Pinto & Beringer - [2022] FedCFamC2F 1572

Federal Circuit and Family Court of Australia
(DIVISION 2)
Pinto & Beringer [2022] FedCFamC2F 1572

File number(s): PAC 5106 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 November 2022

Catchwords: FAMILY LAW – Parenting – Best interests of child – Orders made

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA

Division: Division 2 Family Law

Number of paragraphs: 218

Date of hearing: 31 October 2022 – 2 November 2022

Place: Parramatta

Counsel for the Applicant: Ms Ryan

Solicitor for the Applicant: Rafton Family Lawyers

Counsel for the First Respondent: Mr Flanigan

Solicitor for the First Respondent: Grant & Co

For the Second Respondent: The Second Respondent did not appear

Counsel for the Independent Children’s Lawyer: Ms Stolier

Solicitor for the Independent Children’s Lawyer: Holmes Donnelly & Co Solicitors
ORDERS

PAC 5106 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PINTO

Applicant

AND:
MR BERINGER

First Respondent

MS RAVENNA

Second Respondent

Order made by:

JUDGE NEWBRUN

DATE OF ORDER:

16 NOVEMBER 2022

THE COURT NOTES THAT:
A.“Father” means MR BERINGER born in 1992.
B.“Mother” means MS PINTO born in 1992.
C.“Child” means X born in 2013.

THE COURT ORDERS THAT:
1.The Father shall have sole parental responsibility for the child X born in 2013.

Sole parental responsibility with consultation with the other parent
2.Notwithstanding Order 1, the Father shall:
(a)Where practicable, inform the Mother (by email or text message) at least 21 days before making decisions about any of the following matters:
(i)Any change in the child’s school(s);
(ii)Any non-emergency or serious medical treatment the child is to undergo; and
(iii)Any proposed relocation of the residence of the child that is more than 30 kilometres from their residence.

(b)Any response from the Mother must be provided to the Father in writing (by email or text message) within 14 days of receipt of the Father’s information;
(c)The Father must consider the Mother’s views in exercising his parental responsibility before making any such decision concerning the child.

Living Arrangements
3.The child live with the Father.
4.The child spend time with the Mother as follows:
School Term
(a)From 4.30pm Friday until 4.30pm Sunday, commencing the first Friday following the date of these Orders and continuing each alternate week thereafter;
(b)That the time the child is to live with the Father pursuant to Order 4(a) shall be suspended during all school holiday periods and the time arrangements set by Order 4(a) shall recommence from the first day of each new school term as defined by these Orders. Upon the commencement of each new school term, the Week 1 and Week 2 cycles shall recommence in the same sequence as it existed and applied prior to the commencement of the school holiday period and as if the sequence had not been interrupted or suspended by the school holiday period (ie the sequence had been continuous throughout the school holiday period).

School Holidays
(c)For one half of the school holiday periods as agreed between the parties and failing agreement the child shall spend time with the Mother for the second half in odd numbered years and the first half in even numbered years;
(d)For the purposes of this Order:
(i)The school holiday periods will be those that apply at the school the child is attending at the relevant time;
(ii)For the purposes of calculating the changeover day in school holidays, the last day of the school term will be the first day of the school holiday period and the last full day before the new term recommences (including pupil free days) will be the last day. The midpoint of the school holidays will be 5.00pm on the middle day. If there are an even number of days in the school holiday period, the middle day will be the first of the middle days.

Special Occasions
(e)The child shall spend time with the Mother on the following special occasions if the child is not already in the Mother’s care:
(i)From 9.00am until 5.00pm Mother’s Day;
(ii)From 12.00pm on Christmas Eve until 12.00pm Christmas Day in even number years;
(iii)From 12.00pm Christmas Day until 12.00pm Boxing Day in odd numbered years;
(iv)From 9.00am on Good Friday until 5.00pm on Easter Saturday in odd numbered years;
(v)From 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
(vi)From 9.00am to 1.00pm on the child’s birthday in even numbered years;
(vii)From 1.00pm to 5.00pm on the child’s birthday in odd numbered years;

(f)At any other time agreed between the parties.

5.The child shall spend time with the Father on the following special occasions if the child is not already in the Father’s care:
(a)From 9.00am until 5.00pm Father’s Day;
(b)From 12.00pm on Christmas Eve until 12.00pm Christmas Day in odd number years;
(c)From 12.00pm Christmas Day until 12.00pm Boxing Day in even numbered years;
(d)From 5.00pm Good Friday until 5.00pm on Easter Saturday in even numbered years;
(e)From 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years;
(f)From 9.00am to 1.00pm on the child’s birthday in odd numbered years;
(g)From 1:00pm to 5:00pm on the child’s birthday in even numbered years.

CHANGEOVER
6.For the purposes of this Order, the Mother shall collect the child from Suburb I McDonalds at the commencement of her time and the father shall collect the child from Suburb I McDonalds at the conclusion of the Mother’s time.

COMMUNICATION
Phone time
7.The Mother shall be at liberty to communicate with the child via video chat (or simple telephone call):
(a)Each Wednesday from 7.00pm to 7.30pm;
(b)In the weeks that the Mother does not spend time with the child on Tuesday and Thursday from 7.00pm until 7.30pm; and
(c)When the child wishes to speak with the Mother.

8.Both parties shall facilitate any request by the child to telephone the parent with whom they are not currently spending time.
9.For the purposes of Orders 7 and 8 herein:
(a)The parties shall ensure that the device which the other parent uses to call the child is on, charged and placed in an area with reception;
(b)The parties shall ensure that the child is afforded privacy during the phone call;
(c)The telephone calls not occur by way of speaker phone;
(d)Should the child be unavailable during this time the parties shall ensure the child return the other parent’s phone call later that evening or if not reasonably practicable the following evening.

Communication between the parties
10.The parties are to communicate matters pertaining to the care, welfare or development of the child as follows:
(a)By telephone in the case of emergency or pressing but non-emergency issues;
(b)By short factual text message for day-to-day issues.

EXCHANGE OF INFORMATION
11.Each party advise the other party and keep the other party advised of their current address and contact numbers (including both landline and mobile phone numbers if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
12.The parties shall ensure that the other is kept informed of:
(a)Any medical problems or illnesses suffered by the child while in their care;
(b)Any medication that has been prescribed for the child and shall ensure the other party is provided with this medication while the child is in the other party’s care;
(c)Any social, school, or religious functions which the child is to attend.

13.The parties shall each inform the other party in writing as soon as practicable of any specialist medical appointments with any medical consultant, psychologist, psychiatrist, counsellor, or therapist (hereinafter referred to as “consultant”) in relation to the child.
14.Each party shall do all acts and all things to ensure that the other party is provided with all reports by any such consultant.
15.The other party be permitted to attend on such appointments, such attendance or attendance to be at the sole discretion of any such consultant.
16.Within 14 days of the child’s subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
17.Within 14 days of the child’s subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of the child’s school photos at the Mother’s own cost.
18.During any periods referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital and that both parents shall be permitted to attend upon the medical facility the child is attending as a result of her medical condition irrespective whether the child is in their care pursuant to these Orders.

RESTRAINTS
Non-Denigration
19.The Mother is restrained from denigrating the Father or the paternal family in the presence or hearing of the child and shall ensure that no other person denigrates the Father or the paternal family in the presence or hearing of the child.
20.The Father is restrained from denigrating the Mother or the maternal family in the presence or hearing of the child and shall ensure that no other person denigrates the Mother or the paternal family in the presence or hearing of the child.

Discipline
21.The parties be restrained from physically disciplining the child or allowing or authorising any third party to physically discipline the child.

Drugs/Prescription mediation
22.The parties are restrained from consuming any prescription medication not prescribed to them whilst the child are in their care or for 12 hours prior the child coming into their care, and will remove the child from any place where a third party is under the influence of illicit substances/prescription medication not prescribed to them.

Alcohol
23.The parties are restrained from consuming alcohol 12 hours prior to the child coming into their care and at all times the child are in their care.
24.The parties are restrained from consuming alcohol whilst the child is in their care to an extent that they would not legally be able to drive a motor vehicle, and will remove the child from any place where a third party has consumed alcohol to an extent where they would not legally be able to drive a motor vehicle.

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

This final parenting hearing relates to the child X, born in 2013. She is now aged nine years. She is in Year 4 at the C Public School.
On 12 August 2016, Final Parenting Orders were made in this Court, inter alia, that the Father have sole parental responsibility for the child; the child live with the Father; that the child spend certain time with the Maternal Grandmother; the child spend time with the Mother at times agreed between the Mother and the Maternal Grandmother and failing agreement during the daytime on a certain basis (initially on Saturdays and then alternate Saturdays).
On 18 December 2019, the Mother having commenced fresh parenting proceedings on 17 October 2019, by consent, Interim Parenting Orders were made suspending certain Orders of the above Final Parenting Orders (in particular the time-with Orders between the child and the Maternal Grandmother and Mother, but not the Father’s sole parental responsibility Order); that the child spend time with the Mother each alternate weekend from Friday 3.00pm until Sunday at 3.00pm, together with half school holidays, telephone contact, and on other special occasions; and that the Maternal Grandmother spent time with the child during times of the Mother is spending time with the child.
On 29 May 2020, orders were made dismissing the Mother’s application, inter alia, that the Father cause the child to be relocated back to the Sydney metropolitan area. This application had been made by the Mother by reason of the relocation of the child’s residence to the Area B by the Father.
Proposals
The Mother sought parenting orders as follows:
1.        The mother have sole parental responsibility of the Child.
2.        The child live with the mother.
3.        The child shall spend time with the father as follows:
a.Each alternate weekend from Friday at 4:30pm until Sunday at 4:30pm;
b.The parties shall notify the other party with plenty of notice if they wish to change contact times or days, but failing agreement, then as Orders state.
c.For the NSW school holiday period following terms 1, 2 and 3 for the first half or as agreed between the parties in writing failing agreement then as Orders state.
d.For the NSW school holiday period following term 4 as agreed between the parties in writing but failing agreement:
i.In odd numbered years - for the second half, commencing at 2pm 10 January and concluding 3pm on 26 January;
ii.In even years - for the first half commencing at 4:30pm on the Sunday following the child s last day of school attendance for the term and concludes at 2pm on 10 January.
e.        Christmas:
i.In even numbered years - from 12 noon on Christmas Day until 12 noon on 27 December.
ii.In odd numbered years - from Christmas Eve from 12 noon until 12 noon on Christmas Day.
f.        Child’s birthday - in accordance with Order 3(d)(i) above, as follows:
i.in even numbered years, until 2pm on 10 January;
ii.In odd years, from 2pm on IO January.
g.For a period of 3 hours on the child’s birthday as agreed between the parties but failing agreement from 3pm until 6pm.
h.On Father’s Day from 9am until 5pm;
i.Easter - as agreed between the parties but failing agreement:
i.In odd numbered years, from 9am on Good Friday until 5pm Easter Sunday in odd numbered years; and
ii.In even numbered years, from 5pm Easter Sunday until 5pm Easter Monday.
j.At any other times as agreed between the mother and father in writing.
k.Child’s half-brother Z’s birthday - the child is to spend time with her brother on his birthday. In the event that Z’s birthday falls after the finishing of term 4, the child is to remain in the mother’s care until after Z’s birthday.
4.        Mother’s time over Christmas -
i.In even numbered years - from Christmas Eve from 12 noon until 12 noon on Christmas Day.
ii.In odd numbered years - from 12 noon on Christmas Day until 12 noon on 27 December.
5.For the purpose of changeover, the father shall collect the child from Suburb I McDonalds at the commencement of his time and the mother shall collect the child from Suburb I McDonalds at the conclusion of the father’s time. The father shall be restrained from approaching the home including any time outside the changeover.
6.        The father shall have video chat with the child as follows:
a.Each Wednesday from 7pm until 7:30pm.
b.ln the weeks he does not spend time with the child in accordance with Order 3(a), on Tuesday and Thursday from 7pm until 7:30pm or when the child wishes to speak with her father.
7.The parties shall not consume alcohol to such level above 0.05 during the 12-hour period prior to the child coming into their care and for the duration of the time that the child is spending ·with them.
8.The parties are prohibited from using any illicit substances during the 72 hours prior to the child coming into their care and for the duration of the time that the child is spending with them.
9.        Each of the parties are restrained from using physical discipline on the child.
10.The mother shall authorise any school that the child may attend to provide information to the father about the child’s progress at school, including copies of school reports, photographs, newsletters, and other general information about the child’s attendance at school. The father is responsible for obtaining the information and records from the school following the mother authorising the father to access this information.
11.      The father is not to pick the child up from school.
12.The mother shall use her best endeavours to communicate with the father before making any major decisions in relation to the child’s education or health.
13.The parties shall ensure that the other is kept informed of the following information in relation to the child:
a.Any serious medical problems or severe illnesses suffered by the child whilst they are in their care.
b.Any medication that has been prescribed to the child, and the reason for such medication.
c.Any treatment that is required to be undertaken for the child.
d.Any social, school or religious functions that the child is to attend from time to time.
e.The residential address and any changes to such details within 24 hours.
14.For the purposes of communicating information between the parties, parties shall communicate by way of Facebook Messenger about matters relating strictly to the child.
15.That each party refrain from making critical and derogatory remarks in relation to the other parties in the presence of hearing of the child and that each party shall do all things necessary to ensure that no third party makes any such critical or derogatory remarks about the other parties in the presence or hearing of the child.
16.Parties are to engage and complete a Parenting Orders Program, such as the [AL Counselling] “Parenting Orders Program”.
The Independent Children’s Lawyer (“ICL”) sought parenting orders as follows:
RECITALS AND DEFINITIONS:
A.       “Father” means [Mr Beringer] born [in] 1992.
B.       “Mother” means [Ms Pinto] born [in] 1992.
C.       “child” means [X] born [in] 2013.
D.The Mother and Father commenced cohabitation in June 2011. Final separation occurred 1 March 2013.
E.The parties consent to the making of the following Orders and to those Orders being of the same force and validity as if they had been made after a hearing by the Court.
BY CONSENT IT IS ORDERED THAT:
PARENTING
1.The Father shall have sole parental responsibility for the child [X] born [in] 2013.
Sole parental responsibility with consultation with the other parent
2.        Notwithstanding Order 1, the Father shall:
2.1.where practicable, inform the Mother (by email or text message) at least 21 days before making decisions about any of the following matters:
2.1.1.any change in the child’s school(s);
2.1.2.any non-emergency or serious medical treatment the child is to undergo; and
2.1.3.any proposed relocation of the residence of the child that is more than 30 kilometres from their residence.
2.2.any response from the Mother must be provided to the Father in writing (by email or text message) within 14 days of receipt of the Father’s information;
2.3.the Father must consider the Mother’s views in exercising his parental responsibility before making any such decision concerning the child.
Living Arrangements
3.        The child live with the Father.
4.        The child spend time with the Mother as follows:
School Term
4.1.From the 4.30pm Friday until 4.30pm Sunday, commencing the first Friday following the date of these Orders and continuing each alternate week thereafter.
4.2.That the time the child is to live with the father pursuant to Order 4.1 shall be suspended during all school holiday periods and the time arrangements set by Order 4.1 shall recommence from the 1st day of each new school term as defined by these Orders. Upon the commencement of each new school term, the week 1 and week 2 cycles shall recommence in the same sequence as it existed and applied prior to the commencement of the school holiday period and as if the sequence had not been interrupted or suspended by the school holiday period (i.e. the sequence had been continuous throughout the school holiday period).
School Holidays
4.3.For one half of the school holiday periods as agreed between the parties and failing agreement the child shall spend time with the Mother for the second half in odd numbered years and the first half in even numbered years
4.4.For the purposes of this Order:
4.4.1.The school holidays periods will be those that apply at the school the child is attending at the relevant time.
4.4.2.For the purposes of calculating the changeover day in school holidays, the last day of the school term will be the first day of the school holiday period (Day 1) and the last full day before the new term recommences (including pupil free days) will be the last day (last Day). The midpoint of the school holidays will be 5.00pm on the middle day. If there are an even number of days in the school holiday period, the middle day will be the first of the middle days.
Special Occasions
4.5.The child shall spend time with the Mother on the following special occasions if the child is not already in the Mother’s care:
4.5.1.From 9:00am until 5:00pm Mother’s Day.
4.5.2.From 12:00pm on Christmas Eve until 12:00pm Christmas Day in even number years.
4.5.3.From 12:00pm Christmas Day until 12:00pm Boxing Day in odd numbered years.
4.5.4.From 9:00am on Good Friday until 5:00pm on Easter Saturday in odd numbered years.
4.5.5.From 5:00pm Easter Saturday until 5:00pm Easter Monday in even numbered years.
4.5.6.From 9:00am to 1:00pm on the Child’s birthday in even numbered years.
4.5.7.From 1:00pm to 5:00pm on the Child’s birthday in odd numbered years.
4.6.At any other time agreed between the parties.
5.The child shall spend time with the Father on the following special occasions if the child is not already in the Father’s care:
5.1.From 9:00am until 5:00pm Father’s Day.
5.2.From 12:00pm on Christmas Eve until 12:00pm Christmas Day in odd number years.
5.3.From 12:00pm Christmas Day until 12:00pm Boxing Day in even numbered years.
5.4.From 5:00pm Good Friday until 5:00pm on Easter Saturday in even numbered years.
5.5.From 5:00pm Easter Saturday until 5:00pm Easter Monday in odd numbered years.
5.6.From 9:00am to 1:00pm on the Child’s birthday in odd numbered years.
5.7.From 1:00pm to 5:00pm on the Child’s birthday in even numbered years.
CHANGEOVER
6.For the purposes of this Order, the mother shall collect the child from [Suburb I] McDonalds at the commencement of her time and the father shall collect the child from [Suburb I] McDonalds at the conclusion of the Mother’s time.
COMMUNICATION
Phone time
7.The parties are at liberty to communicate with the child at all reasonable times and failing agreement each Wednesday from 7:00pm to 7:30pm.
8.Both parties shall facilitate any request by the child to telephone the parent with whom they are not currently spending time.
9.        For the purposes of Orders 7 and 8 herein:
9.1.The parties shall ensure that the device which the other parent uses to call the child is on, charged and placed in an area with reception.
9.2.The parties shall ensure that the child is afforded privacy during the phone call.
9.3.The telephone calls not occur by way of speaker phone.
9.4.Should the child be unavailable during this time the parties shall ensure the child return the other parent’s phone call later that evening or if not reasonably practicable the following evening.
Communication between the parties
10.The parties are to communicate matters pertaining to the care, welfare or development of the child as follows:
10.1.By telephone in the case of emergency or pressing but non-emergency issues,
10.2.By short factual text message for day-to-day issues.
EXCHANGE OF INFORMATION
11.Each party advise the other party and keep the other party advised of their current address and contact numbers (including both landline and mobile phone numbers if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
12.      The parties shall ensure that the other is kept informed of:
12.1.Any medical problems or illnesses suffered by the child while in their care;
12.2.Any medication that has been prescribed for the child and shall ensure the other party is provided with this medication while the child is in the other party’s care.
12.3.Any social, school, or religious functions which the child is to attend.
13.The parties shall each inform the other party in writing as soon as practicable of any specialist medical appointments with any medical consultant, psychologist, psychiatrist, counsellor, or therapist (hereinafter referred to as ‘consultant’) in relation to the child.
14.Each party shall do all acts and all things to ensure that the other party is provided with all reports by any such consultant.
15.The other party be permitted to attend on such appointments, such attendance or attendance to be at the sole discretion of any such consultant.
16.Within fourteen (14) days of the child’s subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
17.Within fourteen (14) days of the child’s subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of the child’s school photos at the Mother’s own cost.
18.During any periods referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital and that both parents shall be permitted to attend upon the medical facility the child is attending as a result of her medical condition irrespective whether the child is in their care pursuant to these Orders.
RESTRAINTS
Non-Denigration
19.The Mother is restrained from denigrating the Father or the paternal family in the presence or hearing of the child and shall ensure that no other person denigrates the Father or the paternal family in the presence or hearing of the child.
20.The Father is restrained from denigrating the Mother or the maternal family in the presence or hearing of the child and shall ensure that no other person denigrates the Mother or the paternal family in the presence or hearing of the child.
Discipline
21.The parties be restrained from physically disciplining the child or allowing or authorising any third party to physically discipline the child.
Drugs/Prescription mediation
22.The parties are restrained from consuming any prescription medication not prescribed to them whilst the child are in their care or for 12 hours prior the child coming into their care, and will remove the child from any place where a third party is under the influence of illicit substances/prescription medication not prescribed to them.
Alcohol
23.The parties are restrained from consuming alcohol 12 hours prior to the child coming into their care and at all times the child are in their care.
24.The parties are restrained from consuming alcohol whilst the child is in their care to an extent that they would not legally be able to drive a motor vehicle, and will remove the child from any place where a third party has consumed alcohol to an extent where they would not legally be able to drive a motor vehicle.
(emphasis in original)

The Father adopted the ICL’s proposed Minute of Order.
Material relied upon
The Mother relied upon the following documents:
(a)Her Amended Case Outline filed 28 October 2022;
(b)Her Affidavit filed 18 March 2022.
The Father relied upon the following documents:
(a)His Case Outline filed 28 October 2022;
(b)His Affidavits filed 31 March 2022 and 17 October 2022.
The ICL relied upon the following document:
(a)Family Report of Ms J dated 23 August 2021.
The following documents became Exhibits:
(a)Exhibit A: Family Report dated 23 August 2021 and Child Inclusive Conference Memorandum dated 14 May 2020;
(b)Exhibit B: Semester 1 2022 School Report;
(c)Exhibit C: Mother’s Residential Tenancy Agreement;
(d)Exhibit D: Father’s Tender Bundle
(i)Mother’s criminal history, pages 1–2;
(ii)Pathology test results, page 15;
(e)Exhibit E: Mother’s Tender Bundle;
(i)Father’s criminal history, pages 1–8;
(ii)Text message from the Father to the Mother regarding the child not living with her, pages 22–23;
(iii)Text message from the Father to the Mother regarding her contacting the child’s school, pages 24–27.
Evidence
In the determination of this case the Court has had regard to all of the written evidence referred to above, together with the oral evidence given by each of the parties and the Family Report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the s 60CC considerations (ie s 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). Evidence referred to under the s 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
The Mother’s Affidavit
The Mother is 30 years of age. The Father is aged 29 years.
In the Mother’s Affidavit she describes her usual occupation as home duties.
The Mother has a child from another relationship, namely Z, born in 2015. This child lives with the Mother. The Father of Z is Mr K. The Mother and Mr K were in a relationship from about December 2014 until February 2016. Mr K was incarcerated for 18 months following an assault on the Mother on 14 February 2016. Mr K has had contact with Z since April 2020.
The parties’ relationship commenced in about 2011. The parties separated in about March 2013.
The Mother suffered postnatal depression. In about August 2013 the Maternal Grandmother could tell the Mother was struggling and spoke with the Mother about the child coming to live with her. The Maternal Grandmother lives five minutes down the road from the Mother and she visited the child every day and would usually be there for at least a few hours. The child lived with the Maternal Grandmother until August 2016 when final Orders were made, inter alia that the child live with the Father.
After the child commenced school, the child’s alternate weekend time with the Maternal Grandmother started on the Friday and finished on the Sunday. The child also spent the first half of the short school holidays with the Mother and in the Christmas holidays the child spent time with the Mother for a three-week block at the beginning of the school holidays.
In April 2019 the Mother received a series of text messages, photos and video messages from the Father through Facebook. The Mother contacted the police and an ADVO was issued for the Mother’s protection and naming the Father as the defendant. This order was in place until 30 April 2021.
The Mother asserts that during the first set of proceedings she acknowledges she was not in a place to take an active part in the proceedings and seek that the child live with her. She states that at the time, she had just given birth to Z and was in a toxic relationship with Mr K which she was trying to get out of, and she knew at the time that it would not have been in the child’s best interests to live with her at that stage.
X and Z have a close and loving relationship.
X also has a very close with her maternal family. She is very close with the maternal aunt, Ms L, aged 36. Ms L’s daughter, M (aged 17) and X have a close relationship and get along very well.
The Mother lives with Ms L, her partner, and their child in Suburb E New South Wales. She sees the child every fortnight.
The Mother is not currently working and she is in receipt of a Centrelink benefit. She does not currently pay child support.
The Mother is engaged in the community as she is the manager for Z’s sports team.
In the statutory declaration of Ms L dated 8 February 2022 she states, inter alia, that the child has a phone and will use Kids Messenger to video call the Mother regularly.
The Father’s Affidavits
When the Mother went into labour with the child the Father was a farm worker.
At about the time of separation, in about March 2013, there was an incident between the parties that led to an ADVO being made against the Father. The Father had a breakdown due to the relationship failure and was not coping at the time.
When X was about seven months old, the Father was able to re-commence time with X which was supervised by the Maternal Grandmother. These visits were weekly for about one to two hours. This occurred for about six months. The parties attended mediation and then the Father commenced spending unsupervised time with X each week. The Father commenced the Court proceedings and sought for X to live with him as he found out X was not living with the Mother.
Following the making of the Final Parenting Orders on 12 August 2016 X commenced living with the Father.
X commenced Kindergarten in January 2018, and when this occurred the Mother’s time with X changed to every second weekend and half of the school holiday periods. The Father also ensured that the Mother and X spoke on the phone almost every second day. They spoke two to three hours per week on average. The Father believes it is important for X and her Mother to remain in communication.
X is currently in Year 4 at C Public School. X is doing well at school. She had some settling issues in 2020 but worked through these. She has made lots of friends at her school. She is a member of the Students’ Representative Council and both she and the Father are proud of this achievement. The Father is involved in X’s school and attends dance performances, assemblies, book week, parent teacher interviews, Easter Hat Parades and discos among other events. The Father has informed the Mother about these events and she also attends most of these events.
The Father has given X’s school permission to discuss events with the Mother. The Father has provided the school with a copy of the Interim Orders from the current proceedings so they were aware of the parenting arrangements.
X does well in her school work. She has received many awards from her classes. The Father believes X has not missed any days of school this year. She missed about five days of school late last year due to the COVID-19 pandemic and being required to isolate as the Father and child were close contacts. X’s reports are positive. During the lockdowns last year X was home-schooled for about three months.
In 2018, X and the Father attended Event N every Wednesday. X really enjoyed this. The Father regularly takes X to the park after school as her friends are there and they play together.
The Father has his driver’s licence and has a new vehicle which is reliable. The Father and child spend time at Town O with family. X enjoys these trips. X also enjoys going to the beach which is about ten minutes from our home.
X attends music lessons and dancing classes. She is doing well in both and enjoys her lessons.
On 1 March 2020, the Father moved with X to the C area, with the Father’s lease commencing on 2 March 2020. The Father signed a six month lease and he has recently signed a 12 month lease for their home which we moved into in about seven months ago. The home is a two bedroom house which is brand new. It has all the usual amenities including a kitchen, and personal items are all set up in the child’s room. The Father pays $375 per week rent. The Father paid a bond of $1,300 and two weeks in advance for the rent. The Father and child live close to the local shopping centres, parks and other community facilities.
The Father made the decision to move to the Suburb C area for a few reasons including issues in the Town D area, having family and friend support in Suburb C and work opportunities in the area.
The Father has a lot of family in the Suburb C area including his mother and siblings, his pop, his aunty and cousins and his nan. All of his family live within less than a five minute drive from his home.
X is very close with the Father’s family members. The Father’s mother has two of his siblings living with her, Mr Q aged 18 years old and R aged 11 years old. She also has a child S aged nine months old whom she has guardianship for after fostering him. X and R are very close and they attend the same school.
As the Father and child frequently attended Suburb C in the two years prior to their move, X made a lot of friends with his family members’ neighbours’ children. When they moved X was excited to be moving and to see her friends more often. Since they have moved X spends time with her friends very regularly and has settled into school well.
X has made friends in the area that also attend her school. X’s school is about a minute drive from their home.
The Father attempted to enrol X last year in sports but due to COVID-19 it did not go ahead. There were not enough children to play and the lockdowns effected games and training. The Father will look into enrolling X this year to play if she still would like to play. They would often go and shoot goals together prior to the move. They have a large driveway at their new home and often play basketball together out the front of their home.
The Father continues to have a close and loving bond with his father, Mr T, who lives in Suburb U despite their move to Suburb C. The Father continues to have regular contact with him.
The Father’s current work requires him to operate machinery and he is subject to random drug testing as well as having to complete an alcohol breath test each morning. The Father has had one random drug test since he has been at this work place and he has never had any issues as a result of these testings.
The Father attended and completed the Talking with your Kids Seminar run through The Keeping Contact Program at V Family Services on 10 August 2015.
The Father is employed by Employer W at Town Y on a casual basis. He works full time hours from 7.00am until 3.00pm, Monday to Friday. He also does weekend work on the weekends X is with the Mother. The Father earns about $2900 per fortnight.
X has been attending C Public School for approximately two years and she has made significant friends with her fellow students and has formed a good relationship with her teachers, especially Mr AB.
X often visits her fellow students’ homes, and those students also participate in visiting X at our premises.
X also engages in sport at school. She enjoys playing football, and other sports which she plays with her friends and other fellow students who are in her age group.
X also enjoys playing and practicing with her musical instrument.
X also enjoys participating in outdoor activities, such as camping and in particular, surfing and beach trips and X has her own surfboard.
X also likes visiting a weekend paternal family home which is situated in the township of Town O in the Region AC of NSW and she and the Father attend there every school holidays with other extended family members.
X also has a strong attachment to her great grandmother (“Ms AD”). X refers to her great grandmother as “nan”.
X had a good relationship with her grandfather (“Mr AE”) who has recently passed away.
X attends upon her GP at Suburb C Family Medical Practice and she has no major medical issues at this point in time. She has been attending there for approximately two years.
The Father does all the washing, cooking, cleaning and household chores. He also prepares X’s school lunch and drink for her attendance at school every day of the school week.
The Father’s employment is stable and he is looking to stay with his current employer for the long term.
X starts school at approximately 9.00am and finishes at approximately 3.30pm.
Before the Father goes to work, he drops X off at his mother’s (“Ms AF’s”) house and she drops X to school. His mother also lives in Suburb C which is a short distance from his home. When the Father finishes work, he picks X up from after-school day care.
Ms AF, also has an adopted child by the name of “S” who is three years of age. X has a good relationship with S.
Ms AF, also has a partner named “Mr AG” and X has formed a good relationship with him, as she sees him constantly whilst she is in the company of Ms AF.
The Father also attends the same medical practice as X, and currently the Father does not take any prescribed medication.
In the time that X has been living with the Father, she has enjoyed a stable and loving environment in which she has formed strong and close family relationships with the Father and his extended family members.
X is thriving developmentally, in the absence of any violence or immediate danger. She has a greater support network where she is currently living, in comparison to her previous residence.
X is well-settled in her school routine and has also formed strong relationships with her fellow students and teachers.
X has informed the Father that she enjoys going to school and she enjoys the interaction with her fellow students and teachers.
X wants to stay at the same school and she looks forward to attending Year 5 at that school next year.
The Mother’s oral evidence
The Mother’s child Z spends every second weekend with his father Mr K; on such weekend the child is not spending time with the Mother.
The Mother stated that last year she spent most of each school holiday period with the child.
The Mother stated that the parties use Messenger or Facebook as the primary method of communication.
The Mother agreed that she had previously sent messages to the Father raising her concerns in relation to the child.
The Mother agreed that she had sent no messages to the Father raising her concerns in relation to her allegations that: the Father had left the child in his car by herself; that the Father drives his car really fast when the child is in the car with him; that the Father drinks beers when the child was upstairs in her room and that the child has seen the Father sitting on the couch with many beer bottles around him; that the child had written a diary entry stating she did not love the Father; that the Father tells the child to hurt Z; and that the child has told the Mother that she feels uncomfortable when she goes to the paternal grandmother’s home.
The Mother stated she has a driver’s licence but she does not own her own car. She borrows her sister’s car.
The Mother accepted that the child, during the school week, goes to the home of the paternal great grandmother at about 6.00am.
The Mother stated that she attends changeovers and that she usually takes her sister or M with her.
In relation to the Mother’s alleged concerns about the Father’s temper and anger issues the Mother agreed that there have been no incidents involving the Father exhibiting temper and anger upon the child.
The Mother stated that the changeover time has remained at 4.30pm.
The Mother was asked whether there would be any disadvantage to the child leaving the Father’s home to live with the Mother. The Mother stated that the only disadvantage would be the transition of the child in these circumstances. She stated that it may or may not take a toll on her.
The Mother was asked whether there would be a disadvantage to the child, if she was to now live with the Mother, in respect to contact with the Father, the paternal grandmother, and the child’s existing friends being decreased to every alternate weekend, together with a change of school. The Mother replied by stating, “To a point, yes, I do.” She explained this answer by stating that the child would lose friends but would make friends and make them easily.
The Mother stated that she proposed, should the child live with her, that the child attend Suburb E Public School, where the child Z attends.
The Mother stated that the child had attended the Town D Public School in Kindergarten, Year 1 and Year 2. She stated that during school holidays the child sees her friends from this former school.
The Mother stated she attended school to Year 10. She had previously worked in full-time employment. She presently has plans to work in employment, including community service employment, and she stated that she has previously carried out hospitality work. She proposes to begin with part-time employment and hopefully progressing to full-time employment. She proposes to purchase a car after she obtains employment.
The Mother stated that over the last year the child had spent most of the school holidays with her as compared to the Father because the Father was working.
The Mother stated that sometimes the parties can agree to vary existing parenting orders. She stated that communication between the parties is by text messages most of the time.
The Mother stated that presently her preference would be for the child to attend AJ high school or AK high school.
The Mother stated that on occasion she speaks to the Father about the child’s medical treatment.
The Mother stated that sometimes at changeovers there is a discussion between the parties about the child.
It was suggested to the Mother that there had been no conflict between the parties over the past 12 months. The Mother stated in reply that it was more like bickering before an argument starts but she is quick to shut any argument down. The Mother agreed that there had been no domestic violence since the parties separated, however there had been one incident relating to inappropriate text messages sent by the Father to the Mother in 2019 and which had led to an ADVO against the Father. The Mother stated that since those inappropriate text messages there had been occasions when the Father had been rude to her; for example the Father spoke to the Mother abruptly when she indicated she wanted to take the child to a doctor.
The Mother stated that (post separation) the Father had not acted physically in any way towards her.
The Mother was asked whether the paternal grandmother was an important person in the child’s life. In reply, the Mother stated that she guesses so and stated that the paternal grandmother does a lot for the child, including pickups and childminding. The Mother stated that the child has a good relationship with the paternal grandmother. She stated it was important for the child to keep that relationship. If the child was living with the Mother, the Mother stated that the child would miss the paternal grandmother but she would have the opportunity to message or call the paternal grandmother whenever she liked.
It was suggested to the Mother that the child might have difficulty in transitioning to living with the Mother. In reply, the Mother stated that living with the Mother for the child would be a whole new environment for her. The Mother stated that the child was so used to coming to the Mother’s house on weekends. She stated that the child may or may not struggle with that transition. The Mother stated that she had made an enquiry with AL Counselling as to counselling assistance for the child relating to any transition.

The Mother was asked whether she still had any concern regarding the Father’s consumption of alcohol. In reply, the Mother stated that she did not have as much concern anymore because the child had not said anything about that to her.
The Father’s oral evidence
The Father stated that one of the reasons he had for moving to the Area B was to be closer to his extended family. He stated that next door to his home the child’s paternal great-grandmother lives; Ms AM was aged in her late 60s. She lives on her own. The child’s paternal great-grandfather, Mr AE, also aged in his late 60s, lives about 1 kilometre away. The child’s paternal grandmother, Ms AF, aged 49 years, lives 1 kilometre away. She lives with her husband, Mr AG, also aged 49 years. The paternal grandmother, who works full-time as a support worker from home, adopted a child about three years ago and that child is aged three years. Also living with the paternal grandmother is the Father’s stepsister aged 14 years, and stepbrother aged 19 years.
The Father stated that the child, during the school week, is woken shortly before 6.00am. By that time the Father has made the child’s lunch and prepared her school clothes. The Father leaves home the child at about 6.00am and at about 6.10am drops the child off at the home of the paternal grandmother where the child is put to sleep by the Father. The child later wakes up just before 8.00am at the home of the paternal grandmother. The child finishes school at 3.00pm. She goes to after-school care to about 4.30pm when the Father picks her up. The Father’s workplace is at Town Y which is a drive time of about 50 to 55 minutes from Suburb C.
The Father was questioned as to the child speaking to an adult about menstruation. The Father stated that the child could speak to a female including the Mother; the Father stated that the Mother was probably the best person for the child to speak to in this regard.
The Father stated that the child speaks with the Mother on most days through Kids Messenger.
It was suggested to the Father that it was selfish of him to relocate with the child to the Area B. He disagreed with this suggestion. He stated that in the bigger scheme of things it was necessary. He stated that before relocating he did think of the impact of relocation upon the child. In this context the Father stated that the child still spends the same time with the Mother however school was the biggest change for the child. The Father stated that he had thought of the child moving away from school friends and stated that the child was still in touch with an old school friend on Kids Messenger and the Father still speaks to that friend’s mother.
The Father stated that he also relocated for work reasons having obtained an employment opportunity. The Father stated that he obtained an industrial equipment license about two months before his current employment commenced. This employment commenced about 18 months ago. The Father stated that before relocating he had been looking for labouring jobs in Sydney and he had made countless job applications.
The Father confirmed that the paternal grandfather lives in Suburb U. He has a good relationship with him. The child has a relationship with the paternal grandfather whom she sees in the school holidays. The paternal grandfather is married to Ms AD. Ms AD has a child AN with whom the child has a good relationship.
The Father stated he works a six-day week; when the child spends time with the Mother he works on a Saturday.
The Father stated that over the last year the child’s school holidays were shared between himself and the Mother although there were a few holidays where the child spent most of the time with the Mother. He disagreed with the Mother’s oral evidence that over the last year the child had spent most of her school holidays with the Mother. He stated that the last two long Christmas school holidays the child has spent time with each parent equally. He stated that there would be no problems in the child spending equal time with each parent during the next Christmas holidays.
The Father stated that it would be traumatic for that child to now live with the Mother. In this context, he stated that the child would blame the Father for not doing anything and it would severely damage his relationship with the child. He stated that the child does not want to live with the Mother. He stated that the child has never told him that he wants to live with the Mother.
The Father stated that the child has experienced a “settling in” period at her present school. As to the child’s present friends in C, the Father referred to the child’s friends; AO, in Year 5, and AP in Year 4, who live behind them.
The Father stated the child has music lessons on Wednesdays and Fridays at 8.00am. She has been doing this for the last eight months and enjoys it. She practices at home. She has her own music.
The child plays sport within school. The Father is looking into the child playing Sports.
The Father referred to his communication with the child’s teacher Mr AQ through the AR class app. He stated that he eventually had a face-to-face meeting with the child’s former teacher Ms AS regarding a previous incident involving the child.
The Father stated that he accepts responsibility for the inappropriate text messages that he sent to the Mother and which had led to an ADVO against him in 2019.
The Father stated he does not drink alcohol around the child.
The Father stated that he had not told the child to hurt Z.
It was suggested to the Father that it might be hard for the child to leave the Mother and Z from an emotional perspective, to which the Father agreed.
In relation to the child having written on a piece of paper that the Father had smacked her on the back of her head, the Father stated that he had tapped the child on the back of the head with a hairbrush and that he had not hit her as such. He had not sought to punish the child by doing this. He had simply sought to refocus the child. He stated the child hadn’t cried at this time and nor was the child visibly upset. He now accepted that tapping the child on the back of the head with the hairbrush was not the right thing to do. He accepted that his tapping the child’s head with the hairbrush could be experienced as painful by the child.
The Father denied hitting the child causing bruising to the child. He denied hitting her on other occasions.
The Father denied the Mother’s allegations regarding physical family violence perpetrated by him against the Mother in about March 2013. He stated that he had never physically assaulted the Mother. He stated that the ADVO that had been issued against him in about March 2013 had been issued for reasons unrelated to any alleged assault by him.
In relation to the ADVO against the Father in 2019, relating to inappropriate messages, the Father stated that he had drunk alcohol to excess.
The Father stated he does not smoke or grow marijuana.
The Father stated that he had not had therapy for mental health issues during the parties’ relationship, however after the parties’ separation he did get such therapy, possibly in 2013. He had not sought any mental health therapy in recent times. The Father denied becoming angry and throwing bricks as alleged by the Mother in about July 2019.
The Father stated that presently he doesn’t have any outside interests (outside of his employment). He stated that this evening he had Halloween activities planned for the child, including her friends and their parents.
The Father was cross-examined by the ICL’s counsel.
The Father stated that when the parties separated in 2013 he and the Mother were aged 19 years. He stated that at about the time of separation he had sought medical assistance for anxiety and panic attacks. Looking back he stated that he believed that these issues had arisen out of separation from the Mother and child. He had obtained a mental health plan from a GP and had been prescribed medication. He stated that since then he has had no other cause for concern regarding his mental health.
The Father stated that the child has a friend from school, named AP. The Father stated that he is friendly with this child’s mother who is named Ms AT. He stated that Ms AT lives behind them. He stated that they walk the children (the child and AP) to the other’s house. In this context, the Father stated that he has connections with the parents of other children; he stated that they are typical parent relationships, being child based and relating to the facilitation of the children’s needs including visits.
The Father stated that he has work friends however he does not socialise with them outside of work.
The Father stated that he struggles to find time to do anything outside of his work commitments and outside of his commitments to the child.
The Father stated that his background included attending school to the end of Year 9, and leaving school then to start an apprenticeship. He spent one year in the apprenticeship. He had carried out labour work on a farm for three years in his late teens. When he met the Mother he was working as a farm hand. He had since carried out labouring jobs and work in factories (separate to his present employment at Town Y).
The Father stated that his Father’s parents have a large holiday farm in Town O. He stated that he takes the child there during school holidays and she loves it. He would spend a few nights there with the child.
The Father described the child as an average student. The Father stated that presently the child does not have homework. He stated that the child has a classroom website where she can do extra activities. He stated the child has a computer and he and the child go through it from time to time.
The Father stated that he has not been to parent teacher nights however there is a class AR app and the teacher is always available on that app. He stated that he uses the app to check the child’s progress at school.
The Father stated that he has an expectation for the child to go through to Year 12.
The Father stated that the parties communicate well by way of text message. He stated that conversations with the Mother at changeovers are generally civil and informative.
The Father stated that he does not interrogate the child in relation to her time spent with the Mother although he will ask the child about her time with the Mother.
The Father stated that the child has told him that she does not want to move to the Mother’s home.
The Father stated that the child is used to the car travel to changeovers; she uses her iPad in the car.
The Father stated that he is always open to discussing with the Mother ways in which the Mother can get more involved with the child. For example, he stated that he told the Mother of the child’s school events.
The Father effectively stated that the child is not yet menstruating. In this context, the Father stated, inter alia, that he would be happy for the child to talk to the Mother about such issues. He stated that the child has talks with the Mother through Kids Messenger which works well, and either the child or the Mother can initiate such calls.
The Father denied being rude or abrupt to the Mother at changeovers. He stated that at changeovers the parties are both “for the child”. He stated that at changeovers the parties are civil and their communications are a bit more genuine than simply businesslike.
Child Inclusive Conference Memorandum
The above Memorandum was prepared by Family Consultant Ms AU. The parties were interviewed by telephone and the child was interviewed in the registry in May 2020 by the Family Consultant.
In relation to the inappropriate messages and other material that the Father sent to the Mother in 2019 and which led to an ADVO against the Father, the Father told the Family Consultant that he regretted his actions.
The Father told the Family Consultant that he did call the Mother an “absolute moron” because the Mother had threatened him with an insurance claim for a minor car collision. He denied allegations that he was physically violent towards the Mother. He said that during the parties’ relationship there may have been times when he slammed doors, stating that back then he struggled to control his emotions.
The Father said that the paternal grandmother was also able to assist with feminine hygiene.
The Father reported that he has been hospitalised on two occasions for mental health related difficulties, once at AV Hospital and on another occasion AW Hospital. He reported that his most recent admission was in late 2019 following his drink being spiked. He stated that upon discharge from hospital he had one follow-up appointment with no further intervention required.
The child told the Family Consultant that she would like to live with the Mother because she misses the Mother and Z. The child described the Mother being more attentive to her but also identified the Father as being responsive and caring towards her.
The child identified feeling confused by her parents, stating that the Mother said that the child will live with her whilst the Father has said that the child will live with him.
The child said that the Father likes the Mother but the Mother does not like the Father.
The child described a generally positive relationship with the Father. She described the usual weekday routine and spoke at length about a recent time that she, the Father, a paternal aunt and paternal cousin spent the day exploring two beaches. The child said that the Father is not very strict but has some rules for her. The child said that if she misbehaves the Father will take her electronic tablet.
The Father described the child as a friendly, outgoing and sociable child who adapted to changing schools. He reported that the child is home schooled at the moment due to the COVID-19 pandemic.
The Father stated that the child will speak to the Mother three or four times per week via video calls.
The Father reported that he moved to the Area B for better employment prospects.
Family Report
The Family Report of Ms J, Family Consultant, is dated 23 August 2021. The Court does not propose to set out the entirety of such Report.
The Family Report writer interviewed the parties and children in May and June 2021.
The Father Mr Beringer reported that he made a decision to relocate in February 2020 because it opened up better work opportunities for him and allowed he and X to live closer to the Father’s mother (“Ms AX”) and other extended paternal family who are able to provide support and assistance, including help with childcare for X when the Father is working.
During the assessment interview on 14 June 2021, the Father reported that he recently started a new job in mid 2021. He is currently employed on a casual contract working full-time, 38 hours per week as a warehouse worker at Employer AY. His usual work hours are Monday to Friday 7.00am to 3.00pm. The Father stated that he anticipates this work will be ongoing. These changes in the Father’s work arrangements mean that he relies on his mother, Ms AX to assist with looking after X and getting her to school each morning but remains available to collect X from his grandfather’s house in the afternoons after school.
The Mother reported a childhood marked by considerable adverse experiences, including childhood trauma and loss, parental separation, exposure to significant family violence, physical abuse and neglect. Her parents separated when the Mother was aged six months’ old after her mother left the family home in apprehension for her personal safety and life. The Mother and her siblings remained in the father’s care. The Mother was removed from her father’s care after intervention from statutory child protection authorities. She was placed in the care of the Minister and lived in out of home care/foster care experiencing multiple disrupted placements and disrupted education. The Mother advised she was diagnosed as having ADHD during primary school. The Mother was at one stage restored to her mother’s care in late primary school, but this placement ultimately broke down after the Mother was emotionally and physically abused by her stepfather, her mother’s partner Mr AZ. The Mother went back into foster care and out of home care placements during early adolescence and high school. The Mother became estranged from her mother but remained in contact with her sister Ms L. The Mother became reunited with her mother after leaving care when she was aged 18.
The Father reported a childhood free of any significant childhood adversity, trauma or loss or exposure to family violence, but his parents separated with he was aged six years old. The Father remained living with his father after the separation but reported staying in close contact with his mother and regularly spending time with her after his parents separated. The Father did not report any additional education or learning needs, but left school in Year 9 at age 15 to undertake an apprenticeship.
The Father denies the Mother’s claims in respect of the pattern of family violence described by her, instead claiming that after the child was born, the Mother had unstable mental health, would often stay away from the home and did not cope well with caring for the child. The Father claimed it was Ms Pinto and not he who was the primary instigator of conflict and aggression in the relationship. The Father denies that he has ever had problem use of alcohol or illicit substances to a level of addiction or dependency.
Both parents acknowledged experiencing some mental health issues during the first year after final separation in April 2013. The Father was diagnosed with anxiety and depression and had a short hospital admission in reaction to the separation in 2013. On or about June 2013, when X was around six months old, the Mother was diagnosed with post-natal depression which caused her to struggle coping with looking after the baby alone.
On or about August 2013, the Mother placed X in the primary care of her mother, Ms Ravenna (X lived with her Maternal Grandmother from 2013 (seven months old) until 2016 (three years and ten months)). The Father re-commenced spending time with X supervised by the Maternal Grandmother in November 2013. The Father was not informed X was no longer living with her mother or of the arrangement for X to live with the Maternal Grandmother until after the AVO expired in 2014. The Father commenced family law court proceedings in 2014 seeking Orders to have sole parental responsibility for X and to allow the child to live with him.
Interim Orders made in 2014 provided for X to continue living with the Maternal Grandmother and spend regular time with her father.
In August 2016, Final Orders made by way of judicial determination provided for the Father to have sole parental responsibility for X, and after a three month transition, for the child to live with the Father and spend time with the Maternal Grandmother. X commenced living primarily with her father from late 2016, just before her fourth birthday. These Final Orders allowed X to spend time with her mother, for at least one day on a weekend (during the day only), during time X spent with the Maternal Grandmother in each alternate week.
In 2016, an incident of interfamilial violence occurred at the Maternal Grandmother’s home in the presence of the child. This incident involved the Maternal Grandmother’s then partner, Mr AZ and the Maternal Grandmother’s adult daughter Ms BA (who suffers from serious mental health) who were affected by alcohol and interpersonal conflict broke out. The Maternal Grandmother (who was not affected by alcohol) called the Mother to come to her aid. The Mother intervened, and a physical altercation broke out between the Mother and her sister Ms BA. The Mother was later charged with assault against her sister to which she plead guilty. This incident raised concerns regarding the Maternal Grandmother’s capacity to protect X from exposure to risk factors in her home (alcohol, domestic violence) and to elevated parental risk factors associated with the Mother (criminal record and violence directed toward others).

The Final Orders made in August 2016 transferred X’s primary care from the Maternal Grandmother to the Father and this was a major disruption to the child’s primary secure base attachment relationship with Ms Ravenna. These Final Orders appear to take account of elevated risk factors in the Maternal Grandmother’s home and indicate there was also concern in respect of the Mother’s ability to ensure that she was able to keep herself and X safe from exposure to further family violence/interpersonal violence in her home or provide evidence of safe, stable and secure accommodation.
X lived primarily in the care of the Maternal Grandmother from August 2013 to December 2016; and for the past four years, from December 2016 to present, X has been living with the Father. X appears to have developed an established and viable secure base attachment with the Father whilst also maintaining a strong relationship with the Maternal Grandmother. X appears to have also maintained a warm and close relationship with the Mother during the time she lived with her grandmother and this relationship has more recently developed and strengthened.
The Family Report writer observed the child with the Father.
X presented as a healthy, well-nourished, and cared for child who was neatly groomed and appropriately dressed in casual clothing. She impressed as being an independent, good natured, pleasantly sociable, and outgoing girl who appears at ease relating to adults and anxious to please. X enjoys physical activity and being outdoors. She seemed aware and vigilant of her surroundings and environment.
X was observed to have an openly loving, warm and positive relationship with her father and these feelings are reciprocated by the Father. They appear to share well established reciprocal bonds of mutual affection.
When interacting with X, the Father presented a more buoyant, warm and good-humoured side to his personality, showing that he was capable of being caring, gentle and open, with no sign of his brittle reactive and impatient hostility. X and the Father appear to enjoy one another’s company.
The Father listened to his child, and she appeared confident and relaxed. X chose to sit in close proximity with the Father and their mutual body language was open and focused on being actively engaged and taking interest in one another. The Father was quieter and introspective, perhaps showing he was self-consciously aware and uncomfortable with being under scrutiny. He spoke less frequently than X who initiated and lead the verbal interaction.
X did not show indications of being fearful or constrained in the Father’s presence, though she did appear concerned about when she would see the Mother.
The Father appeared to be emotionally present to X and the Father settled at a table set up by the Family Consultant under in the large, covered picnic shelter.
The Father reassured and teased X in a good-natured way about her reaction to the birds, whilst affirming his daughter was right to be concerned and keep an eye out when Plovers were about because they were known to become aggressive and sometimes swoop in and attack.
The Father and X were observed interacting together in semi-structured activity. The Family Consultant directed the Father to facilitate some semi-structured games and/or activities with X using available materials, including paper and Texta pens. The Father appeared initially passive and at a loss. The Family Consultant suggested to the Father that he invite X to set up and play naughts and crosses. X took charge and the Father co-operated and allowed the child to take the lead organising the game. X was happy to be actively engaged in a task and enthusiastically participated. The Father explained that he and X often play naughts and crosses together and that she is competitive and likes to win. X animatedly agreed, whilst maintaining thoughtful focus on the game. Once the game was underway, the Father allowed X to take the lead and he followed her, quietly encouraging her to be thoughtful and careful before committing to her moves.
The Father adopted a warmer and more animated demeanour in the presence of the child. The Father clearly enjoys the company of his daughter, and the quality of the parent-child relationship is positive and warm, characterised by strong bonds of mutually reciprocated affection and love. Father and daughter shared a mutual sense of humour and playfully tease one another. Where the Father is comfortable and shows a confident knowledge and interest, he becomes more articulate and adopts a patient, explanatory teaching style. X is curious and open to listening and learning from her father. That said, the overall parent-child interaction and play observed between X and her father tended to be child led, with X actively taking the initiative in response to the Father’s passive and subdued style of parent-child interaction and play.
The observations of the Mother with the child by the Family Report writer were positive. There was a high level of proximity seeking by the child with the Mother and also a high level of eye contact shared between them.
The Father returned from the shops to collect X, bringing her some food and a drink, which X accepted but also asked her father to mind for her so she could eat it when they visited her paternal grandfather later that day before returning to the Area B.
The Father and the Mother maintained a respectful distance but interacted and conducted themselves in a polite and civil manner.
Under the heading Evaluation, the Family Report writer stated, inter alia, that the decision about where X should live needs to be based on which parent is best equipped to provide safety, stability and security and ensure they meet and actively address X’s day to day parenting, psycho-social and educational needs at this age and stage of her development.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Family Report writer confirmed that she was a clinical social worker. She stated that she was not an accredited mental health social worker although she had some experience in that area.
This evidence was given in relation to school improvement of the child:
MS STOLIER: And the father says – of course, that’s consistent with the father’s evidence that she has, generally, he thinks, improved?
[MS J]:Well, one of the things that the teacher and principal talked about to me was the fact that the school had made conscientious efforts, having identified some gaps for [X], to put extra – additional care and additional specialist teaching in to boost [X] in – in that area, and that, obviously, has provided some results, and if she is, in fact, more socially engaged, then that would be very pleasing to hear as well.
The Family Report writer stated that another change to the child’s primary carer (living with the Mother) would be very difficult for X, but it depended on how it was managed and what supports were made available to her. She stated that X would, in reality, really miss the Father because “he is a very, very important and significant part of her life”.
The Family Report writer stated that the Father deeply cares about X and loves her. She stated that when the Father is in her presence he melts. He becomes “this very engaged person in the sense that he truly enjoys his daughter and she loves him and she – and he loves her”.
The Court refers to its findings below under s 60CC of the Act in respect to the Family Report writer’s recommendations and related evidence (with the Court noting that her “related evidence” is set out in the Family Report and in her oral evidence which is not significantly set out above).
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: s 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: s 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: s 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in s 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in s 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC: ss 60CA, 60CC, 65D.
The best interests of the child
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.
In particular, since the Court’s Final Parenting Orders of August 2016, the child has been living with the Father and spending regular fortnightly time with the Mother. Over about the last year, the Court finds that during the child’s school holidays the child usually has been spending approximately equal time with each parent although there have been a few occasions where the child has spent greater time with the Mother during such school holidays by reason of the Father’s work commitments; the Court accepts the Father’s evidence in this context.
Should the child spend time with the Mother, pursuant to the ICL’s proposed Minute of Order, and communicate with the Mother regularly (as discussed below under s60CC (3)(m)) it is likely that the child’s meaningful relationship with the Mother can be maintained.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court finds that at the time of the parties’ separation in about March 2013 there was a disagreement between the parties and which led to an ADVO being made against the Father for the Mother’s protection. On the balance of probabilities the Court is not persuaded that there was any physical violence perpetrated by the Father against the Mother on this occasion. Nevertheless, it would appear that there was adverse verbal behaviour by the Father against the Mother on this occasion that was sufficient to ground the making of an ADVO against the Father. Further, it would appear that on about 24 September 2013 the Father breached this ADVO and in relation to which he was sentenced to a 12 months section 9 bond on 26 September 2013 in the Local Court. The evidence before the court does not clearly indicate the manner in which the Father breached the ADVO.
The Court accepts that the Mother found the Father’s inappropriate communications of a sexual nature to the Mother in April 2019 harassing and disgusting. An ADVO was made for a period of two years for the Mother’s protection after these communications were made by the Father however there is no evidence of any breach by the Father of the terms of the ADVO. The Court accepts the Father’s evidence that he deeply regrets this adverse behaviour by him. There is a significant suggestion that this adverse behaviour by the Father arose from him experiencing sexual frustration although this does not excuse such behaviour.
On the balance of probabilities, subject to the above findings, the Court does not accept the Mother’s allegations made against the Father of family violence. The Court does not accept the Mother’s contentions, or the contentions of the family report writer, that the Father has perpetrated, and continues to perpetrate, coercive controlling family violence.
In relation to the above findings relating to family violence, the Court observes that:
(a)The Father denied the Mother’s allegations of family violence (whilst acknowledging the 2013 ADVO and his adverse behaviour in April 2019 that led to the 2019 ADVO);
(b)The Father’s criminal history does not include crimes of physical violence. His criminal history since separation in about March 2013 is a larceny offence in 2013, a breach of ADVO in September 2013, driving offences in 2014, and adverse communicative behaviour by him towards the Mother leading to an ADVO in April 2019, with the Court observing that there was no breach of that 2019 ADVO over a period of two years;
(c)The Father’s mental health has been satisfactory, apart from: an episode of adverse mental health at about the time of the parties’ separation in March 2013, an episode of adverse communicative behaviour by the Father towards the Mother in April 2019, and an episode in early July 2019 discussed below;
(d)The Father’s care of the child since Final Parenting Orders were made in August 2016 to date has been quite satisfactory. The Court does not accept that the Father has physically abused the child. The Court refers to the Father’s evidence in relation to brushing the child’s care which it accepts.
The Court accepts the Father’s evidence relating to his mental health, including that his mental health has been satisfactory for a considerable period of time.
The Court has already referred to the Father’s behaviour in relation to the ADVO made in 2019. In relation to an incident involving the Father in early July 2019 when he was out drinking with a friend (the Mother was not present), the Court accepts the Father’s evidence in relation to this incident, including that he believes that his drink was spiked and he reacted very badly to this occurrence, prior to becoming very disorientated and scared and being taken to hospital by police. The Court does not accept the Mother’s hearsay evidence in relation to this incident.
The Court accepts the Father’s evidence relating to his modest alcohol consumption which does not pose any risk of harm to the child. It accepts his evidence relating to his abstention from illicit substances. The Court does not accept that the Father has any significant anger management issue.
There will be no unacceptable risk that the child will be exposed to family violence if she continues to live with the Father.
The Court finds that should it now make an Order that the child live with the Mother that there is a significant risk that the child will experience psychological harm and become unsettled leading to a deterioration in, inter alia, her home, social and schooling environments.
Again, the child has been in the Father’s primary care for over six years and has not lived in the Mother’s primary care since about August 2013. The child and the Father have a close meaningful relationship living together and there is a significant risk that that relationship will be detrimentally affected should the child now be placed in the primary care of the Mother. The child’s residence was relocated by the Father in early 2020 and since that time the child has attended primary school on the Area B, has established friendships with other children there, and has established relationships with the Father’s paternal extended family; she has acquired significant social capital living with the Father on the Area B. The child is well settled living with the Father on the Area B. To now uproot the child from this well settled living environment with the Father would likely be detrimental to the child’s psychological well-being; the child will be removed from her present well-settled home and schooling environment and will have to attend a new school and seek to establish new relationships. Again, should the child remain living in the Father’s primary care and spend time with the Mother pursuant to the ICL’s proposed Minute of Order, it is likely that the child’s significant meaningful relationship with the Mother can be maintained.
The Court does not accept the recommendations of the Family Report writer and her related evidence, including her recommendation that the child now live with the Mother. In this regard, the Court takes into account the following matters:
(a)Despite the Court’s above finding in relation to family violence, there is a significant suggestion that the Family Report writer has assumed that the Father perpetrated family violence against the Mother as alleged by her and/or that there is presently a current risk of family violence, namely a pattern of indirect coercive control directed by the Father towards the Mother (eg see paragraphs 28, 43, 82, 87, 106, 341(b), 369, 374, 377, 378, 389, 393, 400, 405, of the Family Report);
(b)In any event, the Family Report writer did not consider to any adequate extent the length of time between alleged family violence in early 2013 and the Father’s adverse communicative behaviour towards the Mother in early 2019, nor the absence of any alleged family violence by him from early 2019 to date;
(c)The Family Report writer’s comments to the effect that the Father is insufficiently emotionally available to the child is inconsistent with her positive observations of the child and Father at the Family Report observation sessions in May 2021;
(d)The Family Report writer has not given sufficient consideration to the likely psychological harm that would be experienced by the child in being uprooted from the primary care of the Father and being placed in the primary care of the Mother (see above); inter alia, the Court observes that the child has not been in the Mother’s primary care since about August 2013 and has been in the Father’s positive primary care since about August 2016 to date (the Family Report writer had herself stated that the Father has been the child’s most consistently available adult attachment figure since she was four years old);
(e)The Family Report writer has not given sufficient consideration to the child’s positive progression in her schooling and social life since the Family Report interviews in May and June 2021, including the absence of adverse school incidents relating to the child, and her accumulated social capital living with the Father in Suburb C. Indeed the Family Report writer commented in her Family Report that the child had not made a settled transition since relocating to Suburb C being contrary to the present more contemporary evidence in this context;
(f)The Family Report writer’s concern that a pattern of coercive control by the Father upon the Mother and child may be continuing to impact the quality of relationship between the child and the Father and the child and the Mother is not consistent with the evidence;
(g)In relation to the Family Report writer’s criticisms of the Father for relocating the child’s residence to the Area B in early 2020, the Family Report writer has not given sufficient consideration to the Father’s reasons for so relocating including his desire to take up better work opportunities outside of Sydney and his desire to reside close to his extended paternal family with the child (so as to receive support with child-care), particularly noting the Father had the benefit of a final parenting live-with order and an order for sole parental responsibility (from Final Parenting Orders made in August 2016). In any event, the Family Report writer did not consider to any adequate extent that even if the Father had not relocated the child’s residence, the interim consent parenting Orders of 18 December 2019 still only provided for the child to spend time with the Mother, inter alia, each alternate weekend from Friday afternoon to Sunday afternoon;
(h)The Family Report writer’s suggestion that the Father’s practice of dropping off the child with the paternal grandmother early each school morning (prior to school commencing) and later collection of the child from after-school care at about 4.30pm would impact the child’s access to optimum participation in learning and positive educational outcomes, both academically and socially, lacks evidential foundation;
(i)The Family Report writer, in relation to her comments that there was a current elevated parental risk in respect of alcohol and substance use in relation to the Father, did not take into account the Father’s negative toxicology report and drug hair test on 19 April 2022, and nor did it take into account his oral evidence relating to his modest alcohol consumption which the Court accepts;
(j)The Family Report writer’s comments that the Father’s presentation during the assessment for the Family Report identified some concerns regarding the Father’s reactivity, emotional regulation and anger management under pressure was not factually particularised and was inconsistent both with the Father’s interaction with the child during the Family Report observation session and with the Court’s own observations of the Father during his cross examinations (during those cross examinations the Father was noticeably and consistently particularly calm);
(k)The Family Report writer’s comments that the Father appeared to minimise the seriousness of his actions relating to the 2019 ADVO and appeared to deflect blame and rationalise his adverse conduct in that context did not take into account the Father’s deep regret for such behaviour;
(l)The Family Report writer’s comments that the Father appears to perceive the child as an extension of himself and shows a poor level of insight or understanding of the child’s need for individual agency and autonomy, capable of having her own independent thoughts and feelings, and appears to struggle to understand a child’s need for a relationship with the Mother, is inconsistent with her observations of the child with the Father at the Family Report interviews, is inconsistent with the child’s usual day-to-day life involving regular encounters with members of the paternal extended family, school friends, and extracurricular activities including music lessons, is inconsistent with the child’s positive school reports to date, and is inconsistent with the usual time spent between the child and the Mother including regular communications;
(m)The Family Report writer has not taken into account that each morning of the school week the child, after being dropped off by the Father at the home of the paternal grandmother at about 6.10am, is put to bed by the Father and then is awoken at about 8.00am in readiness for school attendance;
(n)The Family Report writer expressed concern in relation to the Father’s allegedly poorly treated mental health problems which is contrary to the Courts finding that the Father’s mental health has been (subject to certain exceptions) satisfactory;
(o)The Family Report writer’s comments that the Father has not demonstrated positive engagement or communication with X’s teacher’s or the school is inaccurate, and the Court accepts the Father’s evidence relating to his communications with the child’s school;
(p)The Family Report writer did not consider to any adequate extent the real possibility that the Mother will take up employment, consistent with her present intentions to re-enter the workforce, and thereby, like the Father, will have her own time constraints in being physically available for the child.
Section 60CC(3) - additional considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The Court refers to the child’s statements to the Family Consultant (on 14 May 2020) and, of more relevance, to the Family Report writer (on 10 May 2021). She had told the Family Report writer that she wished to remain living with the Father but spend more time with the Mother; noting the age of the child, nine years of age, the court takes into account those views, and would place some weight upon them, but not significant weight.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration. The child has positive relationships with the Father’s paternal extended family and with the Mother’s maternal extended family, as well as with Z, and S (the adopted three year old child of the paternal grandmother). Should the child spend time with the Mother as proposed by the ICL in her Minute of Order there is a significant prospect that the child can maintain her positive relationship with Z.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Father has had sole parental responsibility for the child since the 2016 Final Parenting Orders. Since those Orders, it would appear that the parents have taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Father does not receive any child support from the Mother, in circumstances where the Mother presently is not in paid employment. Each parent has adequately maintained the child when the child has been in their respective care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the need to protect primary consideration, in particular relating to adverse effects upon the child should she now live with the Mother.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The Court refers to its discussions above under the meaningful relationship primary consideration. The Father has been facilitating the child spending time with the Mother, since his move to the Area B with the child, pursuant to previous Court Orders.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not applicable.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each parent has demonstrated appropriate responsibilities of parenthood in relation to the child.
(j) Any family violence involving the child or a member of the child’s family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the court in, or in proceedings for, the Order; any other relevant matter
The Court refers to its discussions above under the need to protect primary consideration.
(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court refers to its discussions above under the need to protect primary consideration in relation to the adverse effects upon the child should the child now live with the Mother. An order that the child remain living with the Father would be an order least likely to lead to the institution of further proceedings in relation to the child, as opposed to an order that the child now live with the Mother.
m) Any other fact or circumstance that the Court thinks is relevant
The ICL’s proposed Order 7 relating to phone time is too restrictive taking into account the present regular communications that occur between the child and the Mother. The following orders will maintain and enhance the child’s relationship with the Mother:
·The Mother shall be at liberty to communicate with the child via video chat (or simple telephone call):
(a)Each Wednesday from 7.00pm to 7.30pm;
(b)In the weeks that the Mother does not spend time with the child on Tuesday and Thursday from 7.00pm until 7.30pm; and
(c)When the child wishes to speak with the Mother.
·Both parties shall facilitate any request by the child to telephone the parent with whom they are not currently spending time.
Parental responsibility
Each party seeks an order for sole parental responsibility in relation to the child. The Father has had sole parental responsibly for the child since the Court’s Orders of August 2016. Whilst the parties have been conducting changeovers usually without conflict, and have been able to communicate via text messages regarding care and parenting arrangements for the child, there nevertheless remains a significant absence of trust between the parties and the Court is not at all confident that they could reach agreement on major decisions to be made for the child in a timely fashion without conflict. The evidence of the Family Report writer is consistent with these views. The Father should continue to have sole parental responsibility for the child and it will be in the child’s best interests that he retain sole parental responsibility.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child to make orders as follows:
THE COURT NOTES THAT:
A.“Father” means MR BERINGER born in 1992.
B.“Mother” means MS PINTO born in 1992.
C.“Child” means X born in 2013.
THE COURT ORDERS THAT:
1.The Father shall have sole parental responsibility for the child X born in 2013.
Sole parental responsibility with consultation with the other parent
2.Notwithstanding Order 1, the Father shall:
(a)Where practicable, inform the Mother (by email or text message) at least 21 days before making decisions about any of the following matters:
(i)Any change in the child’s school(s);
(ii)Any non-emergency or serious medical treatment the child is to undergo; and
(iii)Any proposed relocation of the residence of the child that is more than 30 kilometres from their residence.
(b)Any response from the Mother must be provided to the Father in writing (by email or text message) within 14 days of receipt of the Father’s information;
(c)The Father must consider the Mother’s views in exercising his parental responsibility before making any such decision concerning the child.
Living Arrangements
3.The child live with the Father.
4.The child spend time with the Mother as follows:
School Term
(a)From 4.30pm Friday until 4.30pm Sunday, commencing the first Friday following the date of these Orders and continuing each alternate week thereafter;
(b)That the time the child is to live with the Father pursuant to Order 4(a) shall be suspended during all school holiday periods and the time arrangements set by Order 4(a) shall recommence from the first day of each new school term as defined by these Orders. Upon the commencement of each new school term, the Week 1 and Week 2 cycles shall recommence in the same sequence as it existed and applied prior to the commencement of the school holiday period and as if the sequence had not been interrupted or suspended by the school holiday period (ie the sequence had been continuous throughout the school holiday period).
School Holidays
(c)For one half of the school holiday periods as agreed between the parties and failing agreement the child shall spend time with the Mother for the second half in odd numbered years and the first half in even numbered years;
(d)For the purposes of this Order:
(i)The school holiday periods will be those that apply at the school the child is attending at the relevant time;
(ii)For the purposes of calculating the changeover day in school holidays, the last day of the school term will be the first day of the school holiday period and the last full day before the new term recommences (including pupil free days) will be the last day. The midpoint of the school holidays will be 5.00pm on the middle day. If there are an even number of days in the school holiday period, the middle day will be the first of the middle days.
Special Occasions
(e)The child shall spend time with the Mother on the following special occasions if the child is not already in the Mother’s care:
(i)From 9.00am until 5.00pm Mother’s Day;
(ii)From 12.00pm on Christmas Eve until 12.00pm Christmas Day in even number years;
(iii)From 12.00pm Christmas Day until 12.00pm Boxing Day in odd numbered years;
(iv)From 9.00am on Good Friday until 5.00pm on Easter Saturday in odd numbered years;
(v)From 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
(vi)From 9.00am to 1.00pm on the child’s birthday in even numbered years;
(vii)From 1.00pm to 5.00pm on the child’s birthday in odd numbered years;
(f)At any other time agreed between the parties.
5.The child shall spend time with the Father on the following special occasions if the child is not already in the Father’s care:
(a)From 9.00am until 5.00pm Father’s Day;
(b)From 12.00pm on Christmas Eve until 12.00pm Christmas Day in odd number years;
(c)From 12.00pm Christmas Day until 12.00pm Boxing Day in even numbered years;
(d)From 5.00pm Good Friday until 5.00pm on Easter Saturday in even numbered years;
(e)From 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years;
(f)From 9.00am to 1.00pm on the child’s birthday in odd numbered years;
(g)From 1:00pm to 5:00pm on the child’s birthday in even numbered years.
CHANGEOVER
6.For the purposes of this Order, the Mother shall collect the child from Suburb I McDonalds at the commencement of her time and the father shall collect the child from Suburb I McDonalds at the conclusion of the Mother’s time.
COMMUNICATION
Phone time
7.The Mother shall be at liberty to communicate with the child via video chat (or simple telephone call):
(a)Each Wednesday from 7.00pm to 7.30pm;
(b)In the weeks that the Mother does not spend time with the child on Tuesday and Thursday from 7.00pm until 7.30pm; and
(c)When the child wishes to speak with the Mother.
8.Both parties shall facilitate any request by the child to telephone the parent with whom they are not currently spending time.
9.For the purposes of Orders 7 and 8 herein:
(a)The parties shall ensure that the device which the other parent uses to call the child is on, charged and placed in an area with reception;
(b)The parties shall ensure that the child is afforded privacy during the phone call;
(c)The telephone calls not occur by way of speaker phone;
(d)Should the child be unavailable during this time the parties shall ensure the child return the other parent’s phone call later that evening or if not reasonably practicable the following evening.
Communication between the parties
10.The parties are to communicate matters pertaining to the care, welfare or development of the child as follows:
(a)By telephone in the case of emergency or pressing but non-emergency issues;
(b)By short factual text message for day-to-day issues.
EXCHANGE OF INFORMATION
11.Each party advise the other party and keep the other party advised of their current address and contact numbers (including both landline and mobile phone numbers if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
12.The parties shall ensure that the other is kept informed of:
(a)Any medical problems or illnesses suffered by the child while in their care;
(b)Any medication that has been prescribed for the child and shall ensure the other party is provided with this medication while the child is in the other party’s care;
(c)Any social, school, or religious functions which the child is to attend.
13.The parties shall each inform the other party in writing as soon as practicable of any specialist medical appointments with any medical consultant, psychologist, psychiatrist, counsellor, or therapist (hereinafter referred to as “consultant”) in relation to the child.
14.Each party shall do all acts and all things to ensure that the other party is provided with all reports by any such consultant.
15.The other party be permitted to attend on such appointments, such attendance or attendance to be at the sole discretion of any such consultant.
16.Within 14 days of the child’s subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
17.Within 14 days of the child’s subsequent enrolment at any school the parties do all acts and things and sign all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of the child’s school photos at the Mother’s own cost.
18.During any periods referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital and that both parents shall be permitted to attend upon the medical facility the child is attending as a result of her medical condition irrespective whether the child is in their care pursuant to these Orders.
RESTRAINTS
Non-Denigration
19.The Mother is restrained from denigrating the Father or the paternal family in the presence or hearing of the child and shall ensure that no other person denigrates the Father or the paternal family in the presence or hearing of the child.
20.The Father is restrained from denigrating the Mother or the maternal family in the presence or hearing of the child and shall ensure that no other person denigrates the Mother or the paternal family in the presence or hearing of the child.
Discipline
21.The parties be restrained from physically disciplining the child or allowing or authorising any third party to physically discipline the child.
Drugs/Prescription mediation
22.The parties are restrained from consuming any prescription medication not prescribed to them whilst the child are in their care or for 12 hours prior the child coming into their care, and will remove the child from any place where a third party is under the influence of illicit substances/prescription medication not prescribed to them.
Alcohol
23.The parties are restrained from consuming alcohol 12 hours prior to the child coming into their care and at all times the child are in their care.
24.The parties are restrained from consuming alcohol whilst the child is in their care to an extent that they would not legally be able to drive a motor vehicle, and will remove the child from any place where a third party has consumed alcohol to an extent where they would not legally be able to drive a motor vehicle.

I certify that the preceding two hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 16 November 2022

File number(s):	PAC 5106 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	16 November 2022
Catchwords:	FAMILY LAW – Parenting – Best interests of child – Orders made
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA
Division:	Division 2 Family Law
Number of paragraphs:	218
Date of hearing:	31 October 2022 – 2 November 2022
Place:	Parramatta
Counsel for the Applicant:	Ms Ryan
Solicitor for the Applicant:	Rafton Family Lawyers
Counsel for the First Respondent:	Mr Flanigan
Solicitor for the First Respondent:	Grant & Co
For the Second Respondent:	The Second Respondent did not appear
Counsel for the Independent Children’s Lawyer:	Ms Stolier
Solicitor for the Independent Children’s Lawyer:	Holmes Donnelly & Co Solicitors

PAC 5106 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS PINTO Applicant
AND:	MR BERINGER First Respondent MS RAVENNA Second Respondent

Order made by:	JUDGE NEWBRUN
DATE OF ORDER:	16 NOVEMBER 2022