Quinlan & Ware

FEDERAL CIRCUIT COURT OF AUSTRALIA
Quinlan & Ware [2021] FCCA 1767

File number(s): SYC 5426 of 2013

Judgment of: JUDGE B SMITH

Date of judgment: 2 August 2021

Catchwords: FAMILY LAW – PARENTING – Final – whether father poses unacceptable risk – 10 year old child reading at year 1 level - educational needs – home schooling with mother or mainstream schooling with father: No unacceptable risk – equal shared parental responsibility –live with father – attend public school on a regular basis – spend time with mother.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4B, 60CA, 60CC, 65AA

Cases cited:
Adamson and Adamson (2014) FLC 93-622
B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
Carlson & Fluvium[2012] FamCA 32
Fitzwater & Fitzwater [2019] FamCAFC 251
G & C [2006] FamCA 994
HG v R (1999) 197 CLR 414
M v M (1988) 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR

Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR
R v Turner [1975] QB 834
Stott & Holgar and Anor [2017] FamCAFC 152

Number of paragraphs: 533

Date of hearing: 9-12 December 2019, 7-8 May 2020, 10 July 2020 and 9 November 2020

Place: Sydney

Counsel for the Applicant: Mr Watkins

Counsel for the Respondent: Ms Kaiti

Counsel for the Independent Children's Lawyer: Mr Murray

Solicitor for the Independent Children's Lawyer: Peter Jurd Lawyer

Solicitor for the Applicant: Solari & Stock Lawyers

Solicitor for the Respondent: Catalyst Family Lawyers
ORDERS

SYC 5426 of 2013

BETWEEN:
MR QUINLAN

Applicant

AND:
MS WARE

Respondent

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

2 AUGUST 2021

THE COURT ORDERS THAT:
1.All previous orders concerning X born in 2011 (“X”) made pursuant to the Family Law Act 1975, be vacated and discharged.

Parental Responsibility
2.The Applicant Mr Quinlan born in 1982 (“the Father”) and the Respondent Ms Ware born in 1989 (“the Mother”) are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of X.

Live With
3.X live with the Father.
4.By Saturday 15 August 2021 the Mother is to do all acts and things necessary to deliver X to the Father.
5.The changeover is to be at B Street, Suburb C, NSW, or such other location as the parties agree in writing.
6.If the mother prefers to make the change-over by air-travel the mother is to notify the father. The father is then to arrange for X to fly on 15 August 2021 at the father’s cost and the mother is to facilitate that travel.

Time With on Weekends and Special Occasions
7.X spend time with the Mother as follows:-
(a)On the first full weekend of each month during school terms, from 9.30 am on the Saturday to 4.30 pm on the Sunday;
(b)For the weekend of Mother’s Day from 9.30 a.m. on the Saturday to 4.30 pm on the Sunday if not already in the mother’s care;
(c)In the event that X’s birthday does not fall on a weekend that he is spending time with the Mother, on the weekend prior to X’s birthday, from 9.30 am on the Saturday to 4.30 pm on the Sunday.
(d)In the event that the mother’s birthday does not fall on a weekend that he is spending time with the Mother, on the weekend prior to the mother’s birthday, from 9.30 am on the Saturday to 4.30 pm on the Sunday.
(e)In the event that the father’s birthday falls on a weekend that X is spending time with the Mother, X shall spend the father’s birthday with the father and the weekend prior to the father’s birthday with the mother, from 9.30 am on the Saturday to 4.30 pm on the Sunday.
(f)In the event that father’s day falls on a weekend that X is spending time with the Mother, X shall spend father’s day with the father and the weekend prior to father’s day with the mother, from 9.30 am on the Saturday to 4.30 pm on the Sunday.

8.These times are to take place in the Greater Sydney region and including the Region D to City E, the Region F to City G and the west including the Region H.
9.That the time provided for in this section is conditional upon the mother providing the Father with no less than seven (7) days written notice of her intention to exercise that time, and written notice of the place at which the time will be spent. For the avoidance of doubt the mother may spend time with X in her mobile home.
10.Such other times as the parties may agree between them in writing.
11.Changeovers shall occur at Suburb J Railway station or at such other location as the parties may agree in writing.

Time With During School Holidays
12.X spend time with the mother as follows:-
(a)For the first ten (10) days of the school holidays at the end of terms one (1) and (3), commencing at 9.30 am on the first Saturday of each holiday, and concluding at 4.30 pm on the tenth day of that holiday;
(b)For the first seven (7) days of the school holiday at the end of term two (2), commencing at 9.30 am on the first Saturday of each holiday, and concluding at 4.30 pm on the seventh day of that holiday;
(c)For the first half of the Christmas school holiday period, in odd years, commencing at 9.30 am on the day after the last day of the school term, and concluding at 4.30 pm on the twenty first day;
(d)For the second half of the Christmas school holiday period, in even years, commencing at 9.30 am on the twenty first day, and concluding at 4.30 pm on the day before school commences;

13.The mother may spend this time with X anywhere in Australia that she sees fit.
14.Changeovers shall occur at Suburb J Railway station or at such other location as the parties may agree in writing.
15.If the mother wishes X to come to Town K the father shall book and pay for X’s return tickets, and the mother shall reimburse him one third the cost within 28 days of the trip upon being provided with a copy of the invoice. Change over shall be deemed to be delivery of X to the Airports closest to the parties.

Communication With
16.The Mother communicate with X as follows:-
(a)By telephone, skype, snapchat, whats app, facetime, or voip each Wednesday at 6.00 pm and on X’s birthday and Christmas Day at 8.30 am; and
(b)At such other time and communication as is agreed upon between the parties in writing; and

17.Each party is to facilitate X telephoning the other, at any reasonable time, that X requests.

Schooling
18.The parties are to do all things and sign all documents necessary to enrol X forthwith in the local public school in which catchment he falls.
19.The Father is to do all acts, and things necessary to ensure that X attends school on each school day, and is present at the time that school commences
20.In the event that X is too unwell to attend school, or is late attending school, the Father is to provide the school with a medical certificate that identifies the nature of that illness.
21.In the event that X does not attend school, or attends school late, apart from a medical issue, the Father is to provide the school a written explanation which includes details of the reason that he did not attend school, or was not at school at the time that he was required to be.
22.The Father is to provide the school that X attends, a copy of these Orders together with a copy of the reports of Dr L and Ms M.
23.That the Father and the Mother are at liberty, at their own expense, to obtain from any school attended by X:
(a)A copy of his school report;
(b)Details of his school attendance, including partial and whole absences;
(c)A copy of his school photos; and
(d)A copy of any notice or newsletters ordinarily provided to parents.

24.Each party may attend any school, extra curricula, sporting or other event for X to which parents are invited or accepted as reasonably attending.

Courses
25.The father is within 6 months of these orders to complete a course about the developmental needs of a child of X’s age and to complete, on a without admissions basis, an anger management course, and is to provide a copy of the certificates of completion to the mother and the ICL.

Information
26.That each party inform the other of their email address, residential address, and landline telephone number, and shall inform the other in writing of any changes to any of them within seven (7) days of such changes, including providing the new address and / or new number.
27.That each parent advise the other of the names, addresses, and telephone numbers of any health and educational professionals to whom the child attends, and provide advance written notice to the other of the time and date of any appointments.
28.That the Father and the Mother notify the other parent as soon as practicable in the event that X suffers any serious illness, serious injury or is hospitalised.

Restraints
29.That the Father and the Mother are restrained from making denigrating or derogatory statements in relation to the other parent, or the other parent’s family members, in the presence or hearing of X, or by way of electronic communication and/or social media, and are restrained from allowing X to be in the presence or hearing of any other person making denigrating or derogatory statements in relation to the other parent, or the other parent’s family members.
30.Each party may attend any changeover or may use an agent, such as a grandparent or sibling, but in any event must act and communicate in a civil and restrained way at the changeover.

Family Law Watchlist Order
31.That until further order, each party, Ms Ware born in 1989 and Mr Quinlan born in 1982, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Child, X born in 2011 (male), from the Commonwealth of Australia until further order of this Court;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name X of the said Child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist until the Court orders its removal.

Failure to Execute Documents
32.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to the orders above, and in particular the orders requiring X to be enrolled in school, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

Application for re-opening
33.The father and parties be permitted to re-open their cases and adduce further evidence. Otherwise dismiss the application in a case filed 25 September 2020 and the response thereto.
AND THE COURT NOTES THAT:
A.The Court requests that the Independent Children’s Lawyer explain the change of primary residence to X
B.The Court requests that the Legal Aid Commission of NSW extend the appointment of the Independent Children’s Lawyer for 12 months to provide independent monitoring of X’s transition and school attendance.
C.The Court recommends that, if it has not occurred already, enquiries be made about whether it would be appropriate for X to have a hearing test in view of his phonological awareness issues.
D.The Court recommends that X be allowed to retain his therapeutic relationship with Mr N by video conferencing, or if that is not possible, that he be referred to a new GP for a referral to a new counsellor.
E.The Court recommends that, to the extent possible, any individual support that can be provided to X by the NSW Department of Education be supplemented with additional private tutoring to assist X to catch up to his peer group academically.
F.The Court recommends that the parties facilitate X’s relationships with both sets of grandparents and with both sets of extended families.
G.Pursuant to ss.65DA(2) and 62B 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 Annexure A and those particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Quinlan & Ware is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE B SMITH:
INTRODUCTION

The parties met in Town O during the winter of 2009. Mr Quinlan born in 1982 (“the father”), the Applicant in these proceedings, was working as an artist. Ms Ware born in 1989 (“the mother”), the Respondent, was working as a hospitality worker.
In about 2010, after the mother returned from three months travelling and visiting family in Country P, they reunited. By 2010 they were living together in a large semi-converted warehouse style building in Suburb Q, in Sydney’s inner west. It was the kind of warehouse which had a ladder rather than stairs to the first floor.
In about 2010 the mother discovered she was pregnant. This was unplanned. Their child X (“X”) was born in 2011. X is now 10 years old and is in year 4 at school.
The party’s relationship was short and troubled. They finally separated in either late 2011, on the mother’s evidence, or in early to mid-2012 on the father’s. The mother says their separation was due to family violence.
This case is about X and what parenting orders should be made in his best interests, pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The parties’ relationship has been characterised by ongoing conflict, low trust and poor communication. The mother says that the father has issues with anger management. The father says that the mother is manipulative and has [FSub (Page 15)] “used the police and legal systems improperly to gain advantage”. Each party has described the other as a [FR [26]] “compulsive liar”. This conflict has negatively impacted on X and his relationship with each parent.
In the period until mid-2019 the parties exercised equal shared parental responsibility. X lived with the mother, and as at June 2019 X was spending time with the father one afternoon each week, when X attended music lessons or sports training, each alternate weekend from Friday afternoon to Monday morning, one week each short school holiday and two weeks commencing on Christmas day.
In November 2018 both parties told the Court appointed Family Consultant that that time arrangement was working. The mother, however, wanted sole parental responsibility and the right to take X overseas. The father opposed these orders, the latter because of X’s right to Country P citizenship.
The parties’ relationship deteriorated in June 2019. In December 2019, just prior to the final hearing, the mother raised for the first time the need for X to be supervised when spending time with the father. She said this was to protect X from both physical and psychological harm, although she now says just psychological harm. The mother says that she finally realises how frightened X was of the father and the negative impact his time with the father had on X.
The father says that the mother does not genuinely hold fears for X’s safety in his care. His case is that after seven years of unsupervised time, during which the mother regularly also asked him to care for X for additional periods while she travelled or worked, the mother met her new partner Mr R in mid-2019. Mr R lives in Town K, where the mother liked to visit and has wanted to live for a long time. The father says the mother thought the allegation of unacceptable risk would make it easier for her to obtain an order for sole parental responsibility, and then to move to Town K and home school X. The father in particular opposes home schooling because X is already some years behind academically.
People and Places
The father is now 39 years old. He works as a tradesman through his business (T1.43.30) “Company S”. He has previously worked as an artist. He also restores motorbikes as a hobby in the large workshop at the back of his house. The motorbikes are a hobby from which he also makes some money.
The mother is now 32. She is self-employed operating a small business (T1.195.20) “Company T”. She sells her products online and at markets which she attends for that purpose. She previously owned a business called (T1.195.5) “Company U” in City E.
The mother and X initially lived at Suburb Q in Sydney’s inner west with the father, but in 2011 as a result of conflict she moved with X to live on a large property at Town V (“Town V”) owned by her parents Ms W (“Ms W”) and Mr Y (“Mr Y”). Town V is just above Suburb Z and inland from Town AA. The father moved to Town O to start a business in about 2012, before returning to Sydney. The father now lives in Suburb BB in Sydney’s south, near Suburb C where his parents Ms CC (“Ms CC”) and Mr DD (“Mr DD”) live separately.
The mother and X stayed at Town V till they returned, with the father’s agreement, to live in Suburb EE in Sydney’s inner west in January 2018. They moved back to Town V in late 2019, before moving to Town K in late 2020 to live with her new partner Mr R contrary to Court orders.
The mother’s brothers Mr FF and Mr GG also live at Town V. The father’s sister Ms HH and her child JJ live in Suburb KK, reasonably near the father.
Procedural History
On 22 February 2013, when X was not yet two, the parties entered an “interim parenting agreement” (Exhibit B). They agreed, amongst other things: that X would live with the mother; spend time with the father each weekend from 11.00am Saturday until between 8.00pm and 9.00pm Monday at the paternal grandmother’s house; that the father would collect and return X to and from the mother; that the mother would exercise parental responsibility in relation to medical treatment for X; and that the father would pay $50 per week to the mother. The agreement was to be reviewed in June 2013.
In her evidence in chief the mother stated that the reason X’s time with the father was to be spent at Ms CC’s home was because the father was still living at the Suburb Q warehouse and [M1 [84]] “[she] considered that, and Mr Quinlan agreed, they were not ordinarily safe for a child of X’s age”.
In September 2013 the father commenced proceedings seeking orders that X live primarily with him. He alleged the mother provided inconsistent care of X due to her attendance at festivals and her alleged recreational drug use. The mother denied that. She alleged in reply that the father had anger management problems.
Final Consent Orders were entered on 5 May 2014 (“the 2014 orders”) when X was just three years old. The 2014 orders provided for equal shared parental responsibility with X to live with the mother. Until commencing school, X was to spend time with the father each alternate weekend from 7.00pm Friday to 7.00pm Sunday, for three periods of seven days with the father each year, and for a two week period commencing on Christmas day. After commencing school the weekends continued, with one half of each mid-term holiday and from Christmas day for two weeks or to the midpoint of the break, whichever was longer. There was also provision for special occasions.

The father was to collect X from the mother’s residence at the start of time and return him to mother’s residence, “unless the mother relocates from the Region D” (Order 5 of the 2014 orders), and the mother was not to relocate X’s place of residence unless agreed between the parties in writing. X was to have reasonable telephone calls with the parent he was not with. Each party was entitled to attend all events involving X. There were Watchlist restraints on overseas travel without the other party’s consent. There were standard orders concerning the provision of information and other matters. It was noted that the mother sought the father’s agreement to register X as a Country P citizen, that the father had not agreed to that, and also that the mother was to travel to Country LL from 2014 to 2014 and that X was to stay with the father during that period.
The father commenced these further proceedings on 2 November 2016 when X was five and a half years old. He commenced the proceedings based on his belief that the mother was planning to move to Town K and to home school X. Interim Consent Orders were made on 14 December 2016, confirmed by Interim Court Orders on 21 December 2016 (“the 2016 orders”), that the mother was to enrol X in school and was restrained from changing X’s residence from Town V.
The issues of X’s educational needs, home schooling and the mother’s intention to, and then decision to, relocate to Town K remain at the heart of these proceedings.
Both parties came seeking a variation to the existing orders and no issue arises concerning the principles articulated in Rice & Asplund (1978) 6 Fam LR 570.
A Family Report was ordered in December 2017 and interviews were conducted in November and December 2018.
The matter was mentioned on 11 October 2019 when the father sought a hearing date, supported by the Independent Children’s Lawyer (“the ICL”), on the basis that: the mother had unilaterally removed X from school for home schooling contrary to the 2016 orders, in the context of X already being significantly behind academically; and also that the mother had denied X and the father any time together since 19 June 2019; and where the father stated he was again of the belief that the mother intended to unilaterally relocate to Town K contrary to Court orders.
The Court was given a three day estimate and the matter was listed for hearing commencing 9 December 2019.
Hearing
As things eventuated the matter proceeded across eight days over four discrete tranches of hearings.
The first hearing ran from 9-11 December 2019 (“the December 2019 hearing”) (Transcript T1 pages 1-323) in person. There was a mention (Transcript T2 pages 1-6) and oral interim judgment delivered on 12 December 2019 dealing with X’s immediate schooling and time with the father. The proceedings continued on 7 and 8 May 2020 (“the May 2020 hearing”) (Transcript T3 pages 1-152) by audio-visual means due to COVID-19 and the evidence was completed. On 10 July 2020 the parties made submissions by audio-visual means (“the July 2020 submissions”) (Transcript T4 pages 1-55). There was a further re-opening hearing on 9 November 2020 after the mother unilaterally relocated to Town K whilst judgment was reserved (“the November 2020 hearing”) (Transcript T5 pages 1-98).
All parties were legally represented throughout the hearing. At the commencement of the December 2019 hearing the father relied upon written submissions (Aide-Memoire 1) and an Amended Initiating Application filed 25 October 2019. He sought orders as set out in his written submissions, in effect, that X live with him, with equal shared parental responsibility, time with the mother on alternate weekends and half short school holidays and for two weeks in the Christmas, as well as on special occasions.
The father read his trial affidavit filed 25 October 2019 [F1] with exhibits. He also read an affidavit of Ms CC filed 8 October 2019 [AP1], an affidavit of Mr DD filed 4 October 2019 [GP1], and an affidavit of Ms HH filed 4 October 2019 [GC1].
The mother relied upon opening written submissions (Aide-Memoire 2) and her Amended Response to Initiating Application filed 3 December 2019. The mother sought orders, in effect, for sole parental responsibility (Aide-Memoire 2) “except for religion and long-term health and non-emergency medical treatment”, with X to continue living with her, and to spend supervised time with the commencing with paid supervision and graduating to supervision by Ms CC and Mr DD until his 12^th birthday. The written case outline stated supervision was to continue until his 10^th birthday but this was said in oral submissions to be an error. She read her trial affidavit filed 25 November 2019 [M1] and an affidavit of Ms W filed 26 November 2019 [VD1].
The parties and the ICL relied upon the Family Report of Ms MM, Family Consultant, released 11 January 2019 (Exhibit ICL11). During the December 2019 hearing the father, the mother, Ms CC, Mr DD and the Family Consultant were cross-examined.
At the end of the December 2019 hearing I made orders on 12 December 2019 (“the December 2019 orders”) that dealt with a range of matters, but in particular requiring the mother to enrol X in and make him regularly attend a school near Town V, and for X to spend time with the father. The father’s time was required to be supervised by either Ms CC or Mr DD on the basis of their undertakings to the Court, which were filed on 12 December 2019.
The requirement for supervision was made, over the father’s strenuous objections, it was considered necessary by me given the mother’s extant allegations of risk. That requirement was specifically stated to be “without adverse findings and pending the determination of the proceedings”. Further, the mother was to “do all acts and things reasonably necessary to ensure that the child [X] attends school each school day” and is “at school at the commencement of school each day”. The mother was also restrained by injunction from “moving residence” (Order 3, 22, 23 and 43 of the December 2019 orders) to a residence which impaired X’s capacity to attend the school in which he was enrolled or to spend time with the father in accordance with the orders.
The matter was stood over part-heard to 7 May 2020 for cross-examination of Ms W and Ms HH, and for further evidence from the father and mother in respect of issues since the December 2019 hearing. The father read a further affidavit of 30 April 2020 [F2] and the mother of 1 May 2020 [M2] in the May 2020 hearing.Expert reports were admitted from Ms M, speech pathologist, dated 22 June 2019 and from Dr L, clinical psychologist, dated 14 March 2020. These experts were not required for cross-examination. The report of Ms M as tendered, at pages 10-11 of the Mother’s Tender Bundle, was cut off. The matter having still not concluded I ordered that the 2019 orders continue and it was stood over to 10 July 2020 for submissions.
In the July 2020 submissions the father submitted that X should live with him and be enrolled in a local public school. The father submitted that the principal reason for this change, which he admitted would be significant, was to ensure X attended school because he considered that regardless of any Court orders the mother would eventually relocate with X to Town K. The mother submitted that X should continue to live with her on her parent’s property at Town V and continue to attend Town V Public School. The ICL, though quite critical of much of the mother’s evidence and in particular of her conduct with regard to X’s education and her credibility concerning her intentions to move to Town K and whilst not accepting the father presented an unacceptable risk, broadly supported the mother’s proposal as being in X’s best interests. The ICL’s submission was specifically made on the basis of X attending school and the mother’s statement that she did not intend to relocate. Judgment was reserved on 10 July 2020.
On 28 September 2020 the father filed an application for re-opening as, on about 24 September 2020, the mother had unilaterally withdrawn X from Town V Public School to commence home-schooling again and the father believed she was about to unilaterally relocate to Town K with X to live contrary to Court orders.
The application was granted and the proceedings were re-opened and heard on 9 November 2020 by audio-visual means. By that time the mother had unilaterally relocated to Town K on 23 October 2020. Further evidence was taken from the father and the mother and further submissions were made at the November 2020 hearing.
At the November 2020 hearing the father relied upon his Application in a Case to reopen filed 28 September 2020, his further affidavit filed 25 September 2020 [F3] and Ms CC’s further affidavits filed 25 September 2020 [AP2] and 6 November 2020 [AP3]. He also relied upon a report from X’s General Practitioner, Dr PP, dated 6 October 2020.
At the November 2020 hearing the mother relied upon her further affidavit filed 6 November 2020 [M3] and her reply noted above. She included as annexures to her affidavit three expert reports. That affidavit was filed at 4.02pm on Friday 6 November 2020 ahead of the Hearing on Monday 9 November 2020. There were no affidavits from the experts.
The expert reports annexed to this affidavit were: a report of Dr QQ dated 15 October 2020 whose expertise is in [M3 (Page 14)] “the parenting and care of children with a history of trauma and home schooling”; an expert report from X’s treating psychologist Mr N dated 27 October 2020, many of whose clinical notes had been tendered throughout the hearing; and the report from Dr PP dated 6 October 2020 already tendered by the father. There were objections to these late expert reports by the father and the ICL, however, the reports were admitted subject to weight and the matter progressed and was concluded.
At the conclusion of the November 2020 hearing the father’s proposal was largely unchanged. The mother’s proposal by her amended response sought orders that she “be permitted to relocate and live within the Region RR area of New South Wales” and “be permitted to homeschool the child or enrol the child” at a school in that region (Orders 3 and 4 of the mother’s proposed orders of November 2020). The ICL’s position changed after the November 2020 hearing to supporting a change of residence based on the need for X to attend school.
A variety of documents were also tendered by the parties across the hearings and admitted into evidence.
Primary Issues
While the evidence traversed a great deal of ground and the parties raised numerous issues, the primary issues which took up the majority of the hearings and which were the focus of final submissions, were whether the father has anger management issues and poses an unacceptable risk of psychological harm to X and whether X should be home schooled by the mother or attend a public school. There is a related question of whether, if X is to attend a public school, the mother will facilitate his attendance if he continues to live with the mother.
X has succinctly summarised these issues in discussions with the ICL appointed to represent him. X’s comments are summarised in a document “X’s Views and Wishes” (“Views”) tendered by consent after the close of the November 2020 hearing. X was recorded as saying to the ICL [Views (Page 1)]:
He says that his mother says she is just trying to do the best for him, and that his father says that he is trying to do the best for me. They both have good things that they can do, and they both have some things that are not good that they do.
He says that there is a problem with both of his families.
He says that his Dad is the not the best communicator, and not good at thinking about stuff before he does it. He has anger issues.
He says that his Mum isn’t very good at trying to get him to school each day.
And later [Views (Page 2)]:
His Mum wants the best for him, but has a problem getting him to school every day. His Dad is not the best parent but he wants him to get to school each day.
He just wants court to stop.
It was also recorded that [Views (Page 3)]:
In terms of any preference as to which parent he is to live with, at the moment, he has “sort of been thinking that the decision is the decision”. He doesn’t “really care what the decision is, but hopes for the best decision”.
He has been thinking about it since we spoke on Tuesday, and he does not have a preference.
In terms of previously expressing a preference, he says “actually I have not said anything about that”.
The other major issue to which evidence and submissions were directed relates to the circumstances in which the mother’s allegation of unacceptable risk and of the need for supervision was made, in the context of the mother’s re-partnering and relocation to Town K.
In order to deal with the different strands of the arguments it is convenient to extract the evidence under different headings. However, it is essential to understand that the various events and issues are inextricably linked and overlap. I will commence with the evidence on unacceptable risk, then look at the evidence on the mother’s move to Town K and then at X’s education before considering the evidence on the other issues raised.
Given the delay in delivering this judgment, for which I apologise, I have taken out the transcript and re-read it together with all of the written material before me.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO X?
The evidence and events relevant to the mother’s case that the father presents a risk of harm to X substantially overlaps with the evidence relevant to the mother’s intention to relocate to Town K. The same evidence is also relevant to X’s education.
The Parties’ Relationship
The mother’s case is of a history of family violence during the relationship which continued post separation.
The mother said that in about 2010, early in her pregnancy while living at the Suburb Q warehouse, which only had a ladder to the upper floor, there was a verbal argument when she went to pick the father up from drinking at a local pub. That escalated into a physical incident where she said the father grabbed her by her top and pulled her off the ladder, pulled her hair and dragged her through the front door and down the front step, causing her to fall [M1 [20]] “down the stairs and to drop another level into the garden”. After she unsuccessfully tried to re-enter the house she said he threw money at her and then pushed her towards her car, causing her to fall over. When she got up he pushed her another three or four times so she fell over again. She drove to the house of her cousin.
She said that, although there had been episodes of anger and rage, that was the first act of physical violence perpetrated by the father, that he apologised the next morning and she went to her parent’s home in Town V. She said that she considered a termination but decided against it. She said their relationship did then improve as the pregnancy progressed.
When speaking with the Family Consultant the father denied most of the allegations of physical violence, set out herein, but acknowledged pushing the mother into a flowerbed. He told the Family Consultant this was because she was [FR [18]] “threatening to kill herself and X”. He also acknowledged to the Family Consultant being verbally abusive when angry, but claimed that the mother had also been verbally abusive towards him.
In cross-examination the father said in respect of the garden or flowerbed incident that (T1.44.5) “It’s not like that” but then conceded his conduct was violent (T1.44.5) “to a certain extent” saying (T1.44.30) “Well, the hair pulling didn’t happen, but getting pushed out the door, the front door when she was trying to get in the house, yes, that happened, and she did fall into the garden we had, a herb garden”. He said there was only one step, and that he pushed her, but denied he pushed her a number of times. He said he (T1.44.35) “pushed her into the garden and shut the door on her and wouldn’t let her inside”. He agreed that he threw her stuff out the door.
In the father’s trial affidavit he said that after X was born the mother was depressed and not coping, which resulted in a number of incidents. In one incident he said she called saying that she could not deal with being a mother and was going to kill X by throwing him down the stairs and also kill herself. He said he tried to calm her down and drove home [F1 [34]] “frantic”. When he raced in the door she was calmly watching TV and said [F1 [35]] “I just wanted to see how much you loved me”. He said on another occasion she called threatening to throw X off the balcony, but that he was not as frightened because of the first occasion. He said there were many occasions when the mother threatened to kill herself and X.
The Mother was cross-examined about the threats to harm X. She denied she ever said she would throw X down the stairs. She said that when pregnant she had something (T1.170.15) “akin to […] a panic attack”, in the context of a domestic violence situation, and being isolated from her social network she called him saying that she was not coping and that (T1.170.15) “I feel like throwing myself down the stairs”. She said that she wasn’t saying she was going to do so. She said that the father did not come home until after the panic attack had subsided, some four or five hours later.
The mother’s evidence was that she found breastfeeding painful and would sometimes cry. She said that the father’s response was to ask her to stop because she was [M1 [40]] “stressing me the fuck out”. Not long after that the mother alleges the father returned home with baby formula because he could not [M1 [41]] “take it”. The mother says she took care of all of X’s needs and almost all household chores.
The mother gave evidence about another incident involving the father’s friend “Mr SS” on about 2011 when X was about five months old. The mother’s evidence was that the father found Mr SS lying in the gutter at the front of the pub and brought him home. She told the father she wasn’t comfortable having Mr SS in the house. She said after preparing some formula for X she found Mr SS asleep in X’s bed. She woke Mr SS up and asked him to leave. The father called her a [M1 [49]] “bitch” and asked “what the fuck are you doing?”. He once again started to push her and she decided not to risk remaining in the situation so she went to Suburb Q railway station, where the father later found her. On returning home the father said he was taking Mr SS home and was also taking X with him saying [M1 [51]] “I can’t leave him with you, you crazy bitch”. She said the father then closed the front door with a padlock on the outside locking her in the house. When he returned she said she ran out of the home and hid in a nearby bush. She said the father drove away with her phone, wallet and keys. She found a payphone and called the police who attended and took her to her cousin’s house. She said in the early hours of the morning Ms CC called her and confirmed that X was safe at the father’s brother’s house.
The following day she took X to live in a caravan on her parent’s property at Town V. In 2011 she and X moved into a house on the property which had become vacant. She said the rent payable to her parents was $250 per week, but the father did not contribute any of it and would [M1 [58]] “only occasionally help financially to support X”. She said that [M1 [58]] “at times I lent [the father] money for petrol so he could visit us”. She said the father did not join them in Town V.
In cross-examination the father agreed that there had been an event where Mr SS had been in the house and there had been an argument between Mr SS and the mother and she ended up leaving. He denied that he padlocked the front door. He said she had already left the house with a bottle of Chardonnay. He agreed that he had left X at his brother’s house. He agreed the police had said that he locked her out of the house and didn’t give her the keys, however, he denied that. He said that (T1.46.25) “She was drunk and called the police and caused a heap of drama, and I didn’t want to go home and deal with it, so I ended up staying at my brother’s”. He agreed that this was when she left for Town V.

The mother’s evidence is that she and X lived in Town V for the following six months. She said that the father stayed over on an irregular basis, sometimes a few times a week and other times not for weeks at a time. In her trial affidavit she said that during that period the father [M1 [55]]:
punched the side of my car leaving a dent in it; punched the windscreen of my car causing it to shatter; broke 2 or more of my mobile telephones; had broken various glasses and dinnerware by throwing those items at the kitchen wall; had broken pots that plants were in by throwing them at the wall; punched and caused several holes in the wall at the home; kicked the front door off its hinges; threw me into a doorjamb causing me to fracture the little toe of my right foot; pushed me onto the bed and held me by the neck causing bruising about my neck and upper torso; and, grabbed me by the hood of my jumper and whipped his jumper a(sic) back-and-forth at me causing welts to my arms from the zipper on the jumper.
In cross-examination the father denied punching her car and leaving a dent in it, but agreed that he used a bottle of Coca-Cola to shatter the windscreen. He agreed that it would probably have been quite frightening for the mother. He denied breaking multiple mobile phones. He said that he had broken one mobile phone when he discovered her male friend describing (T1.48.35) “what he was going to do to her when they met up” and he was (T1.48.40) “pissed off” and threw the phone at the wall breaking it. He denied pushing her off the bed breaking her little toe. He said he was pretty sure she had hurt her toe when they were having an argument and she kicked a gyprock wall. He denied that he grabbed the mother by the neck. He said that there was an occasion when she was threatening to kill herself and X and that she was (T1.49.40) “wigging out” and he was frustrated and he restrained her on the bed, and that this was when they were at Suburb Q. He said he had no recollection of the alleged event in which he used a jumper to cause welts to her arms.
In cross-examination the mother agreed that she had kicked a gyprock partition at one time but said that at another time the father pushed her and she slammed into a doorjamb and injured her toe. In respect of the broken phone she said she was just meeting a friend during the daytime. She maintained that the father had broken several phones.
In cross-examination the father said that he did not (T1.47.15) “kick” the front door at Town V off its hinges. He accepted, however, that he had “shoulder barged the door open” and damaged it, but said he fixed it the following day. When asked in cross-examination why he did this, he said it was because the mother had locked him out and had thrown out a dog mat for him. He was sitting on a chair on the balcony and was getting very cold. He said that the mother had his keys and stuff in the house, as well as his two dogs, and she wouldn’t let him in, and he couldn’t get into his van. He said he broke the door, grabbed his stuff and left. He agreed it was not a good thing but said that (T1.47.40) “she is pretty ruthless”. He denied the event was scary for the mother. He said that (T1.47.45) “she thought it was a big joke, me having to sleep out on the frigging balcony where the dogs were”.
In cross-examination in respect of the door incident at Town V the mother said she locked the door on him after she finally got him out, and she then saw the door flying off its hinges, the father grabbing his hat and then driving off. She denied his keys were inside the house.
The mother said in her trial affidavit that [M1 [60]] “although our relationship remained volatile” she decided to spend 31 December 2011 at Suburb TT with the father where Mr DD had a caravan which he had agreed to lend them. She said they drove to watch nearby fireworks. She said she received a phone call and the father became suspicious and called her a [M1 [61]] “slut”. She said he then commenced driving erratically on the way back saying [M1 [62]] “I just feel like crashing the car and killing us all”. She said he swerved [M1 [63]] “towards a power pole and then suddenly stopping and causing the car to skid down the road on the embankment”, before he left the car and walked away. She said the next morning she decided to leave, [M1 [65]] “thinking that X would be secure with [the father’s] family for a short time”. She said the father had the keys, they sat in the car and argued, [M1 [65]] then “he dragged me out of the car by my hair” and she experienced some bruising to the chest and shoulders and began to cry, so he allowed her to drive away. She said when she got home Ms CC called saying she would look after X. She said the father returned X after about a week.
In cross-examination the father’s evidence was that (T1.50.35) “it’s the other way around”. He denied he was driving the vehicle. He said that the mother was driving, she was the one who was (T1.50.15) “going to do shit”. He said he tried to get her out of the car and she drove off without him and he had to walk back. He said that when he got back they had an argument. In respect of her allegation he wouldn’t give her back her keys he said (T1.51.5) “She left easy, just left X with me and then she went back to Sydney”.
The mother was cross-examined on the father’s version of events and denied it. She reiterated her version of events. She said she was willing to go back to where his family were because all her belongings were there and the father had never really exhibited violence in front of his family, so she felt that it was the safest option for her at the time. When asked why she had waited until the next day to leave if this had occurred as she alleged, she said (T1.173.10) “It was very late at night on New Year’s Eve, and I left the next day”.
She said she later attended Suburb Z police station and was advised to make a report and seek an ADVO. A final ADVO stemming from this incident protecting the mother was made on 7 February 2012 (Exhibit A). The father’s evidence was that he agreed to the final ADVO [F1 [25]] “on a without admissions basis” based on legal advice, even though he denied the mother’s allegations.
The father moved to Town O to start a business in about 2012. The mother said in her trial affidavit that the father saw X infrequently until the move to Town O and after that time she went with X to visit the father about three times between June and September 2012.
She said that on her last visit she left X with the father at his business so they could spend some time together. She said that when she returned the father was [M1 [71]] “upset and grabbed me and threw me down onto the lounge that X was sitting on. X started to scream hysterically”. Her evidence is that the father then forcibly ejected her from the shop, [M1 [72]] “grabbing me by the hair and pushed me outside the shop”. She said he locked the shop so she could not get X. She said she walked back to a café where she had some friends and then went back to the shop and knocked, and then went to Town O police station. She said she explained that although she had an ADVO she was not seeking a breach, but simply wanted X returned to her. The police attended with her and the father provided X to her. She said that when she returned home she discovered that the father had [M1 [76]] “stolen my wallet”. He would not answer her phone calls for about a week. He then told her that he had thrown her wallet out of his car window. She said the father later closed his business in Town O and returned to the Suburb Q premises.
The father agreed the mother visited him with X in Town O. His evidence was that, despite the ADVO, the parties were still on (T1.51.35) “good terms”. He said he recalled the incident, but denied grabbing her by the hair. He said she was (T1.52.15) “carrying on like a clown in the shop” saying to a lady in the shop (T1.52.15) “do you really want to do business with a woman basher” which was why he and the shop assistant had to take her outside. He did not describe exactly how he and his assistant acted to (T1.52.15) “take her outside” but denied grabbing her hair. In any case the two of them (T1.52.45) “pulled her out of the shop”.
It was put to him that she had travelled to Town O to bring X to him. He denied that. He said that she was having a holiday and he was looking after X (T1.52.30) “while she was doing her thing”. Presumably the father meant she was spending time with the friends she had been with at the nearby café. He said she wanted to leave early and he said no, and that she then caused a big scene and brought the police to his shop. He agreed he had locked the shop, not to stop her from retrieving X but because she was (T1.53.5) “ranting and raving out the front of the shop”. He denied that X was present and said he was in another part of the shop. He denied he stole her wallet. He agreed that he (T1.53.25) “may” have said to the mother “Bitch, shut the fuck up. Get the fuck away from here”. It was put to him that that was how he would commonly speak to the mother. He said (T1.53.45) “No, not all the time. It depends what fight we were having. It goes both ways”.
In cross-examination the mother denied that she was speaking to a customer. She said she spoke with his co-worker and said to him (T1.183.25) “how can you work for this guy?”. She said the co-worker was a mutual friend. She denied that she had to be forcibly removed because she was interfering with the business. She said when she tried to pick X up the father refused, threw her down on the chair right next to X and then dragged her out by the hair and kicked her out the back door and locked her out.
The mother said, at [78] of her trial affidavit, that following the Town O incident she did not consider it safe for X to be in the father’s care, or for her to be near the father, so that she attempted to arrange for X to spend time with the father with Ms CC’s assistance. However, as noted elsewhere, [84] of that affidavit when referring to the interim parenting plan of 20 February 2013 the mother specifically stated that the reason X was to spend time with the father at Ms CC’s home was because the Suburb Q premises was not safe.
In October 2012 the mother wanted to travel to Country P with X. Despite the ongoing issues the father facilitated X’s passport application. The parties entered the parenting plan parenting plan on 20 February 2013. The father said that despite the parenting plan the mother effectively withheld X from about March to September 2013.
The 2014 Orders
The parties entered the 2014 orders on 5 May 2014, which relevantly provided for equal shared parental responsibility, X to live with the mother and to spend time with the father each alternate weekend from 7.00pm Friday to 7.00pm Sunday, for three periods of seven days with the father each year, which became the short school holidays, and for a two week period commencing on Christmas day.
The mother’s trial affidavit evidence was that during the period 2014 to 2014 she travelled to Country UU to celebrate her 25^th birthday. During that time her parents cared for X and ensured that X spent time with the father pursuant to the 2014 orders.
The mother’s evidence in her trial affidavit was that she had travelled to Country UU again with two close friends between 2015 to 2015 (T3.15.20). Her evidence was that over that period she arranged for X to be cared for by her parents and the father over almost equal periods. She said when she returned the father was upset with her having [M1 [111]] “dumped” X on him and that he complained about how hard it was to work and look after X. She said that the father became aggressive towards her and pushed her up against a wall as she tried to leave with X.
She then said in her trial affidavit evidence that X spent some time with the father over the New Year to 2016. She said on 4 January 2016 he contacted her and requested that she collect X as he wished to return to work the following day. She said she travelled to Sydney, but then received a message from the father to the effect that he had changed his mind and that she should come the following day instead. She said the following day, 5 January 2016, she travelled to collect X. She said the father [M1 [115]] “was upset, removed an umbrella from my hands which I had been using because of a heavy downpour at the time, and as I held X in my arms, Mr Quinlan head-butted me to my forehead”.
The father’s version of this period was very different. He said in his trial affidavit that in [F1 [41]] “late 2015” the mother telephoned to tell him that she was going overseas and asked him to care for X. He said that she told him at that time that it was [F1 [41]] “indefinite at this stage”. As he was working full-time he said he made arrangements for X be cared for by Ms CC, Ms HH and a private babysitter when he was at work. He said he put X’s name down for day care centres for 2016. In late December 2015 he said the mother called to say she had returned and wanted to pick X up. The father said he agreed but, in the context of what had occurred, he wanted to work out X’s living arrangements moving forward.
He said in his trial affidavit that the mother was waiting as he and X arrived home. X ran over to her, she picked him up and then commenced walking away. He said he jogged up to her and stood in front of the mother so they could talk and she started screaming out [F1 [46]] “help”. X was crying. He reached out to take X. She kept screaming. Some men from a nearby construction site came over. To avoid a scene he let the mother and X go. He was not then able to contact the mother or X until March 2016 and her parents would not tell him where they were.
The mother’s trial affidavit evidence did not directly address the question of where X was between the time she came back from Country UU in 2015 and when she says X spent some time with the father [M1 [113]] “over the new year period in 2016”.
Implicit in the cross-examination of the father was the suggestion there were two discrete periods during which X was with him. It is clear from the father’s answers that he did not accept that. He referred to the fact that she had gone overseas and (T1.54.40) “wasn’t sure if she was coming back to participate as a mum” and that he was investigating Suburb VV Public School for X for 2016.
In cross-examination the mother said that she was away for four weeks, came back and picked up X. She said there was (T1.123.25) “a mild incident” where the father was confused that she was picking X up. She then had X for two weeks, and then X went back to the father for the Christmas to New Year holiday, in accordance with the 2014 orders. She said the father was meant to have X until 8 January, but she got the message on 4 January saying to come on 5 January and that she turned up on 5 January 2016 when the head-butting incident occurred. The mother did not accept that X stayed continuously with the father until 5 January 2016. She denied that she said she was leaving the country indefinitely or that she was giving up her role as a parent. She said that she had not said that she was over being a mum – she said that she had been over the co-parenting situation.
The father said he did not recall asking the mother to come and pick X up. He just remembered the mother being at his place unexpectedly after they had come back from hobby class at Suburb EE. He saw the mother sitting at the front doorstep in the rain. He did not accept that he asked her to come and collect X. He said on 5 January (T1.55.20-T1.56.5) “unexpectedly […] she was just there on the doorstep out of the blue after being overseas for however long”. He said that he recalled she was holding an umbrella as (T1.56.5) “I got jabbed in the head with it” and denied that he had head-butted her. He said he broke the umbrella and threw it on the road (T1.56.10) “after she got me in the head with it and the face”. He said she took X in her arms and was walking down the road and he (T1.56.15) “had to get in front of her and stop her, and she was, you know, ducking and weaving, and that’s when it all turned pear-shaped”. He agreed that he tried to remove X from her arms but denied that he head-butted her. He said that she was screaming and people were coming over so he let her go.
When asked in cross-examination why he did not just return X, the father re-iterated that the mother had told him she wasn’t sure when she was coming back, that she couldn’t deal with being a mother, that he had X for over a month and (T1.18.45) “there was a problem with X going back, with X going back to Ms Ware and stuff” and that X did not want to go with the mother, (T1.19.5-10)
But it changed when he saw his mum on that day we got back from hobby class and she was the front doorstep at Suburb VV School and then I wasn’t ready for her to be there and then X has seen his mum, you know, jumped out of the ute and went running to his mum at the front doorstep and then she has picked him up while I was trying to park and started walking down the street ... that’s when that event for the AVO happened […].
The father agreed that he had been verbally abusive and it was a heated moment, but also said that (T1.57.5) “she had the whole incident recording in her jacket. That’s why she never said anything the whole time, and the next minute we were in court […]”. When it was put to him that the mother had recorded the exchange because she was scared, and had turned the recorder off at a certain point in time because (T1.58.20) “It was the end of the incident”. He said she knew he was going to “crack the shits” with her turning up to just take X so she recorded it. He denied the situation had been scary for the mother.
The mother said that she had her phone in her pocket recording because she was fearful from the way he spoke the day before and that he was going to (T1.182.30) “have a violent outburst.” She said she was not trying to set the father up and that she did not strike him with the umbrella on purpose.
The mother later reported the father’s actions to Suburb Z police station. Aspects of her covert recording are set out in the police record which was tendered as part of the mother’s “Tender Bundle” [MTB] at page 27. The father said [MTB (Page 27)] “you [sic] fucking doing it again” and “your [sic] going to hell for this, you piece of shit” and “your [sic] going to hell for this you fucking stupid moll [sic]”. This police material was first tendered during the July 2020 oral submissions and was not put to the father. The mother also relied upon a report to the Department of Family and Community Services (now Department of Communities and Justice) but the latter document did no more than reaffirm what she had told police, and could only have come from the mother or her agent.
In summary, the father said that he took X on the basis that the mother said she was going overseas and may not be returning. He made enquiries about schooling for him. The mother then turned up unexpectedly, grabbed X, hitting the father with her umbrella, not speaking because she was surreptitiously recording the incident to be able to involve the police so she could seek an ADVO to help her move to Town K, and that he tried to stop her from taking X without having a discussion. She screamed and made a scene so that other people would become involved, and he allowed her to take X and go.
In summary, the mother said there were two discrete periods of time during which X was with the father, and that when she came to collect X he assaulted her. Her case is that the ADVO application was required because of his violent conduct and that her desire to move to Town K at that time was also influenced by his violent conduct.
2016
The father’s trial affidavit evidence was that from January to November 2016 the mother had become increasingly involved in [F1 [53]] “environmental activist protests and music festivals” resulting [F1 [53]] “in her travelling to very rural parts of Australia and exposing X to a very alternative lifestyle”.He said that the mother withheld X from about January to March 2016.

The mother’s trial affidavit evidence was that after the events of January 2016 X started seeing a psychologist, Ms XX. The mother said that [M1 [122]] “fearing repercussions from [the father] due to the AVO application” she and X travelled in a camper van, visiting friends and family in NSW, SA, VIC and the NT. She said X was expressing fear of the father and that [M1 [123]] “during this time I had decided to move to Town K”.
The father’s trial affidavit evidence was that after a couple of months she called him unexpectedly and asked him to care for X for a week, which he did. He said that across the period from February to October 2016 the longest time X was his care was about two weeks, and the longest time he could not contact the mother was a period of about four weeks. His case was that the mother again withheld X between July and October 2016.
The mother’s evidence was that in mid-2016 X started asking after his father because he was missing him and she began to make tentative contact. She said X spent time with the father four times during the second half of 2016: there were two visits around the father’s birthday; one on the weekend of 22 August 2016, when the father also purchased a bull bar for the mother’s van and attached it; and one on 25 August 2016 when the father took X as the mother was going to an event in Town YY to work for five days with her market stall. She said that the father had planned to take X to the snow and return on 30 August 2016, but that the father’s trip was delayed and she finally picked X up from Ms CC’s house on 4 September 2016.
She said that on 8 September 2016 she received a message from the father advising that he was worried about her [M1 [127]]:
[…] head at the moment. I think some weird shits going on with u. your whole persona has changed. U got me worried I don’t think your with it at the moment. Sort ya shit out or I’ll come and get X until u sort out ok
In cross-examination the father said that he vaguely remembered writing something like that. He said it was (T1.59.5) “because she was all over the […] shop. She […] didn’t have her s-h-i-t together, and she was just a bit out there at that point in time”. He said this was not a threat, rather he said:
It was just more for Xs’ wellbeing, just because the way Ms Ware was. She knows how she was, and just her lifestyle and that, and it was just more the factors, like, “Get it together, man”, like, it wasn’t – yes, like, “Get it together, otherwise I will be looking after him”.
The father’s evidence was that in October 2016 the mother again approached him and asked if he could take X so she could travel to Melbourne to see her new partner and also attend a music festival near City ZZ, and that he agreed. He said that the mother had made previous attempts to relocate from Sydney, including to move to Melbourne with her then partner. It was put to the father in cross-examination that the mother never sought his permission to move to Melbourne. He maintained his position that she had.
The mother’s trial affidavit evidence was that the parties agreed that X would spend some time with the father commencing 7pm on Friday 21 October 2016, but that the father did not attend until the afternoon of Sunday 23 October 2016 and that he did not return X by 7pm that night (pursuant to the 2014 orders). Also, that they subsequently had numerous telephone conversations, including one on 27 October 2016, in which whilst she was talking to X, she could hear the father calling her a [M1 [133]-[135]] “fucking asshole”. She said she reported her concerns to Suburb AAA police who advised they could not assist as it was a family law matter. In cross-examination the father said that he had (T1.67.40) “heaps of yelling arguments and swearing competitions with Ms Ware over eight years” but could not say what day these arguments happened. He said that he tried not to talk about the mother with X but she called nearly every day to (T1.67.45) “stir the pot” to upset him.
The father said in his trial affidavit that X was due to be returned to the mother on Monday, 31 October 2016 [F1 [54]] “but I decided to keep him in my care”. He told the mother that X wanted to stay with him that she needed to get her [F1 [55]] “shit together”. She said she tried to speak with the father and with Ms CC but they were not co-operative, so she set in train an Application for Recovery.
The father said the mother told him that she would get the federal police to collect X. On 1 November 2016 the father’s solicitors emailed the mother’s solicitors and sought to be notified of any proceedings commenced by her. The same day the father received a call from NSW police asking him to attend to pick up an application for an ADVO made by the mother on 31 October 2016. That application was based on numerous incidents, the most recent of which was 5 January 2016, almost 10 months previously.
The father was working at Mr DD’s business and received a phone call telling him that there were police at Ms CC’s house. He went there and was then arrested in front of X for breach of an ADVO. He was taken to Suburb BBB police station, processed and spent some time in the cells before being brought before a magistrate. Mr DD attended and asked for the papers. He pointed out that the ADVO relied upon had expired and there was no proper basis for the arrest. At that stage the father was released.
In cross-examination the mother denied that she had told the police that there had been an incident or that she asked them to arrest the father. She said that she believed he had been avoiding service of an ADVO and she merely let the police know that he was living at the mother’s house. She said she simply only wanted the ADVO application served.
The father relied upon the seeking of an ADVO in October 2016 for events which occurred up to January 2016, and after the mother had voluntarily left X with the father for extended periods beyond those required by the 2014 orders, and his arrest, as examples of what he said was the mother’s manipulation of the police and the legal system in circumstances where he said she clearly did not have any genuine fear of X spending unsupervised time with him.
The father’s solicitors commenced these proceedings by filing an Initiating Application on 2 November 2016. The father said he commenced these proceedings as he believed that X was at risk in the mother’s care and that there was a risk the mother was [F1 [8]] “going to relocate with X to Town K”.
On 22 November 2016, despite the father being legally represented and X having been in his care for an extended period, and the father says the mother being on notice of these proceedings, the mother obtained an ex-parte recovery order from Suburb J Local Court and the police attended at Ms CC’s house, where the father was then living, and executed the recovery order. The father had the matter re-listed in Suburb J Local Court on 30 November 2016, and by consent the interim orders made on 22 November 2016 were set aside and the proceedings discontinued by the mother.
On 14 December 2016 the matter came before a Judge of this Court. The parties made interim consent orders that the mother would not move X’s residence from the Town V area and would enrol him in a school in that area forthwith. The matter was listed for interim hearing on 21 December 2016.
On 20 December 2016 an ADVO was put in place for two years. The order was made by consent and on a without admissions basis.
On 21 December 2016 this Court made interim orders that the mother was not to move X’s residence from the Town V area, and that X was to be enrolled in a school in that area forthwith, and otherwise ordered that the 2014 orders should continue.
2017 - 2018
The mother enrolled X into a school at Town V where he attended kindergarten from January 2017. It appears that the parties broadly complied with the 2014 and 2016 orders across 2017. However, the father said there were significant concerns about X having substantial time off school. He also said that the mother did not list his name as a parent or as an emergency contact.
By agreement between the parties, in January 2018, the mother moved to live in Suburb EE and X was enrolled in Suburb EE Public School.
During 2018, despite some degree of ongoing conflict, the parties were largely complying with the 2014 and 2016 orders.
At a mention before a Judge of this Court on 30 April 2018, at which the parties were represented, the Court noted that:
a. The father is agreeable to the Orders currently in place.
b. The issues before the Court are overseas travel and parental responsibility.
Those remained as the only issues when the parties saw the Family Consultant in November 2018.
Family Report
On 15 November 2018 the Family Consultant interviewed the mother, father, Ms CC, Ms W, Mr Y and X, and undertook observations. On 13 December 2018 she had a telephone conversation with Ms CCC, Assistant Principal, and Mr DDD, (X’s classroom) teacher, of Suburb EE Public School.
At the time X was living with the mother and spending alternate weekends from Friday afternoon to Monday morning and half school holidays with the father, as well as regular overnight time at Ms CC’s house. The father took X to sports or hobby lessons on a Wednesday afternoon. It was about an hour’s drive between the parents homes. These were in effect the 2014 orders with minor informal consent variations to allow the Sunday overnight and the mid-week time.
The Family Consultant stated that [FR [75]]:
both [the father] and [the mother] seemed to agree that the current parenting arrangement should continue and that the arrangements seem to be, largely, going well for X. As the parents have agreed about these arrangements, there does not seem to be any reason why they should change.
The father sought an order that X spend time with him after school once per week, from about 5.00pm to 7.00pm to do an activity and have dinner, in line with the then informal arrangement. The outstanding issues were parental responsibility and overseas travel as noted at the 30 April 2018 callover. The mother sought sole parental responsibility and that she be allowed to take X overseas. The father sought equal shared parental responsibility and opposed overseas travel, due to his concerns that the mother might not return.
Each party described the other as a [FR [26]] “compulsive liar” and said that the other parent was capable of withholding X from them, which each of them had of course done. The mother also raised the concern that the father was a hoarder, that his home was untidy and dirty, that he provided minimal financial support and did not provide regular child support payments. Each parent accused the other of a level of neglect around basic care issues.
The Family Consultant identified two concerns.
Firstly, [FR [30]] “X’s ongoing exposure to conflict between his parents” and secondly, [FR [31]] “the apparent irregularity of X’s routines, especially school attendance”.
The Family Consultant’s concerns, and the evidence about X’s school attendance, is dealt with in the section concerning his education.
The Family Consultant had the history of the mother’s allegations of physical and verbal abuse as outlined above.
The mother said that the father had anger management problems and told the Family Consultant that [FR [43]]:
[…] her main concern is how Mr Quinlan allegedly treats X. She said that X comes back angry, frustrated and sad, and said that his father calls him, “dumb” and “a girl”. She said that she believes X loves his father and wants to look up to him but that it is difficult for X to move between his parents’ homes, due to Mr Quinlan's attitude towards her. […] she is also concerned about the possibility of X being exposed to Mr Quinlan's alleged temper.
The mother said that the father denigrated both her and X [FR [20]] “and that this affects X’s self-esteem”. X was often distressed after spending time with the father, and sometimes said that he did not want to go back.
The father acknowledged being verbally abusive when angry with the mother but claimed she had also been verbally abusive towards him. He said that the mother denigrated him in front of X and that this affected X’s relationship with him.
The issue of physical risk was the subject of opening submissions and evidence. The father told the Family Consultant that he had smacked X on the hand about three times per year, disciplined him by suspending his use of electronic games and felt he had to use physical punishment at times because nothing else seemed to affect X. He said that he had threatened X with the use of implements on him, but would not do so. In his trial affidavit the father subsequently gave evidence that he had kept the report writers recommendation in mind and that he had not smacked X in the preceding 12 months. He said that on occasion he responded by sending him to bed earlier than usual. In cross-examination he said that he had smacked X maybe three times. I note that X had told Mr N that the father would hit him with a spoon if X picked his nose.
In terms of X’s physical safety the mother said that the father had hit X maybe five or six times in eight years and that according to X the father had hit him with a metal spoon. The mother said that she had also physically disciplined X by smacking him around three times. She said that she was more worried about the emotional side of things. The mother did not ultimately press physical risk as an element of her case and the ICL did not consider that there was any risk of physical harm to X from the father. I am also satisfied, having reviewed all of the evidence, that the father does not pose a risk of physical harm to X.
X told the Family Consultant that he liked spending time with his father every second weekend, that he felt [FR [60]] “a bit scared” sometimes because of the father’s threats to hit him with a wooden spoon. He spoke about having sling shots and throwing rotten eggs. When asked about his worries, X said he was worried he would not be able to see the father and that he would [FR [62]] “miss him very much”.
The Family Consultant stated that [FR [81]-[82]]:
81. Another consideration regarding X’s care and well-being is Mr Quinlan’s alleged and acknowledged anger management and discipline methods. […]
82. […] if X has indeed been exposed to Mr Quinlan being aggressive towards Ms Ware, this would also affect X’s level of comfort while spending time with Mr Quinlan.
The mother claimed the father’s anger management issues meant that he would often lose his temper when they tried to communicate which made it very difficult to discuss or plan parenting decisions together. The Family Consultant considered they had a [FR [56]] “competitive relationship” and “presented as having minimal respect for each other’s parenting styles”. The mother presented as wary of the father and [FR [56]] “they both reported chronic difficulties communicating effectively with each other”. However, the Family Consultant stated that it was not clear whether there had been sufficient problems to warrant the mother holding sole parental responsibility.
X presented to the Family Consultant as having strong relationships with both his parents. She felt he gave the impression he was testing limits during the observations and was not always clear about the expectations of his behaviour, and in that respect seemed [FR [63]] “a little insecure about his parental relationships and acutely aware of disagreement and competitiveness between his parents”. She continued [FR [83]-[84]]:
83. X presented as somewhat wary of Mr Quinlan’s reactions. X gave the impression that he loves his father and wants to look up to him, but is also conscious of some antisocial aspects to Mr Quinlan's behaviours. This seems to introduce an element of insecurity in this relationship (as well as, possibly, a more enticing sense of complicity, such as when they threw rotten eggs together). The concern raised by Ms Ware, that Mr Quinlan may lose his temper with X, seemed valid in light of the history provided and Mr Quinlan's own acknowledgements. It would, therefore, likely be in X's interests if Mr Quinlan could take steps (such as attending a behaviour change course) to address this aspect of his behaviour.
84. There is a general sense that X is a little confused about the boundaries of his own and others' behaviours. It is not clear whether this is due to the apparent flexibility of his own routines, or whether it is also a function of the conflict between his parents (or both). While X presented as a likable, friendly child, he seemed to use the opportunity of the assessment to challenge his parents and to test them. X gave the impression that he does not always receive consistent limits and is, therefore, quite resentful when attempts are made to set limits with him.
The father thought that X would sometimes [FR [34]] “[play] his parents against each other”.
The Family Consultant said that there was also [FR [64]] “an impression that X has strong relationships with extended family members and spends time with them on a regular basis. This seems to be a significant area of emotional support for him”.
The Family Consultant recommended equal shared parental responsibility, that the current parenting arrangements continue as agreed between the parties, that the father seek advice about setting limits on X that did not involve physical punishment, that the mother review her routines to ensure X attended school regularly, that the father attend a behaviour change course, and that the court make a determination for the parents to at least seek legal advice regarding overseas travel.
In summary, as at November of 2018, whilst there was still conflict between the parents, X was spending unsupervised time with the father on a regular basis and both parties were content to continue with the arrangement. There was no suggestion by the mother, or view formed independently by the Family Consultant who was given the relevant evidence, that the father posed an unacceptable risk of psychological harm to X, or that supervision was required. The only arguments were as to parental responsibility, where the Family Consultant supported equal shared parental responsibility, and as to overseas travel.
There is a significant issue as to why the mother’s position changed.
The Motorbike Incident
The mother said in her trial affidavit that in November 2018 X told her that [M1 [166]] “his father became so angry with X that he smashed up a motorbike in front of X.”
This event was significant.
The mother’s evidence was that while on 15 November 2018 she had told the Family Consultant that [FR [75]] “the current parenting arrangements should continue and that the arrangements seem to be, largely, going well for X”, she subsequently became aware of this incident. She said that X started complaining of headaches and stomach aches and that eventually, with some other conflict with the father, her view finally changed to her present view that the father requires supervision when with X.
In cross-examination by the mother about the motorbike incident the father said that X said (T1.70.40) “Mum says you love Ms EEE” more than me (Ms EEE being the father’s then long-term girlfriend) and X said (T1.70.45) “why don’t you love me, dad?” and “you don’t love me. You love your – your motorbikes”. It is important to note that X has expressed these sentiments to the father while saying it was a result of the mother’s criticism of the father.
The father gave evidence that X was getting very emotional and saying (T1.70.45) “Mum says” and that it (T1.71.5) “was a heartfelt moment” and he said “mate, these bikes don’t mean anything to me” and “I love you” and “these are rubbish” and “you’re the only thing I really care about more than anything” and “these are dad’s toys”. To demonstrate how little he thought of his “toys”, compared with the great depths of love he felt for X, he picked up a fold up chair and went to a motorcycle which had a tank (T1.71.5) “mocked up” on the body and (T1.71.5) “belted the tank off the bike”. While he felt he was having a heartfelt father-son moment he admitted (T1.71.10) “I maybe did it the wrong way by knocking the tank off and stuff”. However, he did not agree that X perceived that as (T1.71.15) “being violent”.

The paramount consideration for the Court is X’s best interests (see ss 60CA, 65AA) taking into consideration the factors set out in s 60CC of the Act. The two primary considerations, in order of weight the need to protect X from physical or psychological harm from being subjected or exposed are to abuse, neglect or family violence, and then the benefits to X of having a meaningful relationship with both parents.
For the reasons I have given above, I find that X is not at risk of being exposed to physical or psychological harm in these circumstances in the father’s care, and there is no basis for an order for supervision. Unfortunately, the level of conflict between the parents and their mutual conduct in involving X in their disputes and letting him know about their animosity towards each other has caused him psychological harm.
Each parent accepts that there is a benefit to X of spending time with and maintaining a relationship with the other parent. The issue is which parent X should live primarily with and the time that he can spend with the other parent by reason of the geographical divide between their places of residence.
The mother says that X should live with her. She has always been his primary carer and it will be a major and potentially traumatic change for X to move to live primarily with the father. The father says that X should live with him despite it being a major change because otherwise X will not get an education. The ICL originally supported the mother’s case, on the basis that she was going to live in Town V and send X to school, but changed to support the father’s proposal on the basis of the need for X to attend school.
X has set out his views in his “Views and Wishes” document. In addition to those identified elsewhere he also said that [Views (Page 2)] “He has told his Mum that he kindof [sic] wants to go to a school” although not any school he had previously been to. X said that [Views (Page 2)]:
In a dream world, what he would love to happen is for Dad to move up to some town somewhere nearby, somewhere close, and Nan, and maybe Poppy as well, or for Mum to find somewhere else to live closer to Sydney. That way he could just walk between the two houses. That way everything could go back to normal.
As noted elsewhere, in terms of his preference he told the ICL [Views (Page 3)]:
In terms of any preference as to which parent he is to live with, at the moment, he has “sort of been thinking that the decision is the decision”. He doesn’t “really care what the decision is, but hopes for the best decision”.
He has been thinking about it since we spoke on Tuesday, and he does not have a preference.
In terms of previously expressing a preference, he says “actually I have not said anything about that”.
Whilst X’s relationships with his parents are strong, they are also impacted by his feelings of guilt and his feeling that he needs to lie to each of them. This is a consequence of the negative views they hold about each other and their mutual failure to shield X from their conflict. X has strong relationships with Ms CC and Ms W, and also with other members of his extended families, and it would be in X’s best interests for those relationships to be supported.
A significant consideration in determining the appropriate orders is the impact that a change in X’s current circumstances will have on him. All parties acknowledged that a move to live with the father would be a significant change to X’s living circumstances. I have in mind what Mr N said about the negative impacts on X of “perpetual transience” of both schooling and living arrangements.
A move to live with the father will not be a move from an established home and well known school, as would have been the case if X remained living with the mother and his extended maternal family at Town V and attending Town V Public School. X is now living in a mobile home in Town K, where he has visited but has no established roots. He is living with the mother, but also with Mr R, who X apparently likes but who X has never lived with before, and about who the Court knows very little. X was being home-schooled. He may have developed some new friends in Town K in the months he has been there. If X moves to live with the father he will be returning to a house he is familiar with and has spent a great deal of time in. He will be returning to an area which he knows and where he also has access to the paternal family, who will provide X with an additional support network.
In the longer run if X lives with the mother there is some risk that X will spend periods of time living an itinerant lifestyle in a mobile home while being home-schooled. The risk of the father moving at some stage cannot be excluded but is low. It is likely that if X lives with the father he will have consistency of schooling at one local primary and then one local secondary school, and consistency of housing where the father proposes to keep living in a house owned by Mr DD, and which I am satisfied Mr DD will support him in staying in.
I am satisfied that X is not afraid of the father, and is comfortable spending time with him and living with him. As noted in X’s “views” document, his preference would be for the parents to live nearby so he could walk between their houses and spend time with both of them.
However, given the mother has always been X’s primary carer it is likely that the separation from her involved in living with the father will have a significant impact on X’s emotional wellbeing, even with regular weekends and holiday time. That is another important factor that must be weighed. Although X may find it emotionally easier to continue living with the mother while being home schooled in the short run, the longer run psychological and emotional price he will pay if he continues to lag behind his peers, if he thinks of himself as “dumb”, and if he does not obtain a formal education must also be considered.
Each parent has taken the opportunities available to participate in making decisions about major long-term issues in relation to X and in spending time with and communicating with X. The father, however, has shown a lack of responsibility in his attitude to child support and his obligation to meet X’s financial needs. I am satisfied that he is now ready, willing and able to rectify that issue and to provide for X’s financial support.
There is a degree of practical difficulty and expense with X spending time with the parent with whom he is not primarily living on either proposal. That is a consequence of the geographical distance between the parties.
Each party has the capacity to provide for X’s physical needs. The mother’s concerns about the adequacy of the father’s accommodation are dealt with elsewhere. The mother also raised issues of nutrition and basic hygiene for X when he is in the father’s care, but I am well satisfied that the father is able to provide for X’s needs in that regard. The mother raised issue with the father’s capacity to understand and access appropriate medical and allied health support for X related to his mental health and educational needs, but again I am satisfied that the father is aware of the need for X to have support, and that the father will work with the school and supportive services to facilitate X’s education and mental health.
The mother said that the father was not able to meet X’s emotional needs. To some extent that is an issue of parental values and differing views about the importance of building resilience by urging X to learn to manage his emotions. Having said that, given the position X starts in and his mental health as assessed by Mr N, the way in which the father expresses himself to X might be better modulated. X understood the motorbike incident, but it was a poor way to communicate love to a young child. The father recognised that.
The father said that he would do an anger management course if the Court required it. I do not think the father has the kind of anger management issues that make him an unacceptable risk, and I accept his evidence that he has come quite some way in understanding the impact of his communication style on X having read the Family Report, and across the course of these proceedings. However, given X’s comments to Mr N, I consider that an anger management course may help the father communicate his thoughts and feelings to X in a more productive way, and in a way that will better support X’s emotional needs. Given the father’s consent I will make that order.
The father has the capacity to provide for X’s educational needs by making him go to school every day, helping him to assess the support available in the public school system, and by supporting him with homework to the extent the father is able to do so.
The mother’s views concerning education, and its impact on X’s intellectual or academic needs, are discussed elsewhere, as are the attitudes to X and to the responsibilities of parenthood demonstrated by each of the parents.
Given the mother’s opposition to mainstream schooling, her inability or unwillingness to make X attend mainstream school on a regular basis, the inadequacy of her home schooling regime, and her failure to recognise the long term risks to X of lacking a formal education, I find that the mother does not have the capacity to meet X’s need for a formal education.
Each set of grandparents are also well placed to help the parties meet X’s needs and, although no orders were sought and none will be made, it would be hoped that Ms W and Mr Y and X’s maternal uncles can continue to be involved in his life, and that the father will recognise the importance of these people as support for X and facilitate their involvement in X’s life.
There are no relevant issues around the maturity, sex, lifestyle and background of X or the parents that are not dealt with elsewhere. There are no cultural issues and X is not an Aboriginal or a Torres Strait Islander child.
Given that I consider that X must attend school, and that the mother is unlikely to comply with any such order, the order I propose to make is less likely to lead to the institution of further proceedings than an order which places X primarily with the mother and then orders her to make him attend school.
The presumption of equal shared parental responsibility (s 65DA) is rebutted by the admitted family violence (s 4AB) the father has committed. The issue of family violence and of the various ADVO’s has been discussed elsewhere. There is no extant family violence order. I have in mind the mother’s concerns and the provisions of s 60CG in formulating orders.
The mother submitted that it would be a very grave step to move X from his primary carer and that it would involve a substantial risk of adopting an unknown solution. I accept that. However, there is also a risk to X of not trying this untested solution and of his continuing to live with the mother.
On balance, I am satisfied that given X’s age, his insight into the issues, the fact that he has a strong relationship with his father and is accustomed to spending substantial time with him, that he will be closely supported by Ms CC with whom he also has a strong relationship, and that he will be able to access support either from Mr N or another local counsellor, that X is likely to be able to cope adequately with a change of primary residence.
I note the Family Consultant identified the apparent irregularity of X’s routines, especially school attendance, as an area of significant concern. I find that X is more likely to have and follow a more consistent routine living with the father, and that this will be to X’s benefit.
Weighing all of the factors referred to in this Judgment and acknowledging the risks involved in moving X’s primary residence, and the likely difficulty and emotional pain X will suffer as a result, in my view X’s long run need for education is so significant that to the extent to which there are counter-veiling factors it outweighs them.
Accordingly, I find that it is in X’s best interests that he live primarily with the father and attend Suburb C Public School.
The Family Consultant’s opinion in her report was that, despite the parties’ competitive relationship and minimal respect for each other’s parenting styles it was not clear there were sufficient problems to warrant the mother holding sole parental responsibility. At the time of the report she recommended equal shared parental responsibility, although that was in the context of the parties’ agreement that their long standing arrangements as to the time X was to spend with the father was working well for X and would continue. The ICL and the father also sought equal shared parental responsibility. The mother sought sole parental responsibility.
Despite their conflict the parties have, for extended periods of time within the context of Court orders, managed to work together and make decisions for X, other than with regards to schooling versus home schooling. As I consider it in X’s best interests to live with the father it would not be appropriate for the mother to have sole parental responsibility. I have considered whether, given the conflict over schooling, it would be more appropriate for the father to have sole parental responsibility for schooling, but on balance consider that it would be in X’s best interests for both parties to remain involved in making major decisions for X on the understanding that the Court is ordering X to live with the father and attend school.
The time X should spend with each parent is primarily determined by geographical considerations limiting the amount of time he will be able to spend with the non-resident parent.
It follows from that that X’s best interests require orders for equal shared parental responsibility, that X live primarily with the father, attend his local school on time every as day required by law, and that he spend such time with the mother as is reasonably possible given the geographical issues, and communicate with her as he reasonably wishes, in order to maintain his meaningful relationship with her.
WHAT ORDERS ARE IN X’S BEST INTERESTS?
The ICL proposed a set of Orders in November 2020 which provide a good outline, although I will refine them.
The ICL proposed a change of residence within 24 hours of the orders. I am not satisfied that is in X’s best interests. It is also complicated by COVID-19 restrictions again in place in Sydney. I think it would be better for X to have a period of time in which the ICL can explain the Orders to him and in which he can acclimatise to the change. I will ask the ICL to explain these orders to X and emphasise the importance of attending school. I will instead order that X be delivered to the father within two weeks of these orders. I will make the changeover location Ms CC’s premises.
In terms of changeovers I am not satisfied that the mother’s fear of the father is such that the parties cannot attend changeovers in person. The mother’s emphasis was on her perception of X’s fear of the parties being in conflict. The parties can use agents, such as grandparents, if they prefer, but if they attend they are to act in a civil and cordial fashion to avoid putting X at further harm from their conduct. It would be good for X to see the parties together at change overs appearing to be friendly and working together if that is possible.
The geographical distances make substantial and significant time difficult and time during the school week impossible. It is important to maintain X’s meaningful relationship with the mother, and to provide him with consistent ongoing support from the mother, by providing for as much time as is realistic.
The ICL’s proposal for school holidays was for 10 days in the first and third, and for seven days of the second, of the short school holidays each year, with half of the long summer holidays each year, alternating the first and second half. The small amount of additional holiday time with the mother mid-year is appropriate to help X. As that may involve X in flying I will specify that the parties are to share the cost, with the father to pay the airfares in the first instance and the mother to reimburse him one-third of the cost within 28 days. The father was at great pains to point out his financial capacity in his evidence, in particular because of his apparent statements of income relating to child support and his previous failures to meet support X on a regular basis. I am satisfied that allocating the cost in this way is the just allocation of financial cost.
The ICL proposed time with the mother occur on the first full weekend of each month during the school term from 9.30am Saturday morning to 4.30pm Sunday afternoon and that the time occur within 200 kilometres of the father’s home. The proposal implicitly assumes that it is not reasonable to have X fly to Town K for a weekend, and I agree. The proposed orders would allow for the mother to travel to Town V and stay with her family. I will define the radius by reference to Sydney and the borders of City E, City G and the Region H. The mother may choose to have X at Town V or with her in her mobile home. I will make orders for birthdays and mother’s and father’s day, on the basis that if an order interferes with where X would otherwise be there will be make up arrangements.
I will make the changeover Suburb J Railway station, as it was for changeovers in the interim orders, as a point between the father’s residence and Town V. As the mother may not be in a position to attend each of these weekends, and to avoid confusion and disappointment for X, I will adopt the ICL’s proposal that the mother provide seven days’ notice in writing of the weekends she will be spending with X.
I will make liberal provision for communication. Given his age X should be free to speak with the parent he is not with at any reasonable time he requests.
I will make orders that X attend his local public school on a regular basis and that each party may attend school or other events. It would be good for X if the parties could manage to attend such events together and be seen by X to be able to jointly support him. If they cannot do that, they are to at least act in a civil manner when at such events together.
I will make the proposed orders for the provision of information and restraints on denigration. The father sought a Family Law Watchlist order, and given the issues in the case and X’s potential foreign citizenship I will make that order.
I will make orders for the father to attend a parenting course to assist him to understand X’s present developmental needs, and also an anger management course to assist the father to understand the impact of his words and actions on X.
There are a range of other matters on which I will make recommendations where, for a variety of reasons, including the absence of submissions, making orders is not in my view appropriate.
I will request the ICL to explain the orders to X, and I will also ask the Legal Aid Commission of NSW to extend the appointment of the ICL to monitor X’s transition and reintegration to school attendance.
I note that in X’s “Views” document it was recorded that he said of his teachers, in part, [Views (Page 2)] “That is why he couldn’t hear them properly, or learn things properly or understand properly.” I had assumed, given the recognised connection between phonological difficulties and hearing loss, that X’s hearing would have been tested. However, it is not clear if that has occurred. I would strongly recommend that, if X has not had a hearing test, advice be sought from a GP or some other qualified person as to whether a referral for a hearing test is appropriate.
X will clearly require significant emotional support through this transition. He appears to have a good and long standing therapeutic relationship with Mr N. However, as the Family Consultant said, it is not ideal for X to be missing school to travel to the Region D for these sessions. It may be that Mr N is willing and able to maintain the therapeutic relationship with X via telehealth consultations. If not, then I recommend that enquiries be made with a GP for a mental health plan which will allow X to access a new therapist near the father as soon as possible.

As noted above, if it is financially feasible it would clearly benefit X to be able to be supported with additional tutoring. The faster he catches up the less traumatic his educational experience is likely to be.
I will make orders in line with these reasons.
If any party or the ICL seeks to make an application in respect of costs they are to file an application in a case and supporting affidavit within 28 days, otherwise each party shall bear their own costs.
I note that I granted leave to re-open the proceedings and that occurred. I will formally record that order, but otherwise dismiss the father’s application in a case filed 25 September 2020 and the mother’s response.

I certify that the preceding five hundred and thirty-three (533) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith.
Associate:
Dated: 2 August 2021

[2021] FCCA 1767

2 August 2021

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Injunction

Remedies

Procedural Fairness

Standing

Costs

File number(s):	SYC 5426 of 2013
Judgment of:	JUDGE B SMITH
Date of judgment:	2 August 2021
Catchwords:	FAMILY LAW – PARENTING – Final – whether father poses unacceptable risk – 10 year old child reading at year 1 level - educational needs – home schooling with mother or mainstream schooling with father: No unacceptable risk – equal shared parental responsibility –live with father – attend public school on a regular basis – spend time with mother.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4B, 60CA, 60CC, 65AA
Cases cited:	Adamson and Adamson (2014) FLC 93-622 B and B (1993) FLC 92-357 Briginshaw v Briginshaw (1938) 60 CLR 336 Carlson & Fluvium[2012] FamCA 32 Fitzwater & Fitzwater [2019] FamCAFC 251 G & C [2006] FamCA 994 HG v R (1999) 197 CLR 414 M v M (1988) 166 CLR 69 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR R v Turner [1975] QB 834 Stott & Holgar and Anor [2017] FamCAFC 152
Number of paragraphs:	533
Date of hearing:	9-12 December 2019, 7-8 May 2020, 10 July 2020 and 9 November 2020
Place:	Sydney
Counsel for the Applicant:	Mr Watkins
Counsel for the Respondent:	Ms Kaiti
Counsel for the Independent Children's Lawyer:	Mr Murray
Solicitor for the Independent Children's Lawyer:	Peter Jurd Lawyer
Solicitor for the Applicant:	Solari & Stock Lawyers
Solicitor for the Respondent:	Catalyst Family Lawyers

ORDER MADE BY:	JUDGE B SMITH
DATE OF ORDER:	2 AUGUST 2021