Pointer and Cheadle
[2020] FamCA 183
•26 March 2020
FAMILY COURT OF AUSTRALIA
| POINTER & CHEADLE | [2020] FamCA 183 |
| FAMILY LAW – CHILDREN – Where each party seeks competing sole parental responsibility orders – Where the mother seeks orders providing for strict conditions to the child spending overnight time with the father – Where the father and Independent Children’s Lawyer seek that the child live with the father and spend time with the mother one (1) night per fortnight – Where the mother alleges the father is neglectful in his care of the child – Where the mother has refused to make the child available to spend overnight time with the father despite existing court Orders –Where the mother alleges the father has engaged in sexual impropriety – Where the father acknowledges that he has a history of depression and has sought professional assistance – Whether the mother has a history of ignoring medical and therapeutic advice – Whether the mother has exposed the child to emotional dysregulated behaviour –Where the Court finds that there is an unacceptable risk of emotional and psychological harm to the child in the mother’s care – Where the Court finds that the risk can be mitigated or ameliorated by appropriate therapy – Where the Court makes Orders for the child to live with the father and spend time with the mother subject to the mother engaging in appropriate therapy. |
| Family Law Act 1975 (Cth) ss 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAA, 65DAC(2)-(3), 65Y. Evidence Act 1995 (Cth) s 140. |
| A v A (1998) FLC 92-800 The Hon John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 |
| APPLICANT: | Mr Pointer |
| RESPONDENT: | Ms Cheadle |
| INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
| FILE NUMBER: | SYC | 7392 | of | 2013 |
| DATE DELIVERED: | 26 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 17-21 June 2019, 27 June 2019, 4 September 2019, and 21 November 2019. |
REPRESENTATION
| THE APPLICANT IN PERSON. |
| COUNSEL FOR THE RESPONDENT: | Mr Hill |
| SOLICITOR FOR THE RESPONDENT: | King and York |
| AT TIMES, THE RESPONDENT IN PERSON. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Shea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
Orders
That other than Order 9, which shall take effect immediately, these Orders will take effect 28 days after the date of these Orders.
That all previous parenting orders in relation to the child, X born … 2012 (“the child”), be discharged.
That child shall live with Mr Pointer (“the father”).
That the father shall have sole parental responsibility for the child.
That, subject to Ms Cheadle’s (“the mother”) compliance with Order 9 herein, the child shall spend time with the mother on each alternate weekend from 9.00 am on Sunday until before school on Monday.
In the event that, within 28 days of the date of these Orders, the mother complies with and continues to comply with Order 9 herein, the child shall spend time with the mother:
(a)During school terms, each alternate week from after school on Friday to the commencement of school the following Wednesday;
(b)From 9.00 am on Mother’s Day until before school on Monday each year if the child is not otherwise with the mother;
(c)During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of term until 5.00 pm on the Friday in Week 1 of the holidays;
(d)During the school holiday period at the end of Term 4 each year:
(i)In even numbered years, from 9.00 am on 24 December until 5.00 pm on 29 December and from 9.00 am on 18 January until 5.00 pm on 23 January; and
(ii)In odd numbered years, from 9.00 am on 28 December until 5.00 pm on 2 January and from 9.00 am on 18 January until 5.00 pm on 23 January; and
(e)At such other times as agreed in writing between the parents.
That the father shall ensure that the child communicates with the mother via telephone or FaceTime and that the privacy of the child is respected when such communication occurs.
(a)On Christmas Day if she is not in the care of the mother; and
(b)At least once per week during school holiday periods if she is not scheduled to spend time with the mother during that week.
For the purposes of Orders 5 or 6, all changeovers on school days shall take place at the child’s school and on non-school days the father shall deliver the child to the mother’s residence at the commencement of the time and the father will collect the child from the mother’s residence at the conclusion of the time, unless otherwise agreed in writing between the parents.
That the mother’s time with the child in accordance with Order 6 is conditional upon the mother’s compliance with the following:
(a)Within 14 days of the date of these orders, the mother is to obtain a Mental Health Care Plan and referral from her general practitioner to a psychologist or psychiatrist (“therapist”) for treatment of her anxiety;
(b)Within 21 days of the date of these orders, the mother is to make an initial appointment with the therapist and advise the father in writing of the name and contact details of the therapist and the date of the appointment;
(c)The mother is to attend the initial appointment and all subsequent appointments in accordance with the therapist’s recommendations until such time as the therapist deems it appropriate for the mother to cease treatment;
(d)The mother is to comply with all reasonable recommendations made by the therapist in relation to her treatment, including taking any prescribed medication or attending any recommended parenting or behaviour management course;
(e)The mother is to provide a copy of the following documents to the therapist prior to or at her initial appointment:
(i)A sealed copy of these Orders;
(ii)Deputy Chief Justice McClelland’s reasons for judgment; and
(iii)Dr B’s reports dated 26 October 2015 and 16 July 2018.
That the mother is to authorise the therapist to provide the father with information limited to the mother’s attendance and compliance with treatment recommendations, if such information is requested by the father.
That in the event that the mother does not comply with Order 9, to be confirmed by the mother sending an email to the Independent Children’s Lawyer at, within 28 days of the date of these Orders, then the child’s time with the mother shall continue in accordance with Order 5 and will not commence in accordance with Order 6.
The Court makes the following injunctions pursuant to s 68B(1)(c)(i) of the Family Law Act 1975 (Cth):
(a)The mother is restrained from coming within 50 metres of the father’s residence at any time, except with the father’s prior consent in writing; and
(b)The mother is restrained from coming within 50 metres of the child’s school at any time except for the purposes of collecting or delivering the child in accordance with these Orders, or at the express written invitation of the school Principal, or with the father’s prior consent in writing.
That each parent is to notify the other in the event that the child suffers a significant illness or injury or is hospitalised whilst in that parent’s care.
That the father is to keep the mother informed of:
(a)Any major long term decisions concerning the child, including decisions in relation to her health and education;
(b)The names and contact details of any specialists providing health or medical treatment to the child; and
(c)The names and contact details of any counsellor, psychologist or psychiatrist providing treatment to the child.
That the mother is hereby authorised to obtain information from any doctor, health practitioner or therapist providing treatment to the child in relation to the child’s progress.
That forthwith upon the making of these Orders and continually thereafter, the father give written authority to X’s school to provide all information, including reports and notices of events and any other details of X’s progress, to the mother and to include the mother’s name on the school records as an emergency contact.
That each parent is hereby restrained from:
(a)Making critical or derogatory remarks about the other parent to or in the presence or hearing of the child; and
(b)Discussing these Court proceedings in the presence of or hearing of the child unless under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist.
That the father has leave to provide a copy of the following documents to Mr D and any counsellor, psychologist or psychiatrist providing treatment to the child in the future:
(a) A sealed copy of these Orders;
(b) Deputy Chief Justice McClelland’s reasons for judgment; and
(c) Dr B’s reports dated 26 October 2015 and 16 July 2018.
NOTATION:
A.The mother’s communication with and attendance upon the health professionals or therapist or course referred to in Order 9 may be by way of electronic communication, including email, telephone/Facetime or other audio-visual communication.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pointer & Cheadle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7392 of 2013
| Mr Pointer |
Applicant
And
| Ms Cheadle |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application brought by Mr Pointer (“the father”) for final parenting orders in respect to the parties’ child, X born in 2012 (“X” or “the child”). X is seven (7) years old. The father and Ms Cheadle (“the mother”), have been litigating over the care arrangements for X for over six (6) years. The nature of the ongoing litigation was aptly described by counsel for the mother as being “more akin to a prolonged contravention”.
The parties have, at various stages, agreed to orders that could have reasonably been expected to facilitate the child spending time and developing a meaningful relationship with both parties and for both parties to play a significant role in the development of this intelligent young child’s life. Regrettably, that has not occurred. For a substantial part of these proceedings, both parties were self-represented. In those circumstances, the Court was able to observe that both parties are highly intelligent. It is a tragedy for this child that they have not been able to apply their intellectual capacity to relieving their daughter from their ongoing intractable conflict.
Both parties are now seeking an order for sole parental responsibility and for there to be a significant reduction in the time X spends with the other party.
By way of background, X has suffered from some health challenges, including asthma, some dental issues and a propensity to gain weight. The mother believes that the child’s asthma is triggered by the child developing a cold or respiratory illness. She is, therefore, fastidious in her household to ensure that the child stays warm. The mother is of the opinion that the father does not provide proper care for the child, including ensuring that she stays warm when the child is in his household.
The Court was greatly assisted by the Independent Children’s Lawyer in this matter. The Independent Children’s Lawyer contends that the mother’s fears that the child is exposed to a risk of harm in the father’s care are unreasonable and the steps that she requires the father to take to address the risk that she perceives are irrational. There is substance in that submission.
It is of great concern that a pattern has developed whereby the mother is continually seeking to draw X into her own anxieties, including by making statements with a view to persuading X that she is exposed to a risk of harm in the father’s care.
Regrettably, despite strong recommendations from the single expert in this matter, the mother has not taken steps to address the extreme anxiety from which she suffers. She believes that she does not need such assistance. Her belief, in that respect, is misguided. Her failure to obtain such assistance is, in turn, adversely impacting upon X.
Accordingly, the Independent Children’s Lawyer, supported by the father, contends that the child’s time with the mother should be significantly reduced until such time as she has undertaken appropriate therapy to address her unreasonable level of anxiety and pattern of dysregulated behaviour.
While there is substantial merit in that contention, I am concerned that the father has failed to call evidence from his current wife. This is significant in the circumstances of this case because the father is working full-time and is, simultaneously, studying to complete his degree. He accepted that, in the event of orders being made for X to live with the father and spend most of her time in the father’s household, he would require assistance from his partner. The father presented evidence that his partner supported his initial Minute of Order in which he sought orders for X to live with him for nine (9) nights per fortnight. However, no evidence has been presented regarding his partner’s current attitude to X living with the father 13 nights per fortnight, which is the amount of time that he and the Independent Children’s Lawyer are seeking in respect to the 12-month period immediately following the making of orders. That evidentiary lacuna is a significant concern to the Court.
As against that unknown factor, the Court finds that there remains an unacceptable emotional risk to X if the mother does not take steps to address her extreme level of anxiety, pattern of dysregulated behaviour and instances of unacceptable interaction with X.
In balancing those considerations, for reasons which I set out in this decision, I have determined that the father should have sole parental responsibility and that there should, effectively, be a reversal of the current living and spend-time arrangements such that they are in accordance the father’s initial Application. That initial Application, as I have indicated, is supported by the father’s current partner. Those arrangements will, however, be conditional upon the mother taking steps to address her anxiety and to undertake appropriate counselling in respect to her parenting skills. Regrettably, in the absence of the mother endeavouring to address those matters, the risk to X is such that her time with the mother would have to be significantly reduced to mitigate against that risk.
Background
The relevant background facts and, where disputed, factual contentions of the parties are set out immediately below.
In 1977, the mother was born. She is currently aged 42 years.
In 1979, the father was born. He is currently aged 41 years.
In 2008, the mother moved to Australia.
In 2010, the parties met online and commenced a relationship.
In 2010, the parties began living together.
In 2012, the parties married.
In 2012, X was born.
In mid-2013, the parties separated under the same roof. The father contends this occurred on 1 June 2013 and the mother contends this occurred in September 2013. The exact date is not material to this decision.
On 28 November 2013, the father attended C Services’ seminar, ‘Kids-in-Focus’.
On 12 December 2013, the father filed an Initiating Application seeking that the parents have equal shared parental responsibility for the child and that the child be placed on an Airport Watch List.
On or about 15 January 2014, the father moved out of the former matrimonial home.
Throughout 2014, the child was taken to E Hospital, by one or both parents, regarding the child’s asthma on multiple occasions including on 26 January, 24 February, 25 March, 10 May, 27 July and 26 November.
On 11 March 2014, Judge Kemp made orders for X to be placed on an Airport Watch list for two (2) years and for the parties to be restrained from removing her from Australia.
On 1 and 24 April 2014, the parties attended a Child Dispute Conference with Ms F.
On 29 April 2014, Judge Kemp made interim Orders by consent which provided the parties share parental responsibility for long term issues relating to X, however, have soles responsibility in respect to her day to day care, for X to live with the mother and spend time with the father during the day on seven (7) days per fortnight. His Honour further ordered that neither party is to drink alcohol whilst X is in their care and, without admissions, the father shall ensure he feeds X morning tea and lunch on the weekend days he spends with her.
On 16 June 2014, the father alleges the mother threatened she would kill him using a knife. The mother disputes the father’s version of events. Subsequent to the events of that day, the police applied for an Apprehended Domestic Violence Order (“ADVO”) for the father’s protection.
On 10 October 2014, a final ADVO lasting for a period of 12 months was made against the mother, for the protection of the father.
On 16 December 2014, the child met the father’s current partner, Ms G (“the father’s current wife”), whom the father had met during the course of undertaking his studies.
On 19 February 2015, the father filed a Contravention Application regarding breaches of the consent Orders made on 29 April 2014. On 18 May 2015, Judge Kemp noted:
The respondent mother concedes the breach of orders on of [sic] 19 January 2015, 24 January 2015, 25 January 2015 and 7 February 2015, but raises reasonable excuse by way of defence.
The Contravention Application filed by the father on 15 February 2015 was adjourned to 26 October 2015 at which time the application was, by consent, dismissed.
In 2015, the parties divorced.
On 8 June 2015, as outlined in the father’s Affidavit filed 22 March 2019, an incident occurred during which the mother told the father the child should live with the father and the mother threw the child’s possessions onto the nature strip in front of the former matrimonial home where the mother resided. The father alleges that, during this incident, the child was distressed and crying. The father further alleges the mother said to the child, “X, if you go with daddy never come back”. The mother disputes the father’s version of events but acknowledges that there may have been occasions where she said words to the effect that the child would not return from the father’s care.
On 11 August 2015, the mother sent an electronic message to the father stating “[…] we started to pray (we always pray before bedtime stories). X said, ‘mummy, you close your eyes, I pray.’ I closed my eyes, then she said “God, my daddy makes me really sick, but my mummy makes me feel better […]”.
On 26 October 2015, the first Expert Report of Dr B was completed. On the same day, the parties agreed to interim consent Orders, increasing the child’s time with the father and noting that the mother no longer contends that the father’s time with X should be supervised. Orders were also made for the parties to ensure X is appropriately dressed while in their care, including keeping her well covered and indoors during the winter months, and for the parties to treat X’s asthma according to any asthma management plan recommended by her Paediatrician, Dr J.
The mother has made several allegations of improper sexual behaviour perpetrated by the father towards the child. In particular, the mother has alleged that the father has improperly put cream in and around the child’s vagina. On 3 November 2015, the mother reported concerns to Dr K, who further reported the allegations to the Joint Investigation Response Team (“JIRT”) being a joint team of police and New South Wales child welfare investigators, and recommended the mother take the child to her paediatrician, Dr J, for an examination. These allegations are detailed in the mother’s Affidavit filed 5 April 2019.
On 5 November 2015, JIRT interviewed the child in response to the mother’s allegations of child sexual abuse by the father. JIRT found that the allegations were not substantiated. The mother revisited similar allegations in 2018, which included taking the child to see Dr J in respect to her concerns.
On 11 February 2016, the parties reached agreement in respect to further consent Orders made by Judge Kemp, which included both parties’ Applications being dismissed, for X to be removed from the Airport Watchlist and for mother to be permitted to travel with X to China from March to April 2016. In 2016 and 2017, the mother agreed to allow the father to spend overnight time with the child subject to the father sending the mother a text message at midnight, 3.00am and 6.00am to advise her that the father had checked on the child. The father asserts, that on 15 May 2016 and 2 December 2016, the mother phoned at midnight and 3.00am after the father did not send the aforementioned text message.
On 12 August 2016, the father alleges the mother told him she had told X that the father had died because he did not collect her from day care. The father alleges X cried in response to this, however, the mother denies this.
On 29 August 2016, the father asserts that the mother instructed X to leave a voicemail message on the father’s phone stating, “Daddy, you should have the drugs not me”. This audio file was tendered to the Court by way of USB contained in ‘Exhibit 4’ in the proceedings.
On 2 September 2016, the father alleges the mother left a voicemail message on the father’s phone in which conversation between the mother and daughter can be heard. In the recording the child can be heard asking the mother, “Is he a mean dad?” and the mother responding, “Yes”. This audio file was tendered to the Court contained in ‘Exhibit 4’ in the proceedings.
On 11 January 2017, the father states the parents agreed the child would begin to spend five (5) consecutive nights with the father.
The father states the mother prevented the child from spending overnight time with the father between 27 January and 5 April 2017.
On 30 January 2017, the father states, in his Affidavit filed 22 March 2019, that in response to his written query “How is X?” the mother provided the following reply:
She is sti [sic] sick. [X] said she does not want to be sick. We think about the solution is to give you some poison Nutella so you will be killed.so she will not get sick.
In response, the father made a report to the NSW Department of Family and Community Child Protection Department (“FACS”).
On 7 February 2017, the mother left a voicemail recording on the father’s phone. This recording is contained in ‘Exhibit 4’ in the proceedings. The mother can be heard making the following statements to the child:
You want to see him? You’ll be dead. Okay.
He’s going to make you dead.
You don’t want to die? Don’t see him.
Next time in front of me you want to see him.
You’re going to die.
Following the voicemail recording on 7 February 2017, the father made a report to FACS and requested the police conduct a welfare check on the child.
On 19 February 2017, the father states, in his Affidavit filed 22 March 2019, the mother told the child, “You’re not going to daddy’s place. If you go there, I am not going to see you anymore, okay. You’re not coming back ever. You are going to get sick. You’re going to die in his hands. You’re going to lose your life. You know that.”
From 22 April to 7 May 2017, the mother and the child travelled to China.
On 24 August 2017, the father received a photograph from the mother depicting the child holding Court Orders and facing the camera.
On 17 September 2017, the father failed to send the mother a message confirming he had checked on the child during the night. The father states the mother arrived at his property at 3.07 am to check on the child. This is not disputed by the mother.
On 30 September 2017, the father states the mother arrived at his property at 7.30 pm to see the child and take her home. A dispute occurred in which the father states the child ran into the father’s bedroom and said, “No, Mama will take me”. The father states the mother called the police, who, after arriving, checked on the child and asked the mother to leave the property.
On 13 October 2017, the father informed the mother he would cease sending messages throughout the night to the mother for the purpose of informing her that he had checked on the child. Following this, the father states the mother arrived at the property at 8.00 pm and began to take the child from the father’s house. The father states the child was distressed and he calmed the child and put her to bed. Following this, the father states the mother called the police who arrived, checked on the child, spoke to the parties and asked the mother to leave.
On 14 October 2017, the father states the police arrived at his residence, informing him the mother had alleged he had pushed her down the stairs and struck her on the previous evening. The father provided a statement and no further action was taken by the police.
On 16 October 2017, the father states the director of X’s pre-school informed the father she had lodged a report to FACS, citing the mother’s “erratic” behaviour as cause for concern.
On 10 November 2017, the father filed an Initiating Application seeking that previous Orders be discharged.
On 23 November 2017, Orders were made by Judge Sexton for the mother to enrol and attend the ‘Circle of Security’ course and ‘Parenting after Separation’ course and for both parties to commence and continue family therapy with Mr D.
On 27 November 2017, Judge Sexton made interim parenting Orders, which included that the father could spend time with the child as follows:
7. [X] spend time with the Father during school terms as follows:
a. Each alternate weekend commencing Friday 1 December 2017 from after daycare/school/after school care on Friday until before daycare/school/before school care on Monday, with the exception of the Mother’s Day weekend when [X] will live with the Mother and spend the following two weekends with the Father to reinstate the alternate weekend pattern.
b. Each alternate Thursday commencing Thursday 7 December 2017 from daycare/school/after school care until before daycare/school/before school care on Friday.
c. Commencing Monday 11 December 2017 (the Monday following [X’s] weekend with the Mother) each alternate Monday afternoon from after daycare/school/after school care until 7.00 pm.
d. On [X’s] birthday from daycare/school/after school care until 6 p.m or if a weekend, from midday until 6 p.m.
e. On Father’s Day from 10 a.m. until 5 p.m. if a non-contact weekend.
f. At any other time by agreement.
8. [X] spend time with the Father during Christmas school holidays 2017/18 as follows:
a. From 9 a.m. Christmas Eve until 2 p.m. Christmas Day 2017.
b. From 9 a.m. on 8 January 2018 until 6 p.m. on 16 January 2018, when the Father be permitted to travel with [X] to Brisbane.
c. From 9 a.m. on Thursday 25 January to 4 p.m. on Monday 29 January 2018.
d. At any other time by agreement.
9. [X] spend time with the Father during short school holidays as follows:
a. Unless otherwise agreed in writing, from after school on the last day of each school term until the middle Saturday of the school holidays at midday.
b. At any other time by agreement.
On 1 and 7 December 2017, the father alleges the mother breached Orders by not making the child available to spend time with him.
On 16 February 2018, Judge Boyle made interim Orders including:
5. The father shall make an appointment for the child at [S Hospital] and advise the mother of same within 7 days.
6. Both parties shall attend the appointment with [X] and shall follow the advice they receive in relation to [X’s] dental treatment.
On 3 March 2018, Judge Boyle made further interim Orders including that:
4. That within seven (7) days, the father do all things necessary to make an appointment with the [S Hospital] for [X], and advise the mother of same and the parties are to attend such appointment, and to follow the advice they may receive from the dentist(s) attached to that unit for [X’s] dental care.
From 14 April to 29 April 2018, the mother and the child travelled to China.
On 5 May 2018, the police applied for an ADVO against the mother for the protection of the father following the mother’s uninvited attendance at the father’s premise on 4 May 2018.
On 4 June 2018, the mother requested the child’s passport from the father to enable the child to travel to the United States of America with her. The father declined this request.
On 16 July 2018, the second Family Report of Dr B was released. On the same date further Consent Orders were made as follows:
THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:
4. That Order 7(b) of the Orders dated 27/11/2017 is varied so that [X’s] time with the father during school terms shall occur each alternate Wednesday commencing Wednesday 1 August 2018 from after school or out-of-school-hours care after school, until the commencement of school on Friday.
5. That [X] spend time with the father on this day 16/07/2018 from 4:30pm with the father to pick [X] up from the mother’s residence and return [X] at 7pm to the mother’s residence.
6. That [X] spend time with the father from 5pm on 17/07/2018 until 8:30am on 18/07/2018.
7. That [X] spend time with the father from 5:00pm on 18/07/2018 until 8:30am on 19/07/2018.
8. That [X] spend time with the father on 19/07/2018 from 2:30pm to 7:00pm.
9. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES
We consent to the making of Orders by the Court in the above terms.
A. The Court Notes that on a without prejudice and without admissions basis, each parent:-
a) Will use their best endeavours to ensure [X] is kept warm whilst she is in their care.
b) Will use their best endeavours to ensure [X’s] asthma is properly managed in line with medical advice received from [X’s] doctors from time to time whilst she is in their care.
c) Will not touch [X] inappropriate manner.
d) Will use their best endeavours to ensure that [X] plays in a safe and age appropriate manner.
B. The Court Notes that:-
a) The father contends that there is no factual basis for the Notations at A above, and disagrees that they are necessary.
b) The mother contends that there is a factual basis for the Notations at A above, and considers they are necessary.
On 16 July 2018 both parents attended, with the child, a dental appointment with Dr L. The father states the mother objected to a treatment plan proposed by Dr L and, as a result of the conflict, Dr L refused to continue treating X.
On 13 August 2018, the mother states that, after some correspondence with the father in August 2018, the mother drove to S Hospital and became aware the father had “made an appointment [for the child] to have a surgery under general anaesthesia to put a crown on one of X’s baby tooth”. The mother states she did not consent to the child attending this practitioner.
On 14 August 2018, the father alleges the mother wrote to him and advised she would not follow the dental advice of Dr L in relation to the child. The dispute between the parents regarding the child’s dental and general medical care has been an issue of sustained dispute between the parties.
On 19 October 2018, I made further interim Orders addressing the father’s time spent with the child over the upcoming Christmas period and set the matter down for final hearing. The matter was listed for final hearing on 8 April 2019.
On 4 February 2019, the mother filed an Application in a Case seeking to adjourn the matter. On 1 March 2019, I made an Order relisting the matter for final hearing over four (4) days commencing on 17 June 2019.
On 21 November 2019, I made an Order allowing the father to rely on his proposed Amended Minute of Orders dated 23 October 2019 as attached to his Application in a Case sealed 6 November 2019.
I will subsequently set out my findings in respect to the parties’ competing factual contentions where that has been necessary to arrive at my decision in respect to the Orders that I have made in this matter.
Applications
Orders sought by the mother
The mother sought that orders be made in accordance with her Amended Minute of Order (marked ‘Exhibit 19’ in the proceedings), as follows:
1. That all prior parenting orders be discharged.
2. That the mother have sole parental responsibility for all major long-term issues associated with [X], born in 2012,
3. The mother shall notify the father of any proposed decision relating to the long-term care and welfare of [X], including but not limited to:
(a) Proposed decisions about which schools [X] shall attend;
(b) Proposed decisions about surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting [X],
and shall ensure that:
i. Such notification is given to the father in writing and is given not less than twenty-eight (28) days before a final decision is made, except in the case of emergency; and
ii. The mother shall take into consideration of any views expressed by the father in respect of her proposed decision.
4. That X live with the Mother.
FROM THE COMMENCEMENT OF THESE ORDERS UNTIL X IS TEN (10) YEARS OF AGE
5. That from the commencement of these orders until [X] reaches the age of ten (10), she shall spend time with the Father as follows:
(a) In week 1: On Wednesday from after school (or 3:00PM) until 7:00PM.
(b) In week 2: On Saturday from 9:00AM until 5:00PM on Sunday.
(c) At any other times as agreed in writing between the parties.
6. For the purposes of Order 5(b) above, and any other overnight time spent as agreed between the parties, each parent must do the following:
(a) The mother shall provide the father with seasonally-appropriate sleeping bags, doonas, jumpers, coats, clothing and other warm outerwear and the father must use them. The father must also comply with any notes or directions from the mother in relation to how [X] is to be kept warm.
(b) The father shall ensure that [X] is showered after her Saturday swimming lessons at the pool, and does not shower or bathe her at his residence.
(c) At around 7:30PM, the father shall facilitate communication between the child and the mother on WeChat, Facetime, Skype or any other audio-visual communication platform.
(d) The father shall check on the child at 12:00 midnight, 3:00AM, 6:00AM and send a text message to the mother with a picture of the child during each of those times.
7. Notwithstanding the above, [X] shall also spend the following special days with each parent:
(a) With the father on the father’s birthday, being …, as follows:
i. If it is a school day, from after school (or 3:00PM) until 7:00PM.
ii. If it is a non-school day, from 10:00AM until 5:00PM.
(b) With the father on Father’s Day, from 9:00AM until 5:00PM.
(c) With the father during Christmas as follows:
i. In odd numbered years on 25 December from 9:00AM until 5:00PM.
ii. In even numbered years on 24 December from 10:00AM until 7:00PM.
(d) With the mother on Mother’s Day weekend from after school (or 3:00PM) on Friday until the commencement of school (or 9:00AM) on Monday.
(e) With the mother on the mother’s birthday, being …, as follows:
i.If it is a school day, from after school (or 3:00PM) until 7:00PM.
ii.If it is a non-school day, from 10:00AM until 5:00PM.
And any other order that is inconsistent with this paragraph is suspended so as to allow this time to occur.
8. The father shall undertake a mental health assessment conducted by a practitioner, of no less qualification of clinical psychologist, as follows:
(a) Within seven (7) days from the date of these orders, the father shall obtain referrals for such assessments;
(b) That forthwith upon obtaining the said referrals, the father shall arrange to undertake the first available assessments and inform the mother of the date of those assessments;
(c) That the father shall provide copies of assessments undertaken and treatment given in and around the year 2000 (as noted in CDC dated 7 April 2014) and have leave to provide copies of the Judgement of these proceedings to those conducting the said assessments and his GP;
(d) That the father shall provide the mother with copies of the said assessments within fourteen (14) days of receiving same; and
(e) That the father shall do all things necessary to comply with all treatment recommendations made in the said assessments and he shall make all reasonable efforts to ensure that he commences treatment in accordance with the recommendations within 28 days from the date of the assessments.
9. The Father shall provide the Mother with a letter in writing at three-month intervals from the Father’s treating General Practitioner particularising:
(a) Any changes to the father’s health;
(b) Any changes to the father’s medication;
(c) Any changes to the father’s treating practitioners; and
(d) A general update to as to the father’s health, including his mental health.
FROM WHEN [X] REACHES THE AGE OF TEN (10) UNTIL SHE COMMENCES HIGH SCHOOL
10. From when [X] reaches the age of ten (10) until she commences high school, she shall spend time with the Father during school terms as follows:
(a) In week 1: On Wednesday from after school (or 3:00PM) until the commencement of school (or 9:00AM) on Thursday.
(b) In week 2: On Friday from after school (or 3:00PM) until 5:00PM on Sunday.
(c) At any other times as agreed in writing between the parties.
11. During the school holiday period, [X] shall spend time with the father during school holidays as follows:
(a) During the short NSW school holidays: For one set of three (3) consecutive nights on dates as agreed between the parties, and in default of agreement, from 5:00PM on Monday until 9:00AM Thursday morning in the second week of the short school holidays.
(b) During the long summer NSW school holidays: For three sets of three (3) consecutive nights on dates as agreed between the parties, and in default of agreement, from 5:00PM on Monday until 9:00AM Thursday morning in the 1st, 3rd and 5th weeks of the long school holidays.
And any other order that is inconsistent with this paragraph is suspended so as to allow this time to occur.
12. Notwithstanding Order 11 above, [X] shall also spend the following special days with each parent:
(a) With the father on the father’s birthday, being …, as follows:
i. If it is a school day, from after school (or 3:00PM) until 7:00PM.
ii. If it is a non-school day, from 10:00AM until 5:00PM.
(b) With the father on Father’s Day weekend, from 5:00PM Saturday until 5:00PM Sunday.
(c) With the father during Christmas as follows:
i. In even numbered years on 24 December from 5:00PM until 9:00AM 25 December.
ii. In odd numbered years on 25 December from 9:00AM until 5:00PM 26 December.
(d) With the mother on Mother’s Day weekend from after school (or 3:00PM) on Friday until the commencement of school (or 9:00AM) on Monday.
(e) With the mother on the mother’s birthday, being …, as follows:
i.If it is a school day, from after school (or 3:00PM) until 7:00PM.
ii.If it is a non-school day, from 10:00AM until 5:00PM.
And any other order that is inconsistent with this paragraph is suspended so as to allow this time to occur.
13. For the purposes of any other overnight time spent pursuant to these orders from when [X] is ten (10) until she commences High School, each parent must do the following:
(a) The mother shall provide the father with seasonally-appropriate sleeping bags, doonas, jumpers, coats, clothing and other warm outerwear, and the father shall use them.
(b) The father shall facilitate communication between the child and the mother on WeChat, Facetime, Skype or any other audio-visual communication platform half an hour prior to the child’s bedtime.
14. The Father shall provide the Mother with a letter in writing at six-month intervals from the Father’s treating General Practitioner particularising:
(a) Any changes to the father’s health;
(b) Any changes to the father’s medication;
(c) Any changes to the father’s treating practitioners; and
(d) A general update to as to the father’s health, including his mental health.
FROM WHEN [X] COMMENCES HIGH SCHOOL THE FOLLOWING SHALL APPLY:
15. When [X] commences high school, she shall spend time with the Father during school terms as follows:
(d) In week 1: On Wednesday from after school (or 3:00PM) until the commencement of school (or 9:00AM) on Friday.
(e) In week 2: On Friday from after school (or 3:00PM) until the commencement of school (or 9:00AM) on Monday.
16. At any other times as agreed in writing between the parties. The Father shall provide the Mother with a letter in writing at yearly intervals from the Father’s treating General Practitioner particularising:
(a) Any changes to the father’s health;
(b) Any changes to the father’s medication;
(c) Any changes to the father’s treating practitioners; and
(d) A general update to as to the father’s health, including his mental health.
SPECIAL DAYS AND SCHOOL HOLIDAYS ONCE [X] COMMENCES HIGH SCHOOL
17. [X] shall spend time with each parent during the school holidays as agreed between the parties, and in default of agreement, as follows:
(a) During the short NSW school holidays: With the mother for the first half and with the father for the second half.
(b) During the long summer NSW school holidays: With the mother in the 1st, 3rd and 5th weeks and with the father in the 2nd, 4th and 6th weeks.
And any other order that is inconsistent with this paragraph is suspended so as to allow this time to occur.
18. Unless she is already spending time with the father, [X] shall also spend the following special event days with the father:
(a) On the father’s birthday, being …, as follows:
i. If it is a school day, from after school (or 3:00PM) until 7:00PM.
ii. If it is a non-school day, from 10:00AM until 5:00PM.
(b) On the Father’s Day weekend from the conclusion of school (or 3:00PM) Friday until the commencement of school (or 9:00AM) the following Monday.
(c) At any other times as agreed between the parties.
And all other orders that are inconsistent with this order are suspended so as to allow this time to occur.
19. Unless already with the mother, [X] shall spend the following special events with the mother:
(a) On Mother’s Day weekend from after school (or 3:00PM) on Friday until the commencement of school (or 9:00AM) on Monday.
(b) On the mother’s birthday, being …, as follows:
i. If it is a school day, from after school (or 3:00PM) until 7:00PM.
ii. If it is a non-school day, from 10:00AM until 5:00PM.
And all other orders that are inconsistent with this order are suspended so as to allow this time to occur.
20. The child shall spend her birthday with each parent as agreed between the parties, and in default of agreement, as follows:
(a) If it is a school day, with the father from after school (or 3:00PM) until 7:00PM.
(b) If it is a non-school day, with the mother from 9:00AM until 2:00PM, and with the father from 2:00PM until 7:00PM.
And all other orders that are inconsistent with this order are suspended so as to allow this time to occur.
21. The child shall spend Christmas with each parent as agreed between the parties, and in default of agreement, as follows:
(a) In odd numbered years, with the mother from 5:00PM on Christmas Eve until 2:00PM Christmas day, and with the father from 2:00PM Christmas day until 11:00AM Boxing Day;
(b) In even numbered years, with the father from 5:00PM on Christmas Eve until 2:00PM Christmas day, and with the mother from 2:00PM Christmas day until 11:00AM Boxing Day.
And all other orders that are inconsistent with this order are suspended so as to allow this time to occur.
COMMUNICATION
22. [X] shall have telephone/Facetime or other audio-visual communication with the parent with whom she is not already spending time at periods and frequencies as agreed between the parties.
23. Both parties shall facilitate such communication by ensuring that the child is available to talk with the other in privacy and without interference them or any other party.
CHANGEOVER
24. Unless otherwise agreed between the parties in writing, changeover on school days shall occur at [X’s] school or [X’s] after-school care centre. Otherwise, the father shall collect [X] from the mother’s residence at the commencement of his time and the mother shall collect [X] from the father’s residence at the conclusion of his time.
25. The parties shall comply with directions from [X’s] school with respect to pick-ups and drop-offs and use their best endeavours to ensure that [X] is not late to school.
SPECIFIC ISSUES
26. That the parents are restrained from denigrating the other parent in the presence or hearing of the child or from allowing a third party to do so.
27. That the parents shall each notify the other as soon as reasonably possible in the event that the child suffers a medical condition or injury whilst in their respective care.
28. The parties communicate in the usual course in writing, which includes e-mail and text messaging, in respect of issues relating to [X], and the other party to respond within no more than 24 hours, and all such communications be respectful, and be limited to one such communication per day or telephone in an emergency or when an immediate response is required.
29. That forthwith upon the making of these orders and continually thereafter, the Mother give written authority to [X’s] school to provide all information, including reports and notices of events and any other details of [X’s] progress to the Father, and the Mother to include the Father’s name on the school records as an emergency contact.
30. Each party be restrained from:
(a) Communicating with the other in a negative, denigrating, abusive, disrespectful or offensive manner;
(b) Attending upon the other party’s residence when [X] is in that party’s care unless invited in writing to do so, and unless in compliance with changeover provisions above;
(c) Loitering within 50 metres of the other parent’s residence or any place at which the other parent may reside from time to time;
(d) Without admissions, using any form of physical discipline on [X];
(e) Administering any medicine for [X] unnecessarily.
31. The parent with whom [X] is spending time pursuant to these orders is responsible for making arrangements for [X’s] transportation to and from her extra-curricular activities, sports, music and dance lessons, tuition and the like.
32. Each party ensure the other party has his/her current mobile telephone number on which that party can be contacted, and notify the other as soon as reasonably practicable with respect to any change of contact details.
33. The Mother keep the Father notified, of any medical treatment that [X] undergoes including providing details of medical practitioner, and any prescribed medication or dietary requirements, and provide the father with allergy and asthma management plans as soon as reasonably practicable.
34. Each party shall keep [X] appropriately dressed and covered, and use their best endeavours to ensure that she is kept warm, including that [X] attends school with her school jumper.
35. Each party shall ensure that [X] is adequately protected from the sun, including keeping her in the shade, using SPF50+ sunscreen and avoiding long periods of exposure to the sun between 10:00AM and 3:00PM during Summer.
36. Notwithstanding order 35 above and unless agreed between the parties, the father shall not apply any creams to the child.
37. Each party shall comply with [X’s] allergy and asthma management plan.
TRAVEL
38. The mother shall have sole authority to apply for and/or renew [X’s] passports and travelling documents, and be authorised to provide a copy of these orders to any authority required for the purposes of renewing [X’s] passports and travelling documents.
39. Should the mother wish to travel internationally with [X], she will notify the father as soon as reasonably practicable, preferably not less than one (1) month in advance of the proposed travel.
40. Further, if the mother is to travel overseas with the child, such travel is also on condition that it will be for periods of a duration and frequency to be agreed between the parents in writing and, in the absence of agreement, on not more than one occasion per year each and for a period no longer than 2 weeks, and the father’s time with the child pursuant to these orders is suspended so as to allow such travel to occur.
41. The father is permitted to travel interstate only with the child at an age as agreed between the parties, and in default of agreement, when the child commences high school. Such travel is on condition that it will be for periods of a duration and frequency to be agreed between the parents in writing and, in the absence of agreement, on not more than one occasion per year each and for a period no longer than seven (7) days.
42. Further to Order 41 above, should the father travel interstate with the child, he must provide to the mother at least twenty-eight (28) days prior to proposed departure:
(a) A copy of a proposed itinerary, including proposed dates of departure and return and details of all proposed accommodation arrangements;
(b) Arrangements for supervision of the child; and
(c) If the proposed supervision arrangements involve any person other than the travelling parent, the travelling parent will also provide written confirmation from each other person who will be involved in supervision that they are aware of and agree to the proposed arrangements.
43. On such occasions where [X] is on holidays either interstate or overseas, [X] shall communicate with the non-travelling parent by telephone/Facetime at least once per week from 6:00PM until 6:30PM AEST unless otherwise agreed between the parties in writing.
44. The father shall provide [X’s] passport to the mother within seven (7) days of the making of these orders, and [X’s] original passport shall then remain in the care and control of the mother.
Orders sought by the father
By way of proposed Minute of Orders filed 17 June 2019 (marked ‘Exhibit 3’ in the proceedings), the father sought orders which would, effectively, reverse the amount of time that the child spends in each parent’s household. That is where the child currently lives with the mother and spends five (5) nights per fortnight with the father, that situation would be reversed.
Those orders initially sought by the father are set out in the Amended Minute of Orders (marked ‘Exhibit 18’ in the proceedings):
Parental responsibility
1. That the Father shall have sole parental responsibility for the major long-term issues for the Child, [X], born in 2012, including but not limited to X’s health and education.
Live with
2. That [X] shall live with her Father.
Spend time with (during school term)
3. That [X] shall spend time with her Mother during the school terms as follows:
a. Commencing Friday 28 June 2019, each alternate week, from after school on Friday to the commencement of school the following Wednesday.
b. At any other time as agreed by the parents in writing.
Spend time with (during school holidays)
4. That Order 3 be suspended during the school holidays, being from after school on the last day of the current school term to the commencement of school on the first day of the next school term.
5. That [X] shall spend time with her Mother during the short mid-year school holidays as follows:
a. From 12:00 p.m. on the middle Saturday of each short mid-year school holiday to the commencement of school on the first day of school in the next school term.
b. At any other time as agreed by the parents in writing.
6. That [X] shall spend time with her Mother during the long Summer school holidays as follows:
a. When the long Summer school holiday period begins in an even-numbered year then, that time shall be from after school on the last day of school in term 4 to 12:00 p.m. on 7 January of the following year.
b. When the long Summer school holiday period begins in an odd-numbered year then, that time shall be from 12:00 p.m. on 7 January of the following year to the commencement of school on the first day of school in term 1 of that year.
c. At any other time as agreed by the parents in writing.
Spend time with (on special days)
7. That [X] shall spend time with her Mother, if she is not already spending time with her as follows:
a. On [X’s] birthday (…) and the Mother’s lunar calendar birthday, which is to be agreed by the parents in writing not less than 14 days prior to the day, on both days, from after school to 7:00 p.m. if that day is a school day or from 10:00 a.m. to 3:00 p.m. if that day is a non-school day.
b. On Mother’s Day (the second Sunday of May) from 9:00 a.m. to 5:00 p.m.
c. On the eve of Lunar New Year, from after school or from 9:00 a.m. if that day is a non-school day, to the commencement of school the following day or to 5:00 p.m. the following day if the following day is a non-school day.
d. At any other time as agreed by the parents in writing.
8. That [X] shall spend time with her Father, if she is not already spending with him as follows:
a. On [X’s] birthday (…) and the Father’s birthday (…), from after school to 7:00 p.m. if that day is a school day or from 10:00 a.m. to 3:00 p.m. if that day is a non-school day.
b. On Father’s Day (the first Sunday of September) from 9:00 a.m. to 5:00 p.m.
c. At any other time as agreed by the parents in writing.
[X’s] transition in care (Changeover)
9. That for the purpose of changeover, unless changeover is to occur through [X’s] school, the Father shall bring [X] to the Mother at the Mother’s residence at the commencement of [X’s] time with her, and he shall pick [X] up from the Mother at the Mother’s residence at the commencement of [X’s] time with him.
Communicate with
10. That both parents shall ensure the other parent has his/her current mobile telephone number on which that parent may be contacted.
11. That both parents shall facilitate a telephone call with the other parent so [X] shall communicate with the other parent as follows:
a. Each Sunday morning at 9:00 a.m.
b. Each Christmas Day (25 December), New Year’s Day (1 January), and Easter Sunday at 9:00 a.m.
c. Each Lunar New Year eve and the first day of the Lunar New Year at 6:00 p.m.
d. At any other time as agreed by the parents in writing.
Education
12. That both parents forthwith give written authority to any school or other educational institution that [X] attends to provide all information related to [X] to the other parent, including but not limited to progress reports and notices, and that the other parent is listed as an emergency contact.
13. That both parents be at liberty to attend [X’s] major curricular and extra-curricular events, for example, school open-days, concerts, presentations, ceremonies and competitions.
14. That both parents be permitted to accompany [X] at school on the first day of each school year from 8:30 a.m. to the commencement of school.
[X’s] passport and international travel
15. That the Father holds [X’s] passport in his ongoing care.
16. That both parents share equally the cost associated with maintaining the validity of [X’s] passport.
17. That when either parent intends to travel with [X] outside of Australia, they shall provide the other parent with, not less than 5 weeks prior to the intended departure date, copies of the following,
a. a travel itinerary including but not limited to dates and major destinations,
b. his/her return ticket and [X’s] return ticket, and
c. a method by which they may be contacted so to facilitate X’s communication with the other parent.
18. That in the event that the Mother requires a visa for [X], the Father shall, upon receiving the required details from the Mother, apply for [X’s] visa not less than 4 weeks prior to the intended departure date and the mother shall reimburse the Father for the cost of the visa not less than 2 weeks prior to the departure date and the Father shall give [X’s] passport (and visa) to the Mother not less than 1 week prior to the departure date.
19. That the Mother shall return [X’s] passport to the Father within 1 week of returning with [X] to Australia.
Parental communication and behaviour
20. That the parents communicate in the usual course by email in respect of issues relating to [X], and by SMS or telephone in the case of an emergency or when an immediate response is required.
21. That the parents be restrained from:
a. Communicating with the other parent in a negative, denigrating, abusive, disrespectful or offensive manner.
b. Communicating with the other parent or [X] between 8:00 p.m. and 8:00 a.m., except in the case of an emergency.
c. Attending upon the other parent’s residence unless invited to do so in writing by the other parent.
d. Approaching the other parent or [X] when [X] is in the other parent’s care unless in accordance with Court Orders, or as agreed in writing between the parents.
e. Denigrating the other parent in the presence of, or hearing of [X].
f. Discussing Court proceedings in the presence of, or hearing of [X].
g. Using any form of physical discipline on X.
Procedural
22. That all previous orders are dismissed.
As noted, on 21 November 2019, the father was granted leave to amend his Application. Accordingly, the father seeks orders pursuant to his Amended Minute of Orders filed with the Court by way of Application in a Case filed 6 November 2019, as follows:
PROCEDURAL
1. That all previous parenting orders in relation to the Child, [X], born … 2012 be discharged.
RESIDENCE
2. That [X] shall live with the Father.
PARENTAL RESPONSIBILITY
3. That the Father shall have sole parental responsibility for [X].
TIME
4. That [X] shall spend time with the Mother as follows:
a.During school term, for a period of 12 months, commencing from the date of these orders, on each alternate weekend from 9:00 a.m. on Sunday to the commencement of school the following Monday, or otherwise to 9:00 a.m. the following Monday and into the Father’s care in accordance with Order 6 described herein.
b.Thereafter, and subject to the Mother’s compliance with Order 7 described herein:
i.During school terms, on each alternate weekend commencing Friday 11 December 2020 from after school on Friday to the commencement of school the following Monday, with the exception of the Father’s Day weekend (the first Sunday of September) when [X] shall live with the Father and spend time with the Mother on the following two weekends (from after school on the Friday to the commencement of school the following Monday) to reinstate the alternate weekend pattern.
ii.On the Mother’s Day weekend (the second Sunday of May), if [X] is not already spending time with the Mother, from after school Friday to the commencement of school the following Monday with [X] to live with the Father on the following two weekends (from after school on the Friday to the commencement of school the following Monday) to reinstate the alternate weekend pattern.
iii.On [X's] birthday (…), if [X] is not already spending time with the Mother, from after school to 7:00 p.m. if that day is a school day or from 10:00 a.m. to 2:00 p.m. if that day is a non-school day.
iv.During school holiday periods at the end of school terms 1, 2 and 3 from 5:00 p.m. on Wednesday of the second week to the commencement of school the following term or otherwise to 9:00 a.m. on the first day of school and into the Father’s care.
v.During school holiday periods at the end of school term 4:
A. In even-numbered years, from 9:00 a.m. on 24 December to 5:00 p.m. on 29 December, and from 9:00 a.m. on 18 January of the following year to 5:00 p.m. on 23 January of that year, and
B. In odd-numbered years, from 9:00 a.m. 28 December to 5:00 p.m. on 2 January of the following year, and from 9:00 a.m. on 18 January of the following year to 5:00 p.m. on 23 January of that year;
vi.At any other time as agreed by the parents in writing.
COMMUNICATION
5. That communication for [X] with the other parent shall be as follows:
a. The Father shall facilitate a telephone or video phone call (e.g. FaceTime) for [X] with the Mother at least once per week during school holiday periods if she is not already scheduled to spend time with the Mother during that week.
b. The parents shall facilitate a telephone or video phone call (e.g. FaceTime) for [X] with the other parent on Christmas Day (25 December), New Year’s Day (1 January), Easter Sunday and Chinese Lunar New Year Day, if [X] is not already spending time with the other parent on that day.
c. At any other time as agreed by the parents in writing.
TRANSITION IN CARE / CHANGEOVER
6. That for the purpose of Order 4, all changeovers on school days shall take place at [X’s] school and on non-school days, the Father shall bring [X] to the Mother at the Mother’s residence at the commencement of her time with the Mother, and the Father shall collect [X] from the Mother at the Mother’s residence at the conclusion of her time with the Mother, unless otherwise agreed in writing between the parents.
SPECIAL CONDITIONS
7. That [X’s] time with the Mother in accordance with Order 4(b) is conditional upon the Mother’s compliance with the following:
a. That within fourteen (14) days from the date of these orders, the Mother is to obtain a Mental Health Care Plan and a referral from her GP to a psychologist or psychiatrist (“therapist”) for treatment of her anxiety.
b. That within twenty-one (21) days from the date of these orders, the Mother is to make an initial appointment with the therapist and advise the Father in writing of the name and contact details of the therapist and the date of the initial appointment.
c. That the Mother is to attend the initial appointment and all subsequent appointments in accordance with the therapist’s recommendations until such time as the therapist deems it appropriate for the Mother to cease treatment.
d. That the Mother is to comply with all reasonable recommendations made by the therapist in relation to her treatment, including taking any prescribed medication.
e. That the Mother is to provide a copy of the following documents to the therapist at her initial appointment:
i.A sealed copy of these orders,
ii.His Honour Deputy Chief Justice McClelland’s Reasons for Judgement, and
iii.[Dr B’s] 26 October 2015 and 16 July 2018 reports.
f. That the Mother is to authorise the therapist to provide the Father with information in writing limited to the Mother’s attendance and compliance with treatment recommendations, and the therapist’s view on whether the Mother should continue or cease treatment, if such information is requested by the Father.
8. That in the event that the Mother does not comply with Order 7, then [X’s] time with the Mother shall continue in accordance with Order 4(a).
RESTRAINTS
9. That the Court makes the following injunctions pursuant to section 68B(1)(c)(i) of the Family Law Act 1975:
a. That the Mother is restrained from coming within 100 metres of the Father’s residence at any time unless the Father provides consent to the Mother in writing.
b. That the Mother is restrained from coming within 100 metres of [X’s] school at any time with the exception of collecting or delivering [X] in accordance with these orders, or at the express written invitation of the school Principal, or with the Father’s prior consent in writing.
c. That the Mother is restrained from coming within 100 metres of [X’s] place of extracurricular activity with the exception of facilitating [X’s] time in such activity in accordance with these orders or with the Father’s prior consent in writing.
d. That both parents are restrained from denigrating the other parent or any member of the other parent’s household or extended family in the presence of or hearing of [X] and hereby are restrained from causing or permitting any other person to do so.
e. That both parents are restrained from discussing these Court proceedings in the presence of or hearing of [X] unless under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist.
SPECIFIC ISSUES
10. That each parent shall notify the other parent within 24 hours or as soon practically possible in the event that [X] suffers a significant illness or injury or is hospitalised whilst in that parent’s care.
11. That the Father shall keep the Mother informed in writing of:
a. Any major long-term decision concerning [X], including decisions in relation to her health and education.
b. The names and contact details of any specialists providing health or medical treatment for [X].
c. The names and contact details of any counsellor, psychologist or psychiatrist providing treatment for [X].
12. That the Mother is hereby authorized to obtain information from any doctor, health practitioner or therapist providing treatment to [X] in relation to [X’s] progress.
13. That the Father has leave to provide a copy of the following documents to [Mr D] and any counsellor, psychologist or psychiatrist providing or treatment to X:
a. A sealed copy of these orders.
b. His Honour Deputy Chief Justice McClelland’s Reasons for Judgement.
c. [Dr B’s] 26 October 2015 and 16 July 2018 reports.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer sought that orders be made in accordance with Annexure A to their written submissions (marked ‘Exhibit 25’ in the proceedings), as follows:
1. That all previous parenting orders in relation to the child, [X], born … 2012 be discharged.
2. That [X] shall live with the Father.
3. That the Father shall have sole parental responsibility for [X].
4. That X shall spend time with the Mother as follows:
a. For a period of 12 months from the date of these Orders:
(i)On each alternate weekend from 9 am on Sunday until before school on Monday.
b. Thereafter, and subject to the Mother’s compliance with Order 7 herein:
(i)During school terms, on each alternate weekend from after school on Friday until before school on Monday;
(ii)From 9 am on Mother’s Day until before school on Monday each year if [X] is not otherwise with the Mother;
(iii)During the school holiday periods at the end of Terms 1, 2 and 3 each year, from after school on the last day of term until 5 pm on the Wednesday in Week 1 of the holidays;
(iv)During the school holiday period at the end of Term 4 each year:
A. In even numbered years, from 9 am on 24 December until 5 pm on 29 December and from 9 am on 18 January until 5 pm on 23 January, and
B. In odd numbered years, from 9 am on 28 December until 5 pm on 2 January and from 9 am on 18 January until 5 pm on 23 January;
c. At such other times as agreed in writing between the parents.
5. The Father shall ensure that [X] telephones or Facetimes the Mother:
a. On Christmas Day if she is not with the Mother, and
b. At least once per week during school holiday periods if she is not scheduled to spend time with the Mother during that week.
6. For the purposes of Order 4, all changeovers on school days shall take place at [X’s] school and on non-school days, the Father will deliver [X] to the Mother’s residence at the commencement of the time and the Mother will return [X] to the Father’s residence at the conclusion of the time, unless otherwise agreed in writing between the parents.
7. The Mother’s time with [X] in accordance with Order 4(b) is conditional upon the Mother’s compliance with the following:
a. Within 14 days the Mother is to obtain a Mental Health Care Plan and referral from her GP to a psychologist or psychiatrist (“therapist”) for treatment of her anxiety.
b. Within 21 days, the Mother is to make an initial appointment with the therapist and advise the Father in writing of the name and contact details of the therapist and the date of the appointment.
c. The Mother is to attend the initial appointment and all subsequent appointments in accordance with the therapist’s recommendations until such time as the therapist deems it appropriate for the Mother to cease treatment.
d. The Mother is to comply with all reasonable recommendations made by the therapist in relation to her treatment, including taking any prescribed medication.
e. The Mother is to provide a copy of the following documents to the therapist at her initial appointment:
(i)A sealed copy of these Orders;
(ii)Justice McClelland’s reasons for decision, and
(iii)[Dr B’s] reports dated 26 October 2015 and 16 July 2018.
f. The Mother is to authorise the therapist to provide the Father with information limited to the Mother’s attendance and compliance with treatment recommendations, if such information is requested by the Father.
8. In the event that the Mother does not comply with Order 7, then [X’s] time with the Mother shall continue in accordance with Order 4(a).
9. The Court makes the following injunctions pursuant to section 68B(1)(c)(i) of the Family Law Act 1975:
a. The Mother is restrained from coming within 50 metres of the Father’s residence at any time, except with the Father’s prior consent in writing,
b. The Mother is restrained from coming within 50 metres of [X’s] school at any time except for the purposes of collecting or delivering [X] in accordance with these Orders, or at the express written invitation of the school Principal, or with the Father’s prior consent in writing.
10. Each parent is to notify the other in the event that [X] suffers a significant illness or injury, or is hospitalised, whilst in that parent’s care.
11. The Father is to keep the Mother informed of:
a. Any major long term decisions concerning [X], including decisions in relation to her health and education;
b. The names and contact details of any specialists providing health or medical treatment to [X], and
c. The names and contact details of any counsellor, psychologist or psychiatrist providing treatment to [X].
12. The Mother is hereby authorised to obtain information from any doctor, health practitioner or therapist providing treatment to [X] in relation to [X’s] progress.
13. Each parent is hereby restrained from making critical or derogatory remarks about the other parent to or in the presence or hearing of [X].
14. The Father has leave to provide a copy of the following documents to [Mr D] and any counsellor, psychologist or psychiatrist providing treatment to [X] in the future:
a. A sealed copy of these Orders;
b. Justice McClelland’s reasons for decision, and
c. [Dr B’s] reports dated 26 October 2015 and 16 July 2018.
Evidence
The mother relied upon the following material:
a)Affidavit of the mother filed 5 April 2019;
b)Affidavit of the mother filed 7 June 2019;
c)Amended Minute of Order filed 21 June 2019; and
d)Written submissions of the mother provided to the Court on 4 September 2019.
The father relied upon the following material:
a)Affidavit of the father filed 1 May 2019;
b)Affidavit of the father filed 22 March 2019;
c)Amended Minute of Order, by way of Application in a Case filed 6 November 2019; and
d)Written submissions of the father provided to the Court on 4 September 2019.
The Independent Children’s Lawyer relied upon the following documents:
a)Family Report of Dr B dated 26 October 2015;
b)Family Report of Dr B dated 16 July 2018; and
c)Written submissions of the Independent Children’s Lawyer filed 4 September 2019.
The following exhibits were relied upon:
a)List of issues for determination (‘Exhibit 1’);
b)Tender bundle of annexures to the Affidavit of the father (‘Exhibit 2’);
c)Minute of Orders sought by the father (‘Exhibit 3’);
d)USB containing audio recordings of telephone voicemail message (‘Exhibit 4’);
e)Tabs 1, 4 and 5 of material produced on subpoena by Dr M of U Medical Centre dated 30 April 2019 (‘Exhibit 5’);
f)Green tabs of material produced on subpoena by Dr N of T Medical Centre dated 30 April 2019 (‘Exhibit 6’);
g)Purple tab of material produced on subpoena by Dr M of U Medical Centre dated 8 May 2018 (‘Exhibit 7’);
h)Material produced on subpoena by Dr P of V Medical Centre dated 5 September 2018 (‘Exhibit 8’);
i)Material produced on subpoena by Dr Q of W Medical Centre dated 5 September 2018 (‘Exhibit 9’);
j)Tab F4 and orange tabs of material produced on subpoena by NSW Family and Community Services, 8 May 2018 (‘Exhibit 10’);
k)Material produced on subpoena by Dr R of W Medical Centre dated 24 August 2018 (‘Exhibit 11’);
l)Orange tab on material produced on subpoena by Dr K of W Medical Centre dated 24 August 2018 (‘Exhibit 12’);
m)Material produced on subpoena by Dr J of Y Medical Centre (‘Exhibit 13’);
n)Orange tabs on material produced on subpoena by NSW Police (‘Exhibit 14’);
o)Correspondence between the parties dated 15 January 2019 and 21 February 2019 (‘Exhibit 15’);
p)Tender bundle of annexures to the Affidavit of the mother filed 5 April 2019 (‘Exhibit 16’);
q)Tender bundle of annexures to the Affidavit of the mother filed 7 June 2019 (‘Exhibit 17’);
r)Amended proposed Minute of Orders sought by the father (‘Exhibit 18’);
s)Amended proposed Minute of Orders sought by the mother (‘Exhibit 19’);
t)Family Report of Dr B dated 16 July 2018 and Family Report of Dr B dated 26 October 2015 (‘Exhibit 20’);
u)Child Inclusive Conference (“CIC”) memorandum of Ms F dated 7 April 2014, CIC memorandum of Ms F dated 24 April 2014, and CIC memorandum of Ms F dated 29 April 2015 (‘Exhibit 21’);
v)Material produced on subpoena by clinical psychologist, Mr Z (‘Exhibit 22’);
w)E Hospital medical records (‘Exhibit 23’);
x)Material produced on subpoena by Dr K of W Medical Centre dated 8 May 2018 (‘Exhibit 24’);
y)Written submissions of the Independent Children’s Lawyer (‘Exhibit 25’);
z)Written submissions of the father (‘Exhibit 26’); and
aa)Written submissions of the mother (‘Exhibit 27’).
The law – concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objectives of Part VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act), and to protect them from family violence (s 43(1)(ca) of the Act).
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) 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.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
Those authorities must, however, be read in the context of s 65DAC(2) and (3) of the Act, which provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons.
…
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
If an order for equal shared parental responsibility is made, the pathway set out in s 65DAA of the Act applies to the task before the Court in respect to making parenting orders that it considers to be in the best interests of the child. That is, the Court is required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) requires me to consider the importance of the child having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 (“Sigley v Evoy”) at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”
In McCall & Clark (2009) FLC 93-405 at 83,476, the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Finton & Kimble [2017] FCWA 106 at [37], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
Protection from harm
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent. Stott & Holgar [2017] FamCAFC 152 at [38] confirms that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b), exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: M & M (1988) FLC 91-979 at 77,081 (“M & M”); B & B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: A v A (1998) FLC 92-800 at 84,996; M & M (supra) at 77,081.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]-[149].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence[1]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: N & S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]-[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled “Unacceptable Risk: A Return to Basics”.[2]
·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [83] referring to Russell & Close [1993] FamCA 62.
[1]Dieter & Dieter [2011] FamCAFC 82 at [61].
[2] John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. These considerations are as follows:
Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Sub-section (3)(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.
Sub-section (3)(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, to spend time with the child, and to communicate with the child.
Sub-section (3)(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.
Sub-section (3)(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, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
Sub-section (3)(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; and
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration
Consideration
Parental responsibility
In this matter, both parties are in agreement that, as a result of the history of conflict and ongoing communication difficulties that they have experienced, an order should be made for sole parental responsibility. The Independent Children’s Lawyer, whose submissions were supported by the father, argued that the history of conflict between the parties is such that an order for joint parental responsibility would not be in the best interests of the child. I accept that is the case. For reasons which I set out, I am satisfied that, in the absence of such an order, the parents lack the capacity to consult and make joint decisions in accordance with s 65DAC(2) and (3) of the Act.
The mother contends that an order should be made for her to have sole parental responsibility for reasons which include, but are “not limited to”, the following:
·the father consulted Dr J without the mother’s consent;
·the father consulted Dr M without the mother’s consent;
·the father has taken the child to multiple dentist visits without the mother’s consent or without informing the mother until after the appointments had been made and the child had attended the appointment;
·the father has made unilateral decisions in respect to the child’s schooling;
·the father has made unilateral decisions in respect of the child’s health; and
·the father failed to communicate important facts concerning his personal life and, in particular, did not inform the mother of the new relationship he had entered into with his current wife.
The mother further contended that the Court should find that the father has failed to appropriately follow the child’s asthma plan.
Insofar as a decision must be made as to which party exercises that responsibility, it was contended by the Independent Children’s Lawyer that “the [m]other’s history of challenging medical advice gives rise to a risk of inconsistency in medical treatment for X”. This, it was contended, presents a risk that “X’s health and medical needs will not be properly met in the future”.
While I have given attention to all of the considerations set out in s 60CC of the Act, by far the most relevant consideration is the issue of risk. Through s 60CC(2A), the Parliament has directed me, in my capacity as a judicial officer, to prioritise that consideration of risk over the consideration of the child having a meaningful relationship with both parents.
For reasons which I have set out, I am satisfied that the child is exposed to an unacceptable risk of emotional and psychological harm if she remains in the primary care of the mother.
This is because of the mother’s extreme anxiety concerning the welfare of the child when the child is in the father’s care. It is also because of the mother’s difficulty in appropriately regulating her own behaviour and, as a related issue, the inappropriate manner in which she has communicated to the child, including, most relevantly, advising the child that she faces a risk to her health and, specifically, the possibility of dying in the father’s care.
This is in the context where the mother has simply refused to acknowledge that is the case despite clear expert evidence to that effect. In that context, the mother has adopted an unreasonably dismissive approach in respect to counselling and the prospect that such counselling may assist her to address her anxiety and improve her parenting skills.
In giving oral evidence Dr B said:
…because anxiety is about irrational fear, so – and that’s why it’s unfortunate that the mother has not been able to connect with some anxiety-specific therapy, such as cognitive behaviour therapy, because that’s perhaps one of the most effective intervention strategies for dealing with anxiety and irrational beliefs around any dimension of life, but in this case [X’s] health.[57]
[57] Transcript 27 June 2019, p.9 lines 8–12.
As a result of the mother’s refusal to receive that professional assistance, training and guidance, I have significant doubt that, even despite this decision, she will, in the future, engage with professional assistance, training and guidance in a committed and meaningful way.
For these reasons, I am satisfied that the child is at an unacceptable risk of suffering emotional and psychological harm if she remains in the primary care of the mother.
Consideration of orders to be made
Assessing whether there should be a change of residence
The Independent Children’s Lawyer referred to the 2015 report of Dr B, in which she stated, at paragraph 84, that “the option of X living with her mother needs to be fully exhausted possibly before the Court considers a change in X’s living circumstances”.
The Independent Children’s Lawyer submitted that the mother has had every opportunity to obtain professional assistance to address her anxiety and reform her attitude and behaviour in respect to parenting the child and she has not done so. Accordingly, the Independent Children’s Lawyer submitted that the option of the child remaining in the mother’s primary care has now been “fully exhausted”.
The Independent Children’s Lawyer submitted that this case did not fall into the same category as a decision of Justice Jackson in Re M (Children) [2012] EWHC 1948 (Fam), where his Honour determined that the mother, in that case, should be provided with a “last chance” to reform her conduct which, as held by his Honour on the facts of that case, presented an emotional risk to the children. The Independent Children’s Lawyer submitted that providing the mother with such a last chance was a futility because she would not embrace the opportunity and, as a result, the child would be exposed to “ongoing emotional harm”. I accept and agree with that submission.
During the course of the proceedings, I referred the parties to the decision of Lord Justice Andrew McFarlane, President of the Family Division, in the matter of Re L (A Child) [2019] EWHC 867 (Fam) (“Re L”). In that case, his Honour was called upon to adjudicate in respect to a dispute where it was alleged that the mother had failed to facilitate the children having a relationship with the father. His Honour disagreed with authorities which held that an order changing a child’s place of primary residence “from the obdurate primary carer to the parent frustrated in pursuit of contact is a judicial weapon of last resort”: Re A (Residence Order) [2009] EWCA Civ 1141 at [18] (“Re A”). McFarlane LJ, specifically rejected the language of the Re A test, saying:
Whilst having the greatest of respect for the two judges who gave judgments in Re: A, I would wish to distance myself from the language used insofar as it refers to a decision to change the residence of a child as being a ‘weapon’ or ‘a tool’… such language, in my view, risks moving the focus of the decision making away from the welfare of the child which must be the court's paramount consideration.
His Honour’s succinct summary of principle is entirely consistent with the approach in Australia which, as I have set out, requires the Court to have regard to the best interests of the child as the paramount consideration in parenting proceedings.
In taking that approach, McFarlane LJ nonetheless noted the significance of a decision to change a child’s place of residence and upheld the approach taken by Sumner J in Re C (Residence) [2007] EWHC 2312 (Fam) (“Re C”). The facts of Re C (supra), as summarised by McFarlane J, were that:
…a father applied for a change of residence on the basis that he believed that he was being side-lined by the mother and replaced by her new husband who was to be called "dad" by the seven year old child. Expert opinion stated that the case was finely balanced. The mother, however, proposed a joint residence order with an increase in contact. Sumner J refused the father's application, but ordered that case to come back under review to monitor, in particular, the mother's progress in undertaking therapy.
The approach taken by Sumner J in Re C (supra), which, on the facts of that particular case, was endorsed by McFarlane LJ, is set out at [183] to [185] of the decision of Sumner J as follows:
183. Christoph has spent all his 7 years under his mother's care with whom he has a strong and beneficial bond. No court would alter that situation without clear evidence that he had suffered harm which would continue or was at serious risk of that. In April he was suffering harm because of the mother's attitude to his relationship with his father. Rereading Dr Berelowitz's first report shows how the tension and the attitudes were affecting Christoph.
184. It was not done to cause him harm. It was part of the mother's negative feelings towards the father being allowed a far too free a rein. It was to Christoph's detriment. It is sadly a not uncommon result of a breakdown in a relationship. It is not often that it is so graphically pointed out as in this case. Courts are slow to change residence in such circumstances without giving the resident parent a chance to understand what has gone wrong and to remedy it, provided that such a course is compatible with a child's best interest. The changes in the mother's attitude justify such a course in Christoph's best interests.
185. I consider the mother has shown an understanding of what has gone wrong. She has apparently listened and responded. I am less clear about whether she has the will to sustain the implementation of the changes needed. There has been too little time though progress has been made. It is therefore best if the court retains a close supervision of the progress.
Having regard to the decision of Sumner J in Re C (supra), I invited the parties to consider whether, in this case, it was appropriate for me to make interim orders to, in effect, give the mother an opportunity to recognise the impact of the extreme anxiety from which she suffers and, specifically, to recognise that she requires professional intervention to address that anxiety and to assist her to regulate her emotions and engage in appropriate communications with the child.
The Independent Children’s Lawyer submitted that the facts of this case lead to the inescapable conclusion that providing the mother with what would be, in effect, “one last chance” to address those matters would be a futility. It was submitted by the Independent Children’s Lawyer that the mother’s failure to recognise the need for professional intervention to address the matters to which I have referred, inevitably leads to a similar conclusion as that made by the trial judge in Re L, that on the facts presented in that case, appropriately, “the level of emotional harm and the potential for future harm were such that, in the absence of any clear indicator of change, a move of home was justified”.
The decision for there to be a change in a child’s residence is one of significance. It has the potential to significantly impact upon the child and the parents, including, most specifically, the parent with whom the child has been residing. It goes without saying that such a decision requires very careful consideration. For reasons which I have set out, I respectfully agree with the submissions by the Independent Children’s Lawyer that, having carefully considered the various options presented by the parties, in the context of assessing what is in the best interests of the child, such a change in residence is necessary in the present case.
Mitigation or amelioration of risk
In the matter of Blinko, the Full Court held that, in the event of the Court finding an unacceptable risk to be present in a matter, the Court should then focus upon any protective measures that might be put in place to ameliorate or minimise that risk to an acceptable level.
For reasons which I have set out, I have determined that there should be an order for there to be a change in the child’s residence. The next question becomes, having identified that the child faces an unacceptable risk of emotional and psychological harm in the mother’s care, what steps can be taken to mitigate against that risk such that the child can have a meaningful relationship with both her parents.
The Independent Children’s Lawyer submitted that the most effective way of protecting the child from the mother’s foreseeable adverse reaction to orders changing the child’s place of residence and reducing the amount of time that the child spends with the mother would be to direct that the child’s time with the mother, “for an initial period after the change of residence”, be supervised. The Independent Children’s Lawyer noted that such a course of action would be consistent with the recommendation set out in paragraph 88 of Dr B’s 2015 report.
However, during the course of the proceedings, I referred the parties to Dr B’s statement that such a period of limited contact, then suggested to be a period of three (3) months, would be, as explained in the words of Dr B, “a huge call given X’s age and attachment to her mother who has been her primary caregiver”. In giving oral evidence, Dr B explained that her cautionary statement now needed to be seen in the context of the child being more than four (4) years older and, also, in the context where she spends five (5) nights per fortnight with her father and has established a stronger bond with him. Nevertheless, I am satisfied that, in the context where the mother has been the child’s primary carer, it would be, if not a “huge call”, a very significant decision to make to so substantially limit the amount of time that the child spent with the mother, even if it was for only a period of three (3) months which, in the life of a young child, is a significant period of time.
In that context, I note during the cross-examination of Dr B, it was accepted that such an alteration to the child’s current situation “would be difficult for her”.[58] Further, in giving oral evidence, Dr B stated that, “if there is a change in X’s living arrangements where she is primarily in the father’s care, there will still be some loss for her. It will still be a major change”.
[58]Transcript 27 June 2019, p.11.
During the course of the proceedings, both the Independent Children’s Lawyer and the father moderated their respective positions such that they did not press their order for the child to spend only limited supervised time with the mother, which the Independent Children’s Lawyer initially proposed to be for a period of three (3) months and the father proposed to be for a period of four (4) months.
The Independent Children’s Lawyer explained the amended position in paragraphs 100 and 101 of the Independent Children’s Lawyer’s written submissions as follows:
100. Rather than supervision, the ICL contends that the risk of emotional harm could be adequately mitigated by limiting the length and frequency of unsupervised time during the initial 12 month period. It is submitted that the ICL’s proposed Order 4(a)(i) strikes an appropriate balance between [X’s] need for protection; her need to have time to settle into her new living arrangements without disruption, and her need to maintain a connection with her Mother and not feel abandoned.
101. Following the initial 12 month period, the ICL’s proposal is that [X] would spend substantial and significant time with the Mother. The ICL’s proposed Order 4(b) is an attempt to balance [X’s] need for an ongoing meaningful relationship with her Mother against the reality that the Mother’s attitude towards the Father is unlikely to change and therefore the risk of emotional harm to [X] will continue.
As noted, order 4(a)(i) sought by the Independent Children’s Lawyer is for the child to spend each alternative weekend with the mother from 9.00 am on Sunday until before school on Monday. This would apply for a period of 12 months. After that, however, subject to the mother complying with proposed order 7 which relates to the mother obtaining professional assistance to address her anxiety and behaviour, the time the child would spend with the mother would, leaving aside holidays and special days, be extended to a period of three (3) nights per fortnight rather than just one (1) night.
While I recognise and appreciate the basis upon which the Independent Children’s Lawyer and the father have proposed those orders, I am satisfied that such orders, and, specifically, limiting the amount of time that the child spends with the mother to just one (1) night per fortnight, would be extremely difficult for her. That difficulty would be elevated if it were to be the case that the father’s current wife found difficulty with the arrangement whereby the child spent 13 nights per fortnight with the father and herself. As noted, the Court is without evidence in respect to the views of the father’s current wife concerning that potential outcome.
To place the child in that situation as a result of the fact that her parents have been involved in ongoing conflict would be regrettable. It would, nonetheless, be an order that the Court would make if satisfied that it was necessary to make such an order to prevent the child suffering further emotional and/or psychological harm. I, specifically, limit my comments to harm of that nature because there has been no suggestion that the child would suffer physical harm in the care of either parent.
As noted, I am satisfied that the child would suffer such emotional and psychological harm should it be the case that the mother fails to address the extreme level of anxiety from which she suffers concerning the child being in the care of the father and her propensity to engage in dysregulated conduct, including in respect to her inappropriate interactions with the child.
Accordingly, there is a need to strike a balance between the proposal of the Independent Children’s Lawyer and the father that the child spends only one (1) night per fortnight with the mother for a period of 12 months and the only evidence before the Court that the father’s current partner would support the child living with the father and herself for a period of nine (9) nights per fortnight.
As a result of the doubt that I have that the mother will, in the future, seek counselling to address her anxiety and engage in appropriate therapy and training, the orders that I make will provide for a default position that the child will spend limited time with the mother in accordance with order 4(a) of the orders proposed by the Independent Children’s Lawyer.
If, however, contrary to the doubt that I have expressed, the mother should decide to recognise the need for professional assistance to address her anxiety and those aspects of her attitude and conduct to which I have referred and, more importantly, to positively engage in obtaining that professional assistance, training, and guidance, then the risk to the child would be significantly mitigated. The mitigation of that risk would then shift the scale to providing for the child to spend additional time with the mother with a view to maintaining and further developing a meaningful relationship between the mother and the child.
Orders in the context of findings that I have made
Spend time arrangements
Save for an order requiring the mother to immediately take steps to engage appropriate professional assistance to address her extreme level of anxiety and to act on advice in respect to addressing the shortcomings in her parenting that I have identified, all orders will take effect 28 days after the date of delivery of judgment.
If the mother does not comply with the order that I make requiring her to seek professional assistance and to act on the basis of that professional advice, the default position will be as proposed in order 4(a) of the Independent Children’s Lawyer’s Minute of Order.
Alternatively, if, contrary to the doubt I have expressed, the mother does take action to obtain professional assistance, the orders will provide for the child to spend time with the mother in accordance with order 3 of the father’s proposed orders dated 17 June 2019. The orders will also require the mother to authorise the therapist, as referred to in order 7(f) in the Independent Children’s Lawyer’s Minute of Order, to provide limited information to the father confirming the mother’s attendance and compliance with treatment recommendations. There is no justification for providing the additional information as proposed in order 7(f) of the father’s Minute of Order.
Subject to the mother complying with proposed order 7 of the Independent Children’s Lawyer’s Minute of Order, I am satisfied that the child should spend an equivalent amount of time with each parent during school holidays. This will facilitate the father having the ability to travel with the child to visit his adoptive parents and his biological mother in Brisbane.
It is also appropriate that the mother spends special days, including Mother’s Day, with the child and that arrangements be made for the child to contact the other parent in the event that she is not spending Christmas Day with them. Otherwise, the orders will provide for the child to spend every alternate year with one parent on Christmas Day.
Changeovers
The Independent Children’s Lawyer sought orders for changeovers to occur at school where that was possible. Those orders replicate current arrangements and are appropriate. The Independent Children’s Lawyer proposes, however, that in circumstances where it is not a school day or the child did not attend school, then changeovers should occur by the father dropping the child off at the mother’s residence and the mother subsequently returning the child to the father’s residence at the conclusion of changeover. The father contended, however, that, in circumstances where there have been a number of instances, as set out in this decision, the mother has not taken the child to the place of changeover, the orders should be made for the father to collect the child from the mother’s residence at the conclusion of the child spending time with the mother. In the circumstances that I have outlined, I accept that such an order is appropriate.
Restraints
In circumstances where the mother’s attendance at the father’s premises has occurred at inconvenient hours, including, on one (1) occasion, at approximately midnight, and in circumstances where such attendance has given rise to police intervention, I am satisfied that it is appropriate to impose the restraints upon the mother that are set out in proposed order 9 of the Independent Children’s Lawyer’s Minute of Order.
In that context, the order will also include the restraint proposed by the Independent Children’s Lawyer restraining the mother from attending the child’s school other than in accordance with the express written invitation of the school principal or with the father’s prior consent. This would avoid a situation where the child is placed in an uncomfortable situation at what should be her place of sanctuary and learning.
In recording that such restraints will be imposed, I note that the father has not articulated reasons to justify why the restraint should extend to a radius of 100 metres as opposed to 50 metres as proposed by the Independent Children’s Lawyer.
Additional orders
While, for reasons which I have set out, I have made orders for the father to have sole parental responsibility, it is appropriate that the father keep the mother informed of matters referred to in proposed order 11 of the Independent Children’s Lawyer’s Minute of Order and that the mother is authorised to obtain the information referred to in proposed order 12 of the Minute.
A significant issue in these proceedings has been the extent to which the mother has denigrated the father, including advising the child that she is at risk of suffering illness and even death when staying with the father. It is, therefore, appropriate to make orders restraining either parent from making critical or derogatory remarks about the other parent in the presence of the child. Again, the father has not articulated reasons for expanding that restraint to apply to comments that may be made in respect to other members of each of the parent’s extended families. Without appropriate definition as to who is a member of the parents’ extended families, such an order could also give rise to uncertainty and could potentially become a source of conflict.
It has been foreshadowed by the father that, in order to assist X in adjusting to the revised parenting arrangements following these proceedings, he intends to seek professional advice from Mr D. It is appropriate that Mr D be provided with the relevant documents referred to in proposed order 14 of the Minute of Order proposed by the Independent Children’s Lawyer.
The father has proposed that the parties also be restrained from discussing these proceedings with the child “unless under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist”. It is regrettable that the child has been brought into these proceedings, including by holding up a copy of the Court Order for the purpose of facilitating a photograph taken by the mother. In those circumstances, I propose making that order proposed by the father.
It was not disputed that each parent should be obliged to advise the other parent if, unfortunately, it should occur that the child suffers any significant illness or injury whilst in that parent’s care. The difficulty I have with the mother’s proposal, as set out in paragraph 27 of her proposed orders, is that it would require each parent to notify the other in the event of the child suffering any medical condition or injury whilst in their respective care. Such a broad responsibility has a potential to give rise to ongoing disputation.
The mother proposes, in order 23 of her Minute of Order, that each parent should ensure that the child’s privacy is respected at those times that she may communicate by phone or Facebook with the other parent. An order to that effect is appropriate.
The mother proposed that there be specific restraints on the manner in which the parties communicate with each other in respect to issues relating to X and, specifically, that any such communication be respectful. The mother further proposed that each party be required to respond to the other parent within 24 hours of receipt of a communication from them. This would be in circumstances where the orders provided for each parent sending one (1) electronic communication to the other each day. I am satisfied, however, that, unless and until the mother’s anxiety is addressed, such an order could give rise to an oppressive level of communication that would occur on a daily basis and potentially contribute to the parties’ ongoing disputation. I, therefore, decline to make such an order.
The mother’s orders acknowledged that it was appropriate for the parent with parental responsibility to authorise the child’s school to provide reports and any other details of X’s progress to the other parent. I agree that such an order is appropriate in light of the orders that I have made regarding the mother’s attendance at X’s school being subject to invitation of the principal at the consent of the father. I do not, however, make the order in terms that are as broad as those proposed in paragraph 29 of the mother’s Minute of Order.
In paragraph 30 of her Minute of Order, the mother proposes that there be a restraint on either parent “administering any medicine for X unnecessarily”. For reasons which I have set out in this decision, I am not satisfied that such conduct has occurred and I will not make an order in those terms. Similarly, I am not satisfied that either parent has engaged in physically disciplining X and, accordingly, I will not make an order in terms of that proposed by the mother in paragraph 30 of her Minute of Order.
More generally, the mother proposes, in orders 31 through to 37 of her proposed Minute of Order, quite prescriptive requirements on the other parent at times that X is in their care. I am not satisfied that such prescriptive requirements are justified and they have the potential to result in further disputation. Accordingly, I decline to make orders in those terms.
At paragraphs 38 through to 44, the mother proposes orders that would permit the mother to travel overseas with the child but which would restrict the father’s travel with the child to interstate travel, subject to the child reaching “an age agreed between the parties”. In circumstances where I have made orders for the father to have sole parental responsibility, such an order would be inappropriate. The father has not pressed for an order permitting him to travel overseas with the child. I am not satisfied that such an order would be appropriate to permit the mother to engage in such overseas travel with the child in circumstances where the amount of time that the child spends with the mother will be significantly limited unless and until she obtains the professional assistance referred to in proposed order 7 of the Independent Children’s Lawyer’s Minute of Order. In those circumstances, the provisions of s 65Y of the Act will apply, which, by way of summary, prevents either party from taking or sending the child outside the Commonwealth of Australia without further order of the Court or where agreement is reached in the circumstances otherwise set out in that section of the Act.
Accordingly, for the reasons set out in this decision, I make orders in accordance with those set out at the commencement of these reasons.
I certify that the preceding four hundred and eighty four (484) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 26 March 2020.
Associate:
Date: 26 March 2020
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