PACETTI & DAMBROSE (No.2)
[2020] FCCA 2184
•7 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PACETTI & DAMBROSE (No.2) | [2020] FCCA 2184 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – orders made. |
| Legislation: Crimes Act 1900 NSW, s.59 Mental Health (Forensic Provisions) Act 1990, s.32 Mental Health Act 2007, s.22 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D |
| Cases cited: Lansa & Clovelly [2010] FamCA 80 |
| Applicant: | MR PACETTI |
| Respondent: | MS DAMBROSE |
| File Number: | PAC2061 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 16, 17 and 18 June 2020 |
| Date of Last Submission: | 18 June 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 7 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Giacomo of Counsel |
| Solicitors for the Applicant: | Shelly Legal |
| Counsel for the Respondent: | Mr Blank of Counsel |
| Solicitors for the Respondent: | Bell Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Braine of Counsel |
| Solicitors for the Independent Children’s Lawyer: | Ark Law Lawyers |
ORDERS
All previous orders are discharged.
That the parties shall have equal shared parental responsibility for the child X born in 2016.
The child shall live with the Father.
The child spend time with the Mother:
(a)For a period of 6 months, from 10 AM until 3 PM, each Tuesday and Saturday each week;
(b)Thereafter, for a period of 6 months, from 10 AM Friday until 5PM Saturday, each alternate weekend;
(c)Thereafter, for a period of 6 months, from 10 AM Friday until 5PM Sunday each alternate weekend;
(d)Thereafter, from after school or 3PM Friday until before school or 9AM if it is a non-school day Monday each alternate weekend.
The child shall spend time with the Mother during school holiday periods:
(a)From April 2022, for 3 consecutive nights commencing on the last day of school and concluding 3 days thereafter at 5 PM;
(b)From June 2022, for 4 consecutive nights commencing on the last day of school and concluding 4 days thereafter at 5 PM;
(c)From September 2022, for 5 consecutive nights commencing on the last day of school and concluding 5 days thereafter at 5 PM;
(d)From December/January 2022 and thereafter, for 7 consecutive days of the school holiday period, being the first half, commencing on the last day of school and concluding on the middle Saturday at 5 PM;
(e)Thereafter:
(i)during each school holiday period following terms 1, 2 and 3, for a period of one half commencing on the last day of school and concluding at 5 PM on the middle Saturday;
(ii)during each school holiday period following term 4, each alternate week, commencing on the last day of school of term 4.
The child shall spend time with the Mother on special occasions as follows:
(a)On Christmas Day 2020, from 12 PM to 7 PM.
(b)Thereafter, during the Christmas period:
(i)from 5 PM Christmas Eve until 5 PM Christmas day in even-numbered years
(ii)from 5 PM Christmas Day until 5 PM Boxing Day in odd numbered years
For a period of 6 months from the date of these Orders, changeover shall occur at such venue as agreed between the parties, but failing agreement, shall occur at McDonald’s, P Street, Suburb C, and the changeover is to be supervised by either Q Families, or an alternative supervision service agreed upon by the parties, and the parties shall equally share the costs of supervision. Following the child commencing school, changeovers shall occur at such venue as agreed between the parties, but failing agreement, at the child’s school, or on non-school days, at the above McDonald’s.
That except in the event of a medical emergency, the parents are to communicate with each other regarding issues relating to the care and wellbeing of the Child by way of text message and email only.
That each party (MR PACETTI and MS DAMBROSE) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Child X, born in 2016 from the Commonwealth of Australia for a period of ten years; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist for the said period, or until the Court orders its removal.
That the Mother is hereby restrained from approaching the Country N Consulate or any other foreign Government department with the intention of obtaining a national identity document or passport for the Child, X.
That the parties are restrained from making any derogatory or critical remarks about the other parent (or member of that parent’s household) in front of the Child or within hearing of the Child.
That the parties are to forthwith remove the Child from any environment in which a third party/ies is making derogatory or critical remarks about the other parent or member of the other parent or member of the other parent’s household.
The parent not having the Child in their care on the Child’s birthday will spend time with the Child as follows:
(a)if a school day, from after school to 7:00pm;
(b)if a non-school day, from 2:00pm to 7:00pm.
Should the Child not be in the care of the Father on Father’s Day or the Mother on Mother’s Day then in that event the Child shall spend time with the Father or the Mother on that specific day from 9:00am until 5:00pm.
That the Child will spend time with the Mother on:
(a)On Easter Sunday from 12pm to 7pm.
That the parties will do all acts and things necessary to authorise and instruct any schools that the Child may attend to:
(a)Send duplicate copies of report cards, letters and any other correspondence issued by the school to both parents;
(b)Send a duplicate copy of school fees to both parents; and
(c)Inform both parents of any upcoming events regarding the Child organised by the school.
That both parties keep each other informed of significant events occurring in the child’s life, in particular family, social, academic, health, medical, sporting and the like and that each party has entitlement and share of the children’s achievements, education, medical and other certificates, school photographs and the like.
Both parties shall keep the other informed of their current residential address, telephone numbers and email addresses; and:
(a)Provide each other with no less than seven (7) days’ notice of their intention to change their residential address; and
(b)Provide each other with any notice to change their telephone number or email address within 24 hours of any change.
That within 14 days the parties shall do all acts and things necessary to enrol and participate in a parenting orders program, such as Keeping Contact through, for example, R Counselling Centre.
Thereafter and within 14 days of completing the above program the Father shall do all acts and things necessary to enrol in and participate in the Keeping Kids in Mind children’s course.
That the Mother shall attend upon her current treating practitioners with respect to her mental health and comply with treatment recommendations including medication if so prescribed.
These Orders constitute authority for the Mother and Father to each liaise with the child’s treating medical practitioners and obtain information about any treatment and any other medical issues.
That both parties will be entitled to attend, particularly if the event falls in their time:
(a)School functions and events that allow for parental attendance including but not limited concerts, school assemblies, sport days, parent teacher interviews, canteen duties and social functions.
The parties shall be permitted to provide a copy of these Reasons for Judgment to the Local Court hearing the parties’ ADVO proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pacetti & Dambrose (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2061 of 2018
| MR PACETTI |
Applicant
And
| MS DAMBROSE |
Respondent
REASONS FOR JUDGMENT
This final parenting hearing relates to the child X born in 2016. The child was born in Country N.
The Mother is aged 39 years, and she hails from Country N. The Mother has a professional qualifications from S University in England. Apart from the child, the Mother has no family in Australia.
The Father is aged 32 years. He lives with his parents in their home in Town K. He has worked at Employer T since 2017. He works as a professional.
The parties commenced a relationship in about late 2015. The Mother had come to Sydney at about this time.
The parties separated on about 28 April 2018.
From about May 2019 the Mother commenced supervised visits with the child at the Suburb C Contact Centre. Those visits ceased in about October 2019.
The Mother had FaceTime with the child supervised through Q Families in April and May 2020. Her first face-to-face visit the child supervised by Q Families occurred on about 12 May 2020.
Proposals
The Mother’s proposals were ultimately set out in her Case Outline as amended by her proposed Minute of Order handed up in Court on 18 June 2020.
The Mother’s primary proposals were that she have sole parental responsibility for the child, that the child live with her, and that the child spend certain time with the Father.
She proposed alternate orders, inter alia, that there be equal shared parental responsibility for the child, that the child live with the Father, and the child spent time with the Mother on a certain graduating basis, ultimately arriving at a position in mid-2022 whereby the child was spending time with the Mother for 4 nights each fortnight. The Mother also sought, in the alternate, to spend time with the child during the school holidays, again on a graduating basis, ultimately arriving at a position where she shared school holiday time with the Father.
The Father’s proposals were ultimately set out in a Minute of Order whereby the Father sought orders, inter alia, that the Father have sole parental responsibility for the child; that the child live the Father; that the child spend supervised time with the Mother for 2 months, and thereafter unsupervised time on a graduating basis.
This graduated proposal for the child to spent time with the Mother, after the initial two months of supervised time, provided for a period of six months each Tuesday from 10 AM to 3 PM unsupervised; thereafter unsupervised time each alternative weekend from 10 AM Saturday to 10AM on Sunday until the child commenced school in 2022; and thereafter from Friday after school to Sunday 5 PM on a fortnightly basis. The Father’s proposed orders provided no time between the child and the Mother during school holidays.
The ICL sought orders, inter alia, that the Father have sole parental responsibility for the child; that the child live with the Father; that the Mother spend time with the child initially supervised for two months; thereafter (unsupervised) for six months each Tuesday from 10 AM to 3PM; thereafter for four months, each Tuesday 10 AM to 3 PM and Saturday from 10 AM to 1 PM; thereafter, and until the commencement of 2022, each alternate weekend from 10 AM Saturday to 10 AM Sunday; from the commencement of 2022 and thereafter, each alternate weekend from after school or 3 PM on Friday until 5 PM Sunday.
Material relied upon
The Mother relied upon the following documents:
a)The Mother’s trial Affidavit filed 28 May 2020;
b)The Mother relied upon those paragraphs of the Father’s Affidavits previously filed on 11 May 2018, 30 July 2018, and 23 October 2018 referred to in the Mother’s trial Affidavit;
c)The Affidavit of Dr G filed 1 June 2020;
d)The Affidavit of Dr E filed 29 May 2020;
e)The Family Report by Ms U dated 2 June 2020.
The Father relied upon the following documents:
a)Amended Initiating Application filed 12 June 2020;
b)Affidavit of the Father filed 12 June 2020;
c)Affidavit of Ms V (the Paternal Grandmother) filed 12 June 2020.
The following Exhibits formed part of the evidence:
a)Exhibit A –Tender Bundle of documents;
b)Exhibit B – Family Report by Ms U dated 2 June 2020;
c)Exhibit C – Bundle of Contact Reports;
d)Exhibit D – Photos Between 2018 – 2020;
e)Exhibit E – Subpoena Sleeve No 12, NSW Police;
f)Exhibit F – Reference for Ms Dambrose by Ms B;
g)Exhibit G – Letter to Bell Lawyers dated 17.1.20.
Evidence
The parties commenced a relationship in about late 2015. The Mother had come to Sydney at about this time. The parties lived together in a home unit at Suburb W for about six months until about 2016.
In about 2016, the Mother told the Father she was pregnant. The Mother returned to Country N in about 2016. The Father went to Country N in about late 2016 and stayed there for about seven weeks, returning to Australia in about early 2017. Again the child was born in 2016.
The Mother came to Australia with the child on a tourist Visa in about mid 2017. The parties resided in a granny flat at the property of the Paternal Grandparents at Town K.
The child was breastfed on demand while she was younger and started on solids in about mid-2017.
In about mid-2017, the Father applied for a de facto Visa for the Mother. A bridging visa was granted upon the lodgement of the de facto Visa. On numerous occasions from June 2017 to April 2018, the Mother requested the Father to complete certain forms for the Visa application. The Father told the Mother that he first wanted to get some advice. The Visa situation made the Mother feel very stressed and worried.
In about September 2017, the Mother told the Father that she was going to take the child to Country N and the Father would not see her anymore. The Father became worried and so he took the Mother’s passport. The Mother called the police. The Father returned the passport to the Mother. The Court does not accept that the Mother picked up a brick and raised it in her hand in the near presence of the Father.
By about late 2017, the Mother had begun to feel isolated living at Town K. The Father worked long hours. The Mother, Father and child did not spend much time together as a family. The parties had disagreements and the Mother, on occasion, would raise her voice and yell at the Father. The Paternal Grandmother often told the Mother that everything she was doing in relation to the child was wrong.
The Mother attended upon a psychologist about five times in November 2017. The Mother found the sessions helpful in relation to her own emotional health.
In about December 2017, the Mother attended Y Clinic following the parties’ GP making a referral due to problems with the child sleeping. The Mother was also experiencing sleep deprivation at this time.
In 2018, the parties had an argument whilst in a car with the child, which car was being driven over the Suburb F Bridge. The Court does not accept that the Mother tried to open the back door of the car to get out whilst the car was in motion. The Court does not accept that the Mother began punching the Father from behind his seat to his head.
In about 2018, the Mother commenced full-time work as a customer service officer in a company. The Father and his family provided support to care for the child while the Mother was at work.
In April 2018 the Mother requested the Father to sign a Visa for her. The Father refused. The Mother became angry at the Father. The Court does not accept that the Mother physically assaulted the Father.
On about 21 April 2018, the parties had an argument near the Father’s car. The Mother was struck by the car door and fell to the ground. The Court does not accept that the Father deliberately opened the driver’s door of the car to hit the Mother with the door.
On about 23 April 2018, the Mother told the Father that if he did not sign the Visa form, she would be deported. The Mother became angry at the Father. She verbally threatened him (although the Court is not satisfied that the Mother threatened to harm the Father with a knife). She swore at him. The Court does not accept the Mother physically assaulted the Father.
On about 28 April 2018, again the Mother told the Father that he needed to sign her Visa application. Again, the Father refused. The Father walked to the main home. He caused the police to be called. The Mother told the Father that if he did not cause the police to not attend the home, the Father would not see the child. The Mother grabbed a garden hoe while she was holding the child and smashed the back window of the Paternal Grandfather’s car. The Mother was emotionally distressed at this time fearing deportation. At one point she was hitting herself in the face, and was going inside and outside of the home repeatedly. The police attended the premises and removed the child from the Mother gave the child to the Father.
The parties separated after this incident. The child was still being breastfed by the Mother at separation. A provisional Apprehended Violence Order (AVO) was made about this time naming the Father as the protected person and the Mother as the defendant.
On about 30 April and 2 May 2018, the Mother threatened to jump in front of a train by Snapchat message to the Father if the Father took the child away from her. The Mother made these statements in the context of feeling as though she would not have anything to live for if the child was removed from her care. In oral evidence the Mother stated that she was very frightened that the Father would take the child from her.
On 3 May 2018, the AVO matter was listed at Suburb F Local Court. The Father had a conversation with the Mother’s solicitor. The Court accepts that the Father, following discussions with the Mother’s solicitor, felt required to hand over the child to the Mother which he did.
On or about 3 May 2018, the Father received text messages from the Mother telling him that the child had a 40° temperature. At about this time the Mother also informed the Father and the Paternal Grandmother that the child was having a seizure. The Father advised the Mother to take the child to the hospital immediately. The Mother called the emergency line and explained the child’s symptoms to a nurse. The Mother was advised to closely monitor the child’s temperature and take her to a GP. On 4 and 7 May 2018, the Mother took the child to a GP. The child was diagnosed with an upper respiratory tract infection. The Mother was advised by the GP that the child required parental care and continued breastfeeding.
On about 7 May 2018, the Mother told the Father that she did not have a place to stay and that she had been fired. She told the Father that she was calling refugee houses. She said the child was staying with her. She blamed the Father for her predicament. The Mother told the Father that the Paternal Grandmother wanted to steal the child from her.
On 17 May 2018, the Mother commenced psychological counselling. She was treated by a psychologist for anxiety and depressive symptoms. The Mother was prescribed regular medication to manage her conditions, and the Mother took such medication. The Mother also commenced counselling at the Suburb O Family Centre in about late July 2018.
On 23 May 2018, the child and the Mother moved into an apartment on Sydney’s Region Z. This residence is a two-bedroom apartment. Presently, the Mother resides on her own in this apartment.
On 1 June 2018, the Court made interim parenting Orders, inter alia, that the child live with the Mother and spend certain overnight time with the Father. The Mother was ordered to comply with all treatment recommendations of her treating psychologist, Dr E.
On 21 June 2018, the Mother telephoned the Father and asked the Father to buy her a car. The Mother was very upset during the conversation because she felt she could not care properly for the child when she was having to walk with her in the rain. She swore at the Father over the telephone and became aggressive.
On about 22 June 2018, the Father started receiving telephone calls from the Mother asking for money. The Mother spoke to the Father aggressively. The Mother told the Father that she would fight for spousal maintenance.
On 25 June 2018, the Mother spoke to the Father on the telephone. The Mother asked the Father for the child’s birth certificate and passport. The Mother had received an email from the Department of Immigration informing her that she had 28 days to submit certain documents or else she would not be granted a Visa. On 25 June 2018, the Mother had only three days remaining until the documents were due to be submitted. The Mother stated to the Father that he was going to get her deported. The Father stated to the Mother that he was not going to sign a statement stating that they were in a relationship when they were not in a relationship. The Mother was very upset at this time. The Mother requested that the Father bring to her the child’s passport and birth certificate. The Father said he will need to look for them. The Mother told the Father that if he did not find them, he could not see the child.
On 26 June 2018, at the Mother’s residence, again the Mother requested from the Father the child’s passport and birth certificate. The Paternal Grandmother was present. The child was present. The Mother became anxious at this time. The Mother raised her voice to the Father. The Mother requested that the Paternal Grandmother leave, using a swear word. The Mother handed over the child to the Father. The child was placed in the car. Again the Mother requested the child’s documents from the Father. The Father told the Mother that he did not have them with him. The Father walked away from his car some distance and sought to telephone the police and the Mother became aware that he was doing so. At this time, the Mother was very scared that the police would take the child and she believed that if the police attended it could affect her application for permanent residency. The Mother threw one of her shoes at the Father. She sought to take the Father’s phone off him without his permission, and the Mother scratched the Father with her finger nails whilst doing so. The Court accepts that it is likely that the Mother struck the Father during her attempts to take the Father’s phone. It is likely that the child did not see this particular melee because she had been seated in the car some distance away. In oral evidence, the Mother agreed that she was unable to control her emotions at this time.
The Mother was arrested and charged with assault and breach of an AVO in relation to the above incident on 26 June 2018. The Mother ultimately pleaded guilty to assault occasioning actual bodily harm, domestic violence related, pursuant to section 59 (1) of the Crimes Act 1900 NSW. She sought that the charges be dealt with pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990.
On 31 July 2018, by consent, the Court made interim Orders that the child live with the Father, and spend supervised time with the Mother at a contact centre, pending the hearing of the Father’s Application in a Case filed 30 July 2018 (relating to his proposed interim order that the child spend supervised time with the Mother at a contact centre).
The Father about this time caused the child to attend the AA Childcare Centre near his residence. He also caused the child, on 25 July 2018, to have a check-up with his GP and the child was found to be in good health.
On about 11 September 2018, the Mother completed the Keeping Kids in Mind post separation parenting course.
On 26 October 2018, the Court confirmed the continuation of the interim parenting Orders of 31 July 2018.
Between about late October 2018, and about mid December 2018, the Mother completed an anger management course conducted by BB Counselling called Managing Anger and Strong Emotions.
On 8 January 2019, the Mother commenced spending supervised time once a week for two hours with the child at the contact centre. The Mother’s supervised time started as once a week visits, and moved to twice a week on 8 March 2019, and resumed on a once a week basis from 17 September 2019. The child’s supervised time with the Mother was spent positively.
On 1 March 2019, certain criminal charges against the Mother were dismissed by the Local Court at Suburb F, with the condition that the Mother complies with certain treatment plan conditions.
In about late May 2019, the Mother commenced the Circle of Security Parenting Program with CC Centre.
On about 6 August 2019, the Suburb C Children’s Contact Centre reduced the child’s twice-weekly supervised times of the Mother to once a week.
On 9 August 2019, at the contact centre, the Mother became anxious and stared at the Paternal Grandmother.
On 24 September 2019, at the contact centre at Suburb C, the Mother became upset after she had been told by the contact centre supervisor to take the child’s toys with her. The Mother had sought to explain to the supervisor that she was not able to take the toys with her as she was catching public transport and had another job interview that afternoon. She raised her voice at the staff. She threw some toys on the floor. Prior to the Mother arriving at the contact centre she had been informed that she had been unsuccessful in obtaining a particular job. At this time the Mother was not taking any medications.
On this date, the Father had left the contact centre at Suburb C with the child. He was in his car with the child. He observed the Mother as a pedestrian nearby. The Court does not accept that the Mother ran towards the Father’s car in a bid to confront the Father.
The Mother did not spend face-to-face time with the child from 24 September 2019 until 12 May 2020.
On 4 October 2019, the contact centre at Suburb C advised the parties that they were no longer willing to supervise the child’s time with the Mother due to her breaches of the service agreement terms and conditions.
On 4 October 2019, the Team Leader from the contact centre informed the Father by email, inter alia, that:
It is important to fully acknowledge the consistent quality of effective parenting time spent with (the child) in the visits, as is evidenced in our supervision notes. There has been a healthy parent-child attachment re-established with (the child) over this time, with the Mother’s consideration given to (the child’s) developmental needs for closeness, a variety of active play and verbal interaction, for limits and boundaries to be set, for toilet training, for books to be read together, for quiet times and healthy snacks. (The Mother) has been responsive to the direction of the staff and always sought constructive feedback at the conclusion of each session….
In recent discussions with (the Mother) on the phone, she has told me that she hasn’t been coping with the reduction in time…
At about this time, on 4 October 2019, the contact centre informed the Mother of its decision to cease supervision services. The Mother reacted angrily to this information. She told a staff member of the contact centre that she would commit suicide “and the media will know about it”. A staff member of the contact centre then contacted the police. The Mother made contact with the police who requested her to attend Suburb DD police station which the Mother did. The police issued a section 22 notice under the Mental Health Act 2007. The Mother agreed with police that it was in her best interests to speak with a mental health professional. The Mother was driven to the Suburb DD hospital by a family friend where she was attended upon by hospital staff and later discharged.
On 9 December 2019, this Court made interim parenting Orders, inter alia, that the Mother be permitted to spend supervised time with the child at the group playgroup at the Suburb M and Suburb C Children’s Contact Centres, due to commence in late January 2020. Later, in about mid December 2019, the Mother was informed that there were not enough families to enable the service to commence in late January 2020.
In about early December 2019, the Mother sent the Father text messages, enquiring about the child’s well-being, in circumstances where the Mother believed that the child may have been adversely affected by bushfires. The Father did not respond to these messages. The Mother, in a bid to have the Father respond to her, sent the Father at least one naked photo of herself. The Mother was particularly anxious at this time.
The Mother attended the course Managing Anger with BB Counselling NSW from about mid-February 2020 to about mid-March 2020, with the Mother attending 5 of the 6 sessions.
On 13 March 2020, interim parenting Orders were made that the child’s time with the Mother was to be supervised by Q Families following the above contact centres indicating that there were not enough families for the playgroup service to commence.
The Father, at the time that supervised time between the child and the Mother was due to commence, by reason of the Covid19 restrictions, proposed that time between the child and the Mother be by way of supervised video pending the Covid19 restrictions resolving.
The Mother had FaceTime with the child supervised through Q Families in April and May 2020.
The Mother posted entries on the “Go Fund Me” website in an endeavour to obtain donations to fund these proceedings. She did not obtain any donations.
The Mother attends church regularly each Sunday morning. The congregation provides her with financial support. They also provide her with emotional support which has been beneficial for the Mother’s mental health. The Mother now has a part-time job. She works for a church member doing some cleaning around her house. The Mother does some voluntary work, including some voluntary work for children. The Mother exercises regularly. The Mother is applying for work within the sales industry to utilise her professional qualifications. The Mother has been experiencing stress in relation to being separated from the child. She has suffered loss of weight and hair.
The Father has completed a number of different courses since the commencement of these proceedings. These courses include 2 online parenting courses, and a Parenting after Separation course.
The Father works at Employer T. He has about $162 per week to live on after payment of his liabilities. The Mother has paid about $2,595 in total child support since the child has been in the Father’s primary care.
The Father, since 23 August 2019, has been receiving therapy from a social worker. At the commencement of this therapy, he was experiencing significant anxiety. He had weekly sessions. His therapist, in her report of 25 October 2019, states that although the Father has significantly reduced his anxiety, he still “has extreme fear by his ex-partner, as he fears she might abduct (the child) and take her overseas.”
The Father gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Father stated that when the child is in his care he does not speak negatively about the Mother. He stated that until recently, he did not talk about the Mother to the child nor did he say to the child that the Mother loves the child. The Father stated that he has never been in doubt during the course of these proceedings that the Mother wanted to have a meaningful relationship with the child. He stated that going forward he could say some positive things to the child about the Mother.
The Father stated that he earns $1,100 per week after tax. He pays $380 per week in board to his parents.
The Father stated to the Court that the reasons he seeks initial supervision of the child’s time with the Mother is because he does not want the child being coached against him; he has a concern that the Mother will flee the country; and he has a concern that the Mother will react violently if the Court makes an order that the child live with him.
The Father stated he does not have communications with the Mother. He stated that he has not had contact with the Mother for the last few years. When asked if he could send an email to the Mother, he stated that he could communicate through a solicitor. He stated that he would not want to speak to the Mother by reason of there having been a history of false allegations made by the Mother against him. He stated that he only wants communication through solicitors. He was not sure how such communication would promote the child’s relationship with the Mother.
The Father stated that it was about 1 hour to 1.5 hour drive from Suburb EE to Town K.
The Father stated that he felt that he had learned from doing various parenting courses as to the importance of the child maintaining a meaningful relationship with the Mother.
The Father stated that the child has been attending the AA preschool for about three and half years now. She now attends three days per week. She attends the preschool at Town FF.
The Father was asked whether prospectively he might engage in some family therapy with the Mother to assist in mutual communication. The Father stated he could not do that because of false allegations (having been made by the Mother). He later stated that he was fearful that prospectively the Mother might make false allegations against him, for example in the context of telephone time between the child and the Mother.
The Father was asked whether he might be able to send an email message to the Mother if, for example, the child was sick. The Father stated that he could contact the supervisor or email the Mother.
The Father stated that his 50% share of the present supervised contact visits between the child and the Mother is $236 per week.
In re-examination, the Father stated that if the Court ordered the parties to communicate with each other by email, or by text message if there was an emergency, he could comply with such an order.
The Paternal Grandmother gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Paternal Grandmother, aged 62 years, stated that she loves the child and she supports the Father in these proceedings.
The Paternal Grandmother was asked whether it was important that the child see the Mother. She replied that it was up to the Father (to support that occurring).
The Paternal Grandmother was asked whether she had ever told the child that the Mother loves her. She replied that she had not because she had not had the opportunity to do that. She stated that the child had spoken to her about activities with the Mother. She had asked the child whether she had had a fun time with the Mother.
The Paternal Grandmother stated that the Father does look to her to receive guidance and help in relation to the child’s upbringing.
It was suggested to the Paternal Grandmother that the best way forward, if the Mother’s time with the child was to move to unsupervised time, was to build a better relationship between the Mother and the Father. The Paternal Grandmother stated that that would not happen, because of “what has played out”. She stated that the Mother was not a person you can have a relationship with.
It was suggested to the Paternal Grandmother that it was important for there to be communication between the parties. She responded in the negative. She stated that “we are quite frightened of the Mother”. She stated that the Mother has uncontrollable emotions. In this context, she referred to the way in which the other acted at her residence. She stated that the Mother was not a trustworthy person.
The Mother gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The Mother stated that she was prepared to move from her residence in Suburb EE to a residence close to where the child lives with the Father. She stated that she was proposing to inspect a house in the Town K area shortly.
The Mother stated that she has an outstanding application with the Department of Immigration regarding her permanent residency. She stated that she has a Legal Aid lawyer assisting her in this context. She stated that if the Department was unwilling to provide her with a Visa she would appeal the decision.
The Mother stated that the Paternal Grandmother was a lovely Grandmother.
The Mother stated that occasionally the Father provided care for the child at the Town K residence. She stated that when she was living with the Father at that residence she did not have concerns about the Father’s care of the child and nor did she have any concerns now.
The Mother stated that, in relation to the incident on 28 April 2018, when she was holding the child and she smashed the car window, that she would never do that again, and she stated that she was not in control of her emotions and was in despair at that time. She stated that she is now aware that the child could have been injured at that time. In this context, she stated that, inter alia, she thought she would be deported without the child.
The Mother stated that she does not have any family in Australia, however, she has friends here who are like family.
The Mother stated that she has no objection to a Court Order that she not apply for a Country N passport for the child.
The Mother agreed that during arguments with the Father she had threatened to take the child back to Country N.
The Mother was asked whether it was her present perception that the child had been stolen from her. The Mother agreed, stating that she hadn’t seen the child for one year and she had been breastfeeding. She stated that she had hope that after these proceedings the child would be returned to her. She stated that if the Court was to order that the child live with the Father, she would manage her emotions. She stated that she would not overreact. She stated that she has been having therapy for two years. She stated that she would not be happy but she would accept the Court’s decision.
The Mother stated that the Father is a great Father. She stated she was very blessed that the Father loves the child. She stated that “the argument” is that the child needs both parents.
The Mother stated that presently she does not own a car. She referred to a possible insurance payout for her previous car in this context.
The Mother stated that, in relation to her proposal that the parties have equal shared parental responsibility and the parties agree on major decisions affecting the child in this context, therapy would be helpful.
The Mother stated she earns $600-$800 per week in the hand in relation to her cleaning duties at two homes. The person who engages the Mother for this work has given the Mother flexible options for the days she works. The Mother works up to 3 days per week. The Mother pays $400 per week in rental presently. The church that she attends has assisted her in payment of this rental. The Mother had signed a lease in May 2018 and it was a one year lease. She has not signed a further lease since this time.
The Mother stated that the maternal Grandmother is planning to move to Australia. The Mother stated that she will make an application for the Maternal Grandmother to come to Australia. The Mother’s psychiatrist refers to the Maternal Grandmother having visited the Mother in October 2018 and who was a significant support for the Mother.
The Mother stated that she was presently taking Paroxetine every morning to assist with anxiety and depression. The Mother stated that she has been following her doctors’ advice for two years. She stated that she will follow any Court orders in this context.
The Mother stated that previously she was unable to control her anger in the face of her isolation and not seeing the child. She accepts that she has had anger management issues in relation to the Father.
It was suggested to the Mother that the techniques she had learnt through her psychologist in controlling her emotions had not helped her in September 2019. The Mother disagreed and stated that she had suddenly ceased medication at this time.
The Mother stated that once these proceedings have concluded, and she has certainty from the Court, there will be a reduction in her stress.
The Mother stated that since 15 May 2020 she has had face-to-face time with the child. She sees the child twice per week; on Tuesdays for two hours and on Friday for two hours. The Mother stated that over the last two weeks she has seen the child for five hours each week.
Dr E: the Mother’s treating clinical psychologist
This psychologist prepared an Affidavit filed on 1 June 2020. His report dated 29 May 2020 is annexed to his Affidavit.
The psychologist stated that he has been seeing the Mother for two years since 17 May 2018. He states the Mother is participating in his psychological treatment on a weekly basis. He states the Mother has been engaging in the treatment consistently, however, he did not see the Mother for three months from August to November in 2018.
The psychologist stated that assessment results together with the Mother’s reported symptoms meet the DSM-5 diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. He states that it appears that the symptoms were precipitated by separation from the child. He states that the Mother is being treated in line with cognitive behavioural therapy. He states that this treatment seeks to, inter alia, develop emotion regulation strategies when the Mother experiences strong negative emotions, including an anger management plan; and loss and grief work for separation from the child.
The psychologist states that the Mother requires a general practitioner and psychiatrist for medication. The Mother reported that she was regularly taking antidepressants prescribed by the GP, and sees her psychiatrist periodically.
Under the heading, “The prognosis for any mental health condition or impairment relevant to her and in particular an assessment as to likelihood of relapse”, the psychologist states that regarding prognosis, risk factors include adverse childhood, disadvantaged life circumstances including currently not having a good familial/social support, low socio-economic status, and elongated time of separation from the child compared with her expectation. He states that it is important to maintain the hope that the Mother can live with her daughter again, in order for her resilience without relapse.
The psychologist states that the Mother has been compliant throughout psychological counselling. He states the Mother has gone through many moments that she experienced elevated levels of anxiety and depressive symptoms because she could not see the child. He states that whenever the Mother has a counselling session, she brought these issues to counselling rather than being disengaged. He stated in the future, the Mother would be compliant with the treatment as well as she has been.
The psychologist states that the Mother is developing her insight into her problems of emotion regulation and aggressive behaviours in the past. He states that for relapse prevention, the key moment is when she experiences strong negative emotions, especially when her expected moment of seeing the child is cancelled. He stated that ongoing treatment to develop strategies to regulate her emotions and practising the skills in her daily life would be necessary, as well as complying with GP and psychiatrist medication.
The psychologist states that the Mother’s anxiety and depressive symptoms are mostly precipitated by separation from the child, rather than her current mental health condition impairing her parenting capacity.
The psychologist gave oral evidence. The Court does not propose to set out the entirety of his oral evidence.
The psychologist stated that he had had more than 60 sessions with the Mother.
The psychologist stated that throughout his counselling sessions with the Mother he has carried out anger management strategies with her including physical relaxation techniques, psychological wise-minded techniques, and mindfulness. He confirmed that emotional regulation formed part of his treatment for the Mother.
The psychologist stated that the Mother had developed insight into the incident which happened at the contact centre; the Mother had taken responsibility for her behaviour in that context.
The psychologist stated that, with the Mother, he assessed other areas, besides the parenting area. He stated that he had asked the Mother whether there was any incident where her behaviour was too emotional and it created problems at work or another relationships, and he found no such incidents.
The psychologist stated that the Mother was developing in terms of taking responsibility and regulating aggressive behaviours.
The psychologist was asked whether the strategies that he had taught the Mother were actually being able to be applied by the Mother in stressful situations that she finds herself in. The psychologist stated that the Mother had demonstrated developing skills of emotion regulation strategy, and gave as an example a recent occasion when the Mother could not see the child because of the supervisor’s private-personal reasons, and the Mother used strategies to deal with her frustration at the time.
The psychologist stated that it had been important for the Mother to maintain the expectation that the child would live with her in the future, and, in this context, clarified that that might entail the child living with the Mother three or four days a week.
The psychologist stated that the Mother finds it frustrating to deal with decisions that are made about the child that do not match her expectations of care in relation to the child.
The psychologist was asked what impact upon the Mother might occur if the Court decided that the Mother spend a further period of supervision with the child or alternatively that the child spend time with the Mother during the daytime only one day a week for the next 9 to 12 months. The psychologist stated that he assumed such orders would be less than the Mother’s expectation and that there would be some frustration and grief on her part, but that the Mother had learned emotion regulating skills and he was sure that the Mother could be resilient.
The psychologist was asked the following final question and gave the following answer:
It’s a real possibility, isn’t it, given Ms Dambrose’s history, that if a Court makes an order that doesn’t fit in with her expectation - that is, that either X lives with her primarily or X lives with her half of the time - it’s a real possibility that we will see a decompensation in her emotional ability and that she will have difficulty regulating her emotions. It’s a real possibility, isn’t it?--- Emotional wise, yes. She will have stress and negative emotions. We can’t control our emotions, but for behaviour she developed more skills, and so I think she’s ready to use these skills. That’s the resilience. She has been long time - she is learning resilience and - slowly and steadily, but she is getting there.
The Court accepts the evidence of Dr E.
The Mother’s GP, Dr H, prepared a short medical report in relation to the Mother dated 14 October 2019. Relevantly, the doctor stated that the Mother has an anxiety disorder which, “is directly related to the current circumstances regarding access and guardianship of her daughter.” This doctor prepared a medical certificate dated 4 November 2019, in which he stated, inter alia, that the Mother attended the medical practice on 14 October 2019, with the doctor noting that at that consultation the Mother was not taking any medication. He observed that the Mother has since commenced taking medication for anxiety. This GP’s referral letter to the Mother’s treating psychiatrist, Dr G, dated 14 January 2020 again refers to the Mother’s anxiety disorder, “centred around her social/domestic situation.” He refers to the Mother’s current medications.
The Court accepts the evidence of Dr H.
Dr G: Mother’s treating psychiatrist
This psychiatrist swore an Affidavit filed 1 June 2020. His report was annexed to his Affidavit and was dated 27 May 2020.
The psychiatrist stated that he had reviewed the Mother on six occasions in 2018, three occasions in 2019, and five occasions in 2020, with the last review on 26 May 2020.
The psychiatrist stated that he diagnosed the Mother with major depression in October 2018. He referred to the Mother’s previous treatment for depression in 2004 and 2011. The psychiatrist stated that the Mother had responded well to the treatment and has been in remission since early 2019.
The psychiatrist stated that the Mother is on antidepressant medication, and occasional use of anti-anxiety medication. He refers to the Mother seeing a psychologist once a week. He refers to reviewing the Mother once every three months or more frequently if needed. He states that this treatment has been effective in maintaining the Mother in remission. He recommends the Mother to continue this treatment.
The psychiatrist refers to the Mother seeing a counsellor through CC Centre which ended in December 2018. He refers to the Mother completing an online anger management course, focusing on emotional regulation and adaptive conflict resolution strategies. He states that the Mother has reported greater mood regulation and adaptive responses to situations. He states the Mother does not misuse alcohol or use illicit drugs.
The psychiatrist states that the Mother’s treatment is facilitated by her GP, Dr H. He states that he has discussed this treatment with the GP, and he has agreed for the same.
The psychiatrist states that the Mother’s current episode of depression and current need for ongoing psychiatric and psychological treatment is in the specific context of her social and legal stressors.
The psychiatrist states that while the Mother remains vulnerable to future relapse of depression in reaction to psychological or social stress, her good insight and optimal response to treatment, no residual symptoms of depression, absence of drug or alcohol use, and high level of independent functioning, are all good prognostic factors. He states that ongoing medication treatment, monitoring by a psychiatrist, and continuing psychological treatment would further reduce risk of relapse. He states that the Mother’s psychological treatment would provide interventions for improving stress resilience, problem-solving and emotional regulation.
The psychiatrist states that the Mother has good insight into her depression and psychological need, and she has proved to be resourceful in accessing the required treatment. He states the Mother has been compliant with the recommended medication and psychological treatment since late 2018. He states there is a low likelihood of her becoming non-compliant with treatment.
The psychiatrist states that the Mother’s social and legal issues, particularly related to her custody of the child, are ongoing risk factors. He states the Mother would need ongoing medication and psychological treatment and monitoring of her mental state by a psychiatrist until the current issues are resolved and to assist in maintaining her recovery.
The psychiatrist states that the Mother does not have impairment in functioning due to her past episodes of depression. He states that he is not able to comment on the Mother’s parenting capacity, however, he notes that the Mother is currently in remission.
The psychiatrist gave oral evidence. The Court does not propose to set out the entirety of his oral evidence.
The psychiatrist clarified that, in relation to the Mother’s occasional use of the anxiety medication clonazepam, that medication was usually prescribed for short-term management of acute anxiety symptoms.
The psychiatrist referred to the Mother stating that she was quite regretful and ashamed of her behaviour in relation to certain incidents occurring in December 2019 and which involved the Father.
The psychiatrist was asked whether it was reasonable to assume that the Mother had more work to be done in relation to the issue of her emotional regulation, and he gave the following answer:
We have had some evidence today from Dr E, who is a clinical psychologist who has seen the Mother over, I think, some 60 – 60 sessions over a two year period, supporting her in her developing – including developing strategies in relation to emotional dysregulation. Given that level of intervention, from what you understand happened at the contact centre, isn’t it reasonable to assume that there is some more work to be done on this issue of emotional regulation?---Well, that’s – that’s a – that’s an important – important point, something that I have given a fair bit of thought in working with Ms Dambrose. However, this is how, from a psychiatric point of view, I have come to assess the issue of her emotional dysregulation. If I was to take the view that Ms Dambrose has got an internal propensity for emotional dysregulation, which is long-standing, which is pervasive, which is – which is part of very much her – her personality, and her personal being, if I take that view, then – then yes, ongoing assistance with emotional dysregulation strategies to – to better regulate her emotions, and to address the issues, related issues, which often are found with emotional dysregulation, like self-esteem, or sense of self-worth, those issues are quite – quite – becomes quite pertinent and quite significant to address.
However, taking into account my longitudinal assessment over the last two years, the facts presented to me, the – the information I have gathered, would – what strikes me very clearly is that the episodes of emotional dysregulation have been in specific contexts. So all the episodes that – that I have been able to – to assess and the information I – I have been provided, they – those episodes have all been contextual. Now, along with this, my longitudinal, sort of, assessment and regular interviews with her, I did not come across any evidence of any pervasive difficulty with emotional dysregulation. There wasn’t any evidence available to me, on my assessment, or – or the reports that I was provided from – from other treatment providers, or from – from the legal – from previous legal proceedings, did not suggest that there is any evidence that she has behaved in an emotionally dysregulated manner in – in other social settings, or settings which were outside the context of her ex-partner, or her – her daughter. So in that – taking that into account, how I have come to understand her difficulties is, the difficulties are largely related to her – what started off as a relationship where she says there was – there was some promise, there was a bit of domestic violence, and since after that, there has been this ongoing anxiety related to her future with her – with her daughter, in terms of contact or access. So those – those – that’s how I have come to – come to understand her – her difficulties regarding emotional dysregulation.
The psychiatrist confirmed that it was his assessment that the Mother has been compliant with taking her prescribed medication.
The psychiatrist stated that, from his consultations with the Mother, it was the Mother’s expectation that the child would come back to live with her “at some stage”.
The psychiatrist was asked whether there was a risk that, if the Court was to order that the child not live with the Mother, but was to live with the Father, and the Court was to order that the Mother was to have a further short period of supervision, or that the Mother move to daytime contact only with the child for a period of about 9 to 12 months, the Mother might experience a decompensation in her mental health. The psychiatrist gave the following answer:
---It may. But given the history, what – I am also mindful that since, I can just refer to my dates, since April 2018, or in fact, since June 2018, she did not have any contact with her daughter until January 2019, and then she had continuous contact for about seven months until September or October last year, that you are referring to, and then she didn’t have any visits or any – any contact, until recently when she – when I understand that she – she is having access visits again. So given the history of how I assessed and reviewed her during those periods, it was clear to me that – that she does have resilience and coping skills to be able to manage periods of limited contact with her daughter without – or limited contact and no contact with her daughter, as long as there is continuing hope that there is going to be some future contact with the daughter. So the question that you put to me, at this stage, if I was to use that understanding of the history, my guess would be that she can manage limited contact with her daughter without decompensating, but my guess would be that, yes, she would like to maintain hope that in the future she would have greater access – greater time with – with her – with her daughter.
The psychiatrist was asked whether, if the Court was to make a decision that was not in accordance with what the Mother would like, the Mother might experience an adverse impact on her mental health. The psychiatrist responded as follows:
It is my understanding that, in my conversations with Ms Dambrose, at this stage, she has – she – she expects to have regular contact with her daughter. Of course, she wants to have a future where she – she can live with her daughter, her daughter can – can live or stay with her. But in my conversations, I got an impression that at this stage, what she – what she realistically hopes is to have a regular, secure way to maintain contact and have some personal time with her daughter.
The Court accepts the evidence of Dr G.
Family report
The family report was prepared by family consultant Ms U and is dated 2 June 2020. The interviews were held by telephone on 29 April 2020; and the Father, Mother and Paternal Grandmother was spoken to by the family report writer. The child was not spoken to by the family report writer.
The family report writer stated that both parties presented as anxious during their respective interviews with her.
The Father stated that he will never sleep again if the child spends unsupervised time with the Mother.
The Father stated that he did not believe the Mother had ever intentionally hurt the child, threaten the child, or become aggressive towards the child.
The Mother stated that following the parties’ separation there had been a period of no contact between herself and the child for six months. She stated that it is traumatic for the child to be separated from her.
The Mother stated that she understands that the child has been solely in the Father’s care for a long time, and that she would need time to transition into the Mother’s care.
The Mother stated that she and the Father would work together to develop a routine for the child.
The Mother stated that she has no concerns regarding the child’s welfare in the Father’s care, however, she expressed concerns in relation to the Father’s family having certain health issues.
The Paternal Grandmother stated that she and the Paternal Grandfather are supportive of the Father and the child remaining living in their home on an ongoing basis.
The Paternal Grandmother stated that she would feel fearful of the child spending any time with the Mother, and she explained that the Mother might abduct the child and hide.
The Mother acknowledged that she had broken a car window whilst holding the child. The Mother stated that when this incident had occurred she had been under great stress because she was socially isolated and had no access to money, and because the Father had been verbally abusive towards her.
In relation to a breach by the Mother of an ADVO (the ADVO having been made in April 2018), the Mother stated that during the incident relating to the Mother’s request to the Father that he provide the child’s passport and Visa to assist with her own Visa application, she was very stressed as she only had a few days to gather the necessary documents to prevent deportation.
The Mother stated that the ADVO was breached again when she sent a graphic picture of herself to the Father, in an attempt to soften his heart. She also stated that she tried desperately to communicate with the Father at the time because there were bushfires burning in the area he was living in and she was anxious for the child’s safety. The Father had stated in this context, inter alia, that in December 2019, the Mother sent about 95 text messages per day, and that she had sent him nude photographs.
The Father stated that the Mother did not attempt to control him, socially or financially, after the child was born. The Father stated that the Mother has not approached his home since the ADVO was put in place.
The Mother stated that the Father and the paternal family view all of her actions as threatening, that they use everything she does against her. She stated that the Father has no reason to feel threatened by her, because she has undertaken therapy for two years.
The Mother acknowledged that she had “exploded” at the supervisor at the contact centre where she previously spent time with the child, leading to them terminating their supervision agreement. She stated that she had at that time recently ceased using medication for depression and anxiety, and that the supervisor continued to badger her regarding toys she had brought to the session. She acknowledged that she should not have behaved in this manner and said that she later apologised to the supervisor. She said that she has developed the skills to acknowledge her feelings and that she is now a different person.
The Mother stated that she has been diagnosed with depression and anxiety, and that she takes prescribed medication for this. She stated that she has received victim support counselling to two years, and that this has assisted her to recognise things which trigger her emotionally and that she is now able to calm herself down. She said that at present her mental health concerns do not impact on her, and that she participates in many social activities, and accesses social supports.
The Father stated that the Mother was volatile during their relationship and that she frequently changed her mind.
The Father stated that the Mother did not use any substances in their home.
The Father stated that the last time he spoke with the Mother in regards to the child was in June 2018. He explained that the Mother frequently changes her mind, and that the Mother has not been able to regulate her emotions at changeovers. He stated that communication with the Mother is toxic.
The Father stated that he does not talk to the child about the Mother because it is too traumatic for him.
The Mother stated that she has completed Triple P and Keeping Kids in Mind parenting courses. The Mother completed the Triple P course in June 2019 and the Keeping Kids in Mind course in September 2018. The Mother completed the Circle of Security course in September 2019, the Up to Parents.org in late October 2019, and she completed the CPR for Kids in May 2019. Further, the Mother is enrolled in a further updated anger management course; the 123 Magic and Emotion Coaching course, and the Parenting after Separation course. The Mother has enrolled in these courses to assist her with her behaviour and her mental health.
The Mother stated that it is in the child’s best interests that she and the Father co-parent together.
The Mother stated that she has been able to calm the child from the time the child was born.
The family report writer, under the heading “Evaluation”, stated, inter alia, that no party raised any concerns regarding the child’s development.
The family report writer stated that it is likely that the longer the child is separated from the Mother, the more their relationship will diminish.
The family report writer stated that if, as the Mother asserted, incidents of violence occurred in the context of her extreme social isolation, financial dependency on the Father and the threat of deportation from Australia, it may be that such violence is more indicative of the Mother’s inability to regulate her emotions and behaviours, than attempts to control the Father. The family report writer stated that if the Mother’s violence presented an inappropriate reaction to controlling behaviours by the Father, it may be that ongoing therapy may further assist the Mother to regulate her emotions, and that increased time with the child, and increased agency as a parent may assist her in parenting the child in a constructive and child focused manner.
The family report writer stated that it appeared that the Father was either unwilling, or unable, to support the Mother’s relationship with the child. She stated that the Father was unable to consider any proposal to allow the Mother to spend time with the child without supervision, and he stated that he never discusses the Mother with the child. She stated that regardless of the reasons for the Father’s failure to support this relationship, it may be that the child is at risk of losing her relationship with the Mother altogether. She stated that if the Court considers that it is in the child’s best interest to maintain a relationship with the Mother, strong, clear orders may be needed to ensure that the child spends time with the Mother.
The family report writer stated that it may be beneficial if the parents engage in a parenting orders program, such as Keeping Contact, to assist them to prioritise the child’s relationship with each of the parents, and to find constructive ways of supporting each other’s relationship with the child.
The family report writer stated that the Mother stated that she has been diagnosed with anxiety and depression. She observed that the Mother had stated that she previously reacted excessively to things which upset her. The Mother had described accessing appropriate supports including counselling and medication, and had stated that her mental health difficulties did not currently impact on the functioning. However, the family report writer observed that the Mother had acknowledged having unmanaged anxiety in regards to bushfires near the Father’s home towards the end of 2019, leading to some inappropriate communication with the Father, and her presentation during the interview was highly anxious. The Mother had had difficulty at times giving a clear account, which may also have been caused by anxiety. The family report writer stated that it was not clear if the Mother’s mental health difficulties continue to impact on her behaviours. It was recommended that the Mother continue accessing mental health services.
The family report writer stated that it appeared that the Mother may not be presently able to provide the child with stable emotional support that is required of a primary carer.
The family report writer stated that no serious concerns were raised regarding the child’s current living arrangements or the Father’s care of the child, and as such, it may be in the child’s best interest that she remained living with the Father.
The family report writer stated that the Mother had already actively participated in nine months of supervised contact with the child, and it was unlikely that ongoing supervision will offer any further benefits in regards to allowing further assessment. Whilst the family report writer stated that ongoing supervision may serve the purpose of providing reassurance to the Father, she stated that ongoing supervision was likely to create substantial hindrance to the Mother developing a close and natural parenting relationship with the child. As such, the family report writer stated that if the Court does not find that the child is at risk of serious harm in the Mother’s care, it was recommended that any time the child spends with the Mother be unsupervised. In this case, it was recommended that the child begin spending daytime only with the Mother, and that this be extended to overnight time, in order to allow the child to develop comfort with the Mother, and in the Mother’s home. She stated that given the level of parental conflict, and prior incidences of violence that have occurred during changeovers, it was recommended that changeovers occur at a contact centre, to avoid the need for the parents to have contact with each other.
The family report writer stated that given the Mother’s apparent ongoing difficulties with communicating effectively with the Father, it may be difficult for them to communicate effectively in regards to the child’s needs. As such, the family report writer stated that if the parties were to share parental responsibility, it may make it difficult for either parent to focus on the child’s needs, and may increase the risk that the child will be exposed to parental conflict. It was therefore recommended that the Father have sole parental responsibility for the child.
The family report writer stated that it may be beneficial for the child’s relationship with the Mother if the Mother was involved in the child’s education, extracurricular activities, and any serious emotional and healthcare issues that need to be addressed. Orders specifying that the Mother may have contact with childcare services, schools and other care providers for the child may be beneficial, particularly given the Father’s reluctance to communicate with the Mother. The family report writer stated that it may be beneficial for the child’s wellbeing if the Mother was able to attend special events for the child, such as childcare and Mother’s Day, where these events do not bring her into contact with the Father.
The family report writer stated that except in circumstances where alternative arrangements were recommended, in the absence of evidence before the Court to the contrary, it was recommended that the following orders be made: the child live with the Father; the Father have sole parental responsibility for the child; the child spend time with the Mother during the day only, for a period of six months (a suitable arrangement may be each Saturday between 10AM and 3PM, with changeovers occurring at a contact centre); after this six-month period that the child begin spending overnight time with the Mother (a suitable arrangement may be alternative Friday afternoons from 3PM until Saturday afternoons. This time may increase to alternative weekends after the child commences schooling); and that each parent engage in a parenting orders program, such as Keeping Contact.
The family report writer gave oral evidence. The Court does not propose to set out the entirety of her oral evidence.
The family report writer stated that she had not gone into great detail with the Mother about assessing emotional dysregulation in a thorough way, and the family report writer stated she certainly did not do a mental health assessment of the Mother in that regard.
The family report writer stated that probably if the child is settled after six months of one night of overnight time, she may be ready to progress to 2 nights. In this context the family report writer stated that she was assuming that the child would start school in 2022.
The family report writer stated that the Father not speaking to a child about the Mother is not being child focused and was not a child focused decision.
The family report writer stated that the Father’s lack of support for the Mother’s relationship with the child is something that has the potential to undermine that relationship.
The family report writer gave this evidence in relation to the Paternal Grandmother:
HIS HONOUR: Well, just on that point, assume to date that the Father and the Paternal Grandmother aren’t saying in their household to the child positive about the Mother. How would doing such a course by the Father assist in that regard or otherwise? ---So something like Keeping Kids in Mind might help Mr Pacetti understand that the things that he says about X’s Mother are actually important to X. So, I guess, that the – the idea that moving beyond his own feelings of mistrust for Ms Dambrose to actually thinking about what – what that means to X and what that actually – how that will actually impact on her in the future in terms of her own sense of identity and her own sense of security.
Well, just the next question, then – this Court can’t order the Paternal Grandmother to do any course. She’s not a party to these proceedings. If you assume that she presented with very firm attitudes against this Mother, how does that complicate that last helpful answer you gave? So you might – let’s assume there’s some possibility that the Father might begin to say something positive about the Mother towards the child if he does a course?---Yes.
But at the moment I want you to assume that this child is spending weekends and two weekdays with the Paternal Grandmother?---Yes, and – and that would be a concern. I – I would hope that Mr Pacetti would have those conversations with the Paternal Grandmother, but, yes, that would be an ongoing concern that it would seem that the – a course is not going to fix that.
The family report writer gave this oral evidence in an exchange with the Court, relating to the issue of the child’s prospective time with the Mother:
Mr Blank asked you a moment ago to assume certain matters? Yes.
But I want you to assume these further matters: if you assume that, historically, the Mother’s emotional ability (sic lability) has arisen in the context of her separation from the Father, her risk of being deported without the child, her inability to spend regular time with the child and not otherwise, assume the Mother has not spent time – any face-to-face time with the child for about nine months after September last year until about May this year, assume there has been some Zoom meetings between the child and the Mother over about – during the course of the last nine weeks, and the Mother has been spending some supervised time at her home with the child since about May this year to date, sometimes up to about five hours a week, but, again, emphasising the context in which, historically, the Mother’s emotional dysregulation has occurred and, again, picking up Mr Blank’s assumed matter, namely, that there’s a real risk that this Father and/or the Paternal Grandmother will not promote the Mother’s relationship with this child, going forward, to any significant extent. Does that suggest it might be in the child’s best interests to speed up, as it were, the extent to which the Mother spends time with the child?---Yes, I would – and – and I would say if – if the risk to the child is losing her relationship with her Mother, then more time with her Mother would be recommended to provide her with an alternative story and to provide her with more opportunity to build that bond.
And would you make that – would you maintain that evidence that you’ve just given if there was a real prospect – assume there was a real prospect, going forward, that with the benefit of Court orders in favour of the Mother spending regular time with the child, that is, remove any uncertainty from the Mother’s perspective that she’s not going to be spending regular time with the children, assume we’ve got the Court – assume the Court fashions orders, for example, in relation to changeover, perhaps in relation to parental responsibility such that the risk of conflict occurring between the parties is minimised, does that – do those further assumptions firm up in your mind the best interests of the child being to speed up, as it were, the child’s regular time with the Mother as opposed to perhaps being more cautious?---Yes, if – if the risk to the child is – is losing that relationship, then I – I think it would be a real loss. Based on the contact records that I have seen and the – the information about their relationship I think it will be a real loss to her – to X if she didn’t have that relationship with her Mother, so, yes, I would say anything that assists in maintaining that would be beneficial for her.
The family report writer was asked about the child spending block time in the school holidays with the Mother. The family report writer stated that if all goes well, then extra time in the school holidays would probably be beneficial for the child with the Mother.
The Court accepts the evidence of the family report writer, subject to any different view expressed by the Court, whether expressly or by implication, discussed below.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with both the Mother and the Father and will benefit from a continuance of those relationships. Each parent loves the child very much and, the Court would infer, want this child to flourish.
Fortunately, the child has a meaningful relationship with the Mother despite the child having entered the Father’s primary care in about mid-2018, and only having spent supervised time with the Mother over broken periods since about January 2019.
There remains a real risk that the Father and/or the Paternal Grandmother will not significantly support the child’s relationship with the Mother, whilst the child is living with them. In these circumstances, there is an associated real risk that the child may lose her relationship with the Mother, particularly if the child is spending time with the Mother to the extent proposed by the Father or the ICL.
Accordingly, it is important that the child begin to progressively spend significant daytime time with the Mother in a timely fashion, leading to significant overnight time to minimise these risks. In fashioning appropriate time-with orders in this context, the Court is of the view that it is important, at the same time, to minimise the risk of the parties coming into conflict with each other to the potential detriment of the child. For example, the greater the extent to which the parties need to co-parent the child in relation to day-to-day routine matters including schooling, there is an increased risk of the parties coming into conflict. Further in this context, the Court refers to its discussion below under the need to protect primary consideration, particularly in relation to the mother’s treatment of her emotional regulation issue.
On 28 April 2018, an ADVO was made on a final basis naming the Father as the protected person and the respondent as a defendant.
The Mother was charged with breach of an AVO at Suburb F Local Court. The matters were dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990.
There are outstanding AVO proceedings against the Mother where the Father is the protected person. There is an application to extend an AVO for another two years. The Mother was told that these proceedings were next due to be held on 1 July 2020. There are further AVO proceedings currently before the Suburb F Local Court.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court’s proposed orders under the meaningful relationship primary consideration would be least likely to lead to the institution of further proceedings in relation to the child, and in this regard the Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
It is appropriate at this point that the Court deal with the Mother’s primary proposal that the child live with her.
Again, the child has been in the Father’s primary care for about two years. She has spent only supervised time with the Mother over significant broken periods during that approximate time. The child is presently of tender age. The child has been and is well cared for by the Father and the Paternal Grandmother, albeit that they have not promoted the child’s relationship with the Mother (with the Court accepting that they have not expressly denigrated the Mother in the presence of the child), and the child has managed to retain a meaningful relationship with the Mother. The Father has stable substantial accommodation with the Paternal Grandparents and he has been and is in stable employment. It is clear that the Paternal Grandmother has provided, and continues to provide, significant care and support for the child on behalf of the Father when he has been at his full-time employment. The Father’s mental health appears to be stable.
On the other hand, the Mother’s prospective accommodation position is somewhat unclear, and it would appear she is now leasing an apartment on a holding over basis, the formal term of the lease having expired. At the final hearing, the Mother indicated she intended to move residence, perhaps in the Region GG, to be closer to the child’s residence at Town K, and was commencing enquiries for such accommodation. The Mother presently has casual work as a cleaner, cleaning two residences of a fellow church member, however, it is not totally clear for how long such casual work will be available to the Mother. The Mother has tertiary qualifications, and she is seeking work. Again, the Mother has taken significant successful steps to address her issues of emotional dysregulation, however, she continues to obtain treatment in this context (and the Court refers to its discussions above under the primary considerations). Taking these matters into account, the Court is of the view that, on balance, the child will be provided with greater stability in remaining living in the primary care of the Father.
As to the issue of changeover, the Father proposes supervision of changeover on a permanent basis at Suburb C. The ICL proposes supervision of changeover for 12 months at Suburb C. The Mother’s primary position, relating to changeover, is that changeover be effected at Suburb EE. Her alternate position is that changeover occur at the child’s preschool or school, or otherwise, if it is a non-school day, that it occur at McDonald’s Restaurant at Suburb DD.
In the view of the Court, supervised changeover for an initial period of 6 months will minimise the risk of there being conflict between the parties in the presence of the child at changeover.
After 6 months of supervision at changeover, after which time the parties should have become accustomed to facilitation of the Court’s orders relating to the child spending time with the Mother, there is a significant prospect that the parties will be able to conduct changeover without conflict on those occasions when changeover cannot occur at the child’s school. In this context, the court refers to its discussion above under the need to protect primary consideration, in particular relating to the mother’s behaviour in the context of her emotional regulation issue, and the significant steps taken by the mother to date in relation to management of that issue.
Changeover, for the above 6 month period of supervised changeover, should occur at Suburb C as proposed by the father and ICL. It should also occur at Suburb C thereafter when changeovers cannot occur at the child’s school. In this context the Court takes into account the mother’s stated intention to endeavour to move closer to Town K.
It will be in the best interests of the child that the parties participate in the Keeping Contact program through R Counselling. The Father should also participate in the Keeping Kids in Mind children’s course. The Court refers to the evidence of the family report writer in this context.
It will be in the best interests of the child that the Court make the Father’s proposed order relating to the Mother being restrained from obtaining a foreign passport for the child, including a Country N passport. The Mother consented to such proposed order, whilst stating that she believed that both parents needed to make an application for a Country N passport.
The father and ICL’s proposed airport watch list order will be in the best interests of the child.
Communication between the parties in relation to the child should occur by email only, except in the event of a medical emergency, which shall minimise the risk of conflict between the parties, and an Order to this effect will be in the best interests of the child.
It will be in the best interests of the child to order that both parties be entitled to attend school functions and events that allow for parental attendance; such an Order will enhance the child’s meaningful relationship with both parents.
Parental responsibility
The Father seeks an order for sole parental responsibility in relation to the child, which proposed order is supported by the ICL. The Mother seeks an order for equal shared parental responsibility.
If the Court were to make an order that the Father have sole parental responsibility in relation to the child, that would entail the Father having the sole entitlement to make major decisions affecting the child’s care welfare and development, without reference to the Mother. In this context the Court observes that the child is only aged about 3 years, 8 months.
In Lansa & Clovelly [2010] FamCA 80, Murphy J discussed the statutory framework under the Act in relation to the issue of parental responsibility.
136. The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
137. Parental responsibility can, though, be altered by the making of a parenting order by the Court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
138. But, when a Court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
139. The statutory presumption just referred to is rebuttable in circumstances where the Court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the Court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
140. No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a Court determines what is in a child’s best interests”. It is, then, again called into use in this context.
141. The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
142. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
143. “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
144. Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
145. Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
The presumption of equal shared parental responsibility is rebutted at least by the Mother’s conceded family violence in June 2018; s.61DA(2)(b) of the Act. It is open to the Court to nevertheless determine, should it be in the best interests of the child, to order equal shared parental responsibility.
The child has over 14 years left until reaching adulthood. It is a very serious matter to exclude a parent from decision making in respect to major decisions affecting the child. In Lansa & Clovelly [2010] FamCA 80, Murphy J stated:
148. The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
149. If that is the meaning of the expression, then, in my view, a Court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
The Court recognises that the Father, in particular, retains a significant level of distrust in relation to the Mother in respect to the child. And it recognizes there has been, historically, a not insignificant level of disputation between the parties, and, accordingly, that the Court is mindful (see the Court’s discussion above under the meaningful relationship primary consideration) of fashioning time-with Orders that minimise the risk of conflict between the parties.
Nevertheless, the Court is of the view that there is a real prospect that the parties will be able reach agreement in relation to major decisions affecting the child’s care, welfare and development, in a timely fashion and without significant conflict. Again, prospectively, at this time, there would appear to be limited major decisions to be made for the child.
In this context, the Father had stated in re-examination that if the Court ordered the parties to communicate with each other by email, or by text message if there was an emergency, he could comply with such an order.
As to the Mother, her evidence, which the Court accepts, was to the effect that she looks forward to positively engaging with the Father in relation to co-parenting the child. The Mother has taken significant steps, by way of treatment and otherwise, to address her emotional dysregulation, and she has made significant positive gains in this regard. However, she continues to receive treatment in this context. The Mother has a willingness to communicate with the Father in a positive manner.
The child loves each parent. She is progressing well. She has no significant health issues. There are no major decisions looming imminently for this child. A decision in relation to schooling will need to be made in due course observing that the child could commence school in 2022.
The child should have the benefit of having each parent making a contribution into major decisions affecting her.
It will be in the best interests of the child that the parties have equal shared parental responsibility for her.
As to equal time, it will not be in the best interests of the child that she be subject to an equal time parenting regime, and in this regard the court refers to its discussions above under the primary and additional considerations of s60CC of the Act.
As to substantial and significant time, pursuant to the Court’s proposed time-with Orders, discussed above under the meaningful relationship primary consideration, ultimately the child will spend time with the mother probably constituting substantial and significant time with the mother under s65DAA(3) of the Act, and such time will be reasonably practicable. As to reasonable practicability, inter alia, ultimately the child will only be spending, during school term times, three overnights with the mother, with changeovers occurring at school, and the mother has expressed an intention to consider finding accommodation closer to the father’s residence.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1) All previous orders are discharged.
(2)That the parties shall have equal shared parental responsibility for the child X born in 2016.
(3) The child shall live with the Father.
(4) The child spend time with the Mother:
(a)For a period of 6 months, from 10 AM until 3 PM, each Tuesday and Saturday each week;
(b)Thereafter, for a period of 6 months, from 10 AM Friday until 5 PM Saturday, each alternate weekend;
(c)Thereafter, for a period of 6 months, from 10 AM Friday until 5 PM Sunday each alternate weekend;
(d)Thereafter, from after school or 3PM Friday until before school or 9AM if it is a non-school day Monday each alternate weekend.
(5)The child shall spend time with the Mother during school holiday periods:
(a)From April 2022, for 3 consecutive nights commencing on the last day of school and concluding 3 days thereafter at 5PM;
(b)From June 2022, for 4 consecutive nights commencing on the last day of school and concluding 4 days thereafter at 5 PM;
(c)From September 2022, for 5 consecutive nights commencing on the last day of school and concluding 5 days thereafter at 5 PM;
(d)From December/January 2022 and thereafter, for 7 consecutive days of the school holiday period, being the first half, commencing on the last day of school and concluding on the middle Saturday at 5 PM;
(e) Thereafter:
(i) during each school holiday period following terms 1, 2 and 3, for a period of one half commencing on the last day of school and concluding at 5 PM on the middle Saturday;
(ii)during each school holiday period following term 4, each alternate week, commencing on the last day of school of term 4.
(6)The child shall spend time with the Mother on special occasions as follows:
(a) On Christmas Day 2020, from 12 PM to 7 PM.
(b) Thereafter, during the Christmas period:
(i)from 5 PM Christmas Eve until 5 PM Christmas day in even-numbered years
(ii)from 5 PM Christmas Day until 5 PM Boxing Day in odd numbered years
(7)For a period of 6 months from the date of these Orders, changeover shall occur at such venue as agreed between the parties, but failing agreement, shall occur at McDonald’s Suburb C, and the changeover is to be supervised by either Q Families, or an alternative supervision service agreed upon by the parties, and the parties shall equally share the costs of supervision. Following the child commencing school, changeovers shall occur at such venue as agreed between the parties, but failing agreement, at the child’s school, or on non-school days, at the above McDonald’s.
(8)That except in the event of a medical emergency, the parents are to communicate with each other regarding issues relating to the care and wellbeing of the Child by way of text message and email only.
(9)That each party (MR PACETTI and MS DAMBROSE) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Child X, born in 2016 from the Commonwealth of Australia for a period of ten years; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist for the said period, or until the Court orders its removal.
(10)That the Mother is hereby restrained from approaching the Country N Consulate or any other foreign Government department with the intention of obtaining a national identity document or passport for the Child, X.
(11)That the parties are restrained from making any derogatory or critical remarks about the other parent (or member of that parent’s household) in front of the Child or within hearing of the Child.
(12)That the parties are to forthwith remove the Child from any environment in which a third party/ies is making derogatory or critical remarks about the other parent or member of the other parent or member of the other parent’s household.
(13)The parent not having the Child in their care on the Child’s birthday will spend time with the Child as follows:
(a) if a school day, from after school to 7:00pm;
(b) if a non-school day, from 2:00pm to 7:00pm.
(14)Should the Child not be in the care of the Father on Father’s Day or the Mother on Mother’s Day then in that event the Child shall spend time with the Father or the Mother on that specific day from 9:00am until 5:00pm.
(15) That the Child will spend time with the Mother on:
(a) On Easter Sunday from 12pm to 7pm.
(16)That the parties will do all acts and things necessary to authorise and instruct any schools that the Child may attend to:
(a)Send duplicate copies of report cards, letters and any other correspondence issued by the school to both parents;
(b) Send a duplicate copy of school fees to both parents; and
(c)Inform both parents of any upcoming events regarding the Child organised by the school.
(17)That both parties keep each other informed of significant events occurring in the child’s life, in particular family, social, academic, health, medical, sporting and the like and that each party has entitlement and share of the children’s achievements, education, medical and other certificates, school photographs and the like.
(18)Both parties shall keep the other informed of their current residential address, telephone numbers and email addresses; and:
(a)Provide each other with no less than seven (7) days’ notice of their intention to change their residential address; and
(b)Provide each other with any notice to change their telephone number or email address within 24 hours of any change.
(19)That within 14 days the parties shall do all acts and things necessary to enrol and participate in a parenting orders program, such as Keeping Contact through, for example, R Counselling Centre.
(20)Thereafter and within 14 days of completing the above program the Father shall do all acts and things necessary to enrol in and participate in the Keeping Kids in Mind children’s course.
(21)That the Mother shall attend upon her current treating practitioners with respect to her mental health and comply with treatment recommendations including medication if so prescribed.
(22)These Orders constitute authority for the Mother and Father to each liaise with the child’s treating medical practitioners and obtain information about any treatment and any other medical issues.
(23)That both parties will be entitled to attend, particularly if the event falls in their time:
(a)School functions and events that allow for parental attendance including but not limited concerts, school assemblies, sport days, parent teacher interviews, canteen duties and social functions.
(24)The parties shall be permitted to provide a copy of these Reasons for Judgment to the Local Court hearing the parties’ ADVO proceedings.
I certify that the preceding two hundred and eighty-one (281) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 7 August 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Injunction
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