Parker & Leclair
[2024] FedCFamC2F 1476
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parker & Leclair [2024] FedCFamC2F 1476
File number(s): MLC 14258 of 2021 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 23 October 2024 Catchwords: FAMILY LAW – PARENTING – child (aged 11) exposed to family violence between parties and subjected to family violence and problematic behaviour by mother – child has lived with father since 2022 and spent professionally supervised time with mother since February 2023 – mother claims her use of family violence and problematic behaviour is a response to family violence by the father and resultant trauma (PTSD) and her neurodivergence is misunderstood – single expert psychologist opinion mother presents with atypical personality traits posing a high risk to child’s emotional wellbeing – consideration of mother’s mental health and parenting capacity – finding mother lacks insight into and has not adequately addressed her problematic behaviour and child would be exposed to unacceptable risk of psychological and physical harm by spending unsupervised time with her – orders made for father to have sole parental responsibility, child to live with father and to spend limited, privately supervised time with the mother – mother’s communication with child to be by letters, cards and gifts only due to history of inappropriate communications Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAAA, 65Y, 67Z, 68B, 68P, 68Q, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.10, 5.01
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 24
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221
Carter & Wilson (2023) FLC 94–129; [2023] FedCFamC1A 9
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kuebler & Kuebler (2019) FLC 90-434; [1978] FamCA 26
Lainhart & Ellinson (2023) FLC 94–166; [2023] FedCFamC1A 200
Line & Line (1997) FLC 92-729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FAMCAFC 92
Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 2 Family Law Number of paragraphs: 327 Date of last submission/s: 31 May 2024 Date of hearing: 5-9 February; 30-31 May 2024 Place: Melbourne Counsel for the applicant Mr Dean Solicitor for the applicant MMH Lawyers Representative for the respondent Self-represented Counsel for the independent children’s lawyer Ms Hutchings Independent children’s lawyer Creative Family Law Solutions ORDERS
MLC 14258 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PARKER
Applicant
AND: MS LECLAIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
Previous parenting orders
1.All previous parenting orders be and are hereby discharged.
Parental responsibility
2.The applicant (“father”) have sole parental responsibility for the child, X born in 2013 ("X").
3.The father promptly inform the respondent (“mother”) in writing of decisions he makes about major long-term issues in relation to X.
Care arrangements
4.X live with the father.
5.X spend time with the mother as follows:
(a)On the first Saturday of each of February, June, August and October each year;
(b)On the Saturday immediately before X's birthday each year;
(c)On Mother’s Day in each year;
(d)On the Saturday immediately before Christmas (25 December) in each year,
for a period of up to five hours on each occasion with such time to be supervised by H Contact Centre (or such other supervision service as agreed between the mother and father (“the parents” / “the parties”) in writing) ("the Service") at times and locations as directed by the Service, accommodating reasonable requests of the mother as to times and locations as far as practicable to the Service; and
(e)At such further and other times, and on such further and other conditions, as agreed between the parties in writing.
6.For the purposes of order 5:
(a)The costs associated with the Service be paid by the mother, directly to the Service; and
(b)The parties follow all reasonable directions and comply with all reasonable rules and requests of the Service.
7.The father forthwith provide a copy of these orders to the Service.
8.X communicate with the mother as follows:
(a)By the mother sending X letters, cards and gifts, via the father, for new year in her home state, X's birthday, Christmas and Easter;
(b)By letter in any calendar month X does not spend time with the mother or receive communications pursuant to order 8(a); and
(c)At such further and other times, and on such further and other conditions, as agreed between the parties in writing.
9.The father is permitted to view the letters, cards and gifts sent by the mother for X and may withhold any communications or gifts he considers inappropriate for X, in which case he is to inform the mother of his decision to do so.
10.Except as otherwise provided within these orders or as otherwise agreed between the parents in writing, the mother, including by her servants and agents, be restrained from:
(a)Spending time with and communicating with X by any means, including mail, telephone, email, text message or social media;
(b)Approaching within 100 metres of the father's residence; and
(c)Approaching within 100 metres of X's school.
Communication between the parents and access to information
11.The parties communicate with one another about non-urgent matters relating to X's care, welfare and development in writing, by email.
12.The parties communicate about all urgent or emergency matters relating to X by SMS text message, save that the father be at liberty to telephone the mother in the event of an emergency pertaining to X.
13.All communication between the parents be limited in scope to matters concerning X, and both parents be restrained from communicating about any and all other matters, save via a legal representative, family dispute resolution practitioner or mediator, unless otherwise agreed in writing.
14.The parties keep each other informed in writing of:
(a)Their email addresses, postal address and contact telephone numbers, including mobile phone numbers and notify the other at least seven days prior to any change in those contact details where practicable and otherwise, as soon as possible after any change; and
(b)All serious illnesses and/or injuries sustained by X whilst in their respective care requiring hospitalisation or specialist medical attention.
15.The father provide the mother’s contact details to any medical or health professional attended by X, along with a copy of these orders, and authorise those practitioners to contact the mother for the purpose of obtaining information from the mother the practitioners consider would assist in X’s medical and health care IT BEING NOTED this order relates to receiving and providing information only and does not authorise other engagement by the mother with X’s medical and health practitioners unless with the consent of the father.
16.Both parents are authorised to seek and obtain from X's school(s) copies of reports, notices, correspondence, photographs and other like documents parents ordinarily receive in relation to X at the expense of the requesting parent.
Injunctions
17.Each of the parties, by themselves, their servants and agents, are restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their household or family in the presence or hearing of X and from knowingly permitting any other person to do so; and
(b)Discussing these court proceedings in X's presence and/or hearing and from knowingly permitting any other person to do so, save for the independent children’s lawyer pursuant to these orders; and
(c)Allowing X access to any court documents relating to these or any other legal proceedings in which the parents or either of them are involved and from knowingly permitting any other person to do so; and
(d)Allowing X access to written communication between the parents and from knowingly permitting any other person to do so; and
(e)Exposing X to any form of family violence, threats or intimidation and from permitting any other person to do so; and
(f)Discussing with X changes to his living arrangements insofar as the change relates to living with the other parent.
Citizenship, passports and overseas travel
18.The mother deliver any passport she holds for X (including any expired passport) to the father’s solicitor’s office within 14 days of the date of these orders.
Country B passport
19.The father be at liberty to provide a copy of these orders to the Country B Consulate or other relevant Country B government body in support of any application he may make to renew X’s Country B passport.
20.The father hold X's Country B passport.
Australian citizenship and passport
21.The father is authorised to apply for Australian citizenship for X.
22.Pursuant to section 11 of the Australian Passports Act2005 (Cth), the father is authorised to apply for and receive an Australian passport for X born in 2013 (“X”) and to thereafter renew X’s passport as required, without first obtaining the consent of the mother.
23.For the purposes of order 22, the father be permitted to provide a copy of these orders to the Department of Foreign Affairs and Trade.
24.The father hold X's Australian passport.
Overseas travel
25.The mother, MS LECLAIR, born in 1986, including by her servants and/or agents is restrained by injunction from taking or sending or attempting to take or send the child, X born in 2013 (“the child”) from the Commonwealth of Australia,
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watch List for a period of eight (8) years.
26.Upon expiration of the period referred to in order 25 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police ARE REQUESTED to cause the removal of the child’s name from the Family Law Watch List.
27.The father, MR PARKER, be and is hereby permitted to remove the child, X born in 2013, from the Commonwealth of Australia and travel internationally IT BEING NOTED the request in order 25 for the child’s name to be placed on the Family Law Watchlist is not intended to impede the child’s travel with the father.
Counselling for X
28.The father do all such acts and things to facilitate X's attendance upon his school psychologist or counsellor and follow all reasonable directions of X's school psychologist or counsellor.
Independent children’s lawyer
29.Within fourteen days of the date of these orders, the independent children's lawyer IS REQUESTED TO:
(a)Explain these orders to X; and
(b)Provide a copy of these orders to the principal of X’s school; and
(c)Provide a copy of these orders and the family report prepared by Dr K (“the family report”) to the psychologist or counsellor who assists X,
and 30 days thereafter, the appointment of the independent children's lawyer be discharged with the thanks of the court.
Provision of orders, reasons and family report
30.The parties are each authorised to provide a copy of these orders to:
(a)Staff at X's school; and
(b)X's treating medical, dental, and other allied health professionals.
31.The father is authorised to provide these orders and the family report to:
(a)Any general practitioner attended by X; and
(b)To any psychologist and/or counsellor supporting or treating X.
32.The parties are each authorised to provide to any psychologist, psychiatrist and/or counsellor they attend upon for support or treatment:
(a)A copy of the family report; and
(b)A copy of these orders and the related reasons for judgment.
Obligations, consequences of contravention and assistance with orders
33.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Procedural orders
34.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS
INTRODUCTION
This proceeding concerns the child X, aged 11. The parties are X’s parents. Whilst they refer to him fondly by a nickname, I will refer to him as X. I will refer to the applicant as the father and the respondent as the mother, without intending any disrespect to them.
The parties separated in July 2021, when X was aged eight. There have subsequently been numerous disputes and proceedings between them, including intervention order proceedings initiated by each of them, two substantive parenting proceedings, contravention proceedings and property proceedings.
Final parenting orders were made on 4 May 2022 (“2022 final orders”) which provided for X to live with the father and spend time with the mother on alternate weekends. The father commenced the current parenting proceeding in November 2022, following interactions with the mother that caused him to be concerned for X’s welfare. Pursuant to interim orders made on 7 February 2023 (“February 2023 orders”), X continues to live with the father and spends professionally supervised time with the mother, for three hours each alternate weekend. Final property orders were made on 31 May 2024 at the conclusion of the final hearing by consent (“final property orders”). The mother is now seeking to appeal those orders.
Both parents characterise their relationship as one of high conflict. Each of them makes allegations of family violence against the other, including of physical assaults and coercive and controlling behaviour. The mother admits she has engaged in family violence towards the father, including in X’s presence, but submits she has done so in response to being subjected to protracted family violence by the father and that she is triggered by interactions with him. The father also admits he has engaged in conduct constituting family violence towards the mother. However, they each deny the extent of family violence alleged by the other. The parties acknowledge X has been directly exposed to conflict and family violence between them, including physical disputes involving mutual pushing and shoving.
It is not in dispute that the mother has suffered from poor mental health and has engaged in problematic behaviour towards the father and towards X, including verbal abuse, intimidation and threats and withholding emotional support from X. She has engaged in secret communications with X, encouraging him to run away from the father’s care.
The father and the independent children’s lawyer rely on the expert opinion of the jointly appointed single expert psychologist, Dr K, who assesses the mother with an underlying personality disturbance (presenting with cluster B personality traits) which presents a risk to X’s emotional wellbeing. They submit that X spending time with the mother exposes him to an unacceptable risk of psychological harm, by her dysfunctional behaviour and interactions with him, and also by compromising X’s relationship with the father. The father seeks orders with the support of the independent children’s lawyer, providing for him to have sole parental responsibility for X, for X to live with him and to spend professionally supervised time with the mother on six occasions each year, for five hours on each occasion, and for the mother to communicate with X by way of letters, cards and gifts on his birthday, Christmas and Easter. This reflects a change in the father’s position following the conclusion of the evidence and a change in Dr K’s recommendations. Until that point, the father and the independent children’s lawyer sought orders providing for X to continue spending time supervised time with the mother for three hours on alternate weekends.
The mother does not accept Dr K’s assessment. She relies on expert reports she has subsequently obtained, contending she has post-traumatic stress disorder (PTSD), mild attention-deficit hyperactivity disorder (ADHD) and autism spectrum disorder (ASD) traits and above average cognitive function. She argues that, as a neurodivergent person of high ability with superior cognitive functioning, she thinks differently to and is more sensitive than neurotypical people. She claims she is often misunderstood by neurotypical people and systems designed by and for neurotypical people, including Dr K. She submits her neurodiversity has been misrepresented as a mental health issue. The mother denies she poses a risk of harm to X and contends he is experiencing considerable distress by spending only limited, supervised time with her. She submits X displays neurodivergent and high ability traits, and because she also has those traits, she is best placed to meet his needs. She asserts the father lacks capacity to understand and meet those specific needs. In respect of her acknowledged problematic behaviour, the mother submits she has been working with her treating psychologist to identify the triggers to her behaviour, and that she does not pose a risk of harm to X. She seeks orders providing for the parties to have equal shared parental responsibility, for X to live with her and to spend time with the father on alternate weekends, from Friday afternoon until Tuesday morning (so, for four nights each fortnight), on special occasions and for half of school holidays.
Notwithstanding her proposal for X to spend substantial and significant time with the father, the mother contends the father poses a risk of harm to X by what she describes in her case outline as his “abusive and defensive nature.” She seeks an order requiring him to undertake an assessment, diagnosis and treatment for that “condition”, notwithstanding the psychological/risk assessment already undertaken by Dr K did not identify any significant psychological issues for the father and assessed him to pose low risk to the mother and X.
The mother seeks orders providing for both parties to travel overseas with X. The father seeks an order permitting X to travel overseas only with him, submitting there is an unacceptable risk of the mother withholding X overseas. Accordingly, the father seeks injunctions restraining the mother from travelling overseas with X and maintaining his name on the Family Law (Airport) Watchlist (“Watchlist”).
The mother seeks orders around access to information about X, involvement with medical and other professionals and attendance at school and other events. Those orders are opposed by the father and the independent children’s lawyer, who seek alternate orders to safeguard X from being exposed to problematic interactions with the mother and parental conflict.
The parties agree on only a number of ancillary parenting orders in general terms, including a number of injunctions.
THE ISSUES
The following issues therefore require determination:
(a)How should parental responsibility for X be allocated?
This requires consideration of:
(i)The parties’ allegations of family violence, which I note is also a matter informing the other issues requiring determination; and
(ii)The capacity of the parties to communicate effectively and make joint decisions in relation to X.
(b)Does either parent pose an unacceptable risk of harm to X if he lives or spends time with them? If so, are there measures that can be put in place to adequately mitigate those risks?
(c)After determination of the above issues, what parenting arrangement is in X’s best interests? That is, with whom should he live and what time should he spend and how should he communicate with each parent?
(d)Should an order be made for the father to undergo further assessment, diagnosis and treatment as sought by the mother?
(e)What orders should be made for the parties to have access to and share information in relation to X?
(f)What orders should be made for the parties to attend school and extra-curricular events for X?
(g)Should the mother be permitted to travel overseas with X? This requires an assessment of the risk of her failing to return X to Australia. Ancillary to this issue is the issue of which parent should apply for and hold passports for X.
(h)Should orders be made in relation to interstate travel as sought by the mother?
(i)Are the injunctions sought by the parties appropriate for X’s welfare and in his best interests?
(j)Are the other ancillary parenting orders sought by the parents in X’s best interests, including those few orders they agree on?
THE FINAL HEARING
Unfortunately, the final hearing exceeded the estimate of four days and had to be adjourned part-heard. The hearing ultimately took seven days, from 5 to 9 February and from 30 to 31 May 2024. An interlocutory hearing was also conducted on 24 April 2024, in relation to the mother’s application to adduce further evidence before Dr K was cross-examined.
The father and independent children’s lawyer were represented at the final hearing by counsel. The mother was self-represented. She had previously been represented by a lawyer appointed under the Commonwealth Family Violence and Cross-examination of Parties Scheme, given there was a final intervention order in place as between the parties and section 102NA of the Family Law Act 1975 (Cth) (“the Act”) prohibited the parties from cross-examining one another personally. The mother’s lawyers were granted leave to withdraw at a mention on 1 February 2024, having identified a conflict with their duty to the court. The mother sought to proceed on a self-represented basis, without being permitted to cross-examine the father, rather than have the final hearing adjourned to engage another lawyer. The mother was granted an extension of time to file her trial documents, and the matter proceeded on 5 February 2024.
Documents relied upon[1]
[1] In relation to parenting matters, property matters being resolved by consent at the conclusion of the hearing.
The father relied on the following court documents:
(a)Outline of case document filed on 2 February 2024;
(b)Amended Initiating Application filed on 24 January 2024;
(c)An updated minute of parenting orders sought by the father and recommended by the independent children’s lawyer, jointly tendered on 31 May 2024;[2] and
(d)His trial affidavit filed on 24 January 2024.
[2] Exhibit B.
The mother relied on the following court documents:
(a)Outline of case document filed on 4 February 2024;
(b)Amended Response to Initiating Application filed on 2 February 2024;[3]
(c)Affidavit of Mr L, psychologist, filed with leave of the court on 5 February 2024, and the annexures to that affidavit, including the psychological report relating to the mother dated 2 February 2024;
(d)Her trial affidavit filed on 2 February 2024;
(e)Child impact report of Ms J dated 20 January 2023;
(f)Affidavit of Ms E filed 2 May 2022, annexing her family report dated 29 April 2022 (“first family report”); and
(g)Department of Families, Fairness and Housing (“DFFH”) responses prepared pursuant to section 67Z of the Act tendered by the independent children’s lawyer, dated 24 March 2022[4] and 14 December 2022[5] (“DFFH responses”).
[3] Advising of changes in her position as reflected in that document, on the morning of 31 May 2024.
[4] Exhibit ICL-1
[5] Exhibit ICL-2
The mother filed an Application in a Proceeding while the matter was part-heard, seeking to adduce further evidence following the conclusion of the parties’ evidence, before Dr K was cross-examined. She was granted leave to adduce the following three reports, each of which were marked as exhibits: [6]
(a)Psychological letter of Mr M, her treating psychologist, N Psychologists, dated 19 February 2024;[7]
(b)Diagnostic assessment report of Ms F, psychologist, P Psychologists, dated 27 July 2023;[8] and
(c)Cognitive assessment report of Ms G, clinical psychologist, Q Organisation, dated 22 December 2023.[9]
[6] At a hearing on 24 April 2024.
[7] Exhibit MSL-01.
[8] Exhibit MSL-02.
[9] Exhibit MSL-03.
Each of the parties and the independent children’s lawyer also relied on the affidavits of:
(a)The single expert psychologist, Dr K, filed on 16 August 2023, and the annexures to that affidavit, including Dr K’s psychological assessment and family report dated 19 June 2023 (“second family report”); and
(b)Ms R, manager of H Contact Centre, filed on 22 August 2023 and 25 January 2024, annexing her observational reports in relation to the observations of the supervisor, Ms S.
Additionally, the independent children’s lawyer relied on:
(a)Outline of case document filed on 2 February 2024;
(b)Minute of final parenting orders recommended by her, tendered jointly with the father;[10] and
(c)DFFH responses.
[10] Exhibit B.
The parties and independent children’s lawyer each also tendered documents and audio and video recordings during the course of the hearing which were marked as exhibits. The annexures to expert witness affidavits were received as exhibits.
I will not detail the specific terms of the orders sought by the parties in these reasons. They can be found in the minute tendered by the father and independent children’s lawyer at the conclusion of the evidence[11] and the mother’s Amended Response with the following modifications advised by her:
(a)Amending proposed order 2 to provide for the parties to have equal shared parental responsibility for X, rather than for her to have sole parental responsibility;
(b)Deleting proposed order 5 and the words “Provided Order 4 has been complied with” from order 6, with the effect that the mother did not seek X’s time spent with the father be conditional upon him undertaking the “assessment, diagnosis and treatment” sought by her in proposed order 4; and
(c)Deleting proposed order 23 and instead seeking an order that both parents be responsible for obtaining passports for X.
[11] Exhibit B.
BACKGROUND, RELEVANT FACTS AND PROCEDURAL HISTORY
Each of the parties deposed to the background to these proceedings from their own perspective. I have had regard to that evidence. I provide only a summary of the background to the proceedings, focussing on events that are particularly relevant to my determination of the issues in dispute, albeit that summary is lengthy owing to the nature of the issues in dispute. I recount some of the procedural background given the mother’s allegations of family violence by the father include an allegation he has engaged in “systems abuse”.
The father is of Country B heritage. He was born in Country T, where his parents were working at the time, and grew up there. He undertook university studies in Country B and then Australia. He became an Australian citizen in 2020 which he said required him to relinquish his citizenship of Country B.
The parties married in 2011 and commenced co-habitation shortly after their marriage. It was an arranged marriage. The mother reported to her adversarial expert psychologist, Mr L, that she had no feelings for the father from the start. The parties separated finally in July 2021 and were divorced by way of an order made in 2023.
From 2011, the parties lived together in Country U. The mother alleges the father was controlling and domineering from the commencement of their relationship and that he perpetrated family violence against her. I will return to carefully consider those allegations.
In 2013, X was born in Country B. The mother spent time with X in Country B both before and after his birth. Approximately three months after X’s birth, the mother returned to live in Country U and the parties lived there together with X.
The mother alleges the parties initially separated in October 2014 following an incident of family violence while the parties were visiting Australia. She then travelled to Country B with X, the father returned to Country U, and they lived separately until mid-2015. The family relocated to Australia in 2015, living together as a family in Melbourne from around mid-2015.
From 2016 to mid-2017, when X was three, he spent approximately one year living with his grandparents in Country B while the mother lived and studied in Brisbane and the father lived and worked in Melbourne. The mother explained she “sent” X to live in Country B with her parents because she “was pre-occupied with [her] course”. She said she had asked the father if he wanted to care for X and he said no. During this time, X lived with the mother’s parents and spent two months of the school summer holidays with the father’s parents.
Once the mother finished her course, in 2017, the parties resumed living together with X in Melbourne. The mother was at that time not working and cared for X full-time. X was then four.
In early 2018, the mother began working as an apprentice, travelling to and from Suburb V. X was then attending school at W School. The mother deposed the father took X to and from school and they then all met up and caught the train home together.
From 2020, during the Covid-19 pandemic, the mother continued working as an essential worker and the father worked from home, caring for X during Melbourne’s lockdowns. The mother deposed to changes in X’s behaviour during this time, while he was undertaking home schooling in the care of the father. She deposed she noticed X showing signs of anxiety.
In 2021, X changed schools, to attend the Y School. The mother deposed she and the father were regularly fighting at this time. She said she noticed X’s anxiety increased, he could not sleep, and he began experiencing what she referred to as panic attacks although she did not explain how this presented for X. She said he wanted to leave his new school.
Separation / first intervention order proceedings
On 12 July 2021, the parties separated but remained living together under one roof.
The mother alleges the father engaged in family violence towards her in November 2021. She made a police report the following day. Police attended the former family home that day and issued a family violence safety notice. The father was excluded from the home and the parties began living separately and apart. The father denies the allegations made by the mother in respect of what occurred in November 2021 and produced video and audio recordings of the parties’ interactions on that day in response to a call by counsel for the independent children’s lawyer. Those recordings revealed the mother verbally abusing, intimidating, harassing and threatening the father, including in X’s presence, and repeatedly taunting both the father and X. She spoke of relinquishing X’s care to the father or to Child Protection, of not being involved in his care, celebrating the loss of her son and starting a new family. X was clearly distressed by the mother’s conduct on this occasion. As explained later in my reasons, I find the mother engaged in family violence towards X and the father on this day.
The father applied for an intervention order against the mother and in late 2021, what I will describe as “mutual intervention orders” were made by consent, providing each party with protection from the other. X was listed as a protected person on those orders.
First proceeding
On 21 December 2021, the father filed an Initiating Application, seeking parenting and property orders. The mother filed a Response to Initiating Application on 17 February 2022.
On 21 February 2022, interim orders were made by consent (“February 2022 orders”) providing (in summary and among other things) for the parties to have equal shared parental responsibility for X, for X to live with the mother and to spend time with the father each school day (from 6.30am before school and until 5.30pm after school) and on Saturdays (from 10am until 8pm). An order was made for a family report to be prepared by Ms E. Injunctions were made by consent, including restraining the parties from denigrating one another and from discussing the family law proceedings with X or in his presence. The orders required the parties to complete a post-separation parenting program.
First family report
Ms E prepared the first family report, dated 29 April 2022, in accordance with the February 2022 orders.
Ms E reported each party’s account of their relationship, including the allegations made by each of them of family violence by the other. At the time that report was prepared the mother proposed either that she have sole parental responsibility for X and he live with her and have no contact with the father or that she walk away and relinquish X to the father’s care. Ms E expressed concern about the mother’s apparent lack of insight and empathy for the impact on X of her desired course. She provided her expert opinion as to the likely adverse impacts on X’s wellbeing and development if either of the courses proposed by the mother were adopted.
Ms E referred to the mother’s hatred of the father and to her feeling triggered by association with him, resulting in a lack of containment of her emotional responses, with X being the recipient and witness to her verbal discord. Ms E reported the father presented in a child focused manner, anxious about the options presented by the mother and concerned for the impact on X.
Ms E observed the case presented a dilemma for the court. If either option proposed by the mother was adopted, X would lose a relationship with one of his parents which she assessed would be detrimental for him. On the other hand, she predicted that if the court forced the mother to co-parent with the father, X may become the recipient of ongoing toxic conflict between the parties, which would also be detrimental for him, and contact with one parent would diminish and not endure. The dilemma was therefore whether having conflict with two parents in his life is better or worse than only having one parent with no contact with the other, despite knowing the other parent exists or has relinquished him. Ms E was unable to make a clear recommendation but made suggestions, with options for the court to consider depending on the course of action taken by the mother and the court’s assessment.
Final parenting orders – May 2022
On 4 May 2022, the 2022 final orders were made by consent, providing for the parties to have equal shared parental responsibility for X, for X to live with the father and to spend time with the mother each alternate weekend, from the conclusion of school on Friday to 8.00 pm on Sunday, and for one half of school holidays (“the final parenting orders”).
Events following final parenting orders
On 6 May 2022, the mother sent a series of emails to the father, including as follows:[12]
Do as per court order
I don’t care about anything else
As told, I don’t want it charity and controls
[X] has lost his mom forever
U keep him as a trophy. I know the best of ur abilities, can’t laugh more.
I have other things to do,
So never bring [X] back to meI am renting out the rooms to people whom [X] doesn’t know. It will be unsafe for [X] to spend time at home.[12] Paragraphs 48 and 49 of the father’s trial affidavit.
The father nevertheless arranged for X to spend time with the mother, including overnight on 9 May 2022.
On 10 May 2022, the mother sent a series of concerning emails to the father, commencing at 2.18am, referring to the father winning by having X in his care, X living with the father against his will, X being tortured and committing suicide. By way of example, from numerous like messages:[13]
[…]
Let me know the day [X] commits suicide. That’s the only news I am waiting for. Thats how U get paid back for ur deeds.
[…]So I cut ties with him now itself. I have seen the future. I have said my prayers. I have cried enough for him. And he is dead in my mind. I don’t care anymore. U and ur business now. Do ur best towards achieving this goal. No matter what, U will never replace his mom for him.[13] Exhibit MRP-2.
The father deposed he again arranged for X to spend time with the mother during the day on 19 June 2022. The father deposed that when X returned home he was upset and said the mother had told him she was moving to Sydney or Brisbane and he would not see her again until he was 18.
On 25 May 2022, the mother sent an email to the father, which read “For the upcoming school holidays in June-July, I would like to send [X] to [Country B].” [14] The father replied that he did not agree, expressing concern about X not being returned from Country B and losing contact with him.
[14] Exhibit F-3.
On 20 June 2022, the father sent an email to the mother informing her X would not be attending school as he was not feeling well. The mother replied in a series of emails the same morning, including as follows:[15]
Only when U die / disappear completely should I know anything about [X]. U please don’t have any interaction with me anymore over anything. I have nothing with u.
[15] Exhibit MRP-2.
On 21 June 2022, the mother sent numerous emails to the father over the course of the day, including as follows [in part and as typed by her]: [16]
The blood sucking vampire you are, I know you won’t spare anyone, Suck out my child’s blood entirely, then come find me. I will give you litres of it which will bedazzle you for this ur lives to come,
I have washed my hands off but remember, don’t spare me. File another affidavit, enlisting every email I send. Can’t laugh at ur foolishness any further. As U said, I am the mentally unstable one who can’t take care of the child. House, money, my child and my rights over him everything I voluntarily gave awY. Everything U were eying on in my life, I gave it away generously. And what more can U take away from me! Ahaha nothing. Even going to jail or dying look alluring t ome. And what is the worse U can do to me? But unlike me, U got lots to lose, U gotta hold on to ur dear life hahahaha silly products from […]. Can’t laugh at the cowardice any further.
For the black hole,
Sole custody of [X]
and:
Cry baby, babier than [X], I miss u crying and complaining about me torturing you. Why don’t U do it. I am craving for it. Self victimised Crybaby …. Plz cry and cry… cry cry cry B4 the judge and police and [X] and everyone around u, cry cry, show emails and cry…. Can’t wait cry baby
Sole custody of [X] [love-heart eyes icon]
[16] Exhibit F-2.
When these emails were read to the mother by counsel for the father in cross-examination, the mother agreed she sent them and laughed. I found it disconcerting that she did so, given the disturbing nature of the emails. When asked why she laughed, the mother answered that she did not find it funny but was laughing “because those emails were really sarcastic.” She did not offer any other explanation for the messages and did not give any indication from the witness box that they were an anomaly, were inappropriate, would have caused the father to be concerned about X spending time with her or that she regretted sending them.
The father deposed that he checked X’s messages and discovered messages exchanged between X and the mother reading as follows:
Mother: Why did U call [X]?
[X]: Cuz I miss u
Mother: Remember we are all working for the devil, no matter what he must win. Torture urself, miss everyone and everything, only the devil must win
[X]: Ok.
Mother: No matter how much U suffer, the devil doesn’t care. He must win.
Mother: So suffer, let the devil win
Mother: If ever he gets out of ur and my life forever, then only we have any hope dear
The mother admitted sending these messages to X’s phone but said she did so expecting the father to see them. In relation to these messages, she responded to cross-examination by counsel for the father as follows:
Counsel:If [X] sees messages like this, and given it’s on his phone, I would put it to you that he would see those messages, what kind of impact would those types of messages have on [X]’s views about his father?
Mother:I cannot comment but I believe that he understands ... but it’s highly conflicting.
Whilst these were historical messages, the mother’s response to them from the witness box was concerning, again indicating no regret in sending the messages and no awareness or insight as to the impact of her messages on X, beyond being “conflicting”, seemingly justifying them by her statement that she believes X understands.
On 22 June 2022, the father’s former lawyers sent a letter to the mother’s former lawyer, which referred to the emails sent by the mother to the father and to her proposal to vary the final parenting orders to give the father “sole custody of [X]”, and advised they would draft the proposed documents for her to sign as requested.
In mid-2022, the mother relocated to Sydney. The mother explained her move to Sydney in her trial affidavit as follows:
In [mid] 2022, during my absence, [the father] trespassed into my residence. Despite reporting this incident to the police, no measures were undertaken. This invasion of my personal space significantly heightened my stress levels and compromised my sense of safety. Consequently, the deterioration of my mental health and the retraumatizing environment compelled me to depart from Victoria in [mid] 2022.
The mother did not give further evidence to support her allegation of trespass. When cross-examined, the mother admitted she moved to Sydney of her own volition. She did not agree it would be more difficult to implement the final parenting orders if she moved to Sydney. She did not appear to contemplate in her affidavit or oral evidence the impact on X of her moving away from him to Sydney, again indicating a lack of insight and an unpreparedness to accept responsibility for the effect of her decision on X, even at the time of trial.
The father returned to live in the former family home with X, where they continue to live now. Arrangements were made for X to spend time with the mother in Melbourne on 30 July 2022. This was the last occasion X spent unsupervised time with the mother.
The mother sought for X to spend time with her in Sydney but the father did not agree. He said this was because the mother would not provide her address, proposed for X to fly to Sydney unaccompanied and proposed he miss school to spend time with her. When cross-examined, the mother agreed X was then only nine years old, she did not have an address at that time and she had some fairly serious mental health issues. She nevertheless maintained her complaint that the father did not facilitate X spending time with her in Sydney as she had proposed. Her criticism of the father’s actions, even at the time of trial with the benefit of hindsight, again demonstrates her incapacity to appropriately focus on X and recognise his needs.
In mid-2022, X changed schools, commencing at Z School, after his previous school (Y School) closed. The father informed the mother, directly and via her lawyer at the time, of the school’s closure. She replied via her lawyer to say that she was “comfortable with [X] being enrolled in any appropriate school that will take him.”
The mother continued to send emails to the father which I find to be of a harassing, abusive and threatening nature. I will refer to some of the tendered messages by way of illustration but there were many – often sent in succession on the same day, some late at night. For example, on 7 October 2022, the mother sent emails to the father, including as follows:[17]
Re: You are exposing your own atrocities against [X]. Don't forget about the upcoming hearing you have in Feb, I just talked to police last day and all these actions of urs will definitely be hitting you right on ur head; the ground under ur feet will be eroding away in no time; U will be jailed; be prepared.
Police is collecting evidence against you. Thanks for all these proofs, you have given in these 3 -4 months. It's heaps, thanks for exposing yourself. You are doomed.
Once you are jailed you will out of our lives forever. Wait and see. Thanks to you for digging your own grave.
[17] Exhibit F-11.
In October 2022, the father discovered a Skype recording of a conversation between the mother and X from two days earlier. The mother agreed the recording revealed them making a plan for X to join her in Sydney without the father’s knowledge. The Skype recording was played in court and tendered as an exhibit.[18] The call revealed the mother arranging with X to collect him from a school event. She told X she was worried about the father finding out about the plan and that X should not give him any clues. X asked the mother to confirm that if everything goes to plan there is a 75% chance he won’t have to live with the father. The mother discussed with X making an application to the court for him to see the father one weekend a month. She asked X if there was any particular reason he doesn’t want to see the father and he replied, “not really, I just don’t want to see him.” The mother then asked X a series of questions in what I find to be a manner coaching him or coaxing him to elicit negative comments in respect of the father. For example, “You don’t feel safe with him, right. You still don’t feel safe with him?” and “You don’t feel like you’re heard by your dad?” X said, “I’m done with that devil” and the mother repeated that back to X. She said to X, “When other people ask you, can you strongly say that you don’t want to live with them?”, “Because last time you didn’t. You didn’t say this, and that is why it ended up the way it is now” and “If people ask you, you should be strong enough to say that you don’t want to live with him and you only want to live with your mum.” She said he had to be strong enough to say that including to “like people from the court”. The mother admitted that she said to X, “Deliver us from the evil one” but said she was referring the devil and not the father when she said this and again when she said, “Satan is getting weaker and weaker.” However, she admitted she then referred to the father as “the evil one” later in her conversation with X. When it was put to the mother that she was running down or denigrating the father to X, she responded that she was “speaking the truth.”
[18] Exhibit F-4.
In her trial affidavit, the mother described her communication with X on this occasion in the following terms:
As someone who is neurodiverse, I conveyed [X]’s situation to him in an unvarnished manner. Regrettably, my neurodiversity is often used against me, exploiting my differences as a disadvantage.
These responses showed a complete lack of insight on part of the mother as to the inappropriate nature of her communications with X and the likely impact on X of those communications, including impacting X’s view of his father. The mother’s influence on X was particularly clear from his reference to being “done with that devil” when referring to the father in his conversation with the mother.
The father deposed that hearing this recording was a “wakeup call” to him, that the mother’s behaviour was harmful to X. He said he reflected on the criticism made by Ms E in her family report that he had not been diligent in sheltering X from the toxic relationship between the parties. He had his lawyers write to the mother’s lawyers on 25 October 2022, advising of his concerns, that he no longer agreed to X spending time or communicating with the mother and that he intended to commence court proceedings.
In late 2022, the police attended the father’s home to conduct a welfare check on X at the request of the mother. The father deposed the police spoke privately with X and informed him they did not have any concerns. The mother deposed the police informed her to approach court immediately as X was extremely upset. I find this unlikely given the mother did not commence court proceedings as she says was recommended.
At 12.09 am on 28 October 2022, the mother sent an email to the father, reading:[19]
Tomorrow, if U don’t send [X] with me, you will be charged with another criminal offence by Vic police – for breaching intervention order. So U better do it or go to jail straight away. No nasty game.
[…]
I have already field [multiple] physical assault cases against you, On top of the existing 1 criminal case, Plus family court case.
Don’t add an extra one to those.
[19] Exhibit F-5.
In October 2022, the father kept X home from a school sports carnival given the content of the Skype call he had by then heard. That morning, the father received a call from police advising the mother had asked to collect some mail from the former family home. The mother agreed the father arranged to deliver the mail to the police station for her to collect. He did that and when he returned home at around 11.30am, the mother was sitting in front of the former family home where he resides with X. Her attendance was contrary to the intervention order then in place, even taking into account permitted exceptions to that order. (The final parenting orders provided for changeover to take place at school or for the father to deliver X to the mother’s home at the commencement of time he spends with her, so she could not reasonably say she was attending to changeover.) The father deposed he drove to the end of the dead-end street in which the home is located, to turn around, and the mother tried to jump in front of his car. The mother denied she did so. The parties agree she did not make contact with the car. It was not in dispute that X was in the car.
When cross-examined about this, the mother laughed. When asked why she was laughing, the mother answered, “Because it’s funny the way he has put it.” Again, the mother’s laughter was incongruent with the serious nature of the matters the subject of cross-examination and the gravity of the situation. The father again attended at the police station and awaited confirmation the mother had left the home. At around 3.30pm he received an email from the mother saying she was at X’s school for changeover. The father deposed he was afraid to return home, so took X for a drive. This is consistent with the mother’s evidence that the police informed her the father feared her and would not return home. At 4.16pm the father received an email from the mother advising she had filed another criminal charge against him. The mother was subsequently charged and pleaded guilty to multiple counts of contravening the intervention order then in place. She did not dispute she sent a message to X telling him she was arrested for coming to their house.
In her trial affidavit, the mother did not acknowledge any responsibility for her conduct on this occasion or its impact on the father and X, referring only to the “cited breach of the Intervention Order” and attributing it to her “mild PTSD” in a dismissive manner.
Current proceeding
On 10 November 2022, the father initiated this proceeding. He sought interim and final parenting orders, including the discharge of a number of the 2022 final orders, that he have sole parental responsibility for X, injunctions restraining the mother from contacting or approaching X and from keeping him under surveillance, an injunction restraining the mother from taking X overseas, and for X’s name to be placed on the Watchlist. He sought a child impact report be prepared.
In November 2022, the mother attended at X’s school but he was not in attendance. School attendance records confirmed the father had elected to keep X home from school, explaining “[X]’s mom has threatened to pick him up from school today […]”
On 18 November 2022, the mother filed material in response to the father’s Initiating Application. The father said this was the first time he was informed that the mother’s decision to move to Sydney was for mental health reasons. The mother deposed to being diagnosed with major depressive disorder and general anxiety disorder since moving to Sydney and to being admitted to the emergency psychiatry ward at AA Hospital under the Mental Health Act (NSW). When cross-examined, the mother explained her counsellor assessed her at risk of self-harm and contacted the police who attended at her home, called paramedics and escorted her to hospital. This evidence was supported by a letter from her former treating psychologist, Ms BB, tendered by the father.[20]
[20] Exhibit F-10.
Game communications
In December 2022 the father identified messages exchanged between X and the mother, through the messenger feature in an online computer game.[21] The father deposed to the steps taken by the mother to circumvent child safety restrictions in the messaging feature of the game, to protect children from communications with adults. Those messages revealed the mother encouraging X to communicate with her secretly via Skype, suggesting she hide a phone at school under the bushes for X to collect or that she send him a smartwatch to use to communicate with her. She then asked him to download an app to communicate with her secretly, telling X they would have to uninstall the app every time they stopped speaking so the father didn’t discover their communications when X went to school. X’s responses in this exchange suggested he was worried about the mother. For example, he typed to her the following messages in succession in December 2022 ([mum] being the name he used for the mother):
hello?
[mum] u ok?
[mum] ur scaring me
:(
[repeated crying face icons]
[mum] plzzzz
:(
[21] Exhibit MRP-9.
When cross-examined, the mother acknowledged the messages and explained them, saying she didn’t want the father to stop them from communicating. She acknowledged planning to meet with X, including for her to come to his school in December 2022 without the father’s knowledge.
Second intervention order proceedings
In late 2022, the father applied for an extension of the intervention order against the mother, for the protection of him and X. In early 2023, the mother applied to revoke that order and to seek a further intervention order again the father. In mid-2023, the parties each consented to the making of intervention orders for their personal protection against the other.[22] X was not named as a protected person on either order.
[22] Exhibits ICL-3 and ICL-4.
Contravention proceeding
On 23 December 2022, the mother filed a contravention application, alleging numerous contraventions of orders by the father. Ultimately, the mother’s contravention application was dismissed on 17 August 2023 by consent.
Counselling for X
In November 2022, the father obtained a referral for X to attend upon a psychologist at school, being Ms CC from DD Clinic. X commenced attending upon Ms CC in December 2022. Ms CC’s notes were produced pursuant to subpoena. Her notes dated 8 December 2022 recorded that X was loving school and said it was okay living with his dad. He was missing his mum, said that they have a close relationship and he enjoyed being able to talk with her on the phone when possible.[23]
[23] Exhibit F-6.
Child impact report
A child impact report was prepared by court child expert, Ms J, dated 20 January 2023 (“the child impact report”) after interviews and observations on 2 and 7 December 2022. At the time of the observations for the child impact report, X had not spent time with the mother for approximately five months. Ms J described the reunion as being happy and emotional for both of them.
Ms J observed X presented as a child who had experienced significant emotional harm as a result of parental conflict, which she assessed as “compounded by [the father’s] ongoing use of coercive control to reduce [X]’s relationship with his mother in the recent past.” She encouraged the court to place increased weight on X’s expressed wishes, to live with the mother. Ms J made recommendations in respect of the time X spends with each parent depending on the court’s decision about which parent X should live with. She recommended the mother continue to engage in therapeutic intervention and that the father engage in individual intervention with a forensically trained psychologist to address use of family violence and coercive control.
As explained later in my reasons, Ms J’s opinions and recommendations were in my view flawed.
February 2023 orders
The February 2023 orders suspended all previous orders and provided for X to instead spend time with the mother for three hours on alternate weekends, supervised by H Contact Centre. They provided for the appointment of an independent children’s lawyer and for Dr K to be appointed as a single expert for the preparation of a family report, including a psychological/risk assessment of the parties. The order was quite specific as to what the report was to address, including the parties’ psychiatric, psychological and emotional health and functioning, recommended treatment or management, and risk issues associated with their parenting ability.
Supervised time
On 4 March 2023, X began spending time with the mother supervised by H Contact Centre.
The observational reports annexed to the affidavit of Ms R of H Contact Centre included many positive observations of X’s interactions with the mother but also some concerning interactions. An interaction of particular focus at the final hearing occurred on 1 April 2023, at the beginning of supervised time after the parties sat down in an Country B restaurant selected by X. The incident was described by the supervisor, Ms S, as follows:
[X] sat next to his mother at the table and hugged her tightly. [...] As they both quietly looked at the menu, [X] grabbed his mother’s arm and put it around his shoulder. The mother pulled her arm away. [X] whispered something to his mother. The writer asked the mother what [X] had said. The mother said “You have no right to talk about anything”. [X] appeared to be very upset and started to cry.
The writer asked [X] to sit next to her and asked him what he had said to his mother. The mother told the writer she had nothing to say to anybody. The writer asked what [X] had said. The mother replied “Ask him”. [X] told the writer he had asked his mother why she was sad. At this stage, [X] was very upset as he was not getting any attention or affection from his mother. The writer attempted to comfort [X] and told him his mother missed him. The mother asked [X] if he wanted anything at all to eat. [X] shook his head to imply no. The mother said she did not know what she was going to do. The writer told [X] he had told her he was hungry. [X] was upset and the mother said to him “If you want to go back, you can”. The writer asked the mother what she meant. The mother said “He can go back to where he is living”. [X] cried and said he wanted to go back as he had tears strolling down his face. The writer attempted to comfort [X] and discreetly told the mother that [X] needed her. The mother replied “What do I do? It’s your system. You do whatever you want to do. I cannot do anything”. The writer asked the mother to give [X] a hug. The mother replied to the writer “You give him a hug. It’s your system and I am subjected to your system in Australia”. The writer informed the mother it was not her fault. The mother replied “It’s not your fault and it’s not my fault. You control me as well”. The writer explained to the mother she was not there to control anybody and was there to supervise the visit. The mother said “Whoever is doing this let them control you and let them control me”.
The writer asked the mother to settle down and asked [X] if he was ok. [X] cried and said he wanted to go home and did not want to stay as his mother did not miss him. The writer attempted to comfort [X] and told him his mother missed him and loved him very much. As [X] continued to cry, the writer informed the mother she needed to settle and comfort [X]. The mother told the writer she could do whatever she wanted to do and did not show any affection nor did she engage with [X]. The mother said “What do I do? I have no control over anything”. The writer told the mother [X] was her child and he was there to see her and she was there to see him. The mother became angry and said “My child, don’t make me talk”. The writer told the mother [X] only saw her once a fortnight and [X] said his mother did not want to see him. The mother continued to be angry and said “You can do anything you want. That’s what’s happening’. [sic] You want to take him away…take him away!” The writer told the mother [X] needed her attention. The mother replied “The last 2 years he didn’t need any attention and he wants attention. I would rather stay away from his life and not be a part of his life”. The writer told the mother she was going to stop the contact visit. The mother said “I already told you…if you want to do it, do it”.
The mother continued to engage in this way and withhold affection and reassurance from X, notwithstanding he was crying and seeking comfort from her. The supervisor ultimately took him away, crying and contacted the father’s friend, asking him to come and collect X. Ms S reported:
As we waited for [the father’s friend], [X] told the writer his mother hated him. The writer attempted to comfort [X] and told him his mother loved him and sometimes adults and parents could have a bad day or be sad about other things. The mother walked passed us and called out “You want my child right?” The writer told the mother she had brought [X] to see her. The mother walked away.
The mother acknowledged this was an accurate record of what occurred when X spent time with her on 1 April 2023. I agree with the reported assessment of the supervisor on this occasion, that it was apparent the mother was unable to demonstrate emotional restraint and lacked insight into how her behaviour was impacting and upsetting X on this occasion, notwithstanding his obvious distress and the supervisor endeavouring to assist her.
In her trial affidavit, the mother provided context to her conduct on this occasion, explaining she had been informed in early 2023 that the father was travelling to Country B upon his father’s death and X would be left in the care of friends. She said the police undertook a welfare check on X that day as she was worried about what was happening with him. She also contacted the independent children’s lawyer who she said spoke with the friends caring for X. She deposed:
It seemed everyone was informed about my child’s circumstances except me. Despite my efforts, they proved futile. Amidst preparing affidavits and meeting court deadlines, reliving trauma repeatedly, I was told the supervised visit would proceed as scheduled. Feeling powerless and marginalized, being referred to as my child's mother felt almost insulting. During the visit, seeing [X] brought me joy, yet I was at a loss for words each time he asked, “[mother], why are you sad?” Unable to inquire about his well-being due to restrictions, [X] had been sternly instructed by his father not to divulge any information. Observing the supervisor avidly taking notes reminded me of how [the father] would manipulate situations for evidence, triggering further trauma. The visit concluded with implications that my mental health was to blame.
At the final hearing the mother acknowledged she had behaved inappropriately with X and that her conduct had a negative impact on him. The mother submitted she had been triggered by the father travelling to Country B and leaving X in the care of his friends and that in hindsight she should not have attended the visit.
In relation to the mother’s interactions with X on 1 April 2023, Dr K gave the following oral evidence about the impact this may have had on X:
[…] in many ways, it’s heartbreaking for this little boy that he sees his mother, seemingly repeatedly, and has done over a protracted period of time, combative, dysregulated, unable to shield him from her own difficulties. […] kids make sense of the world around them through the eyes of their parents, […] that’s one of the fundamental tenets of secure attachment: “When the world is scary, I will gravitate towards the safe person who will keep me safe”. And this boy is seeing his mother, in many circumstances, with different people, behave in a way that is entirely inappropriate, and that would be […] extremely unsettling for him, and […] questions should be raised about what his attachment style is going to look like when he has his own friendships and relationships. Apart from anything else, there’s the modelling component to it as well. […] these Contact Service people, […] people in a position of, sort of, pseudo authority […] within the family, and […] there’s that challenge and confrontation and imperious posture that the mother presents with, that she can’t be told. And, […] again, from a modelling perspective, that’s […] not good for [X].
and:
You hope that people […] when I see them, and people when they’re doing supervised sessions, are on their best behaviour, and if there’s an incapacity for a person to self-manage, even in that context, that’s concerning.
When informed of this incident, Mr L agreed this interaction was problematic and attributed it to the mother having PTSD. He gave the following oral evidence:
I would interpret that incident as being reflective of her symptoms of PTSD being triggered and she then responded in a manner which was, in effect, cathartic, which in no way excuses her behaviour in that context, but that’s how I would interpret it. […] One of the puzzles about patients who suffer from PTSD is that they do sometimes behave in ways that are self-destructive and seemingly inconsistent with other aspects of their behaviour.
Mr L agreed it is concerning that where it is not abundantly clear what the mother’s triggers are that she was triggered during a supervised visit in this way, leading X to be upset, not comforted and in essence to feel rejected.
Second family report
On 20 June 2023, the second family report was prepared by Dr K, including his psychological/risk assessment of the parties. I will return to consider Dr K’s expert evidence throughout my reasons but in summary, Dr K assessed the parties’ co‑parenting relationship was entirely fractured, with no realistic prospect of improvement. He recommended the father assume sole parental responsibility for major decisions affecting X’s upbringing. Dr K assessed that whilst X had a loving connection with both parents, there were unhealthy aspects to his relationship with the mother, there was a high risk to X’s emotional wellbeing extending from the mother’s mental health and personality function and it was not emotionally safe for X to live with her. He recommended X spend only supervised time with the mother pending her engaging in long-term, targeted, psychological therapy around the issues outlined in his report, with any treating clinician being provided a copy of his report.
The mother subsequently communicated with Dr K’s rooms by email following the release of the second family report, including on 12 and 14 August 2023, asserting errors in Dr K’s use of the PAI tool in his assessment and making accusations in respect of Dr K’s professional skills, abilities, credibility and professionalism. However, she did not put questions to Dr K as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”). By the time of the final hearing the mother had lodged a complaint with the Australian Health Practitioner Regulation Agency (AHPRA) in relation to Dr K as had been foreshadowed in her trial affidavit.
Mother’s communications with the father
On 22 August 2023, a final hearing was scheduled for 5 February 2024 and trial directions were made. Notwithstanding the matter of her problematic communications that had been the subject of two family reports and that the proceeding had by then been listed for final hearing, the mother continued to send inappropriate emails to the father. For example, on 24 September 2023 the mother sent a series of emails to the father alleging mistakes and incompetence by Dr K in the second family report and continuing to harass the father, including as follows:
I lose nothing […] it’s only [X] who gets damaged with childhood trauma. If you think about him, make wise choices. You spend close to 200k to keep [X] away from me, right? He will only hate you for every atrocity you commit on him. I am publishing my book, I will say everything I want to say, not just to [X], but to the whole world. You can’t stop me – The saga of my success stories. Especially the one against [Dr K] will be made the highlight. How long will you protect [X] from his mother? In the end, what if he hates you for life and leave you forever when he can.
The mother travelled overseas for a month in late 2023 and X therefore did not spend time with her during this time. The supervisor reported X was extremely emotional and upset at that time about the prospect of the mother travelling overseas.
The father deposed that after X spent supervised time with the mother on 25 November 2023 she sent an email to the father asking to meet with X for one hour. He said he did not agree and she replied with an email referring to an anticipated report from X’s most recent supervised time spent with her, reading:
Thanks for your child focused approach and great understanding of the child. Wait for yesterday’s report to be [out], it will expose how scared [X] lives with you. What more can I expect when people can’t event understand themselves! I knew it anyway but all I wanted was written proof. Using your own tactic of proof collection. Thank you.
The father deposed he enquired of H Contact Centre after receiving this email and Ms R responded to him on 29 November 2023 advising:
[Ms S] reports that at no stage did [X] say he was scared living with you. In fact, there was no conversation of such nature. In an event [X] became upset or the conversation became inappropriate, I can re-assure you that [Ms S] would have stopped the discussion and even terminated the visit if necessary.
The supervision report from 25 November 2023 did not raise any concern of the nature foreshadowed by the mother. X did become upset at one point and said he wanted to go home (to the father) when the mother pressed him to try riding a scooter against his wishes. I mention this particular exchange because the mother’s email sent to the father on 25 November 2023, when considered against the supervision reports, raises concern about the mother making false allegations if X’s time with her is not supervised.
Assessments arranged by mother
On 14 and 15 July 2023, the mother attended upon Ms F, psychologist, of P Psychologists, seeking an assessment for ADHD. Ms F finalised her assessment report on 27 July 2023.[24] She assessed the mother as having “mild” ADHD.
[24] Exhibit MSL-02.
By way of a letter dated 22 November 2023, the mother’s former lawyers engaged Mr L to prepare an adversarial psychological report.
In December 2023 the mother self-referred to Ms G, clinical psychologist with Q Organisation, for an assessment to determine her cognitive abilities. Ms G prepared a report dated 22 December 2023.[25] This report assessed the mother as demonstrating higher than average performance in cognitive testing with an IQ in the superior range.
[25] Exhibit MSL-03.
On 19 February 2024, the mother’s treating psychologist, Mr M, prepared a report in respect of her treatment with him.[26]
[26] Exhibit MSL-01.
As indicated earlier in my reasons, the mother did not seek to put the reports of Ms F, Ms G or a report from Mr M before the court until after the conclusion of the parties’ evidence. She was granted leave to do so on 24 April 2024, following an interlocutory hearing that day. I note she had not given evidence about attending upon these professionals in her trial affidavit.
X’s current circumstances
X is a citizen of Country B and a permanent resident of Australia.
X continues to live with the father as has been the case since the final parenting orders were made on 4 May 2022. They live in the former family home, which the father is to retain pursuant to the final property orders.
X spends supervised time with the mother in accordance with the February 2023 orders, for three hours each alternate weekend. The most recent supervision report before the court was from 6 January 2024. X’s time with the mother was reported to be going well. The supervision reports record X and the mother undertaking a range of outings and activities together, engaging in discussions about various educational topics and interacting affectionately. The supervisor reported X told the mother he missed her and that he regularly become upset at parting with the mother and did not want to leave.
X is now 11 years old and in grade 6. The father deposed to X’s personality, interests and progress at school in his trial affidavit and gave evidence about how they spend their time together and the time X spends with extended paternal family.
When the final hearing resumed in May 2022, the mother sought to adduce evidence that X had been selected for a high achiever’s program for maths, for term 2 in 2024. Counsel informed the court this was an agreed fact. This supports the father’s evidence that X is progressing well at school academically.
Notes from X’s psychologist, Ms CC, from 15 December 2023 recorded they were working on managing feelings, that X likes to talk with the mother when feeling overwhelmed and that he enjoys playing sports with the father. In relation to school, Ms CC reported:[27]
[X]’s teacher reports that [X] is doing really well in the school environment. She mentioned that he has made a number of positive friendships and often appears happy whilst at school.
[27] Exhibit F-9.
The parties’ current circumstances
The father is aged 43. He is employed full time as a manager with a large corporation. He gave oral evidence he has flexibility to work from home but office hours are typically from 8am until 5pm. He gave oral evidence that he relies on out of school hours care and parents of other students at school for assistance with X’s care when he requires it, including while attending court.
The mother is aged 38. She is employed full time as a professional with JJ Company.
The father deposed in his trial affidavit that the mother continued to refuse to provide her address in Sydney notwithstanding an order made by consent on 4 May 2022 requiring the parties to provide no less than 28 days’ notice (if possible) of any proposed change of address. By way of her trial affidavit filed on 2 February 2024, three days prior to the final hearing commencing, the mother informed the father and the court that she had re-partnered and moved to Suburb EE. In respect of her relationship and living circumstances she deposed only:
I live in [Suburb EE] with my partner. His 2 kids spend time with us as they please. I travel to Sydney for work commitments [once a week], while on other days, I work from home. Thanks to the flexible work policies of [my employer], there is the possibility to arrange for work to be done from our [Victorian] office, if necessary.
When cross-examined, the mother gave evidence she moved from Sydney to Melbourne in late 2023 or early 2024. She agreed the father learned of this for the first time in February 2024. She said she told X during their time spent together that she had moved to Melbourne.
When cross-examined, the mother gave evidence she lives with her partner, Mr GG. She said they have been in a relationship for “more than one year”. They are renting a home in Suburb EE. His two children, aged 10 and 14, live with their mother and spend time with him. The mother did not adduce evidence from Mr GG, notwithstanding her proposal for X to live with them. X has not met Mr GG.
EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.
In assessing the evidence, I have applied the balance of probabilities as the standard of proof. In making my findings I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made by each of the parties and the consequences that flow from those findings. I have taken into account the orders proposed by the father and the independent children’s lawyer would see the mother excluded from decision-making in relation to X and would provide for him to spend only limited supervised time with her.
I have read and considered all of the evidence adduced by the parties, including the tendered audio and video recordings. If I have not mentioned a piece of evidence or an argument presented at the hearing, that does not mean I have not considered it.
General observations
I will make some preliminary observations in relation to the evidence of the parties and witnesses before considering their evidence in more detail as relevant to each of the statutory considerations and issues requiring determination.
The father
The father’s trial affidavit provided appropriate historical background along with evidence of his communications and interactions with the mother to explain his concerns about X spending time and communicating with her, giving rise to these proceedings and the orders he now seeks. He deposed to his current circumstances and about X’s routine, activities and interests.
The father’s affidavit evidence was generally consistent with other evidence, such as the tendered video and audio recordings. The father answered questions put to him by counsel for the independent children’s lawyer in a calm and responsive manner. He made concessions in relation to some aspects of his conduct towards the mother that he accepts may constitute family violence.
He acknowledged the importance of X’s relationship with the mother. He did not display anger towards the mother or speak of her in a disparaging manner, notwithstanding the evidence of her communications with and behaviour towards him and X. He did not seek to solely blame the mother for their poor co-parenting relationship. He acknowledged "everybody has faults and … I’m not perfect either.” It was clear from his evidence and proposals that he has taken on board expert recommendations, to act to protect X from the mother’s behaviour and parental conflict.
I found the father’s evidence and proposals to be focussed on X and his needs and interests.
The mother
The evidence adduced by the mother ahead of the final hearing was lacking in many respects. Notwithstanding her application for X to live with her, she provided little evidence of her current circumstances, including in respect of her move to Melbourne, her new relationship and current living and work arrangements. The extent of the evidence she did adduce about her current living circumstances and relationship was primarily encompassed in four lines of her trial affidavit.[28] Knowing her mental health was a significant issue in the proceeding, she did not give evidence in her trial affidavit of her current psychological support and treatment. She did not mention her treating psychologist, Mr M, and did not adduce any evidence from him. When she sought to remedy this, after the parties had both been cross-examined, she provided only a brief report from Mr M and did not seek to file an affidavit from him so his report would carry the weight of sworn evidence and could be tested.
[28] Paragraph [84].
Much of the mother’s trial affidavit was devoted to the parties’ historical relationship and allegations of family violence against the father, most pre-dating the making of the final parenting orders. The tendered audio and video recordings revealed the mother had provided an inaccurate account of key historical incidents between the parties, by omitting her role in those conflicts and failing to acknowledge her abusive behaviour towards X and the father. Assertions made by the mother often used emotive language and at times misrepresented the situation revealed by other evidence. For example, the mother referred to the father “abducting [X] from school and failing to return him” when it is apparent the father had on occasions not sent X to school because he was acting protectively, concerned from the mother’s surreptitious communications with X that she would attend to collect him.
Returning to the benefit to X of a meaningful relationship with the mother, Dr K was asked of the benefit to X for spending even supervised time with the mother at this point and he responded as follows:
It’s a complex question […] What does [X] get from these visits now? Well, he gets to see his mum and know that she’s okay and connect with her and do some things with her. Now, that’s all positive. Does it make him more distressed by being parted from her as well? Possibly; certainly, if she is engaging in the manner described. And I’m not sure whether that evidence has been tested and accepted, but if she was behaving in the manner described in this document [being the supervision report from 1 April 2023], you would hope that that’s an isolated incident and not a consistent pattern of behaviour that is demonstrated during those visits. I think that there is some argument that the […] supervised visits be questioned. There is some argument that they be curtailed, but I need to acknowledge the reality that there may be some areas of enormous benefit for [X], too, just to check in with his mum, see that she’s okay, have some semblance of connection with someone who he adores.
The father and the independent children’s lawyer amended their positions after Dr K’s oral evidence, seeking orders to provide for X to spend supervised time with the mother, less frequently (bi-monthly), for longer periods of time (five hours) on each occasion and for identified special occasions.
Having considered all of the evidence and the submissions, I find it is in X’s best interests to live with the father and to spend time with the mother, supervised by H Contact Centre, as sought by the father and recommended by the independent children’s lawyer. I am satisfied that such an arrangement balances:
(a)Protecting X from the identified risks of harm;
(b)Protecting and supporting X’s relationship with the father;
(c)X being provided with stability in his care arrangements, in the care of his father who is adequately meeting his needs, including supporting his relationship with the mother;
(d)X maintaining a connection with the mother and for him to be reassured she is okay, accepting Dr K’s evidence that would be of benefit to X. I note X’s relationship with the mother remains close notwithstanding he has been spending only limited supervised time with her pursuant to the February 2023 orders and had not spent time with her before that since late July 2022;
(e)X having an opportunity to take outings with the mother and also spend time with her in her own home, for what Dr K described as a more normalised experience together, albeit supervised. This will provide X with the opportunity to meet the mother’s partner and his children, for the mother and X to prepare and share meals together, for her to sometimes help him with homework, and for them to engage in interesting activities, in a way that is less rushed and hopefully more enjoyable for X; and
(f)Endeavouring to protect X from the grief he experiences on parting from the mother after spending time with her, as is apparent from the supervision reports.
In addition to the bi-monthly time proposed by the father and independent children’s lawyer, I will make provision for X to spend supervised time with the mother also on Mother’s Day. This will mean X will spend supervised time with the mother on seven occasions each year unless otherwise agreed in writing.
I accept ongoing supervision of X’s time with the mother is not ideal. However, as the Full Court explained with reference to key authorities in Lainhart & Ellinson (citations omitted):[58]
While orders for long-term or indefinite supervision are generally discouraged as being undesirable, such orders have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child’s life. Every case must be decided on its own facts.
[58] Lainhart & Ellinson (2023) FLC 94–166 at [36].
I acknowledge this outcome has the potential for further court proceedings. If the mother seeks appropriate psychiatric/psychological support and undertakes effective treatment to address the risks and problematic aspects of her behaviour identified in these reasons as recommended by Dr K, she may in time seek to progress from this arrangement and to dispense with the requirement for professional supervision. It is not possible for me to make orders now that contemplate supervision ceasing in the future, for example upon the mother engaging in treatment. This is because I cannot assess if her engagement will be meaningful or if any particular treatment will be effective and I cannot delegate the responsibility to make that assessment, being a judicial function, to another person or professional.[59] It will be a matter for a court to assess in the future if the requirements of section 65DAAA of the Act (as amended) are satisfied and the parties are unable to reach an agreement after engaging with the required pre-action procedures.
[59] Lainhart & Ellinson (2023) FLC 94–166 at [28] to [29]
Prioritising the need to protect X from harm, I consider an order for ongoing professional supervision to be in his best interests. No alternative was put forward to professional supervision. In any event, I find only professional supervision to be adequate to safeguard X from the identified risks of harm.
No objection was made to H Contact Centre continuing to be engaged. Accordingly, my orders will provide for ongoing supervision by H Contact Centre as proposed by the father and independent children’s lawyer, unless another professional supervisor is agreed between the parties in writing.
The father and independent children’s lawyer seek the mother meet the cost of private supervision under their proposal. The mother did not speak against that. I did nevertheless consider making an order for the father to share the cost of supervision (as has been the case under the February 2023 orders) but decided against it, finding that will require further interaction between the parties and the supervision service, potentially giving rise to further conflict and the mother feeling triggered at those interactions. This way the mother will be responsible for liaising directly with the supervision service and arranging payment to ensure X’s time can reliably proceed with her. That the mother had not been paying child support and was in arrears of child support at the time of the final hearing is another matter I take into account when making an order for her to meet the cost of professional supervision.
When making an order in the terms proposed by the father and the independent children’s lawyer, I will include provision for H Contact Centre to accommodate reasonable requests of the mother as to times and locations as far as practicable for the service.
I do not consider it is in X’s best interests for the mother to attend X’s school and extra-curricular activities as sought by her. Aside from the considerations already outlined, I am concerned to ensure that X’s school remains a haven for him, free of the potential for conflict between his parents.
COMMUNICATION
I find X would be exposed to an unacceptable risk of harm if I was to make an order providing for him to communicate freely with the mother, in light of the evidence of her engaging in secret communication with him via Skype and game messaging apps, coaching him and encouraging him to effectively run away from the father’s care to her care. I accept the oral evidence of Dr K that X needs to be protected from being enveloped in parental conflict, coached, influenced and coerced by the mother, as has previously occurred during X’s communications with her.
I considered the possibility of supervised communications but have decided against it, accepting the expert evidence of Dr K that:
[X] would feel observed, scrutinised, watched. He would feel that there’s an unnatural dimension to his relationship and rapport and connection with his mother. There may be a level of frustration and annoyance for this boy, not being able to have free and open and unfettered interactions with his mother.
In relation to letters, cards and gifts sent by the mother at reasonable times, vetted by the father and passed on to X if appropriate, Dr K agreed X would not be as aware of the oversight. He also suggested this type of communication is more able to be monitored and vetted and lends itself less to the more subtle coercive types of behaviour the mother has exhibited in prior communication. Accordingly, I will include provision for the mother to communicate with X by card, letter and gifts for special occasions as proposed by the father and the independent children’s lawyer. I will add provision for communication on the occasion of new year in the mother’s home state also, that being an occasion that was identified by the mother to H Contact Centre as being of cultural significance to her and X. I will also provide for the mother to send letters to X in any calendar month he does not otherwise spend time with the mother or receive communications pursuant to orders, to maintain a regular connection between them and to provide X with the reassurance Dr K recommended, that the mother is okay. Given the mother’s previous problematic communications with X I find it is in his best interests for the father to monitor those communications.
The mother submits that supervised time and communications mean X does not have the opportunity to speak with her in their “mother tongue”. Whilst I do consider it would be of benefit to X to be able to learn the language(s) of his family’s place(s) of origin and as used by his extended family, I find the need to protect him from harm, including from secret or otherwise harmful communications with the mother is to be prioritised.
TREATMENT FOR FATHER
The mother sought an order requiring the father to undergo “assessment, diagnosis, and treatment for his condition and must provide satisfactory documentation of this to the mother”. She ultimately sought this as a stand-alone order, withdrawing her application for an order that failing the father’s compliance with that order X spend less time with him than he otherwise would.[60] When asked about the “condition” the mother submitted the father required treatment for, the mother referred to defensiveness and lack of insight identified by Ms J in the child impact report. The father has already been the subject of a psychological assessment undertaken by Dr K, with no significant concerns raised in relation to his psychological function or risk posed to the mother or X. I have found he does not pose an unacceptable risk of harm to X and that he has the capacity to provide for X’s needs. Accordingly, I will not make this order sought by the mother.
[60] Withdrawing her application for an order in terms of paragraph 5 of the final orders sought in her amended response filed on 2 February 2024, and withdrawing the requirement that the time provided in paragraph 6 of those proposed orders be conditional upon compliance with the requirement for assessment and treatment in paragraph 4.
MOTHER’S INVOLVEMENT WITH PROFESSIONALS ASSISTING X
I considered an order providing for the mother to engage with medical, educational and other professionals involved with X and to obtain information about X from those sources but I find the potential benefit to X of such an order is outweighed by the likelihood of such an order exposing him to further problematic behaviour by the mother, conflict between his parents and the risk of his medical care, wellbeing and education being compromised.
In making this determination I accept and put significant weight on the expert opinion of Dr K and his recommendation against orders providing for the mother to be authorised to communicate with X’s school and medical practitioners, which accords with my own assessment of the evidence. In particular, I note the following evidence given by Dr K:
My concern is that those people ancillary to the child could be enveloped in some of the mother’s beliefs and ideas about his presentation and also engulfed within the conflict, and particularly with people like GPs and paediatricians, who in my experience tend not to avail a level of sort of forensic scrutiny to these sorts of situations, that could potentially jeopardise a given course of action that the father may seek to take with the child, in the event that he does have sole parental responsibility, if that process has been informed or potentially sabotaged by the mother.
I think, at this point in time, there are too many concerns that that could be derailed if the mother is not able to acquit herself appropriately with those professionals and other people that may be involved in this child’s life.
I also take into account the mother’s professional complaint against Dr K. I find it is likely, if the mother was provided with information from professionals involved in X’s’ medical and health care and education that she did not agree with, she would engage with them in the manner she has engaged with Dr K’s rooms. She may also make professional complaints as she has in respect of Dr K. Such behaviour is likely to cause disruption to continuity of professional care for X or lead professionals to be reluctant to assist him, which I find contrary to his best interests.
I will however make an order requiring the father to provide X’s school and treating professionals with the mother’s contact details and authority for them to contact her for the purposes of seeking information from her. I consider this is important for the purposes of X’s medical professionals being able to seek information from both of X’s parents, including to take a family history for diagnostic and treatment purposes. I make it clear that order will not authorise the mother to take on a consultative role directly with professionals involved in X’s medical care and education or with the father about those matters, for the reasons I have already outlined.
SUPPORT FOR X
Foreshadowing that the arrangements recommended by Dr K would be difficult for X, as was acknowledged by the father, I asked Dr K if there were any supports he would suggest the court put in place for X to assist him. Dr K recommended X continue to have access to the psychologist he has been seeing at school and maybe giving that person the “heads up’ so she can assist with keeping an eye on him.
Dr K also recommended the independent children’s lawyer or a clinician explain the final orders to X, rather than his parents who he views as partisan. Counsel for the independent children’s lawyer informed the court the independent children’s lawyer would be willing to undertake this task.
I will make orders providing for these steps to be undertaken by the independent children’s lawyer before discharging her appointment in a further 30 days.
TRAVEL WITH X
The 2022 final orders impose an injunction of nine years’ duration, restraining either party from travelling overseas with X without the authenticated consent in writing of the other party. A collateral order was made providing for X’s name to be placed on the Watchlist for the period of that injunction. The parties each seek to be able to travel overseas with X, to spend time with his extended family in Country B. It was not in dispute that he would benefit from doing so.
In closing submissions, the mother conceded there was not an unacceptable risk of the father retaining X overseas. That was in my view an appropriate concession to make given the father’s ties with Australia. He is now an Australian citizen, he is to retain the former family home pursuant to the final property orders and has full-time employment in Australia.
The father maintained there is an unacceptable risk of the mother taking X to Country B and not returning him to Australia. I am satisfied that is the case, having regard to the considerations set out by the Full Court in Kuebler v Kuebler[61] and Line & Line,[62] and the following matters in particular:
[61] (1978) FLC 90-434 at [15] per Asche SJ with Gun and Yuill JJ concurring.
[62] (1997) FLC 92-739 at [4.49]-[4.51].
(a)The father’s evidence that the mother said to him in or around August 2021 that she would take X away from him and he will “never see him again”, which was not specifically challenged by the mother;
(b)The mother’s failure to return X’s passport to the father in accordance with the 2022 final orders;
(c)The mother’s request made in mid-2022 to “send” X to Country B;
(d)Evidence the mother engaged in surreptitious communication with X and planned with him, for him to go and live with her in Sydney contrary to the 2022 final orders;
(e)My expectation the mother will find it difficult to accept my decision for X to live with the father and spend only limited supervised time with her;
(f)The expert opinion of Dr K that the mother may act reactively and engage in some drastic, desperate act and abscond with X if orders are not made for a change of residence, although he emphasised he did not have any specific information that indicated to him the mother was intent on removing X from Australia;
(g)The mother’s oral evidence confirming she has family in Country B, she owns a property in Country B and when asked if her family in Country B is well-off and her father a professional, she answered “Well, they’re living okay”, all of which suggests she has the means to live in Country B with X;
(h)The mother’s partner is also Country B born,[63] although his children live in Australia;
(i)X is not yet an Australian citizen; and
(j)Country B is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
[63] Mr L’s report, at [23].
The father gave oral evidence that X’s Country B passport expired in mid-2023 and that it is held by the mother. He seeks an order providing him with authority to apply for X to be issued with Country B and Australian passports. He deposed he will first need to seek a Country B passport for X given he is a Country B citizen. He would then apply for an Australian passport if X is granted Australian citizenship. The father agreed via his counsel that it is not appropriate for me to make an order that purports to bind an authority in Country B.
The father and independent children’s lawyer propose an order that the injunction made in the 2022 final orders be discharged and that X’s name be removed from the Watchlist. They do so notwithstanding the father’s evidence given in his trial affidavit of his fears that as the mother works for JJ Company, a Watchlist order may be insufficient protection to safeguard X from the mother’s threats to remove X from Australia.
When I suggested the possibility of a Watchlist order flagging an injunction for only one parent to be restrained from travelling overseas with a child, counsel for the father was not aware that was possible. He conveyed that his instructor had made enquiries with the Australian Federal Police (“AFP”) who had advised they were unable to provide legal advice.
Given my findings in relation to the risk of the mother removing X from Australia, I find it is in X’s best interests for the mother to be restrained from taking X from the Commonwealth of Australia and for his name to remain on the Watchlist, as an additional protection to that injunction and the provisions of section 65Y of the Act. I will make that injunction in the terms sought by the father in his Initiating Application (as amended), for a period of eight years.
I suggest the father make enquiries of the AFP when serving a copy of my final orders, to ensure the Watchlist order I make does not pose an impediment to X travelling overseas with him. I have taken into account the possibility it might, in which case there may be a need for further proceedings in the future if the father wishes to travel with X, but at this point in time I prioritise protecting X against the risk of being removed from Australia by the mother, particularly being mindful that she may not respond well to my decision.
The mother seeks an order that the parties notify one another if they take X interstate or overseas and that they provide various details in respect of their travel. I am not persuaded such an order is in X’s best interests. Given the mother’s prior conduct, I hold concerns about the father’s privacy and that the mother might misuse information about him travelling with X to disrupt their travel plans or to attend at the father’s home while they are away. I will therefore leave it up the father, as to the extent of information he feels comfortable providing to the mother in the event he travels with X. The orders I make do not contemplate the mother travelling with X so such an order is not necessary in respect of X’s time with her.
X’s passport
The father seeks an order that he retain X’s passport to the exclusion of the mother. The mother deposed “it is logical for me to retain [X]’s passport.” When cross-examined, she denied she holds X’s passport and said she provided it in mid-2022, in accordance with the 2022 final orders requiring her to return it to the father within 48 hours. [64] I do not accept that evidence given the email sent by the mother to the father on 10 May 2022, with a subject line reading:
… Unless arrangements are changed officially, through court orders and watchlist orders withdraw, I am not returning passport or taking care of [X]. Let him suffer. U don’t care anyway.
[64] Order 7 of orders at Annexure A of orders made 4 May 2022.
Given the parenting orders I have determined to make, including in relation to X travelling overseas, I will make an order providing for the father to receive and retain X’s passport(s).
INJUNCTIONS
To make an injunction pursuant to section 68B of the Act in relation to X, I am required to be satisfied that it is appropriate for his welfare. Section 68B is informed by the best interests of a child but not governed by the paramountcy principle.[65] The Full Court in Bielen & Kozma[66] observed there is no definition of the “welfare” of the child in the Act and expressed the view that consideration of matters impacting upon the welfare of a child “necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.”
[65] Hedlund & Hedlund (2021) FLC 94-065 citing previous authorities with approval.
[66] Bielen & Kozma (2022) FLC 94–123 at [30].
I am satisfied the injunctions sought by the father and independent children’s lawyer are appropriate for X’s welfare given the evidence of the mother’s conduct in this matter and where the final intervention orders in place at the time of the final hearing will by now have expired.
OTHER ORDERS
Communication between parties
I will not make the order sought by the father and recommended by the independent children’s lawyer requiring the parents to ensure that all communication between them is polite and respectful at all times. Whilst this should absolutely be the case, I am concerned about the possibility of interpretation of that order and the potential for disagreements about it to result in further conflict or contravention proceedings.
I find the other orders sought by the father and recommended by the independent children’s lawyer in respect of the parties’ communication with one another to be appropriate and in X’s best interests.
Citizenship
The father seeks an order authorising him to apply for Australian citizenship for X, which would see X have to relinquish his Country B citizenship and to obtain an Australian passport for X without the mother’s consent. He does so even if he is granted sole parental responsibility, to ensure he does not encounter any administrative difficulties when making the foreshadowed applications for X. The father gave evidence this is something he is considering but he has not yet made a decision about it.
X has lived in Australia for most of his life. Both parties live in Australia. Neither party proposed X live in Country B. The mother did not advocate against X applying for Australian citizenship. Accordingly, given my determination for the father to have sole parental responsibility for X I consider it appropriate and in X’s best interest to make the order proposed by the father in the event he decides to seek Australian citizenship for X.
Sharing of orders, reasons and family report
I understand the mother will find my decision difficult to accept. She may challenge it as she has challenged the assessments of other professionals with whom she does not agree, including Dr K. I instead urge her to seek referral to an experienced psychiatrist or psychologist with the expertise recommended by Dr K, for support upon the issuing of this judgment, support with the implementation of the orders I will make, and for the type of assessment and treatment recommended by Dr K.
I asked Dr K if there would be a benefit to the mother’s treating professional being provided with his family report and he provided the following response:
I think what the single expert reports can do is provide a really balanced view to people who are involved with availing services. So rather than get a very skewed, distorted, one-sided narrative of events – and obviously the narrative from [the mother] is that she was the victim of prolonged, protracted domestic abuse. So obviously if the clinician is receiving only that information without that being offset with the other potentially contrary narrative, they’re going to go about their treatment and intervention in a certain way. So I think that it’s imperative that the people working with the mother have access to a more balanced account of what her life may have comprised to this point.
Accordingly, I will make an order permitting both parties to provide Dr K’s report to any psychiatrist, psychologist or counsellor they attend upon for treatment or support.
Interim orders
Rule 5.01 of the Rules provides that upon the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect. I will nevertheless make an order confirming this is the case, so it is clear for the parties and to any third party who may have been provided with copies of the 2022 final orders or interim orders made in this proceeding.
Relationship with family violence orders
I do not find the order sought by the father and independent children’s lawyer pursuant to sections 68P and 68Q of the Act is necessary given the intervention orders in place at the time of the final hearing prohibited only family violence and the damage of property. There is therefore no inconsistency between those orders and the orders I make. I also note the intervention orders were due to expire in mid-2024 which has now passed and neither party has filed a further family violence order pursuant to rule 2.10 of the Rules.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in X’s best interests and make orders in those terms.
I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 23 October 2024
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