s non-compliance with orders
The mother has demonstrated a history of non-compliance with court orders. She did not comply with orders that the child spend unsupervised time with the father from late June or early July 2016 until 20 August 2017, from 20 January 2019 until 21 May 2019, from 15 March 2020 until 5 June 2020, and from 8 June 2020 until 21 August 2020. I note that in the past two years, the mother has demonstrated an improved capacity to comply with orders, with the exception of two weekends, being the weekends of 3 July 2020 and 11 June 2021. The two weekends in which the mother did not comply do, however, raise the concern that the mother may continue to unilaterally suspend time with the father when she has concerns about the father’s ability to keep the child safe.
I note that during the 14 months between mid-2016 and mid-2017, the father did not take any steps to bring the matter back before the Court. He asserts that he emailed the mother on numerous occasions requesting that time be resumed, and that such requests were rejected. The mother asserts that she also made numerous offers for the child to spend supervised time with the father which he rejected.
Ms J observed in her second report that while there has been fewer alleged breaches of orders, the mother at times appears to become overwhelmed by anxiety with regards to perceived risks and threats to the child’s safety. In these situations the mother “seemingly behaves in an anxious/controlling manner…or at the extreme she will withhold [X] from going with his father”.
During the history of this matter, the mother had made threats to file urgent applications to suspend time with the father when she was dissatisfied with his behaviour towards the child or herself. During cross examination, the mother conceded that while she does not intend to stop time with the father, she may make an application to stop time if the child were to come back from spending time with the father and “something very concerning” had happened.
I note that the father has also demonstrated a rigidity with regards to complying with court orders that has contributed to the frustration of his time with the child.
Despite the mother’s more recent improved level of compliance with orders, and an increase of the father’s time with the child, there has been no increase in consistency and predictability for the child nor a reduction in the parental conflict.
(iii) to communicate with the child;
Both parents have demonstrated a willingness and capacity to communicate with the child.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
At trial, there was some contention regarding the payment of child support. In mid-2022, the Child Support Agency made a decision to increase the Child Support payable by the father from approximately $1,200 to $5,845 per annum. The father has lodged an appeal on the basis that the adjustable taxable income used in the assessment was significantly greater than the actual taxable income earned by the father in that period.

As the ICL pointed out, it is now settled that the Court has no power to make a standalone order for a party to attend therapeutic intervention, such as with a psychologist, untethered from an particular parenting order: L v T (1999) FLC 92-875 at [51]–[60]; Oberlin & Infeld (2021) FLC 94-017 (“Oberlin”) at [50]–[51]. However, conditions which form an integral part of a parenting order can be imposed within the Court’s power: Oberlin at [59]–[60].
The conclusion that the child should remain in the primary care of the mother creates a difficulty for orders stipulating this outcome to be conditional upon her accepting therapeutic treatment. What is to happen if the mother fails to satisfy the condition? Logically, this would mean, in the circumstances of this case, either that the unfulfilled condition is ignored and the child remains with the mother, or that the child should move to live with the father, which is clearly inconsistent with the Court’s conclusion that the child should continue to live with the mother in his best interests. A condition seems to be impractical and raises the possibility of future conflict and disputation between the parties. Ms J identified the mother’s reactions to the father as one of the biggest risks. The mother has been parenting the child with some therapeutic help, which Ms J deemed inadequate, but this demonstrates some insight by the mother into her parenting deficits. The orders of the Court should help ameliorate the mother’s reactions by reducing the need and opportunity for the mother to come into contact with the father. While the mother should continue to accept therapeutic help, on balance, I am not persuaded the orders for the child to continue living with the mother should be conditional upon her accepting therapeutic treatment.
However, since it is the view of the Court that the mother would benefit from continued therapeutic intervention, a notation will be made to this effect.
TIME WITH THE FATHER
Substantial and significant time
Given that there will be no order for equal shared parental responsibility, s 65DAA(1) of the Act is not engaged. However, it is still necessary to consider whether the child should spend substantial and significant time with the non-residential parent.
There was no dispute that the child should spend term time and holiday time with the father. As noted, the mother and the ICL proposed the child spend the second, fifth, and eighth weekends of each school term with the father, and half school holidays. The father made no alternative proposal in the event the child remained living with the mother.
By the end of the final hearing, there was some agreement by each party to certain orders proposed by the ICL. For the reasons given in the course of this judgment, I am satisfied that the ICL’s proposal should broadly be adopted.
In light of the awful conflict between the parents, changeovers should take place at the child’s school or otherwise in a manner which avoids, as far as possible, the parents coming into contact. For the same reason, Ms J recommended, and the ICL proposed, that the parents should communicate electronically using a platform such as “Our Family Wizard”. I accept such orders are appropriate.
School holiday and special occasion time
School holiday time is important in this matter. Since the child will live primarily with the mother during term time, his time with the father during school holidays should be substantial. The proposals of the parties broadly recognised this. For school holidays in Terms 1, 2, and 3 the father proposed a block of ten days for the child to spend time with him. It makes little difference but an order stipulating half school holidays is easier to comply with, because the relevant dates would be easier to calculate, and is more balanced.
I will make orders for school holiday time to be allocated equally between both parents. The orders should also make provision for special occasions such as Mother’s and Father’s Day, and Christmas.
The mother objected to the ICL’s proposal on the basis that it could result in the child spending two weekends in a row with the father, which would require excessive travel. I disagree. There is no reason why the child should not, as an isolated instance which would occur no more than once per year, spend two weekends with the father in a row.
ASSESSMENT OF THE CHILD
The ICL proposed an order for a fresh assessment of the child’s developmental needs to take place, and nominated two clinicians who could complete said assessment. The father consented to this order, but the mother did not.
The mother submitted that the assessment would lead to the same outcome as the assessments the child had with H Psychologists. She alleged that the father would say things that were not true, and that if he is “going to be involved in any way in this, it’s going to skew the result, and we’re not going to get anywhere.”
Instead, she proposed that the parties should simply rely on the first ADHD report of mid-2022, and instead ask the child’s teacher to complete another questionnaire to provide the assessor with further information.
I do not accept these contentions. They assume a clinician would be unable to conduct such an assessment professionally and objectively in the face of the father’s participation. The mother’s resistance appears to be borne of her anxiety and distrust of the father, rather than having any basis in the evidence. The ICL referred to the evidence of Ms J, which was absolutely clear that the clinician would require information about the child’s behaviours across all domains, environments, and settings. This must include input from the father.
I am satisfied that the child’s best interests would be served by a fresh assessment. I will make the order proposed by the ICL in this regard.
OVERSEAS TRAVEL
Both parties proposed orders permitting overseas travel. I will make such orders.
COSTS
Although not intending to foreclose any application for costs, my initial view is that each party should pay their own costs. The mother of course was self-represented. I will make provision in the orders for any application for costs to be made within 28 days. If no application is made, there will be no order as to costs.
The ICL applied for costs against the parties to be shared equally, in the sum of $15,238.43 each. The mother resisted this on the basis she has limited means. Section 117(3) specifically provides for a costs order in favour of the ICL in such proportion as the Court considers just, but s 117(4) prohibits such a costs order where it would cause financial hardship to a party. The ICL gave considerable assistance to the Court in this matter. The ICL is funded by Legal Aid NSW. I consider it appropriate to order that each party should contribute to support such a publicly funded service. It is appropriate for each party to pay the ICL’s costs in the amount of $8,800 each, inclusive of GST.
The ICL also sought an order for each party to pay half of Ms J’s costs for attending court to give evidence. I will make this order.
CONCLUSION
For all the foregoing reasons, I am satisfied the orders set out at the commencement of these reasons should be made.

I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.
Associate:
Dated: 20 October 2022

ANNEXURE “A” – MOTHER’S PROPOSAL
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born 2015.
3.X live with the Mother.
4.The child spend time with the Father as follows;
(a)On the 2nd, 5th and 8th weekends of each school term from the conclusion of school Friday to 4.00pm Sunday, except in Term 3 where X will spend the Father’s Day weekend with the Father in lieu of the 8th weekend.
(b)For one half of each Term school holiday period, commencing at 1pm on the second/ middle Sunday of the holiday period and concluding at 1pm on the third Sunday of the holiday period.
(c)During the Christmas school holiday period commencing in even numbered years from 1pm on 28 December to 1pm on 2 January AND from 1pm on 18 January to 1pm on the 2nd day prior to the child commencing school for the new school year.
(d)During the Christmas school holiday period commencing in odd numbered years from 1pm on 24 December to 1pm on 29 December AND from 1pm on 18 January to 1pm on the 2nd day prior to the child commencing school for the new school year.

5.That changeovers take place as follows;
(a)On Friday afternoons during school terms, at the child’s school.
(b)During holiday periods where the Father or the Father’s Wife attends Suburb N McDonalds in respect of changeovers for any of their other children on the same day, at Suburb N McDonalds.
(c)At L Town Service Station, at all other times.

6.In the event that the Father is late to changeover by more than 15 minutes and unless otherwise agreed in writing between the parents, the changeover location is to be the front of the Mother’s residence.
7.The Mother, maternal half-siblings and extended maternal family members be at liberty to communicate with the child by Zoom video call when the child is in the Father’s care each Wednesday evening between 7.00pm and 7.30pm with the Mother to provide the Father with her Zoom meeting code and password, and the Father to ensure that the child dials into the call at 7pm and is afforded privacy in a separate room to the rest of his family during such calls.
8.Each parent be permitted to remove the child from the Commonwealth of Australia for the purposes of an international holiday pursuant to the above orders, to any country signatory to the Hague Convention at the time of departure, provided that the parent wishing to travel with the child provides the other parent no later than 30 days’ prior to their intended departure, the following;
(a)a copy of the child’s flight itinerary including return ticket;
(b)a copy of the Certificates of Insurance and Policy documents for travel insurance for the child for the intended travel;
(c)details of how the child can be contacted by the other parent while overseas.

9.That within seven (7) days of receiving a request by the parent intending to travel internationally with the child, the other parent is to sign all documents necessary to facilitate the child travelling internationally pursuant to Order 8 above and, provide the child’s current passport to the other parent if the passport is in their possession, notwithstanding that the parent intending to travel internationally with the child has not yet given notice to the other parent in accordance with order 8 above.
10.That each parent keep the other informed of their current residential address, mobile telephone number and email address and advise of any changes forthwith.
11.The Father be restrained from physically disciplining X and/or threatening to inflict corporal punishment on him.
12.The Father is hereby restrained by injunction from discussing the Mother or forwarding any information about the Mother (except her name and contact details) to/with any school attended by the child or any medical or allied health professional treating X from time to time.
13.Each parent must inform the other by placing a call to the other parent’s mobile telephone and providing full details including the current location of the child, as soon as practicable, but no later than 1 hour after any of the following occurring:
(a)X being injured and requiring medical attention;
(b)X being hospitalised;
(c)X requiring emergency medical care;
(d)X suffering an asthma attack or a severe allergic reaction.

14.Each parent is restrained from denigrating the other or any family member, partner or friend of the other in the presence or hearing of the child, or from permitting the child to remain in the presence or hearing of any person doing so.
15.Unless otherwise ordered by the Court, each parent is restrained by injunction from discussing these court proceedings with the child or from showing or otherwise disclosing to the child or any other person except the parent’s legal advisor, the contents of any; court documents, reports, judgements or correspondence in relation to these proceedings including any emails or other correspondence between the parents or the Father’s legal representative or the Independent Children’s Lawyer.
16.The Father is hereby restrained from permitting the child to travel on any highway in a vehicle being driven by the Paternal Grandmother, Ms AK.
17.Nothing in these Orders prohibits the Father from seeking urgent medical care and treatment for the child, while the child is in his care, however, the Father must provide a copy of these orders to any medical practitioner to whom he takes the child and must inform the Mother by no later than 24 hours that he has taken the child to a medical practitioner, including providing the Mother with the medical practitioner’s name and contact details.
18.The Father pay the costs of and incidental to these proceedings.

ALTERNATIVELY, if the court order that the child live with the father then the following orders are sought by the mother;
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the child X born 2015 (“X”), save that if there is a dispute between the parents as to the child’s schooling or healthcare, the Father will make the decision if the parents cannot agree, provided that he first consults with the Mother and then gives the Mother 14 days’ notice of his final decision as to the issue in dispute.
3.The Mother be at liberty to spend time with X as follows;
(a)On the 3rd and 7th weekend of each school term from 7:00pm Friday to 4:00pm Sunday, with changeovers to take place at Suburb N McDonalds.
(b)On the 1st and 9th weekends of each school term from the conclusion of school Friday or such later time during the weekend as nominated by the Mother giving the Father 24 hours’ prior notice, to 4.00pm Sunday or such earlier time as nominated by the Mother giving the Father 24 hours’ prior notice, with changeover to take place either at the child’s school if coinciding with the conclusion of the school day or, otherwise the McDonald’s Family Restaurant at JJ Town and, with the child to remain in the AP Region for those weekends.
(c)On the 5th weekend of each school term in the same terms as order 3b. above, provided that the child M is not spending time with the Father that weekend.
(d)On the 6th weekend of each school terms in the same terms as order 3b. above, should the Mother be unable to spend the 5^th weekend with the child due to M spending time with the Father.
(e)On Mother’s Day weekend in the same terms as order 3b. above, should Mother’s day fall outside of orders 3a.-d. above.
(f)For one half of each Term school holiday period, commencing at 1pm on the first Saturday of the holiday period and concluding at 1pm on the middle Sunday of the holiday period.
(g)During the Christmas school holiday period commencing in odd numbered years from 1pm on 28 December to 1pm on 18 January.
(h)During the Christmas school holiday period commencing in even numbered years from 1pm on 24 December to 1pm on 18 January.

4.The Mother’s time pursuant to Order 3 above is suspended on Father’s Day weekend should it fall during one of the weekends the child is to be spending with the Mother and, the Mother will spend the 8th weekend of Term 3 with the child in lieu, and in the same terms as how the suspended weekend was to be spent had it not been Father’s Day weekend.
5.That unless otherwise stated in these orders, changeovers take place as follows;
(a)During holiday periods where the Father or the Father’s Wife attend Suburb N McDonalds in respect of changeovers for any of their other children on the same day, at Suburb N McDonalds.
(b)At L Town Service Station, at all other times.

6.The Mother, maternal half-siblings and extended maternal family members be at liberty to communicate with the child by Zoom video call each Tuesday and Thursday between 7:00 pm and 7:30 pm with the Mother to provide the Father with her Zoom meeting code and password and, the Father to ensure that the child dials into the call at 7pm and is afforded privacy in a separate room to the rest of the family during such calls.
7.Each parent be permitted to remove the child from the Commonwealth of Australia for the purposes of an international holiday pursuant to the above orders, to any country signatory to the Hague Convention at the time of departure, provided that the parent wishing to travel with the child provides the other parent no later than 30 days’ prior to their intended departure the following;
(a)a copy of the child’s flight itinerary including return ticket;
(b)a copy of the Certificate of Insurance and Policy documents for travel insurance for the child for the intended travel;
(c)details of how the child can be contacted by the other parent while overseas.

8.That within seven (7) days of receiving a request by the parent intending to travel internationally with the child, the other parent is to sign all documents necessary to facilitate the child travelling internationally pursuant to Order 7 above and, provide the child’s current passport to the other parent if the passport is in their possession, notwithstanding that the parent intending to travel internationally with the child has not yet given notice to the other parent in accordance with Order 7 above.
9.That each parent keep the other informed of their current residential address, mobile telephone number and email address and advise of any changes forthwith.
10.The father be Restrained from physically disciplining X and/or threatening to inflict corporal punishment on him.
11.The Father is hereby restrained by injunction from discussing the Mother or forwarding any information about the Mother (except her name and contact details) to/with any school attended by X or any medical or allied health professional treating X from time to time.
12.12. Each parent must inform the other by placing a call to the other parent's mobile telephone and providing full details including the current location of the child, as soon as practicable, but no later than 1 hour after any of the following occurring;
(a)X being injured and requiring medical attention;
(b)X being hospitalised;
(c)X requiring emergency medical care;
(d)X suffering an asthma attack or a severe allergic reaction

13.Each parent is restrained from denigrating the other or any family member, partner or friend of the other in the presence or hearing of the child, or from permitting the child to remain in the presence or hearing of any other person doing so.
14.Unless otherwise ordered by the Court, each parent is restrained by injunction from discussing these court proceedings with the child or from showing or otherwise disclosing to the child or any other person except the parent’s legal advisor, the contents of any; court documents, reports, judgment or correspondence in relation to these proceedings including any emails or other correspondence between the parents or the Father’s legal representative or the Independent Children’s Lawyer.
15.The Father is hereby restrained from permitting the child to travel on any highway in a vehicle being driven by the Paternal Grandmother, Ms AK

16.Each party pay their own costs.

(a)

ANNEXURE “B” – FATHER’S PROPOSAL
1.That the Father shall have sole parental responsibility for the child X born 2015.
2.That the child shall live with the Father.
3.That the Mother and Father shall do all acts and things and sign all documents to facilitate the child enrolling at AB School.
4.That the child shall spend time with the Mother as follows:
(a)During school terms, on the third and seventh weekends, from after school Friday until 4.00pm Sunday.
(b)During the school holidays at the end of Terms 1, 2 and 3, from 4.00pm on the first Saturday until 4.00pm on the middle Sunday
(c)During the Christmas school holidays:
(i)From 4.00pm 28 December to 4.00pm 8 January and 4.00 pm 18 January to 4.00pm 26 January in 2022/2023.
(ii)From 4.00pm 28 December to 4.00pm 8 January and 4.00pm 18 January to 4.00pm 26 January in 2023/2024 and each alternate year thereafter
(iii)From 4.00pm 18 December to 4.00pm 28 December and 4.00pm 18 January to 4.00pm 26 January in 2024/2025 and each alternate year thereafter

(d)On the Mother’s Day weekend from after school Friday to 4.00pm Sunday
(e)At all other times as agreed between the parties in writing

5.That the child’s time with the Mother shall be suspended on the Father’s Day weekend each year from after school Friday to 4.00pm Sunday.
6.That for the purpose of changeover, the parties shall meet at the Service Station in L Town.
7.That the Father shall facilitate the child communicating with the Mother by phone and/or Facetime each Wednesday with the call to commence between 5.00 pm and 6.00 pm.
8.That the Mother is to attend upon her treating psychologist as directed by that psychologist for the purpose of:
(a)Addressing her ongoing anxiety; and
(b)Developing increased insight into her behaviours and capacity to cooperatively parent with the Father.

9.The Father shall follow all reasonable recommendations made by X’s treating practitioner, Dr B.
10.That the Father shall notify the Mother at least four weeks prior to any intention to change his residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
11.That the Mother shall notify the Father at least four weeks prior to any intention to change her residential address, including details of the proposed change of residential address and details as to who will be living in the new residential address.
12.That each parent shall keep the other parent informed as to their current residential telephone number, mobile telephone number and email address and advise each other within two days of any such change.
13.That each parent shall make arrangements at the child’s school to ensure that they can obtain the following information and documents at their own cost:
(a)A copy of all school reports for the child.
(b)Notification for school activities that they may decide to attend.
(c)Notification of parent/teacher nights and the school is informed that it is both parent’s desire to attend such events.
(d)In the event of the child being taken from the school or pre-school for an emergency, remedial or correctional treatment that both parents be informed as soon as practicable.
(e)That in the event the child is suffering a medical emergency requiring medical attention while in the care of either parent:
(i)The other parent is to be notified as soon as practicable.
(ii)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
(iii)That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request.

14.Pursuant to Section 65Y of the Family Law Act 1975 (Cth), the child be entitled to travel overseas with each parent during school holiday times that they are spending with that parent pursuant to these Orders (or as otherwise agreed) upon condition that the parent intending to travel overseas with the child shall give the other parent 14 days’ notice of his or her intention to travel overseas with the child and shall for the purpose of this Order, the parent intending to travel overseas with the child:
(a)Provide the other parent with telephone contact details upon which the child can be contacted during the child’s times with that parent and during overseas travel
(b)That upon the Mother’s compliance with the above Order, the Father provide the Mother with the child’s passport no less than seven days prior to the Mother’s departure overseas with the child
(c)That within fourteen days of the Mother’s return home with the child from overseas travel, the mother return the child’s passport to the Father.
(d)The travel is to a country that is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction and has an advice level of ‘Level 1 – Exercise Normal Safety Precautions’ on the Department of Foreign Affairs and Trade ‘Smart Traveller’ website.

(e)

ANNEXURE “C” – ICL’S PROPOSAL
Parental Responsibility:
1.The applicant mother ("the mother") shall have sole parental responsibility for major long term decisions affecting the child X ("X"), born 2015, subject to orders 2) - 9) herein.
2.Except in the case of an emergency, the mother shall, prior to implementing a major decision in respect to X's, long term care, development or welfare:
(a)contact the father in writing, via email if possible, and provide her views about the decision;
(b)seek the father's views about the decision;
(c)give the father's views due consideration; and
(d)if no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision made.

3.Each parent shall keep the other informed of any medical illness or injury suffered by X whilst in that parent's care, including:
(a)Provision of the details of any medical practitioner or hospital attended by X; and
(b)Information about any treatment administered to, or required by X.

4.X shall continue to attend upon the following practitioners for his medical and psychological care:
(a)Dr B, Paediatrician.
(b)Dr C, Psychologist.

unless and until he is discharged from their care or referred elsewhere, by the practitioners themselves.
5.Each parent is at liberty to obtain information, including verbal and written reports, about X's health and well-being from X's medical and allied health practitioners.
6.X shall continue to attend D School for his primary school education.
7.Both parents are authorised by these orders to obtain from any school(s) which X attends:
(a)Copies of all school reports and information about X's academic progress, including remedial programmes in place to assist X with his learning;
(b)School newsletters and school photographs, at their own expense; and
(c)To attend all sports carnivals, speech nights, parent-teacher nights, open days and events to which parents are usually invited.

8.Each parent shall keep the other informed of their current residential address and contact telephone numbers (landline or mobile) and shall notify the other within 48 hours of any changes to same.

Assessment:
9.That by no later than the conclusion of term 4 2022, the mother and the father shall do all acts and things necessary to arrange for X to participate in a comprehensive assessment of his developmental needs and for this purpose:
(a)The clinician undertaking the assessment shall be Dr E or Ms F of G Psychologists in Sydney ("the clinician").
(b)Each parent shall provide such information requested of them by the clinician to inform the assessment process, including completion of any psychometric testing, surveys, questionnaires and participation in clinical interviews.
(c)The mother shall provide all necessary authorities and directions to X's teacher, psychologist, tutors and other professionals involved in X's care to provide such information to the clinician as the clinician may request.
(d)Each parent shall do all acts and things necessary to make X available to the clinician for clinical interviews, observations and testing.
(e)The parents and each of them are at liberty to provide to the clinician:
(i)copies of the single expert reports of Ms J dated 13 December 2019 and 26 August 2021;
(ii)Any / all reports prepared by H Psychologists in respect of X;
(iii)Any/ all assessments undertaken by the K Clinic in respect of X; and
(iv)Any other written material that the clinician may request in respect to X; and

(f)The parents shall equally share the costs of the assessment and report; and
(g)Both parents shall receive a copy of the assessment report.

Living arrangements:
10.Conditional upon her compliance with orders 11) and 12), X shall live with the mother.
11.The mother shall forthwith do all acts and things necessary to engage with a clinical psychologist for management of her anxiety, and thereafter attend upon that psychologist at such times as may be directed, and accept and act upon all referrals made by the psychologist.
12.The mother shall provide to her psychologist copies of her single expert reports of Ms J dated 13 December 2019 and 26 August 2021.

Time with orders:
13.That X shall spend time with his father:
14.During school terms, on the second, fifth and eighth weekends of each term:
(a)from the conclusion of school on Friday until 4.30 pm on the immediately following Sunday unless otherwise agreed between the parents in writing
(b)In addition to the time prescribed in order 2(a), X shall spend Father's Day weekend with the father if he is not otherwise spending time with them pursuant to these orders.

15.During the second half of the school holidays NSW school holidays at the conclusion of terms 1, 2, and 3, such time to commence at 1:00 pm on the second Saturday of the holidays until 1 :00 pm on the third Sunday of the holidays, with that time to be extended to 1 :00 pm on Monday in the event that it is a pupil free day.
16.For half of the summer school holidays, alternating between the first and second halves of those holidays each year with:
(a)X to spend the first half of the summer holidays with his mother in 2022-2023 and each alternate year thereafter.
(b)X to spend the first half of the summer holidays with his father in 2023-2024 and each alternate year thereafter.
(c)X to spend the second half of the summer holidays with his father in 2022-2023 and each alternate year thereafter.
(d)X to spend the second half of the summer holidays with his mother in 2023-2024 and each alternate year thereafter,
and for the purposes of this Order, the summer holidays are defined:
(i)to commence at 1 :00 pm on the first day after school concludes in term 4;
(ii)to conclude at 1 :00 pm two days before school resumes for term 1; and
(iii)the midway point is 1 :00 pm on 8 January.

17.Notwithstanding any other order, X shall remain in the care of the mother on Mother's Day weekend; and in the event it is a weekend he is ordinarily due to spend time with the father, X's weekend time with the father shall be suspended on Mother's Day weekend and shall occur on the following weekend, in lieu.

Facilitation:
18.All changeovers shall occur at:
(a)At X's school where the time is specified to commence from the conclusion of school;
(b)Otherwise at Service Station L Town, except if the father is collecting his daughter M from, or returning her to, Suburb N McDonalds at the same time as X's time with him is due to commence or conclude, he may elect to collect X from Suburb N McDonalds by providing to the mother no less than 48 hours' written notice of that election.

19.X may to communicate with the parent he is not living with by telephone, video call, SMS or email at any reasonable time that he requests or initiates such communication.
20.The parent with whom X is living on Wednesday shall facilitate a call between X and the other parent, at 5.30 pm or at such other time as may be agreed having regard to X's extra-curricular activities.
21.Except in the case of an emergency, the parents shall communicate about issues affecting X via an agreed co-parenting application, and for this purpose, and in the absence of agreement then the parents shall register for and subscribe to "Our Family Wizard", with the costs associated with the use of "Our Family Wizard" to be equally shared.

Injunctions:
22.Each parent is restrained by injunction:
(a)From denigrating the other parent or any other person in that parent's family or household, to X or in his presence or hearing.
(b)Permitting or allowing any other person to denigrate the other parent or any other person in that parent's family or household, to X or in his presence or hearing.

Costs:
23.The mother and the father shall each pay to Legal Aid NSW the sum of $15,238.43 (GST inclusive) by way of contribution to the costs and disbursements of the ICL, such sum to be paid within 2 months of the date of these Orders.
24.The mother and father shall each pay half of Ms J’s costs for and associated with her attendance at Court on 9 August 2022 for cross-examination within 7 days of receipt of Ms J’s account in respect of the same.

Dated: 10 August 2022

File number(s):	SYC 3308 of 2016
Judgment of:	HARPER J
Date of judgment:	20 October 2022
Catchwords:	FAMILY LAW – PARENTING – One child of the relationship aged 7 – Brief relationship – Where mother was self-represented throughout proceedings – Allegations made by father that mother has pathologised the child – Where child has half siblings on both sides – Where parties live hours apart – Where mother has been primary carer since separation – Current interim orders for child to spend three weekends per term and half of school holidays with the father – Both parents seek sole parental responsibility and for the child to live with them – Where both parties make allegations of abuse or family violence – Allegations of emotional abuse and coercive control in father’s household – Allegations of sexually inappropriate behaviour between child and step sibling – Allegations of physical discipline inflicted by the father – Where mother’s anxiety and lack of stability in child’s life is said to be psychologically damaging to the child – No findings made of abuse or family violence – Where child has positive relationship with both parents and half siblings – Where mother has a history of contravening Court orders – Where neither parent has willingness nor capacity to co-parent – Unilateral decisions made by the mother concerning the child’s medical treatment – Where child is undergoing numerous forms of intervention – Where it is possible the child has ADHD and behavioural or learning disorders – Presumption of equal shared parental responsibility rebutted – Where disruption to child with behavioural problems likely caused by change of residential parent militates in favour of leaving the child with the mother – Distance between parents’ homes makes equal or significant time impractical with non-residential parent – Orders made for child to live with mother and spend time with father three weekends each school term and half of school holidays – Order made for mother to have sole parental responsibility.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 65D(1), 65DAB
Cases cited:	Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Isles & Nelissen [2022] FedCFamC1A 97 Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235 L v T (1999) FLC 92-875; [1999] FamCA 1699 M & S (2006) 37 Fam LR 32; [2006] FamCA 1408 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66 Potter and Potter (2007) FLC 93-326; [2007] FamCA 350 Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division:	Division 1 First Instance
Number of paragraphs:	278
Date of hearing:	3–10 August 2022
The Applicant:	Self-represented litigant
Counsel for the Respondent:	Ms Druitt
Solicitor for the Respondent:	Adams & Partners Lawyers
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Reid Family Lawyers

SYC 3308 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS O'NEILL Applicant
AND:	MR KESTLE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HARPER J
DATE OF ORDER:	20 October 2022