Salera & Baranski
[2024] FedCFamC2F 632
•22 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Salera & Baranski [2024] FedCFamC2F 632
File number(s): DGC 3914 of 2019 Judgment of: JUDGE BURT Date of judgment: 22 May 2024 Catchwords: FAMILY LAW – Parenting – one child aged 5 years – very short relationship – mother alleges that the father has behaved in a physically and emotionally abusive manner – allegations that the paternal family have also perpetrated family violence – threats to harm mother and child – father says that all allegations are false and that the mother has behaved abusively towards him – father interviewed by police on numerous occasions, no charges laid – extensive Child Protection involvement – extensive intervention order proceedings – Court declaring the mother a vexatious litigant and ordering an extended litigation restraint order – pending criminal proceedings in respect of allegations that the mother assaulted her father’s partner – mother initially being the primary carer – spend time with the father being initially supervised, progressing to unsupervised, and then to overnights – mother withheld the child 10 weeks before the final hearing, resulting in the making and execution of a recovery order – the child’s time with the mother being supervised prior to the hearing – mother having fixed and destructive hostility towards the father and the paternal family – credibility findings in respect of the mother – fabrication of evidence and attempts to mislead the Court – no findings of family violence perpetrated by the father – mother posing an unacceptable risk of emotional and psychological harm to the child – child thriving in the care of the father and his partner – consideration of indefinite supervision order – held – father have sole parental responsibility – live with the father and spend supervised time with the mother four occasions each year. Legislation:
Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CC, 61DA, 65D, 65DAA
Cases cited: Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622; (2014) 51 Fam LR 626
B and B [1993] FamCA 143; (1993) FLC 92-357; (1993) 16 Fam LR 353
Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123; (2022) 66 Fam LR 59
Carlson & Fluvium [2012] FamCA 32
Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407
Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
In the Marriage of Hall [1979] FamCA 73; (1979) FLC 90-713; (1979) 5 Fam LR 609
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092; (2022) 65 Fam LR 288
Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344
Loddington & Derringford (No 2) [2008] FamCA 925
Masson v Parsons [2019] HCA 21; (2019) 59 Fam LR 503; (2019) 368 ALR 583; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520; (2008) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405; (2009) 41 Fam LR 483
Potter & Potter [2007] FamCA 350; (2007) FLC 93-326; (2007) 37 Fam LR 208
Division: Division 2 Family Law Number of paragraphs: 277 Date of hearing: 22, 23 and 24 April 2024 Place: Dandenong for hearing
Melbourne (by Microsoft Teams) for judgment deliveryCounsel for the Applicant: Ms Bonney Solicitor for the Applicant: Cathleen Corridon and Associates Counsel for the Respondent: Mr Burns Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Ms Stavrakakis Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
DGC 3914 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SALERA
Applicant
AND: MS BARANSKI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
22 MAY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the child X born in 2018.
Live/Spend Time/Communication Orders
3.X live with the father.
4.X spend time with the mother as follows:
(a)professionally supervised on four occasions each year by agreement and failing agreement, in the first week of the Term 1, 2 and 3 Victorian school term holidays, and in the first week of the long summer holidays;
(b)the supervision to occur for no more than three hours;
(c)the supervision to be carried out by C Contact Service or such other professional supervision service as agreed between the parents in writing;
(d)the supervision to be solely at the mother’s expense;
(e)the supervision occur at a venue as agreed between the parents and failing agreement, as nominated by the father;
(f)changeover to occur at a venue as agreed between the parents and failing agreement, as nominated by the father; and
(g)at such other times as agreed in writing by the parties in advance.
5.X communicate with the mother via FaceTime or other video means as follows:
(a)on X’s birthday each year from 10.30am to 11am if a non-school day or 5.30pm to 6pm if a school day;
(b)on Mother’s Day each year from 10.30am to 11am;
(c)on Christmas Day each year from 10.30am to 11am;
(d)at such other times as agreed between the parents in writing;
(e)the mother to initiate the calls to the father and the father to facilitate same; and
(f)the father be authorised to terminate the call if the mother engages in any behaviour from which these orders restrain her.
6.The mother be authorised to send gifts and/or cards to X on her birthday and at Christmas, and for the purposes of same, the father provide the mother with a Post Office Box address within 14 days of the date of these orders.
Information Sharing
7.The father provide the mother with a mobile number for the purpose of communicating with X pursuant to order 5 herein within seven days.
8.The father advise the mother at least seven days prior to any communication between her and X of any change to the mobile number in order 7 herein.
9.The parents communicate only via AppClose and such communication be limited to emergencies relating to X and/or arrangements for supervised time, and such communications are to be child focussed, respectful and civil.
10.The father advise the mother in the event X attends a new school.
11.The mother be authorised to obtain from X’s school information usually disseminated to parents (at her own expense) including (but not limited to) school reports, newsletters and the like.
12.The father advise the mother as soon as practicable of any serious illness/injury to X and provide her with the details of the treating medical practitioner/s, and the mother be authorised to obtain information from the treating medical practitioner/s.
13.The father be authorised to provide these orders to:
(a)any school or other educational facility that X attends;
(b)any medical practitioner or allied health professional that X attends on or may attend upon;
(c)any professional supervisor/supervision agency; and
(d)any other person/organisation who is required to obtain information in relation to X.
Restraints
14.The mother, her servants and agents, are hereby restrained by injunction from:
(a)exposing X to parental conflict;
(b)denigrating or saying negative things about the father, his family or any household members, to or in the hearing or presence of X, or allowing anyone else to do so;
(c)discussing the Court proceedings with X, or in her hearing or presence, or allowing anyone else to do so; and
(d)discussing future spend time arrangements that are not consistent with these orders.
Change of Name
15.Pursuant to s.26 of the Births, Deaths and Marriages Registration Act 1996 (Vic), the father be authorised to apply to the Registrar of Births, Deaths and Marriages for the state of Victoria for X to now be registered as X Baranski-Salera, and for that purpose:
(a)the father be authorised to provide a copy of these orders to the Registrar of Births, Deaths and Marriages for the state of Victoria;
(b)the father be solely responsible for the cost of any change to X’s name; and
(c)the mother’s consent is not required.
Passport
16.Pursuant to s.11(1)(b) of the Australian Passports Act 2005, the father be authorised to sign and execute any documents necessary for X to obtain an Australian passport or to extend any existing passport, without first obtaining the written consent of the mother, and the father be at liberty to provide a sealed copy of these orders to the Australian Passport Office.
Overseas Travel
THE COURT REQUESTS THAT:
17.The Australian Federal Police remove the name of X born in 2018 from the airport watch list at all points of international arrival and departure in Australia.
THE COURT ORDERS THAT:
18.Pursuant to s.65Y of the Family Law Act 1975, the father is authorised to remove X from the Commonwealth of Australia for the purpose of travel at his discretion.
General
19.The order appointing the independent children’s lawyer be discharged.
20.All extant parenting applications be otherwise dismissed.
21.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:
These proceedings concern a little girl called X who is five years old. By all accounts X is a delightful, bubbly, and affectionate child. At the moment, X lives with her father and spends professionally supervised time with her mother each Sunday, as well as video calls three times a week.
It is clear that both of X’s parents love her and want what is best for her. Unfortunately, her parents are unable to agree what parenting arrangements are in her best interests because each of them says that the other parent represents a risk to X’s physical and emotional safety. The nature and extent of those risks have been the focus of this hearing.
X’s father, Mr Salera, proposes that X should continue to live with him and that he should have sole parental responsibility for her. He suggests that X should have only professionally supervised time with her mother and that that time should take place four times each year. He proposes that X have video calls with her mother on special days and that the mother be able to send her gifts and cards on Christmas Day and on her birthday. He seeks to change X’s surname to “Baranski-Salera”.
X’s mother, Ms Baranski, seeks orders for X to live with her. She proposed in the consolidated minute of proposed orders that X spend time with the father on alternate weekends and each Wednesday night during the school term, on a week about basis during the school holidays, and on various special days. If X lives with the father, the mother seeks orders for X to spend time with her in the same terms. In both her case outline and the consolidated minute, she also proposed that the parties have equal shared parental responsibility for X, but by the conclusion of the trial had conceded that whichever parent has primary care of X should have sole parental responsibility for her.
The independent children’s lawyer supported the orders sought by the father.
The parents seek similar but not identical orders in relation to the exchange of information and attendance at and communication with X’s school.
At Appendix A to these reasons is a proposed minute which sets out the various orders sought by the parties and the independent children’s lawyer in their entirety.
After assessing the evidence before me, I have concluded that X should remain in the care of her father and his partner, where she is thriving, and that her relationship with the mother must be limited to supervised time on four occasions each year in order to protect her emotional and psychological wellbeing. It is with real sadness that I reach this conclusion, because there is no doubt that X and her mother love each other very much. However, there is in my assessment no other outcome that will protect X from the risks presented by the mother’s fixed, destructive and at times malicious hostility towards the father and his family.
BACKGROUND AND PROCEDURAL HISTORY
The father is aged 27. He lives in Suburb D with X and his partner, Ms E. He works as a tradesperson. He identifies as an Aboriginal person.
The mother is aged 26. She lives with her sister, Ms F, in Suburb G. She says that she works as an artist and as an allied health worker. Her home is about one hour’s drive away from that of the father. She is of Country H origin and has lived in Australia since the age of nine.
X has lived with the father since mid-2022. Until that date she was in the mother’s primary care.
X attends J School where she is in her Foundation Year.
The parties agree that their relationship began in 2017 and lasted for only a few months. The father deposes to the parties separating and then reconciling on a number of occasions between late 2017 and early 2018. The mother conceded in cross-examination that the relationship was “very on and off”.
The mother alleges that the father behaved in a physically and emotionally abusive manner towards her on numerous occasions during the relationship and after separation. She says that he has threatened to harm her and to harm X. She also accuses his partner and members of his family of perpetrating family violence against her. The father says that these allegations are false and that the mother has behaved abusively towards him.
The parties agree that they separated in early 2018, with the father saying that final separation occurred in early 2018 and the mother saying that it was on a different date in 2018.
In mid-2018, the police applied on behalf of the mother for intervention orders against the father and his mother, Ms K. The father says, and was not challenged in this regard, that the intervention order application against him was withdrawn and the application against his mother was finalised by consent without admissions in late 2018.
In 2018, the father commenced a relationship with Ms E.
X was born in 2018. The parties agree that the father was present at X’s birth.
The father says that until Christmas Eve 2018 he had occasional contact with X at Suburb L Shopping Centre where he says the mother would allow him to spend time with X for about an hour. He says that in December 2018 the mother sent him messages saying that if he wanted to continue seeing X he would need to go through mediation.
The father asked for a paternity test after X was born. The mother says that she was deeply hurt by this request.
In early 2019, the mother reported to police that the father had made threats to harm her and to harm X on social media.
In early 2019, the father was served with an interim intervention order which named the mother and X as affected family members. He says that the mother’s application was later struck out.
In early 2019, the father applied for an intervention order against the mother.
The Department of Health and Human Services (as it then was, “the Department”) engaged in a period of protective intervention in early 2019 following allegations that the father had made threats against the mother and X. During this period, the father was interviewed by the police about the alleged threats, but no charges were laid.
In early 2019, the parents consented to mutual intervention orders which expired in early 2020. X was not named on either order.
The father initiated proceedings in this Court on 22 November 2019.
In early 2020, the father and Ms E began living together.
The father deposes to attending the Suburb B Court in early 2020 in relation to the mother’s application to add X to her intervention order and extend its duration. He deposes further that at a hearing in early 2020, he successfully obtained an extension to the intervention order protecting him against the mother but that she was unsuccessful in adding X as an affected family member to her order. A copy of the father’s order is annexed to his affidavit.
In early 2020, there was a further period of protective intervention by the Department following an allegation by the mother that the father had sent her a USB memory stick which contained a video of her sleeping and a letter containing multiple threats to harm her and to harm X. During that period of intervention, the Department assessed the father as responsible for and likely to cause harm to X and prepared a risk assessment supporting a proposal that there be no contact between X and the father.
In early 2020, orders were made by consent which included paternity testing and an order for X to live with the mother.
In mid-2020, paternity test results confirmed that the father is X’s biological father.
On 26 August 2020, orders were made including listing the matter for final hearing on 2 August 2021 and for X to commence spending professionally supervised time with the father for a minimum of two hours each fortnight.
In late 2020, an incident occurred during which the mother and her brother, Mr M, are accused of holding Ms N, her father’s partner, against her will for several hours and assaulting her repeatedly. The resulting criminal proceedings are ongoing and are discussed later in these reasons.
In late 2020, the mother sought and obtained an interim intervention order against the father.
Supervised time between the father and X continued until early 2021 when it ceased. It then resumed in mid-2021.
On 2 August 2021, orders were made including the extension of X’s time with the father by one hour per fortnight, and permission for him to have his partner present during time.
At some point in 2021, the mother applied to extend the duration of the interim intervention order against the father. The father deposes (and was not challenged in that regard) that the application was dismissed in late 2021 due to lack of evidence.
On 8 October 2021, orders were made including the variation of the arrangements for time so that it could be supervised by Ms E, and for it to take place for three hours each Saturday and two hours on alternate Wednesdays. Time took place on that basis until March 2022, although the father alleges that the mother failed to facilitate it on numerous occasions.
In late 2021, the mother applied for and obtained interim intervention orders against the father and Ms E.
On 16 March 2022, orders were made by consent including for time to take place for two and a half hours each Tuesday and Thursday and for eight hours on Saturday, on the basis of an undertaking from Ms E that she would notify the independent children’s lawyer if she observed the father in engaging in behaviour that could cause physical or emotional harm to X.
In early 2022, the mother made multiple allegations to the independent children’s lawyer, to the Department, to staff at O Hospital and within applications for intervention orders that the father had abused X. Those allegations are discussed later in these reasons.
In early 2022, there was a further hearing in relation to the mother’s applications for intervention orders. The father deposes to the mother having failed to file Further and Better Particulars by early 2022 as ordered and says that she was not in attendance at that hearing. The father says that the Judge struck out the mother’s applications and granted him an interim intervention order against the mother which listed X as an affected family member. He annexes a copy of the relevant order. I accept his evidence in that regard.
In early 2022, the mother applied for an intervention order against Ms K, the paternal grandmother. In her application, which is annexed to the father’s affidavit, she alleges that Ms K’s partner had sexually abused a relative, that Ms K had sent people to her to ask questions about X, and that the father had attempted self-harm. None of those allegations appear in the mother’s trial affidavit.
As a result of the mother’s application, further intervention orders were made against the father, Ms E and Ms K in early 2022.
At a hearing in mid-2022, the father says that a Judge expressed concern about the mother’s repeated applications, and her repeated failure to comply with orders such as the order requiring her to appear and to file Further and Better Particulars. The father deposes to all of the mother’s applications being struck out and annexes copies of certified extracts to that effect. I accept his evidence in that regard.
In mid-2022, the mother made further intervention order applications against the father, Ms E and Ms K.
The father alleges that the mother ceased to facilitate changeover so that time did not take place from mid-2022 onwards. He then sought orders for X to be placed in his primary care.
Interim orders were made to that effect on 22 July 2022, providing for X to spend time with the mother overnight each Monday and Thursday and otherwise to live with the father.
On 14 November 2022, the matter was adjourned by consent pending the outcome of the mother’s criminal matters, with the matter to remain listed for final hearing on 20 March 2023.
An intervention order hearing took place in late 2022. The father says and I accept that the Judge considered the mother’s evidence unsatisfactory. He annexes to his affidavit a copy of the final intervention order granted for his protection and against the mother for a two-year period. His Counsel tendered on his behalf certified extracts confirming that on that date the mother’s application for an intervention order was refused, that she was declared a vexatious litigant, and an extended litigation restraint order was made against her. She was also ordered to pay the father’s costs.
The final hearing listed in this Court on 20 March 2023 was adjourned and was listed on 7 December 2023.
At a hearing before me on 22 June 2023, the final hearing was further adjourned to 22 April 2024, and an interim defended hearing was listed on 7 December 2023. At that hearing, the arrangements for X’s time with the mother were varied to provide for it to take place on alternate Thursday nights and alternate Friday nights.
At the interim defended hearing on 7 December 2023, I gave the father permission to enrol X at J School. I made orders providing for X to spend time with the mother from 2pm on Christmas Day to 5pm on Boxing Day, for five nights per fortnight during the summer holidays and during the Term 1 school holidays, and on alternate weekends from Friday to Monday and alternate Wednesday afternoons during school terms.
X started attending at J School in Term 1 of 2024.
Pursuant to the orders made on 7 December 2023, X was due to spend time with the mother and then be returned by the mother to the care of the father in early 2024. She was not returned in accordance with those orders.
On 8 February 2024, I made a recovery order and suspended the orders for time between X and the mother.
X was returned to the father by the Australian Federal Police in early 2024.
Following an interim defended hearing on 27 February 2024, I made orders for X to spend supervised time with the mother once per week and for there to be three video calls per week between X and the mother.
In accordance with those orders, albeit at an alternative contact centre with a shorter wait time, supervised time took place on 24 March, 7 April and 14 April 2024.
The final hearing of this matter took place before me on 22, 23 and 24 April 2024.
MATERIAL RELIED UPON
At the hearing, the father said that he relied upon:
(a)his further amended initiating application filed on 16 April 2024;
(b)his affidavit filed on 16 April 2024;
(c)the affidavit of Ms K, paternal grandmother, filed on 2 March 2023;
(d)the affidavit of Ms E, father’s partner, filed on 2 March 2023
(e)the affidavit of Dr P, psychiatrist, filed on 30 March 2021, annexing the mother’s psychiatric assessment dated 30 July 2020 and the father’s dated 25 August 2020 (“the first Dr P affidavit”);
(f)the affidavit of Dr P, psychiatrist, filed on 19 September 2023, annexing the mother and the father’s updated psychiatric assessments both dated 17 June 2023 (“the second Dr P affidavit”);
(g)the family reports prepared by Regulation 7 Family Consultant Ms Q dated:
(i)31 October 2022 (“the first family report”); and
(ii)12 April 2024 (“the second family report”);
(h)the s.69ZW responses prepared by the Department of Families, Fairness and Housing dated:
(i)20 September 2022; and
(ii)2 April 2024; and
(i)his outline of case filed on 17 April 2024.
At the hearing, the mother said that she relied upon:
(a)her amended response filed on 18 April 2024;
(b)her affidavit filed on 18 April 2024;
(c)the first Dr P affidavit;
(d)the second Dr P affidavit;
(e)the first family report;
(f)the second family report;
(g)the s.69ZW responses prepared by the Department of Families, Fairness and Housing dated:
(i)29 September 2020;
(ii)20 September 2022; and
(iii)2 April 2024;
(h)the affidavit of Ms R filed on 18 April 2024, annexing the supervision report dated 17 April 2024; and
(i)her outline of case filed on 19 April 2021.
At the hearing, the independent children’s lawyer said that she relied upon:
(a)the first family report;
(b)the second family report;
(c)the first Dr P report;
(d)the second Dr P report;
(e)the s.69ZW responses prepared by the Department of Families, Fairness and Housing referred to at [62(g)] herein; and
(f)her outline of case filed on 17 April 2024.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Some witnesses gave evidence via Microsoft Teams. There were no technical issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence, and that each of the participants in the hearing was sufficiently able to participate.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
On the first day of the final hearing, the mother sought to rely on an earlier affidavit, filed on 15 March 2023, in addition to her trial affidavit. I dismissed that application after hearing submissions from all Counsel and gave ex tempore reasons in that regard.
The father
The father gave his evidence in a calm and thoughtful manner and impressed as doing his best to answer questions honestly and frankly. He readily and unhesitatingly made admissions against interest, for example that he had been unhappy when he learnt of the mother’s pregnancy and had raised the possibility of an abortion with her.
His evidence was consistent with his affidavit and with the majority of the other evidence before me. There were some minor inconsistencies with, for example, the evidence of his mother about the context of the incident which occurred in early 2018 and which is discussed later in these reasons. However, his evidence was consistent with all of the information from the Department and the tendered Victoria Police subpoena material.
The father displayed no anger or bitterness against the mother despite what I am satisfied, for reasons to follow, has been a sustained and deliberate campaign of false allegations by the mother against him and his family. He focused throughout his evidence on his perception of X’s needs and his criticisms of the mother, in answer to direct questions, appeared almost reluctant. He was an impressive witness.
The mother
In assessing the evidence of the mother, I take into account that English is her second language and that issues of language and culture are likely to have affected the fluency and manner in which she gave her evidence. I bear in mind also that trauma, whatever its source, may affect the demeanour of the person who has experienced it when giving evidence so that they present in an unusual way. I therefore have greater regard to questions of internal and external consistency rather than demeanour when assessing the evidence of the mother.
The mother’s evidence was replete with internal and external inconsistencies. She conceded that she had told the Court in July 2022 that X was not speaking at all and was non-verbal but in cross-examination said that X had been speaking in phrases of two to three sentences. She denied telling Dr P that there was CCTV footage which showed that she had not got out of the car outside Ms N’s house in late 2020.
There were a number of issues in respect of which the mother’s evidence shifted during cross-examination. The mother agreed in cross-examination that she had told the father about her pregnancy with X in 2018. When it was put to her that that date, meaning that conception must have occurred in 2017, was not compatible with X’s birthday, she changed her evidence and said that she had told the father about the pregnancy at a later date.
The mother appeared to find it difficult to make concessions even about events which were the subject of reliable third-party evidence such as the outcomes of intervention order hearings in Court, or the fact that Ms N is the partner of her father. Her answers were often non-responsive or evasive.
The mother struggled to give specific examples of the allegations which she made against the father, his partner, and his mother. She frequently made general statements such as “there were a lot of concerns” but was then unable to describe any individual incident or allegation which formed the foundation for those concerns. For example, when alleging that she had required protection from Ms E in the form of an intervention order, she said that there had been harassment and stalking, then that there were so many concerns that she could not give an example, then that she had received a message from Ms E which she had reported to the police. After a number of further questions on the same topic, she alleged that Ms E had threatened to harm her but could not say whether there had been more than one such threat. Her inability to recall an incident which, had it occurred, would have been serious and frightening, makes it difficult for me to accept her evidence.
The mother describes in her trial affidavit that at the end of supervised time X would often beg her in tears to return the next day. She deposes to witnessing X’s distress at only being able to spend supervised time with her. There are no references to X being distressed in this regard or at all in the observations contained in the supervision report.
Questions were put to the father by Counsel for the mother about whether he accepted that X presented as happy and excited during supervised time. Counsel for the independent children’s lawyer objected to those questions as they were inconsistent with the mother’s own evidence. I gave Counsel for the mother the opportunity to take instructions in that regard. After doing so, he confirmed that the mother wished to rely on the contact supervision report rather than her own affidavit in relation to X’s presentation.
These inconsistencies significantly weaken the weight which I attach to the evidence of the mother.
Credit finding
The evidence requires me to consider whether this is one of the relatively few cases in which I should make findings as to credit, as both the father and the independent children’s lawyer suggest that I should do. In parenting disputes such as this case, “adverse credit findings in this decision carry the inherent risk that, rather than bring an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future”.[1] Findings in relation to credit should only be made where necessary to resolve the issues in dispute and where they are soundly based.[2]
[1] Carlson & Fluvium [2012] FamCA 32 at [165]-[169] (“Carlson & Fluvium”) quoted with approval in Adamson & Adamson [2014] FamCAFC 232 at [89]-[90] (“Adamson”).
[2] Carlson & Fluvium at [168] quoted with approval in Adamson at [89]-[90].
In this case, the credibility of the parties must be considered because the question of which party is telling the truth about the plethora of allegations of family violence is a central issue before me. Of course, it is possible that some allegations are true and others are not but if the majority of those allegations are true, the father may well present a significant risk to X. If untrue, and particularly if fabricated, the mother’s insistence that the father is a risk to X is baseless and her hostility and distrust of the father may represent a significant risk to X.
For all of these reasons, and in conjunction with the findings I have made that the mother has on some occasions deliberately fabricated evidence to suggest that the father has perpetrated family violence, I prefer the evidence of the father to that of the mother in relation to the factual disputes between them.
Ms E– father’s partner
Ms E filed an affidavit on 2 March 2023. She was not required for cross-examination and her evidence is therefore unchallenged. Ms E was at Court each day with the father.
Her relationship with X is discussed elsewhere in these reasons.
Ms K – paternal grandmother
Ms K filed an affidavit on 2 March 2023 and attended Court on 22 April 2024 for cross-examination.
Ms R -contact supervisor
Ms R filed an affidavit on 18 April 2024. She was not required to attend for cross-examination and her evidence was therefore unchallenged.
In her affidavit Ms R sets out observations of three visits on 24 March, 7 April and 14 April 2024. The observations are positive; she records X’s pleasure at spending time with the mother and the mother’s attentive care of X.
Dr P – consultant psychiatrist
Dr P filed two affidavits in this matter, on 30 March 2021 and 19 September 2023. The first annexes a psychiatric assessment of the mother dated 30 July 2020 and of the father dated 25 August 2020. The second annexes updated psychiatric assessments of both parents, dated 17 June 2023. He was not required to attend Court for cross-examination and his evidence is therefore unchallenged.
The evidence of Dr P is discussed elsewhere in these reasons.
The Family Consultant – Ms Q
Ms Q prepared two family reports in this matter, the first dated 31 October 2022 and the second dated 12 April 2024. She attended Court via Microsoft Teams on 24 April 2024 for cross-examination.
Ms Q’s evidence is discussed throughout these reasons.
The Court is under no obligation to accept the recommendations of a Family Consultant. Whilst the Court will usually attach significant weight to the evaluation of the Family Consultant, the Consultant does not have the same opportunity as the Judge to observe the witnesses or to weigh and test the evidence.[3]
[3] In the Marriage of Hall [1979] FamCA 73 at [24], cited with approval in Andrew & Delaine [2009] FamCAFC 182.
Neither the opinions of Ms Q nor the basis for them were successfully challenged in cross-examination. Save where indicated in these reasons, they were consistent with my own assessment. I attach significant weight to her views.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children.
Section 60B of the Act sets out the objects and principles of Pt VII. The focus of the objects is on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.[4] My decision is guided by those objects and principles.
[4] Masson v Parsons [2019] HCA 21 at [8].
In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of X as the paramount consideration.[5] Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in X’s best interests. The primary considerations set out in s.60CC(2) of the Act are, as follows:
·the benefit to X of having a meaningful relationship with both of her parents; and
·the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[5] Family Law Act 1975 (Cth) s 60CA.
In balancing these considerations, I am required to give greater weight to the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[6] It is convenient to first address the s.60CC considerations before turning to the presumption contained in s.61DA and, if applicable, the matters prescribed by s.65DAA of the Act. As I need to give greater weight to the need to protect X from harm, I will consider that issue first.
PRIMARY CONSIDERATIONS
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[6] Family Law Act 1975 (Cth) s 60CC(2)(b).
Allegations of family violence made by the mother
The mother alleges that the father was consistently physically and emotionally abusive to her during the relationship, including during her pregnancy, and after separation. She makes a number of specific allegations of family violence in her affidavit.
The earliest to which she refers is in early 2018 when she says that after a discussion with the father and his family at her mother’s home, he sent her threatening messages including messages saying “all I care about is seeing the ultrasound and looking after my baby when it’s born without you in the picture” and “just make sure you know our child will be in my custody”. The father has consistently denied that he had sent these or any threatening messages to the mother. He repeated his denial in cross-examination.
In cross-examination, the mother was unable to recall whether the alleged messages were sent to her via text message or social media. No copy of the messages was annexed to her affidavit or otherwise produced.
Having considered the evidence of the parties in relation to this allegation in the context of the credit findings which I have made, I am not persuaded to the requisite standard that the father sent the messages to the mother as alleged.
Incident in early 2018
The mother alleges that in early 2018, during a visit to a family friend of the father’s, she was experiencing stomach pain and bleeding as a result of her pregnancy and asked the father if they could leave so she could go home.
The father says that this incident occurred when the parties and his mother went to collect a household appliance which his mother had purchased and had stored at the home of a friend.
The mother alleges that when she asked the father if they could leave, he asked her to rest in the car instead. He says that the mother became impatient and that she decided to go and wait in the car.
The mother says that while she was resting the father started yelling at her and calling her “slut”, “drama queen” and “attention seeker”. She says that when she said she was in pain, he asked her why she had not got an abortion when he had told her to. She says that she then left the car and telephoned her sister.
The father says that he came out to the car to check on the mother and saw her yelling and screaming into her phone. He says that he asked the mother if she was okay and that she then got out of the car and ran down the street whilst continuing to scream on the phone.
The mother says that while she was walking down the street, the father caught up with her, tried to take her phone, grabbed her round the neck, pushed her down to the ground and punched her repeatedly in the stomach. She says that this caused her pain and bleeding to get worse.
The father says that he was unable to catch up with her so returned to the house to fetch his mother so that they could follow her in the car. He says that when they reached the mother, he tried to calm her down and asked her to get in the car. He says that she punched herself in the stomach and threatened to hurt the baby but did get into the car.
I accept that there is an inherent improbability in the suggestion that a pregnant woman would punch herself in the stomach. Despite that, I prefer the account of the father and Ms K to that of the mother in relation to this incident in the context of the credit findings I have made and for the following additional reasons:
(a)When the father was cross-examined about this incident, the account that he gave was consistent with his affidavit. He denied that he attacked the mother as she alleges or at all. His denial has been maintained consistently since the incident occurred.
(b)Whilst the father’s evidence was not wholly consistent with the context of the incident described by Ms K, who says in her affidavit that she had invited the mother and father to a friend’s home for lunch, she was not cross-examined about this discrepancy. However, the accounts of the father and Ms K of the mother running down the road and punching herself in the stomach were wholly consistent. Ms K gave a compelling account of the father turning “white as a ghost” when he saw the mother punching herself.
(c)The mother adduced no evidence from her sister in support of her evidence that the father attacked her during their telephone call. No explanation was given for the absence of evidence from the sister.
(d)The mother adduced no evidence from any treating doctor or hospital in support of her contention that the father’s assault caused her to have increased bleeding or pain. If her allegations were correct, one would have expected her to seek immediate medical attention.
Alleged threats in mid-2018
The mother says that in about mid-2018 the father sent her threats on social media that he would harm her and that he would harm her baby once it was born. She says that she reported these threats to the police. She said during cross-examination that she provided copies of the threatening messages to the police, but no copies were annexed to her affidavit or otherwise adduced at trial.
The father denied both in his affidavit and in cross-examination that he sent any such messages. He alleges that in mid-2018 his social media account was logged into by someone else who was living in Suburb L, where the mother was then living. He also says that although he had blocked the mother from accessing his social media account, he noticed at around this time that the mother was no longer blocked.
I am not satisfied that the father sent the threats alleged by the mother. In the light of my other findings as to fabrication of evidence, it is possible that the mother fabricated this evidence also, but I can do no more than speculate about that possibility.
Allegation about the father’s behaviour at the time of X’s birth
The mother alleges that when she was at hospital to give birth to X the father made comments that he would take X away as soon as she was born. The mother alleges that the midwife was so concerned that she called security, and the father was escorted out of the delivery room. The father denies this allegation and says that he was present throughout the delivery.
If the mother’s allegation was accurate, one would expect the midwife as a mandatory reporter to have reported these threats to the police and or the Department so that they would have appeared in the list of reports made in 2018. No such report appears in the various responses provided by the Department.
Given that these proceedings have been underway since 2019, it was open to the mother, who has been legally represented throughout, to subpoena the hospital in order to obtain records which would confirm her account. No evidence from the hospital has been adduced.
It is improbable that had the father made the alleged threats in the presence of a midwife that no corroborative material would be available. For that reason and having regard to the credit findings I have made, I am not persuaded to the requisite standard that the father behaved as alleged.
Alleged threats – early 2019
The mother deposes to receiving a message from the father on social media in early 2019 in which he said, “I will come down there and [harm] you, if you do not let me see [X]”. The father denies this allegation.
I am not satisfied that the father made the threats alleged.
Alleged threatening letter and USB – early 2020
The mother says that in early 2020 the father sent her a letter enclosing a USB memory stick which contained photos of her sleeping naked and other photos which she says were secretly taken during her relationship with the father. A copy of the letter allegedly sent by the father is annexed to her affidavit. The letter contains the following threats:
If I get the best interest of [X] I will [harm] our daughter [X] so you don’t get to see [X] ever again.
…
If you report me to the police station I will deny it and I will say that I never send you this letter and that you send that to yourself. My lawyer [Ms T] will defend and protect me. If I get arrested again I will [harm] you you fucking slut.
…
I don’t trust you with my child.
I hate you! You are unfit and mentally sick to be a mother.
I know your location I will trace you and [harm] you and [X].
I will [harm] you and [X] alive.
The father denied in his affidavit and in cross-examination that he had sent the letter or created or sent the USB stick. He conceded that his address and mobile number as indicated on the letter were correct, that Ms T was at the time his lawyer, and that the other identifying information in the letter was correct.
It is common ground that the father was interviewed by police about the letter and USB stick He says and I accept that his DNA and fingerprints were taken but no charges were laid and no further action was taken by them.
The letter contains grammatical and other errors which suggest that it was written by someone whose first language is not English, for example “if I get the best interest of [X]” and “I will [harm] you and [X] alive”. Errors of that kind do not appear in the voluminous AppClose messages sent by the father annexed to his affidavit, but they are prevalent in the messages sent by the mother.
It is in my assessment improbable that a person engaged in family law proceedings would send threats of the kind that the mother alleges in a document so replete with identifying and otiose information, for example the dates on which the letter refers to the father travelling to Queensland with his new partner.
Considered in the context of the other evidence and my general credit findings, my assessment of this letter supports a finding that it was created by the mother in a deliberate attempt to incriminate the father.
Allegations in early 2020
The mother alleges that in early 2020 the father attended at her home at about 11pm. She says that she had thought that her sister was outside and so took X with her outside her home. She says that the father shouted at her, then tried to take X from her arms and punched her in the jaw. She says that she called the police and the father then left. She says that she provided photos of the injuries to her jaw to the police, but those photos were not adduced by her at the final hearing.
The father denies that he attended at the mother’s home at all. He says that he was interviewed by the police about this incident in early 2020 and that the allegation was not pursued for lack of evidence.
The mother says further that the father’s car was parked outside her home in early 2020 and again reported this to the police. The father denies the allegation. He says he was interviewed about this incident also in early 2020.
The mother disclosed a number of photographs through her Counsel on the second morning of the trial, three of which were said to relate to this incident. Her Counsel made an application to rely on those photographs which he then withdrew on instructions from the mother. Counsel for the father cross-examined the mother about the photographs which she then tendered.
The mother said that she had taken all of the photographs in early 2020 and that they show the father’s car parked outside the house of a neighbour and opposite her home. The father conceded through his Counsel that the third photograph shows his car but denied that the first two photographs did so.
The first photograph shows a portion of a car. The front and rear of the car do not appear in the photograph. The time shown on the photograph is 7:53 pm in early 2020.
The second photograph contains no date. It shows three cars parked one behind the other and is taken from the opposite side of the road to the parked cars. No timestamp appears on the second photograph, but the sky is pink in colour and the streetlamp visible in the photo is lit. The middle car of the three cars appears similar to the one partially visible in the first photograph but no identifying details are visible.
The third photograph shows the rear of a car on which the number plate and the word “…” can be seen. No date or time appears on the photo. The rear of the car takes up the entire photograph so that none of its surroundings can be seen. There is however a very sharp, dark shadow around the numberplate underneath the car suggesting that the sun was high in the sky when it was taken.
The mother was asked a number of questions about the photographs. When asked why she had not taken a photo of the entire car and its location which also showed the number plate, she said that she could not do so as the father had driven off when he knew she was calling the police. She was not able to explain how the father would have known that she was calling the police. There is no reference in her affidavit to the father being in his car or him driving off.
The mother was unable to explain why the third photograph did not show the location of the car or any of its surroundings. She had no plausible explanation for the absence of a photograph which showed the entire car, its identifying details and its location, or for the fact that the first two photographs appear to have been taken at dawn or twilight and the third at a different time of day. She simply continued to insist that she had taken all of the photos at the same time and that they all showed the father’s car.
Having regard to my findings as to credit, the very late stage at which the photographs were produced, the inconsistencies between the photographs and the inconsistency between the mother’s evidence in cross-examination and in her affidavit, I reject her account.
That leads me ineluctably to the conclusion that she has combined photos of a similar but different car which was outside her home with a photo of the father’s car taken at another time in order deliberately to mislead this Court and to support her allegation that the father attended at her home in breach of an intervention order.
Other allegations of family violence
The mother makes no particularised allegations of family violence perpetrated by the father after early 2020. The father deposes however to multiple allegations being made after that date, as follows:
(a)In mid-2021, the mother reported to police that the father shouted threats to take X away from her after a supervised visit in mid-2021.
(b)In mid-2021, the mother reported to police that a man attended at her home, and alleged that the father had sent him to collect X.
(c)The father deposes to the mother making further reports regarding incidents said to have occurred in late 2021, but he was not interviewed in relation to these allegations.
(d)In mid-2022, the mother alleged to the police that the father had threatened to “bash her” at changeover at Suburb B Police Station. The father says he showed the police officer video he had taken of changeover and the police officer agreed that what the mother had alleged had not occurred.
The father was not challenged in cross-examination as to this evidence and I accept it. The mother provides no explanation in her affidavit for the omission of these allegations from her affidavit. If genuine, one would expect that such serious and comparatively recent allegations would have been included in her material rather than the more historical allegations which have already been discussed.
The mother made a number of serious allegations to the family report writer which do not appear in her affidavit, for example, that the father would undress her for sex and hit her with his belt, that he had pressured her into making sex tapes for money and had uploaded one onto a website, and that he had heard voices in his head telling him to harm others. She also alleged that the partner of Ms K had sexually abused the father’s sister. Ms Q was not challenged in cross-examination as to her account of these allegations. Again, no explanation was provided by the mother for the omission of these allegations from her affidavit.
I note that a lack of corroborative evidence in respect of the mother’s account is not unusual given the nature of family violence, namely that it occurs in private and behind closed doors. It is not unusual for victim survivors who have experienced trauma to disclose their experiences gradually over time so that their accounts may shift and evolve. However, the multiple inconsistencies between the mother’s allegations in her affidavit, those made to the police, and those described to Ms Q are not in my assessment easily explicable by trauma alone.
My findings as to credit, and my finding that on at least two occasions the mother has deliberately fabricated evidence, are discussed elsewhere in these reasons. In the context of those findings and noting the internal and external inconsistencies in the evidence of the mother, I am unable to be satisfied to the required standard that the father has perpetrated family violence against the mother.
Mother’s allegations about mistreatment of X in father’s care
It is clear that the mother believes that X is neglected in the care of the father; her affidavit contains a heading, “Neglect of [X]” under which she sets out her allegations in that regard.
The mother says that the father does not provide X with appropriate clothing or with enough food.
The mother goes on to refer to concerns allegedly transmitted to her by X’s childcare, namely that X is dropped off there when she is ill or too early or too late. No corroborative evidence from X’s childcare was adduced by the mother.
Unsupervised time began following orders made on 16 March 2022. From this time onwards the mother has made a large number of allegations about mistreatment of X by the father. Examples of those allegations include:
(a)The father deposes to receiving 70 messages from the mother in early 2022 in relation to what the mother described as a bruise on X’s arm.
(b)In early 2022, the father says that the mother sent over 42 messages to him alleging that X had been distressed by the way in which he held her at changeover.
(c)The father deposes to being told by the mother and by X’s childcare in mid-2022 that the mother did not intend to facilitate time. The father annexes to his affidavit a number of messages sent on AppClose by the mother in this regard which refer to X having bruises and allege that she had been advised by the Department, the police and by staff at O Hospital to withhold X. The father also annexes a report from O Hospital dated mid-2022 which indicates that the mother reported to staff there that the father had refused to explain the bruises and that X had been seen by a GP and maternal child health nurse who were “concerned”. The report says “child identifying ‘Dadda’” from which I infer that X was asked at least some questions by hospital staff.
(d)The father deposes to receiving messages from the mother on almost daily basis following X being placed in his care in mid-2022. Those messages include allegations that X does not eat in his care, that she has been exposed to family violence in his care and that bruises on her knees suggest that she has been injured in his care.
(e)In late 2022, the mother wrote to the independent children’s lawyer alleging that the father was not meeting X’s medical needs in relation to skin rashes and a cough. The resulting email is annexed to the father’s affidavit.
(f)In late 2022, the mother wrote to the independent children’s lawyer accusing Ms E of mistreating X by pulling her inside the police station. An email in response from the independent children’s lawyer, annexed to the father’s affidavit, confirms that the video supplied by the mother with the email did not evidence the alleged abuse.
The father was not challenged in cross-examination as to this evidence and I accept it.
The mother was asked during cross-examination whether she considered X to be at risk in the father’s house. She replied unhesitatingly that she did. She confirmed that she believes that the father hurts X physically but when she was asked to give an example of when he had done so, she said that there had been “several incidents” and that she could not think of one specific one. When pressed, she referred to the occasions when X had attended childcare with bruises. She said that she would ask X about the bruises and that X told her that some were caused by the father and that others were caused by incidents in his home.
The mother’s evidence in this regard was not persuasive. Given the number of occasions when she has alleged that the father has hurt X and the central importance of these allegations to her case, it is surprising that she struggled to recall any individual incident.
A number of reports were made to the Department during this period:
(a)In late 2022, a report was made alleging that X had been burnt whilst cooking with the father and had not received prompt medical treatment. Relevantly, the Department enquired of X’s childcare who advised “that since [Mr Salera] had full custody of [X], she had been attending more consistently and had made improvements” and that the burn mark was not significant. The report notes further that the father had X assist in preparing meals to help improve her eating patterns. The Department took no action and closed the file.
(b)In early 2023, a report was made about X having a rash on her body and bruises on her knees, noting that the mother had taken X to a hospital for assessment. The Department took no action and closed the file.
(c)In mid-2023, a further report was made to the Department alleging that X had been hit by the father and alleging that he had poor mental health, and problems with illicit substances and alcohol use. The report notes that in mid-2023 the mother had provided a video of X alleging that ‘daddy hit me’ in which the mother was reported to be heard prompting X. No bruises or injuries were identified on X. The report goes on to state:
Follow up occurred with [X]’s childcare who advised that [X] had progressed significantly over the past 18 months. [X] had improved in her eating, her speech and general development. She was linked in with an Occupational Therapist and Speech Therapist. No concerns were raised for her physical presentation or her presenting with any injuries or bruising.
(d)A further report was made in early 2024 in the context of the mother overholding X which is discussed elsewhere in these reasons.
(c)Such other time as agreed in writing in advance.
That the child spends time with the parents on special occasions as follows:
(a)on the child’s birthday, the child spend time with whoever she is not already with on this day from 10.00am to 2.00pm if a non-school day, and from after school to 6.30pm if a school day;
(b)on Mother’s Day, with the Mother from 6.00pm on the Saturday prior to Mother’s Day until 6.00pm on Mother’s Day;
(c)on Father’s Day, with the Father from 6.00pm on the Saturday prior to Father’s Day until 6.00pm on Father’s Day;
(d)over Christmas, with the Mother, from 10.00am on Christmas Eve to 3.00pm on Christmas Day in all odd numbered years and from 3.00pm Christmas Day to 7.00pm on Boxing Day in all even numbered years; and
(e)over Christmas, with the Father, from 10.00am on Christmas Eve to 3.00pm on Christmas Day in all even numbered years and from 3.00pm Christmas Day to 7.00pm on Boxing Day in all odd numbered years
ALTERNATIVELY
That the child lives with the Father.
That the child spends time with the Mother as follows:
(a)during school terms:
(i)From the conclusion of school or 3.00pm on Wednesday until commencement of school or 9.00am on Thursday;
(ii)From conclusion of school or 3.00pm on the first Friday of each school term until commencement of school or 9.00am on the following Monday each alternate weekend;
(iii)by Facetime between 6.00pm and 6.30pm on each Tuesday;
(b)during school holidays, for the first week of each school term holidays commencing at the conclusion of school on the last day of the school term and concluding at 6.00 pm seven nights later; and during the long summer school holidays on a week-about arrangement commencing at the conclusion of school on the last day of the school term, concluding at 6.00 pm seven nights latter, and each alternate week thereafter;
(c)Such other time as agreed in writing in advance.
5.Such other time as agreed in writing in advance
6.That changeover occur at the child’s school wherever possible, and otherwise at Suburb DD Police Station or as agreed between the parents in writing.
7.X communicate with the Mother via Facetime or other video means as follows:
(a)On X’s birthday each year from 10.30am to 11.00am if a non-school day or 5.30pm to 6.00pm if a school day;
(b)On Mother’s Day each year from 10.30am to 11.00am;
(c)On Christmas Day each year from 10.30am to 11.00am;
(d)As agreed between the parents in writing;
(e)The Mother to initiate the calls to the Father and the Father to facilitate same;
(f)The Father be authorised to terminate the call if the Mother engages in any behaviour that these orders restrain her from.
That the parents communicate regarding all parenting issues in relation to the child through AppClose, or by phone in case of emergency.
8.The Mother be authorised to send gifts and/or cards to X on her birthday and at Christmas, and for the purposes of same, the Father shall provide the Mother with a Post Office Box address within 14 days of the date of these orders.
Information Sharing
9.The Father to provide the Mother with a mobile number for the purpose of communicating with X pursuant to Order 5 herein within 7 days.
10.The Father to advise the Mother at least 7 days prior to any communication between her and X of any change to the mobile number in Order 7 herein.
11.Communication between the parents to only occur via AppClose and shall be limited to emergencies relating to X and/or arrangements for supervised time, and such communications are to be child focussed, respectful and civil.
12.The Father to advise the Mother in the event X attends a new school.
13.The Mother be authorised to obtain from X’s school information usually disseminated to parents (at her own expense) including (but not limited to) school reports, newsletters and the like.
That both parents are at liberty to obtain all notices, reports and photographs or any other information or document usually available to parents from the child’s school.
That both parents are at liberty to attend any school function that parents are normally invited to attend.
That both parents be noted on all enrolment and student record forms as a parent and to be the next point of contact of the other parent cannot be reached and/or is not available to collect the child when necessary.
14.The Father to advise the Mother as soon as practicable of any serious illness/injury to X and provide her with the details of the treating medical practitioner/s, and the Mother be authorised to obtain information from the treating medical practitioner/s.
That each parent will notify the other as soon as practicable if the child suffers any serious injury or illness while in their care, and both parents be permitted to attend hospital or any doctor as necessary.
Each parent be at liberty to attend any medical or allied health-related appointments for the child and to receive copies of any medical and allied health assessments and reports in relation to the child.
15.The Father be authorised to provide these orders to:
(a)Any school or other educational facility that X attends;
(b)Any medical practitioner or allied health professional that X attends on or may attend upon;
(c)Any professional supervisor/supervision agency; and
(d)Any other person/organisation who is required to obtain information in relation to X.
Restraints
16.The Mother, her servants and agents, are hereby restrained by injunction from:
(a)Exposing X to parental conflict;
(b)Denigrating or saying negative things about the Father, his family or any household members, to or in the hearing or presence of X, or allowing anyone else to do so;
(c)Discussing the Court proceedings with X, or in her hearing or presence, or allowing anyone else to do so; and
(d)Discussing future spend time arrangements that are not consistent with these orders.
Change of Name
17.Pursuant to section 26 of the Births, Deaths and Marriages Registration Act 1996 (Victoria), the Father be authorised to apply to the Registrar of Births, Deaths and Marriages for the state of Victoria for X to now be registered as X Baranski-Salera.
(a)The Father be authorised to provide a copy of these orders to the Registrar of Births, Deaths and Marriages for the state of Victoria.
(b)The Father is solely responsible for the cost of any change to X’s name.
(c)The Mother’s consent is not required.
Passport
18.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Father is authorised to sign and execute any documents necessary for X to obtain an Australian passport or to extend any existing passport, without first obtaining the written consent of the Mother, and the Father be at liberty to provide a sealed copy of these orders to the Australian Passport Office.
Overseas Travel
19.Pursuant to section 65Y of the Family Law Act 1975, the Father is authorised to remove X from the Commonwealth of Australia for the purpose of travel at his discretion.
General
20.The order appointing the Independent Children’s Lawyer be discharged.
21.All extant applications be dismissed.
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