OSBORNE & GALLOWAY

[2020] FamCA 46

FAMILY COURT OF AUSTRALIA

OSBORNE & GALLOWAY [2020] FamCA 46

FAMILY LAW – CHILDREN – where the mother contends that the child not spend any overnight time with the father until the child reaches 13 years of age – where the evidence does not support such an order – where the Court does not make a finding that either parent presents as an unacceptable risk of harm to the child – final orders made for the child to spend graduated unsupervised overnight time with the father.

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

Goode & Goode (2006) FLC 93-286
Stott & Holger & Anor [2017] FamCAFC 152
Vallans & Vallans [2019] FamCAFC 260

APPLICANT: Mr Osborne

RESPONDENT: Ms Galloway

FILE NUMBER: WOC 113 of 2015

DATE DELIVERED: 7 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 18, 19, 20 and 21 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M De Vere

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Ms M Gillies SC

SOLICITOR FOR THE RESPONDENT: Hansons Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr R Greenaway

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders

1. That all previous parenting Orders be discharged.

2. That the parents have equal shared parental responsibility for making decisions for the long-term care, welfare and development of the child, X GALLOWAY OSBORNE born … 2013 (“the child”).

3. That the mother have responsibility for making decisions for the day to day care of the child when the child is in her care and the father have responsibility for making decisions for the day to day care of the child when the child is in his care.

4. That the child live with the mother.

5. That the parents do all things necessary to ensure that the child is known by the name “X GALLOWAY OSBORNE”.

School term time

1. That as and from the date of these Orders, the child shall spend time with the father unsupervised, unless otherwise agreed in writing between the parents, as follows:

   (a)       For a period of eight (8) weeks;

   (i)Each Thursday from the conclusion of school (or 3.00pm if a non-school day) until 6.00pm; and

   (ii)Each alternate weekend from 9.00am to 3.00pm on the Saturday and Sunday.

   (b)       Thereafter until the beginning of the third school term in 2020:

   (i)each Thursday from the conclusion of school (or 3.00pm if on a non-school day) until 6.00pm; and

   (ii)each alternate weekend from 9.00am Saturday to 4.00pm Sunday.

   (c)Thereafter from the beginning of the final school term in 2020 until the beginning of the 2021 school year:

   (i)each alternate Wednesday from after school (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day); and

   (ii)each alternate weekend from after school Friday (or 3.00pm if a non-school day) to 4.00pm Sunday.

   (d)Thereafter from the beginning of the 2021 school year:

   (i)each alternate Wednesday from after school until the commencement of school Thursday; and

   (ii)each alternate weekend from after school Friday (or 3.00pm if a non-school day) to before school Monday extended to before school Tuesday if Monday is a public holiday.

Holiday time

1. That during the 2020 school year the child shall spend school holiday time with the father as follows:

   (a)During the end of term one (1) school holidays, time shall continue in accordance with Order 6(a) hereof;

   (b)During the end of term two (2) school holidays, time shall occur as prescribed by Order 6(b) hereof;

   (c)During the end of term three (3) school holidays, for a period of four (4) consecutive nights as agreed, and failing agreement on the middle weekend from 9.00am Thursday to 9.00am Monday;

   (d)During the December/January 2020/2021 school holiday for two (2) blocks of five (5) days as follows:

   (i)From 5.00pm 27 December 2020 until 5.00pm 1 January 2021;

   (ii)From 5.00pm 10 January 2021 until 5.00pm 15 January 2021, or during such other periods as may be agreed upon in writing;

   (e)From the commencement of the 2021 school year, from the conclusion of the last day of school until 5.00pm half way thereafter, during the short school holiday periods commencing in 2021 and thereafter;

   (f)For one (1) half of the end of term (4) (December/January) school holidays in 2021/2022 on a week-about basis but with the child returned to the mother by at least 4.00pm on the Thursday before the commencement of the new school term;

   (g)For the end of term four (4) school holidays (December/January) commencing 2022/2023 and each year thereafter, the child shall spend half of the time with the mother and half of the time with the father but with the child returned to the mother by at least 4.00pm on the Thursday before the commencement of the new school term, and unless otherwise agreed in writing:

   (i)With the father for the first half of the holidays commencing at 9.00am on the first Saturday, in 2022 and each even numbered year thereafter; and

   (ii)With the mother for the first half of the holidays in 2023 and each odd numbered year thereafter;

Special days

1. That notwithstanding other prescribed parenting Orders 6 and 7 above, the child shall spend time unless otherwise agreed in writing between the parents:

   (a)With the mother from 9.00am to 4.00pm on Mother’s Day, when the child is not otherwise in her care;

   (b)With the father from 9.00am to 4.00pm on Father’s Day, when the child is not otherwise in his care; and

   (c)On the child’s birthday each year the child shall spend time with the parents (unless otherwise agreed in writing):

   (i)With the father from 10.00am to 2.00pm and with the mother from 2.00pm until 7.00pm in even numbered years; and

   (ii)With the mother from 10.00am to 2.00pm and with the father from 2.00pm to 7.00pm in odd numbered years.

   (d)On the birthday of the child’s sibling Y each year, if not otherwise in the care of the mother under these Orders, the child shall send time with the mother:

   (i)from after school to 7.00pm on a school day; and

   (ii)from 10.00am to 2.00pm on a weekend or non-school day.

   (e)In respect of the Christmas period each year, defined in this Order as the period from 4.00pm 24 December until 4.00pm 26 December and unless otherwise agreed in writing the child shall spend time with the parents as follows:

   (i)At Christmas 2021, from 4.00pm 24 December to 2.00pm 25 December with the father;

   (ii)At Christmas 2021, from 2.00pm 25 December to 4.00pm 26 December with the mother;

   (iii)Thereafter:

   A.with the mother from 4.00pm 24 December to 2.00pm 25 December and with the father from 2.00pm 25 December to 4.00pm 26 December in odd numbered years;

   B.with the father from 4.00pm 24 December to 2.00pm 25 December and with the mother from 2.00pm 25 December to 4.00pm 26 December in even numbered years.

2. That for the purposes of these Orders, school holiday periods be the holiday dates as published by the school which the child attends (and not include pupil free days falling on either side of such holiday period).

Changeovers

1. That at all times, unless otherwise agreed in writing, when changeovers do not occur at school, changeovers shall occur at B Street, Suburb D and for the purposes of changeover:

   (a)the father or his agent shall remain in their car at the end of the driveway; and

   (b)the mother or her agent shall approach the parked car close enough for the child to see the mother or her agent; and

   (c)each parent shall use their best endeavours to be punctual in attending changeover and in the event that either parent anticipates that they will be in excess of ten (10) minutes late for changeover, for whatever reason, they will advise the other parent by forwarding an SMS text message to the other parent’s mobile phone.

2. That the parents shall treat each other with civility and respect at all times during changeover and throughout all forms of communication.

Extra-curricular activities

1. That each parent be restricted and an injunction be granted restraining the mother and the father from arranging commitments for the child during the time the child would otherwise be in the care of the other parent, without that parent’s agreement in writing.

2. That with the exception of school sports, neither parent shall enrol the child in any extra-curricular or sporting activity which is to take place during the time the child is with the other parent, without that parent’s consent and such consent will not be unreasonably withheld.

3. That each parent will ensure the child attends at all agreed extra-curricular and sporting activities scheduled at times that the child is in their care and shall facilitate attendance at appropriate social activities to which the child has been invited.

4. That each parent be at liberty to attend such events at the child’s school that parents are ordinarily invited or able to attend, save for extra-curricular activities when Order 16 shall apply.

5. That each parent be restrained from attending the child’s extra-curricular activities, when the child is not in that parent’s care pursuant to these Orders, where such activities occur from Friday afternoon to Sunday afternoon, unless otherwise agreed in writing between the parents.

Medical treatment

1. That the parents do all things necessary to cause the child to remain under the care of Dr E or such other paediatric specialist as agreed in writing between the parents.

2. That in the event there is a disagreement between the parents in relation to medical matters relevant to the child, the parents shall do all things to cause the child and each parent to attend upon Dr E or such other specialist as agreed in writing and to obtain that doctor’s opinion and recommendation or such medical treatment, and to thereafter do all things reasonably necessary to implement those recommendations.

Communication and other specific issues

1. That the father is restrained and an injunction issues restraining the father from consuming alcohol to a level exceeding the limit permissible to drive a motor vehicle, whilst the child is in the father’s care.

2. That each parent notify the other, not more than twenty four (24) hours after any change to their address and/or landline and/or mobile telephone numbers and/or email address.

3. That in the event the child suffers a serious medical condition or requires urgent medical attention whilst in the care of either of the parents, that parent shall notify the other parent as soon as practicable and within twenty four (24) hours.

4. That these Orders constitute authority for the mother and the father to each receive a copy of school reports, newsletters, notices and school photograph order forms.

5. That the parents be hereby permitted to provide a copy of these Orders to any daycare, preschool, kindergarten, school or before/after school care that the child attends from time to time.

6. That these Orders constitute authority for the mother and the father to each liaise with the child’s treating medical practitioners and obtain information about any treatment of the child and any other medical issues.

7. That:

   (a)within seven (7) days of the date of these Orders, the father shall provide to the mother a list of three (3) Psychologists specialising in the area of parent management training (a Psychologist who can assist the parents with the child’s behaviour issues);

   (b)from the father’s list the mother shall select a Psychologist within seven (7) days of being provided with the father’s list;

   (c)each of the parents shall do all things reasonably necessary to attend upon such Psychologist;

   (d)both parents shall attend the first appointment together with the agreed Psychologist;

   (e)both parents are to follow all recommendations of the Psychologist;

   (f)the child is to be involved in the therapy at the discretion of the Psychologist and both parents shall facilitate the child’s attendance as required by the Psychologist;

   (g)each parent shall be equally liable for any costs associated with attending upon the Psychologist;

   (h)each of the parents have leave to provide a copy of the following documents to the Psychologist:

   (i)Dr F’s report dated 27 March 2018;

   (ii)Dr E’s report dated 4 December 2018; and

   (iii)The Reasons for Judgment delivered 7 February 2020.

8. That the mother ensure that the child ceases any further attendances upon Ms G, Psychologist.

9. That any further application by either parent, including an Contravention Application, filed in the Family Court of Australia, within a period of two (2) years from the date of these Orders, be listed before the Honourable Justice Baumann.

10. That within twenty one (21) days each party file and serve any written submissions in response to the application by the Independent Children’s Lawyer for an order for costs in the sum of $10,368.

11. That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: WOC 113 of 2015

Mr Osborne

Applicant

And

Ms Galloway

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents have been unable to cooperatively parent their son X (aged six years) since they separated, after a short relationship, finally in December 2014 when the child was 12 months old.

2. Despite final parenting Orders being made, by consent, in September 2016, difficulties after that Order was made almost immediately arose – with the father commencing fresh proceedings in July 2017.

3. As if this history and the continual parental conflict was not enough for the child to navigate, it is acknowledged that X carries some significant behavioural challenges which have made him prone to outbursts, melt downs and conduct difficult for any parent to manage.  These issues contributed to the sensible decision to delay his commencement at school until this year.

4. For the reasons which follow, the current parenting arrangements need to significantly change to meet his best interests.

Competing proposals

1. Although all parties had, as directed, prior to the hearing, filed a minute of final orders sought, as is often the case the position of the parties was refined and shaped by the evidence heard and by final submissions the positions adopted by the parties are summarised as follows.

Applicant father

1. The father tendered, as Exhibit 34, his minute of order, which is attached to these Reasons and marked Appendix One.  His Counsel Ms De Vere confirmed the father’s long term goal is that X spend substantial and significant time with him, and that he wishes to be fully involved in his son’s life.  To this end, the father’s final proposal contends for:

   a)equal shared parental responsibility;

   b)an order ensuring X be known as “X Galloway Osborne”;

   c)time graduate from immediate unsupervised time (day only) to overnight time each alternate weekend after one month.  Further graduated increases in time are suggested such that after approximately 12 months from the trial (being the end of term two, 2020), X would spend time with the father from:

   (i)conclusion of school Wednesday until commencement of school Friday (week one); and

   (ii)conclusion of school Friday until commencement of school Monday (week two),

   d)together with half of all school holidays.  Mathematically this amounts to five nights a fortnight during school terms.

2. Provision for special occasions and some specific issues orders are proposed as well as an order (order 29) requiring to undertake counselling with a Psychologist nominated by the Independent Children’s Lawyer (“ICL”).

Respondent mother

1. Senior Counsel for the mother, Ms Gillies SC in her final submissions contended it was the mother’s position that it is in the best interests of X to make orders as set out in the mother’s case outline filed 13 March 2019.  In short, the mother submitted the risks to X from the father, whether found to be “unacceptable” or not coupled with a consideration of other relevant factors, compel the Court to make orders that the mother have sole parental responsibility and that the child live with her.

2. The mother’s minute, attached to these Reasons and marked Appendix Two contends that the time X spends with the father should either:

   a)If the father is found to present an unacceptable risk to X, then indefinite supervised time from 10.00am to 3.30pm (supervised by the paternal aunt Ms H);

   b)I infer, if such a finding of risk is not made, then the mother’s alternate proposal essentially provides for X to spend time:

   (i)For 12 months supervised each alternate weekend from 10.00am to 3.30pm each Saturday and Sunday;

   (ii)For the period 1 July 2020 to 30 June 2022 (when X will be 6½ years old) and increase to 10.00am to 4.00pm each alternate Saturday and Sunday, without supervision;

   (iii)Then for a further two years an increase to conclusion of each alternate Saturday and Sunday from 4.00pm to 5.00pm;

   (iv)Then for a further two years the introduction of an alternate Tuesday after school to 6.00pm; and

   (v)Finally, and from when X is 13 years of age (the mother says from 1 January 2027) overnight time commences – only each alternate weekend from 10.00am Saturday to 4.00pm Sunday, together with time once a week after school to 6.00pm;

3. A number of other specific orders, injunctions and restraints are sought by the mother.  As the transcript reveals, the Court on more than one occasion expressed some disquiet (if risk was not found to exist) about the mother’s considered (and maintained proposal) that X spend no overnight time with the father until he has turned 13 years.  As a result, the mother does not seem to contemplate the child spending any extended holiday time with the father (including school holidays), although she seeks to reserve for herself the ability to nominate holiday periods for up to one month a year for X to have a holiday with her.

4. In considering all the evidence, the Court is entitled to take into account the proposals the parents make as a factor going to parental attitude, including the capacity to support the other parent’s relationship.  I return to this issue later in my Reasons.

ICL

1. By Exhibit 29, submitted by Counsel for the ICL Mr Greenaway, the ICL had a final minute of order.  It is replicated and marked Appendix Three.  It should be noted that the order of the ICL is shaped by the final submission of the ICL, that the Court would not find that the father is an unacceptable risk to X.  On this basis, the orders contended for essentially provide that:

   a)the parents have equal shared parental responsibility;

   b)that time commence unsupervised immediately including each Saturday from 10.00am until 4.00pm;

   c)after one month, and for a period of four months whilst mid-week time on a Wednesday will continue, overnight time each alternate weekend from 10.00am Saturday to 5.00pm Sunday will commence;

   d)further graduation/increase of the time X spends with his father is contended for, such that by July 2020 onwards (being about 12 months after the trial before me), the regime suggested for school term time would be:

   i)each Wednesday overnight; and

   ii)each alternate weekend from after school Friday to before school Monday.

   e)The ICL proposes extended time to begin with four consecutive days until December 2020 with time over holidays gradually increasing to half of school holidays at the end of terms one, two and three from the start of the 2021 school year.  Christmas school holidays (at the end of the 2021 school year) shall commence to be half and half;

   f)At order 19, the ICL contends that X’s attendance on Psychologist Ms G cease, and her prescribed order 20 prescribes a process by which X will commence with a new therapist.

1. From these competing proposals, it is clear that the Court is required to firstly determine if the child would be exposed to an unacceptable risk of harm in the father’s care.  If the child is found to be at risk, then naturally there are limitations to what order the Court can make.

2. If however the risk factors are found not to exist, or can be suitably ameliorated, then the progression of X’s time from the current supervised time to unsupervised school term time and extended holiday time becomes a matter for the Court’s discretionary determination.

3. In that regard, it is common ground that the Court is not bound to adopt the parents (or ICL’s) proposal.  The competing proposals are so stark and wide, that any number of orders between those positions are enlivened – subject at all times to the Court being satisfied the orders are in the best interests of X.

4. Before examining the important risk issues raised during the trial, I feel compelled to express my regret that these Reasons have not been delivered more promptly.  I note no application had been made to re-open the hearing.  I contemplated the Court, of its own initiative, seeking further submissions however I ultimately decided not to do so.

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

5. As the mother continues to assert risk in the father’s care, I regard it as appropriate to also set out the brief principles that guide my determination.

6. I incorporate in these Reasons the recent statement of principles from the Full Court (Thackray, Kent and Watts JJ) in Stott & Holger & Anor [2017] FamCAFC 152 which guide the exercise of my discretion:

   “[34] The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

   In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [35] The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].

   [36] In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:

   the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.  In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   [37]     As an eminent former judge of this Court has said (emphasis added):

   … unacceptable risk in the High Court’s formulation requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …

   [38] We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).”

7. Although I accept real consideration and analysis needs to be given to the evidence, the history of conflict between these parents means that during the hearing some issues which I regard more as a manifestation of a different parenting style, were elevated by the mother as a “risk” issue – seemingly because of the positon she adopts that her parenting style is beyond any reasonable and objective criticism.  As my reasons seeks to establish, I find that these parents are, within range, parents capable of providing good care physically and emotionally for X – although they seek to do so in different ways.

8. No parenting judgment should ever be over critical of good parents seeking to do their best, however I accept that many aspects of X’s behaviour have been challenging and a quest to “blame” someone or an event might be seen as an easy solution.  It is not.

9. I also observe that the history set out below (concise though it is detailed), reveals these parents had a short relationship of just over two years and X was only 12 months old when they separated.  As a result the parents, who had no real parenting experience before X’s birth (despite being aged approximately 33 years and 32 years respectively), have not had any real opportunity to observe the other parent actually parent.  This inhibition often limits the capacity to trust and respect – and such a situation has only been exacerbated by the fact that the parties have been litigating since February 2015 – only interrupted after the first final parenting Orders were made by the Federal Circuit Court of Australia on 15 September 2016 by litigation ceasing until the fresh Application was filed by the father less than 12 months later on 21 July 2017.

Contextual history

1. Statements of fact which follow should be construed as findings of fact.

2. As I choose to deal with a number of issues discretely below, this history is designed to be only a contextual summary – especially in respect of the period before the first set of final parenting orders were made on 15 September 2016.

3. The father was born in the United Kingdom in 1980; is a tradesman and has lived in Australia for many years.  The mother was born in Australia in 1981 and works in office administration.  The parties met online and in approximately mid-2012 commenced cohabitation, during which period X was conceived.

4. He was born in 2013 however tensions in the relationship existed, it seems, almost from the beginning such that the parents finally separated on Christmas Day 2014.  The child was 12 months of age.

5. The father commenced proceedings in the Federal Circuit Court of Australia in February 2015 and interim orders were made permitting the baby to spend regular day time with the father.  Even in this early stage of X’s life, the parents observed some behavioural issues in X with the mother seeking Paediatric advice as early as December 2015.

6. After the preparation of a family report, on 15 September 2016 the parents consented to orders being made which essentially provided that:

   a)the parents would have equal shared parental responsibility;

   b)X would live with the mother and spend unsupervised time with the father:

   i)until he turned four years of age regularly during the day;

   ii)from December 2017 on alternate weekends (but not overnight) together with mid-week time; and

   iii)some overnight time was to commence by the time X commenced kindergarten increasing from December 2019 (when he was six years of age) to alternate weekends Friday to Sunday and time each Thursday.

   c)the parents agreed that X attend the J Primary School at Suburb D.

7. It needs to be observed that this “parenting plan” which mapped X’s time with the father could be described as very cautious.  Whilst I am prepared to accept that both parents entered into the Orders with good intentions, in hindsight a simmering residual lack of respect and trust between these parents still existed and the regime broke down, the father says, within months.  The father received an email from the mother on 22 December 2016 (three months after final orders) which says inter alia:

   “…we can’t (sic) we be playing happy families together like all other separated families.  This will never happen and X will never suffer from any arrangement like this, I will make sure of it… I view you as an extremely sick, twisted, sadistic and deplorable person constantly trying to torment me…”

8. These extremely hurtful remarks, in my view, set the scene for later events and, what I find to be, an extreme difficulty with the mother to accept that X derives any benefits generally from the relationship with the father.  As the consistent primary carer, as I note further in these Reasons, the mother’s extremely negative attitude to the father is a feature of which I am satisfied X has been aware.

9. Sadly, the events from early 2017 do reflect, to a large part, the mother’s resistance to the child spending time with the father and the following events are relevant to the journey undertaken before the trial before me in March 2019, namely:

   a)in early 2017 the mother selected, without full consultation with the father (despite the order for equal shared parental responsibility), a Psychologist to begin counselling with X.  Ms G had been involved with X as his counsellor – and a person upon who’s advice the mother has heavily relied, since then;

   b)as a result of repeated remarks made by the child to the mother, which the mother construed as evidence of the child being sexually abused by the father, the mother secured an interview by the Joint Investigation Response Team (“JIRT”) on 13 February 2017.  The tape of the interview was played during the trial and is referred to below;

   c)although the time X was spending with the father (limited as it was under the Orders) continued, after some email exchanges about X’s “peanut allergy” in May 2017, on or about 5 July 2017 the mother informed the father she was ceasing face to face contact between X and his father;

   d)it is, in my view, worthy of note that although the mother was bound by the Orders of 2016 to make the child available to the father, she took no steps to either seek to vary the said final parenting orders or bring her concerns to the attention of the Court;

   e)in my view, X’s best interests required the father to do something quickly, which he did on 5 July 2017 by commencing proceedings (subsequently transferred by the Federal Circuit Court of Australia to this Court);

   f)the effect of the mother’s failure to support the Orders (which she seeks to justify as being founded on a reasonable excuse seeking to protect X from his father’s behaviour), meant that after the mother unilaterally ceased time in June 2017, the child did not spend time with the father for 10 months.  This is despite Orders (for unsupervised time) being made by Senior Registrar Campbell on 8 December 2017.  The delay after those Orders were made appear to be connected to arranging for the K Service Contact Centre to be able to facilitate the ordered visits.  The first visit occurred on 29 April 2018;

   g)experienced Psychologist Dr F was retained to prepare a single expert family report and after interviews on 12 March 2018, a report dated 27 March 2018 was prepared and was marked Exhibit 26.  Dr F was the subject of thorough cross-examination at the hearing, and both her report and oral evidence I regard as well founded and I attach significant weight to her opinions in this complicated and difficult matter;

   h)I note, for context, that at the time Dr F saw the family X had not spent time with his father for many months and I have considered that, for X, such a long period of no interaction with his father may have contributed and/or distorted some of his behaviour before and at the interviews;

   i)Supervised time at K Service continued, despite the release of the report by Dr F (and its concerning comments about her views of the mother’s behaviour), until Senior Registrar Campbell dealt with the matter on 20 September 2018, and made interim orders that the father’s time with X move from the contact centre to time each Wednesday (after school to 6.00pm) and each alternate Saturday and Sunday from 10.00am to 1.00pm.  This time was to occur in the presence of the father’s sister, and X’s paternal aunt, Ms H.  This time has continued to occur;

   j)In late 2018, X welcomed a baby sister into his household, with the birth of Y.  Y was conceived by IVF using a sperm donation; and

   k)The trial commenced before me in March 2018.

10. The hearing, apart from an examination of many frankly minor and trivial disputes (which I chose not to examine in any detail) after the result of follow up emails and the like, centred on a number of risk issues which I identify as follows:

    a)The father’s use of alcohol;

    b)The allegations of sexual abuse against the father;

    c)The concerns about diet issues and their effect on X’s behaviour; and

    d)The capacity of the mother to support and facilitate X’s relationship with the father.

11. Otherwise, after making some observations and findings about the innate personality of little X and the extensive evidence of Dr F, I will then consider the competing proposals generally within the matrix of the primary and additional considerations prescribed by s 60CC(2) and s 60CC(3) of the Act.

The father’s use of alcohol

1. In circumstances where the parents know little about each other after meeting online before cohabitation commenced in mid-2012, it is perhaps understandable that some focus was placed on the father’s historical drinking habits, in particular:

   a)a driving under the influence conviction in 1999 (when the father was 19 years of age);

   b)an incident in 2002 when the father was involved in an aggressive incident at a hotel involving a pool cue;

   c)observations made by the mother during the course of her relatively brief relationship with the father (between 2012 to the end of 2014) of the father drinking heavily and being affected by alcohol;

   d)periods post separation when the father appeared affected by alcohol.

2. This evidence, which I accept, was in my assessment thoroughly and properly put to the father in cross-examination.

3. In assessing whether X is at risk of harm when in the father’s care now because of his use of alcohol, I take into account the following evidence:

   a)The corroborated public events of excessive use of alcohol occurred many years ago before the father had reached the age of 23 years.  He is now 40 years of age;

   b)The father did not seek to deny – in fact I found him candid and frank – when the topic of his drinking was the subject of cross-examination when he acknowledged that:

   i)there have been periods of his life when he has certainly drunk to excess and could be appropriately described as a “ binge drinker”;

   ii)he inappropriately found at times of sadness, particularly when his son X was not spending time with him as a result of the mother’s unilateral actions and delays in the Court process, that he would drunk more than was appropriate.  In no way should this be considered “an excuse”, however the frustrations experienced by the father during such periods I regard as an important context;

   iii)To try and alleviate the concerns of the mother he has undertaken since at least 2018, consistent Carbon Defficient Transferrin testing, and being aware of those tests, the mother does not challenge the father’s evidence that such testing does not reveal any current concerns.

4. The father’s work history does not reveal examples of drunkenness.  I accept that in today’s society, demonstrating to one’s children a responsible attitude to the use of alcohol – which despite the devastation caused by excessive use of alcohol remains a legally obtainable product – is important.  However the mother’s reliance on a comment by X about sharing some “beer” and her need to examine the father’s financial records to ascertain how often he may have made a purchase from a bottle shop or hotel or used an ATM facility in such establishments, do not on balance satisfy me that I should discount the evidence of the father.

5. It is not likely that this hyper vigilant mother would be entirely comforted by the evidence the father now gives of his more modest drinking and the fact that, especially when Bake is with him, he is conscious of his role as a father and the need to be alert and unaffected by alcohol.

6. However the Court accepts his evidence.  I do propose however, as much as a consistent reminder to the father about not returning to past habits as it may be a comfort to the mother, to incorporate in final orders an appropriate restraint on being adversely affected by alcohol when X is in his care.  Whilst I acknowledge that earlier interim orders (and even the original final orders made in 2016) contained more far reaching injunctions, I do so, as the evidence has now been fully tested, and I do not regard extending those injunctions, as the mother seeks in her minute of orders sought (see order 21), to “consuming alcohol”, as appropriate.

Sexual abuse allegation

1. The mother, at paragraphs 106 to 114, gives evidence of comments she says the child made to her that raised concerns in her mind that the father was touching the child’s penis inappropriately; was demonstrating to the child an inappropriate kissing technique and she was concerned that X’s increasing difficult behaviour was being caused by the father’s actions.  When she raised some of her concerns in the communication book, she says the father initially ignored her comments but then denied anything occurred.  Unlike by the time she was cross-examined in March 2019 when she gave direct evidence that “hearing the father’s evidence I accept he didn’t do anything”, at the time comments were made in January 2017, the mother did not accept the comments from the child were capable of innocent explanation.  For example, and I find, when the father bathed the child (less likely now that the child showers), it is entirely normal that when washing him or drying him the father may have come into contact with the child’s penis and/or anus.

1. But to assert, as the mother did in January 2017 and consistently since then that the father – this father – had touched the child for his sexual gratification by inserting his fingers into his anus, is without evidentiary foundation.  Courts should not, and do not, expect a parent to merely ignore the words of a child.  However, children can be both vague, mischievous, exaggerating and imaginative and after the mother took the child to the JIRT interview on 10 February 2017 these allegations should have been put into a proper context.  Although not the only factor which contributed to the mother’s unilateral actions (contrary to the then existing Orders) to cease time between the father and X for many months, it was, I find, in the mother’s mind a significant factor.

2. The Court has, in open Court, watched the Police interview of X.  It revealed a very distracted little boy who made mostly positive comments about the father and little that supported the mother’s concerns.  That supported the conclusion reached by the Police that the father had done nothing to X.  The father was also interviewed.  As the Magellan report (Exhibit 27) in 2017 records, the Department of Family and Community Services (“FACS”) explained why they did not substantiate the mother’s concerns and “no legal action” was to be taken.

3. Frankly, that should have been the end of the matter.  Whilst I accept, on an interim basis and in the context of the mother’s persistent claims of wrongdoing by the father until the hearing before me, Courts take a cautious approach to allegations of abuse, the impact on the father’s relationship with X whilst these matters were finally tested and determined cannot be understated.

4. I agree with the submission of the ICL that the evidence does not support a finding of unacceptable risk, or even any risk, that the father poses of sexual abuse to X.

Diet issues

1. This is a case where the mother says in her case outline that:

   “X is not a straight forward child to parent.  It has been suggested that he might meet the diagnostic criteria for Oppositional Defiance Disorder.  His behaviour towards others can be violent and difficult to contain.  This has included documented accounts of physical violence towards educators, other children, his mother, and damaging property at his psychologist’s office."

2. The father, although he says he has not seen the number of behavioural outbursts the mother has seen, he of course has spent much less time with X.  The mother’s statement above, on all the evidence, is accepted as an accurate (yet succinct) summary.

3. In these circumstances, where a little boy presents with these challenges, it is only natural that parents try to establish a source or cause for such abnormal behaviour.  Where, as in this case, parents communicate poorly and have for so long sought to “blame” the other parent’s style of parenting and behaviour, the necessary joint opportunity to work together to support X as he begins his school years, is lost.  For this little boy to have acceptable boundaries established and, where possible, maintained with clear sensible consequences, is critical.  In this respect, the only tested expert evidence before me around this future parenting comes from the Single Expert Dr F and I deal specifically with her evidence shortly in these Reasons.

4. The mother has expressed concerns, and I am satisfied informed the father of her concerns, about the contribution to X’s behaviour of poor diet (particularly excessive “sugary” foods) and the dangers of not taking seriously her acceptance that X suffers a “peanut allergy”.  In this respect there are a number of emails which have passed between the parents – often, from both, couched in accusatory terms – which have heightened tensions.

5. For example, Exhibits 11 and 22 contain an exchange of emails in May/June/July 2017 that does neither parent any credit.  The mother expressed frustration that her concerns (based on medical advice) were being ignored and the father refused to tell her “exactly everything that he is eating”.  The father indicated in his email of 6 May 2017 his frustration that he was not informed of the doctor’s appointment where this issue was discussed, and further alleged that the mother “prolonged the tests by cancelling his first appointment because I was going to attend”.

6. The father, by 29 June 2017, had spoken to X’s doctor and told the mother that:

   “I’m vigilant about what foods I’m giving him that is all you need to know I’m his father why would I want him to have a anaphylactic shock and possibly die?

   You have not once written anything useful in the handover that includes what he has eaten or at what times before his arrival to me why is the information you provide less important that what I give you.”

7. There was an absence of any reliable, probative and therefore tested evidence from a dietician or other qualified health professional about any strict dietary requirements.  I do not dispute a peanut allergy can have immediate and devastating effects on a child.  However, I am not satisfied either parent (fully and now independently advised) would put X at risk.

8. The natural desire of children to have something sweet is not a recent dilemma for parents.  Certainly regulation of a number of foods – be they “sugary”; high in fat etc. – is regarded as important to the health of children and assists them in forming good food habits.

9. However, I accept the father’s evidence that his “treats” for his son - be they biscuits, Chupa Chups or “frozen drinks” is not established as a major concern in his parenting – but rather, again, an example of poor communication and lack of parental respect for the other parent – where both assert their superior parenting approach.

10. Clearly, with X’s underlying challenges, consistency within a proper range of what he eats across the two homes, might assist.  However, the mother had no basis to demand the father, in every way, to maintain exactly what she does in her home.  Similarly, the father’s past examples of what he has described as “rattling her cage” should cease – it being both provocative and unhelpful, if not immature to some extent.

11. The mother says she is not comfortable in attending a medical consultation with the father also present.  Whilst I return to that issue later, if the parents do not attend together the next best option is that they take responsibility to obtain (at their cost), the same information from X’s treating health professionals.  That has not been the case in the past – the most glaring example being the extensive counselling of X by Psychologist Ms G with limited input or exchanges sought or received from the father.

The capacity of the mother to support and facilitate X’s relationship with the father

1. The position that the mother expressed hurtfully in her email of 22 December 2016 sets a tone that has shaped the mother’s view of the father.  Simply stated, the Court, on all the evidence, does not accept the mother’s description of the father as an “extremely sick, twisted, sadistic and deplorable person constantly trying to torment me”.

2. That such comments were made just three months after the parents had entered into final parenting Orders for graduating unsupervised time, speaks volumes.  It strongly suggests, considering the history and behaviour of the mother after September 2016, that she did not genuinely support those Orders as being in X’s best interests.

3. The mother is defined by her parenting role.  It is the most important thing in her life.  She is committed to X and, I assess, regards herself as having all the skills to parent X (and now her baby daughter Y born in late 2018) without the assistance of any co-parent.

4. This attitude is, in my assessment on all the evidence including importantly that of Dr F, a significant psychological risk to X – especially where on my assessment he has available a no less loving or caring parent in the form of the father.

5. I return to this issue when next discussing the evidence of Dr F, however before doing so I refer now to the evidence of the mother’s counsellor Ms L.  Ms L was not the subject of cross-examination however her Affidavit affirmed 8 February 2019 and attached report dated 5 February 2019 (see Exhibit 3) is in evidence and has been considered.  The report by this accredited Mental Health Social Worker must be of course seen in the context that Ms L has had no access to nearly all the data before the Court – including the detailed family report of Dr F.

6. Counselling is meant to be therapeutic, and the mother expressed benefits in the relationship she has with this counsellor, and Ms L (who has been funded for domestic violence related anxiety and relationship issues by New South Wales Victims Services) suggests “her symptoms escalate with increased contact and harassment by her ex partner; Mr Osborne and also when visits between her son X and his father raised both physical and/or emotional health concerns for X.”

7. I am not in any way critical of the mother seeking and receiving counselling.  However if Ms L had other data, including Dr F’s report, it might have assisted her counselling focus.  Certainly, it might have given her some further context – as would the extensive supervised contact report (Exhibit 18) of interactions between the father and X which I, having read the report, regard as compelling and positive evidence of the thoughtful and measured way that X was at times managed by the father.

Evidence of Dr F

1. Experienced report writer and Clinical Psychologist Dr F read extensive material and conducted a series of interviews and observations with the parents and X on 12 March 2018, in preparation of her report dated 27 March 2018 (tendered as Exhibit 26).

2. Dr F’s report comprising over 200 considered paragraphs concluded with the following opinion, namely:

   “205.  At an overall level, I have a high level of concern that the mother is rigid and relentless in her desire for X to have no contact with the father.  I think the mother is explicitly and implicitly influencing X.  She does not seem concerned that X has lost all contact with the paternal family members and spoke in harshly critical and derogatory terms about all X’s paternal family members.  She seems to be entirely unaware of the effect of her anxiety and attitude on X.  I think that over time, that X will continue to be affected by this and become alienated entirely from his father and paternal family members.  The risks to X in this scenario are that he will no longer have contact with his father and paternal family members.  I am concerned that X’s exposure to his mother’s hostility towards the father is one of the most significant contributors to his behavioural dysregulation.  The mother presents as rigid, determinedly focused on negatively scrutinising the father and unswayable in her convictions…”

   And then after expressing concerns about the status quo remaining, said:

   “207.  Despite these real risks, however, the option of changing X’s living arrangements so that he lives with the father would, in my view be an extremely challenging developmental outcome for a child so young.  X has not had continuity of care of his father and he does not currently have an established attachment relationship with his father.  This scenario places X at significant risk also and not one that I would recommend, given X’s age and developmental history.”

3. These conclusions in this report must be seen within the context of the events leading up to March 2018 and the fact that, at the time, X had not commenced the supervised visits ordered by the Court which did not start until 29 April 2018.  Also, as the earlier history notes, there had been many months where no time had occurred.  My view is that the risks to X’s relationship with the father were at its lowest point in March 2018.  Based on the opinions contained in the report, with which I broadly accept as well founded, if nothing changed after then, it would have been a disaster for X.

4. Thankfully, although not in any way optimal, the commencement of regular supervised visits provided an opportunity to repair some of the damage done by the period of no contact.  As the contact centre notes reveal, the visits were very positive for X and the father’s observed behaviour (including his capacity to calm X down) was impressive.  The disconnect with the paternal family, a concern of Dr F, was addressed in a small way by the orders of 20 September 2018.

5. Accordingly, the cross-examination of Dr F at the hearing some 12 months after her initial observations for the family report was extremely important evidence.  From that cross-examination I distil the following findings:

   a)Dr F identified the additional material she had viewed since preparing her report.  In assessing X’s behavioural trajectory of behaviour, Dr F was influenced by reports of the School officer dated 3 December 2018 (Exhibit 28); the contact centre notes and the report by Consultant Paediatrician Dr E (Exhibit 31), which in particular observed his behavioural improvement;

   b)Having his father playing an active role in X’s life is important.  I agree;

   c)Although Dr F saw an advantage in the mother’s proposal by potentially removing X from the “toxic conflict between the households”, and that would ensure the mother’s parenting regime is consistently implemented, the real risk with her proposal is the father would become “very peripheral to X’s life” which would contribute to long-term behavioural and psychological problems for X.  In short, Dr F regarded the mother’s proposal as “overly restrictive” and the mother’s proposal for overnight contact to be delayed until X was 13 years as “odd” without any clear rationale.  I agree with these opinions, but when I sought to explore these in final submissions with the mother’s Counsel, she remained true to her instructions, and little concession or flexibility was offered;

   d)After confirming that if the Court was not satisfied unacceptable risk in the father’s care exists, then contact should be unsupervised, and increased in a “staggered way”, the Expert was not confident that the father’s proposal for equal time would be achievable by the parents seen from the position of their current conduct and conflict;

6. Under cross-examination by Ms De Vere (Counsel for the father), Dr F agreed that:

   a)changeovers where possible at school would be best to limit the prospects of X being exposed to parental conflict;

   b)time each week would be in X’s interests;

   c)building up from increased unsupervised day time before introducing overnight time would be sensible;

   d)after reading some reports of X’s current Psychologist Ms G, despite some rapport having been developed, X would benefit from the engagement of a counsellor who has not commenced from a position that the mother is the “non-offending” parent and the father, having been accused by the mother of sexual abuse and family violence (apparently accepted by the counsellor), is the “offending” parent.  Dr F expressed concerns that the current play therapy and approach by his counsellor may be reconfirming a “confirmation bias” about why he is behaving in a particular way rather than, as the Paediatrician and Education officer identified, “this is what he needs”.  I regard this opinion of Dr F as well founded;

   e)expressed concern as to the mother having sole responsibility for making major long term decisions as it minimises the father’s involvement and gives a message to the child that “mum is the boss”.  This could adversely impact on the child accepting the father’s authority.

7. These opinions expressed by Dr F, coupled with the contents of the family report, necessarily required Counsel for the mother Ms Gillies SC to cross-examine the Expert vigorously – but in all respect fairly.  Nonetheless, overall Dr F did not significantly deviate far from the opinions expressed in her report or those given when cross-examined by Ms De Vere for the father.  Cross-examination by the mother’s Counsel included:

   a)the Expert agreed that the parenting orders should:

   i)protect X from parental conflict;

   ii)provide continuity of his time with both parents;

   iii)seek to achieve finality; and

   iv)have the involvement of both parents in his life.

   b)The mother suffers a generalised anxiety disorder which creates some disproportionate behavioural affect so far as the father is concerned, however that is how the mother presented and must be considered.  Dr F agreed that even the mother’s framework for the father’s time with X (although Dr F criticises it), is still a positive improvement on the mother’s position presented in March 2018;

   c)If the father is dismissive of the child’s behavioural problems, merely asserting he had not witnessed such behaviour in his care and thereby attributing some blame to the mother’s style of care, that would be problematic.  However, with more information and after more contact, it is my finding the father does have a better appreciation of the challenges the mother has faced as a primary carer.  This does not alleviate however the father’s concerns about the mother limiting his role in X’s life;

   d)Achieving “consistency of parenting” does not mean continuity of supervision is necessary to protect the child from harm although the mother draws comfort from supervision continuing – as is her proposal for a time;

   e)Understanding the father’s history of drinking, Dr F accepted that no one could say with certainty that it may not be a problem in the future.  She regarded it as a vulnerability (perhaps more under stress – like not seeing his son), but she did not necessarily think at the time of her assessment, it was at a level that he needed to have medical or psychological treatment.  I agree with this opinion;

   f)Despite thorough cross-examination, Dr F did not waiver in her view that the child should cease counselling with current counsellor Ms G and believes that current therapeutic approach is not an effective treatment for the challenges X confronts;

   g)The most effective treatment for X’s issues is parent management training and possibly an integrated behaviour program with his school orientation.

8. I found the evidence of Dr F of great assistance.  Although she was highly critical of the mother in her family report, and as already noted, even contemplated (but rejected) the prospect of a change of residence, a number of factors are likely to have contributed to X’s behaviour being observed as less problematic now – including the mere fact he is getting older and that he was seeing his father more regularly.  I accept the mother’s anxiety, which is ever present, reduced when she saw X coming home to her from visits with his father “happy” and expressing his enjoyment in spending time.

9. It is speculation, but if the progress of the child’s time with the father had not been interrupted and limited, it may have assisted X’s relationship with the father to grow stronger – and rather than be threatened by that strength the mother may have drawn comfort from it.

10. I accept that the Affidavits of the parents; the extensive email traffic and their tendered documents do raise a number of discrete events.  However I choose to deal with the main issues and will undertake examination of the competing proposals generally, in a narrative style within the matrix of the relevant primary and additional considerations.

Primary considerations

1. X will benefit from having a meaningful relationship with both parents, and although the parental conflict has blurred both parents’ focus in this respect, at least by the time of the final hearing before me, the parties’ proposals (whilst starkly different) do contend for X to have a relationship with each parent.

2. Section 60CC(2)(b) – the need to protect the child from harm – must be given greater weight that s 60CC(2)(a).  I rely upon, but do not repeat, earlier findings made.  I find that the father is not an unacceptable risk of harm to X arising from the mother’s concerns about sexual abuse or use of alcohol.  The mother’s material raised issues of the allegations made in mid-2015 about injuries to X, whilst in the father’s care, but those issues arose well before the first final Orders and did not require further exploration.

1. Any written reports that are provided to the Mother by Ms G the Mother shall, within 7 days of receiving that report, forward to the Father via the Our Family Wizard application.

2. That the family report of Dr F be released to the parents’ respective counsellors or psychologists and the child's psychologist, Ms G.

3. That in the event of a dispute between the parties about the implementation or enforcement of these Orders or any other matter relating to the children's welfare, the parties will do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney General or the parents will participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.

Costs:

1. The father shall pay the Mother's costs of and incidental to these proceedings.

APPENDIX THREE

1. That the mother and father have equal shared parental responsibility for the child X Galloway Osborne born … 2013 (“X”).

2. That X live with the mother.

3. That X spend time with the father as follows;

   a)As and from the date of the making of these orders and for a period of one calendar month;

   i)Each Wednesday from the conclusion of preschool, or 3.00pm if on a non­preschool day, until 6.00pm;

   ii)Each Saturday from 10.00am until 4.00pm;

   b)At the expiration of order 3 a) and for a period of four months;

   i)Each Wednesday from the conclusion of preschool, or 3.00pm if on a non­ preschool day, until 6.00pm;

   ii)Every second weekend from 10.00am Saturday until 5.00pm Saturday;

   c)At the expiration of order 3 (b) and until X commences kindergarten in 2020;

   i)Each Wednesday from the conclusion of preschool, or 3.00pm if on a non­preschool day, until 6.00pm;

   ii)Every second weekend from 5.00pm Friday until 5.00pm Sunday;

   d)Once X commences kindergarten in 2020 and until the end of June 2020;

   i)Each Wednesday from the conclusion of school, or 3.00pm if on a non-school day, until 6.00pm;

   ii)Every second weekend from the conclusion of school Friday, or 3.00pm if Friday is a non-school day, until the commencement of school Monday, or 3.00pm if Monday is a non-school day;

   e)From the commencement of July 2020 onwards;

   i)Each Wednesday from the conclusion of school, or 3.00pm if Wednesday is a non-school day, until the commencement of school Thursday, or 3.00pm if Thursday is a non-school day;

   ii)Every second weekend from the conclusion of school Friday, or 3.00pm if Friday is a non-school day, until the commencement of school Monday, or 3.00pm if Monday is a non-school day;

   f)Once X commences Kindergarten and until December 2020, during the short school holiday period as follows;

   i)For a period of four consecutive days from the conclusion of the last day of school, until 5.00pm four days thereafter;

   g)During the December/January 2020/2021 school holiday for two blocks of five days as follows;

   i)From 5.00pm 27 December 2020 until 5.00pm 1 January 2021;

   ii)From 5.00pm 10 January 2021 until 5.00pm 15 January 2021; or during such other periods as may be agreed upon in writing.

   h)From the conclusion of the last day of school until 5.00pm half way thereafter, during the short school holiday periods commencing in 2021 and thereafter;

   i)For one half of the December/January school holiday period commencing in 2021/2022 as agreed to between the parents in writing and failing agreement as follows;

   i)From the conclusion of the last day of school until 5.00pm half way thereafter in odd numbered years;

   ii)From 5.00pm halfway through the school holiday period until 5.00pm two days prior to the commencement of the new year school term in even numbered years.

   j)From 5.00pm the Saturday before Father's Day until 5.00pm Father’s Day;

   k)From 12pm Easter Sunday until 3.00pm the Tuesday following Easter Monday, or the commencement of school if that day is a school day, in odd numbered years commencing in 2021;

   l)From the conclusion of school Holy Thursday, or 3.00pm if Holy Thursday is a non- school day, until 12pm Easter Sunday in even numbered years commencing in 2020;

   m)From 3.00pm, or until 7.00pm on X’s birthday in odd numbered years;

   n)From 10am until 2.00pm on X’s birthday in even numbered years;

   o)From 12pm Christmas Eve until 12pm Boxing Day in odd numbered years;

   p)From 12pm Boxing Day until 12pm 28 December in even numbered years.

4. That the father’s time as otherwise provided in these orders shall be suspended as follows;

   a)Once X commences Kindergarten and until December 2020, during the short school holiday period as follows;

   i)From 5.00pm four days after school term concludes;

   b)During the December/January 2020/2021 school holiday for two blocks of five days as follows;

   i)From the conclusion of the last day of school until 5.00pm 27 December 2020

   ii)From 5.00pm 1 January 2021 until 5.00pm IO January 2021;

   iii)From 5.00pm 15 January 2021 until the commencement of the new school term in 2021;

   c)Commencing in 2021, From 5.00pm halfway through each short school holiday period until the commencement of each new school term;

   d)For one half of the December/January school holiday period commencing in 2021/2022 as agreed to between the parents in writing and failing agreement as follows;

   i)From the conclusion of the last day of school until 5.00pm halfway thereafter in even numbered years;

   ii)From 5.00pm halfway through the school holiday period until the commencement of the new school term in odd numbered years;

   e)From 5.00pm the Saturday before Mother's Day until 5.00pm Mother's Day;

   f)From 12pm Easter Sunday until 3.00pm the Tuesday following Easter Monday, or the commencement of school if that day is a school day, in even numbered years commencing in 2021;

   g)From the conclusion of school Holy Thursday, or 3.00pm if only Thursday is a non-school day, until 12pm Easter Sunday in odd numbered years commencing in 2020;

   h)From 3pm or the conclusion of school if a school day, until 7.00pm on X's birthday;

   i)From 12pm Christmas Eve until 12pm Boxing Day in even numbered years;

   j)From 12pm Boxing Day until 12pm 28 December in odd numbered years.

5. That at all other times when changeover is not occurring to and from school, changeover shall occur by the father, or his agent, collecting from and delivering X to the mother’s home.

6. That the parties shall treat each other with civility and respect at all times during changeover and throughout all forms of communication.

7. That each parent shall notify the other within 24 hours after any change to their residential address or mobile telephone number.

8. That the parties will keep each other informed as follows:

   a)Any significant medical problems or illnesses suffered by X whilst in their requiring medical intervention;

   b)Any medication that has been prescribed for X within 24 hours; and

   c)Any medical appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding X within 7 days.

9. That each party will advise the other as soon as possible in the event that X suffers serious illness, injury or hospital admission whilst in that parent's care and each parent is at liberty to contact any doctor, hospital or other medical professional treating X to obtain information about X.

10. That these Orders constitute authority for the parents to each receive a copy of school reports, newsletters, school photograph order forms and any other notices ordinarily received by or sent to parents from the X's school.

11. That the parents are permitted to provide a copy of these Orders to any day care, preschool, school, and also to any care providers including before/after school care services that X attends to from time to time.

12. That the parents are permitted to provide a copy of these Orders to X's GP, treating practitioners, specialists or psychologists.

13. That these Orders constitute authority for the parents to each liaise with X's treating practitioners to obtain information about any treatment of X and other medical issues from time to time.

14. That Independent Children's Lawyer have liberty to provide the family report of Dr F and a copy of the judgement to the parent's respective counsellors or psychologists.

15. That the father be prohibited from any consuming alcohol 24 hours prior to and during the time that X is in his care.

16. That each of the parents be and is hereby restrained by injunction from:

    a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent, in the presence of or hearing of X and from permitting any other person to do so in the presence of or within hearing of X, and;

    b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of X, and from permitting any other person to do so;

    c)Discussing any allegations raised in these proceedings including but not limited to allegations of sexual, physical and psychological abuse of X by the father, within the presence or hearing distance of X.

17. The parents and their family members are at liberty to attend school events involving X including but not limited to concerts, school assemblies, sports days and social functions.

18. The parents are to use their best endeavours ensure X attends any enrolled sporting activities or extracurricular activities, including games and training, when X is spending time with each parent unless in the event of illness, the children's birthdays, X being away on a holiday or otherwise as agreed between the parents in writing.

19. That upon the making of these orders, the mother ensure that X ceases any further attendances upon Ms G Psychologist.

20. That within 7 days from the date of the making of these orders, the father shall;

    i)provide to the mother with the names of three psychologists specialising in the area of Parent Management Training (a psychologist who can assist the parent's with X's behavioural issues);

    ii)That the from the list the mother shall elect a psychologist within 7 days of being provided with the list of three by the father;

    iii)Each of the parents shall do all things reasonably necessary to attend upon such psychologist

    iv)Both parents are to attend the first appointment together with the agreed psychologist;

    v)Both parents are to follow all recommendations as provided by the psychologist;

    vi)X is to be involved in the therapy at the discretion of the psychologist and both parents shall facilitate X's attendance as required by the psychologist;

    vii)Each parent shall be equally liable for any costs associated with attending upon the psychologist;

    viii)Each of the parents have liberty to provide a copy of Dr F's Report; a copy of Dr E’s report of 4.12.2018 and a copy of the judgement to the psychologist.

21. That each parent shall ensure that each of them follow all recommendations given to them by the Education Office in relation to assisting X with behavioural issues.

22. That the mother and father ensure that X only attends Dr E in relation to any further assessment for X's behavioural issues unless Dr E becomes unavailable.

23. That the Independent Children's Lawyer be discharged.

24. That each of the parent's pay the amount of $10,368 directly to the Grants Department of Legal Aid NSW within four months from the date of the making of these orders.

25. That any further Application by either parent, including any contravention application, filed in the Family Court, within a period of two years from the date of the making of these orders, be listed before Justice Baumann.