Saracuna & Siddele (No 5)

[2023] FedCFamC1F 166

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Saracuna & Siddele (No 5) [2023] FedCFamC1F 166

File number(s):

SYC 7132 of 2018

Judgment of:

MCCLELLAND DCJ

Date of judgment:

21 March 2023

Catchwords:

FAMILY LAW – CHILDREN – Where there was a final hearing in January 2020 granting sole parental responsibility to the mother except for the issue of vaccination – Where there was a change of the child’s residence from the mother to father in April 2020 following an application for a recovery order – Where the father seeks sole parental responsibility and for the child to live with him – Where the mother seeks sole parental responsibility and for the child to live with her – Parental conflict – Where there are significant risks in the mother’s care due to the mother’s attitude towards complying with Court orders – Where there are risks that the mother will not appropriately manage the child’s health – Orders for the father to receive sole parental responsibility including in relation to the issue of vaccinations – Order for the child to live with the father and spend time with the mother on an alternate weekend basis and school holiday regime – No order for costs.

FAMILY LAW – VACCINATION – Where there is a current injunction from the Supreme Court of New South Wales prohibiting the father from causing or permitting any COVID-19 vaccination to be administered to the child until the determination in this Court – Where the mother seeks for the matter to be determined as a major medical procedure – Where it would not be appropriate for the Court to treat the COVID-19 vaccination as a major medical procedure.

Legislation:

Australian Constitution s 109

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65D, 69ZX(3)(b), 102NA, 117(1)

Judiciary Act 1903 (Cth) s 78B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.11, 1.34

Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

Brown v Brown [2022] NSWSC 16

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

G & C [2006] FamCA 994

JG v BG (1994) FLC 92-515; [1994] FamCA 160

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

KN and Child Representatives & Ors (2006) FLC 93-284; [2006] FamCA 611

M v M (1988) 166 CLR 69; [1988] HCA 68

Mains & Redden (2011) FLC 93-478; [2011] FamCAFC 184

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall and Clark (2009) FLC 93-045; [2009] FamCAFC 92

Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175; [2004] FamCA 297

Re: Jamie (2013) FLC 93-547; [2013] FamCAFC 110

Saracuna & Siddele [2020] FCCA 174

Saracuna & Siddele (No 2) [2020] FCCA 1555

Saracuna & Siddele [2022] FedCFamC2F 186

Saracuna & Siddele (No 2) [2022] FedCFamC2F 293

Saracuna & Siddele [2022] FedCFamC1F 275

Saracuna & Siddele (No 2) [2022] FedCFamC1F 707

Saracuna & Siddele (No 3) [2022] FedCFamC1F 915

Saracuna & Siddele (No 4) [2023] FedCFamC1F 165

Stott & Holgar [2017] FamCAFC 152

Hon John Fogarty AM “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249

Division:

Division 1 First Instance

Number of paragraphs:

299

Date of last submission:

16 November 2022

Date of hearing:

8-11 August 2022

Place:

Sydney

Counsel for the Applicant:

Mr Livingstone

Solicitor for the Applicant:

King & York Lawyers

The Respondent:

Litigant in person

Solicitor for the Independent Children's Lawyer:

Mr MacDiarmid, Mark MacDiarmid Family Law Specialist

ORDERS

SYC 7132 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SARACUNA

Applicant

AND:

MS SIDDELE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	21 MARCH 2023

THE COURT ORDERS THAT:

1.All prior parenting orders be discharged.

Parental responsibility

2.The father, MR SARACUNA (“the father”), shall have sole parental responsibility for the child X born 2014 (“the child”) including, without limitation, for the issue of passports under s 11 of the Australian Passports Act 2005 (Cth) and for the determination of what, if any, vaccinations are to be administered to the child, and:

(a)The father shall keep the mother, MS SIDDELE (“the mother”), informed of the child's progress including but not limited to matters of the child's well-being, health, education or extra-curricular activities;

(b)The mother shall be entitled to communicate to the father any concerns that she has or any suggestions she wishes to make for the progress and well-being of the child; and

(c)The father shall give due regard to such matters as are raised by the mother but, in the event that no agreement is reached, the father shall be the person to make the final determination or decision.

Live with/spend time with

3.The child live with the father.

4.The child shall spend time with the mother during NSW school terms as agreed between the parties and, in default of agreement, the following shall apply:

(a)The mother shall spend time with the child each alternate weekend from after school on Friday or 4.00 pm on a non-school day until:

(i)before school on the following Monday, or;

(ii)before school on the subsequent day to a public holiday, or

(iii)9.00 am the following Monday, in the event it is a non-school day.

5.For the purpose of any changeovers from school or after-school care, and on a without-admissions basis:

(a)The child shall be collected from after-school care (“AH Care”) by the mother or a nominee known to the child with the father’s written consent;

(b)Once the child is collected, the mother and the child shall leave the premises as promptly as possible.

6.Otherwise, on a non-school day, the father shall collect the child from a railway station at the conclusion of her time with the mother and this changeover will be supervised by AJ Family Services up until the child turns thirteen (13) years old.

7.The costs associated with the supervised changeover in Order 6 above will be shared equally between the parties.

School holiday time

8.The child shall spend time with each parent during NSW school holiday periods as follows:

(a)Short NSW school holidays: with the father in the first week and with the mother in the second week.

(b)Long NSW school holidays:

(i)Even numbered years: With the mother in the first, second and fifth weeks and with the Father in the third, fourth and sixth weeks.

(ii)Odd numbered years: With the mother in the first, third and fifth weeks and with the father in the second, fourth and sixth weeks.

9.For the purposes of calculating school holidays:

(a)School holidays are calculated in accordance with the calendar of the school that the child is attending;

(b)School holidays commence at 4.00 pm on the last Friday of the school term and conclude at 4.00 pm on the Friday immediately prior to the next school term commencing;

(c)Weekly changeovers will occur each Friday at 4.00 pm;

(d)The mother’s usual time pursuant to Order 4 is suspended throughout the duration of the school holidays and resumes on the first Friday of Week 1 of the following school term.

10.Changeover during the school holiday periods will be in accordance with Orders 6 and 7 above.

Special days

11.The child shall spend the following special occasions with each parent as agreed between the parties and, in default of agreement, as follows:

(a)With the father on the Father’s Day weekend from the conclusion of after-school care (or 4.00 pm) on Friday until Sunday 5:20 pm.

(b)With the mother on the Mother’s Day weekend from the conclusion of after-school care (or 4.00 pm) on Friday until Sunday 5:20 pm.

(c)The child shall spend time with each parent on Easter, as agreed between the parties, and failing agreement, as follows:

(i)In even numbered years, with the father from 4.00 pm on the Thursday before Good Friday until 4.00 pm on Easter Monday.

(ii)In odd numbered years, with the mother from 4.00 pm on the Thursday before Good Friday until 4.00 pm on Easter Monday.

(d)The child shall spend time with each parent on Christmas as agreed between the parties and, failing agreement, as follows:

(i)In even numbered years, with the father from 12.00 pm on Christmas Eve until 12.00 pm on Boxing Day.

(ii)In odd numbered years, with the mother from 12.00 pm on Christmas Eve until 12.00 pm on Boxing Day.

and any other Orders that are inconsistent with this paragraph are suspended so as to allow time with each parent on these special occasions to occur; changeover will occur in accordance with Order 6 and 7 above.

Communication

12.On those occasions that the child is spending time with one parent, that parent shall facilitate the child communicating with the other parent as agreed between the parties in writing, and, in the absence of agreement, the following Orders 13, 14 shall apply.

13.The father facilitate telephone, FaceTime, Skype or Zoom calls between the mother and the child each Wednesday at 5.00 pm and Sunday at 8.30 am for a period of no longer than 15 minutes.

14.Whilst the child is spending time with the mother, the father have one (1) telephone, FaceTime, Skype or Zoom call with the child for a period of no longer than 10 minutes twice a week.

15.The parties keep each other informed as to their current residential address, email address, landline and mobile telephone numbers and inform the other party of any changes to any of these details within 48 hours of such change.

16.Other than in a case of emergency, the parties shall communicate only in respect of arrangements for the child in writing, by e-mail only.

Specific orders

17.The mother is authorised to obtain from the school or any extracurricular organisation at which the child is enrolled or registered, any notices, newsletters, letters, reports, certificates and photograph order forms.

18.The parties are to adhere to the recommendations of any medical practitioner selected by the father or to whom the child is referred.

19.Notwithstanding any injunction to the contrary, the child receive age-appropriate vaccinations and maintain an appropriate vaccination schedule in accordance with the recommendations of Dr C (or his nominee or such other paediatrician or medical practitioner attended upon by the child), including any COVID-19 vaccinations.

20.In the event the child suffers any significant injury or illness while in their care, the parent with care of the child is to inform the other parent without delay of the nature of the injury or illness and the name of any health professional to whom the child has been referred.

21.The father is permitted to provide a copy of these orders to the child’s school, medical practitioners, and any passport authority.

22.The parties be restrained from:

(a)Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent has a relationship with, with the parent’s knowledge or in their presence;

(b)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;

(c)Permitting the child to have access to any of the documents filed in these proceedings;

(d)Causing the child to be a medium in any way between the mother and the father or between the mother and the father and any other person;

(e)Communicating any information intended for the other parent through the child;

(f)Consuming illicit substances within 24 hours of spending time with the child;

(g)Causing or allowing to cause the child to be in attendance at any music festivals;

(h)Causing or allowing to cause any naked photograph of the child to be uploaded or accessible on any social media or internet platform;

(i)Causing or allowing to cause the child to be naked in a public place or social event, including but not limited to festivals, the beach, parks etc;

(j)Bringing the child into contact with or allowing the child to remain in the presence of a person who the mother or father knows is under the influence of illicit drugs or mind-altering substances, other than as prescribed by a general practitioner;

(k)Posting or publishing anything about any aspect of these proceedings online;

(l)Painting on the child’s body or allowing a third party to do so.

23.The mother is restrained from:

(a)Attempting to restrain or otherwise restraining the father from taking the child to receive her vaccinations;

(b)Discussing with the child her views on vaccinations;

(c)Making inappropriate remarks in the presence or hearing of the child about the father’s household including but not limited to diet, hygiene and lifestyle differences;

(d)Removing the child from the Greater Metropolitan Sydney, City AL or Region R areas unless otherwise agreed between the parties;

(e)Recording telephone calls or changeovers with the father;

(f)Criticising the father, his parenting or discussing the orders or these proceedings with the staff at the child’s school, staff at the extra-curricular activities the child attends, or after-school care staff;

(g)Attending the child’s school events or extra-curricular activities to which parents are normally invited, unless the father consents;

(h)Communicating in any way whatsoever with AC and AB.

24.The Independent Children’s Lawyer be discharged.

25.In the event that any party wishes to make an application for costs in respect to the proceeding heard on 20 March 2023 and/or the substantive proceedings, within 14 days of the date of these orders, they are to serve upon each other party written submissions of no more than two pages with such submissions to also be forwarded by email to my Associate.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saracuna & Siddele has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

1. These are parenting proceedings between the applicant father, Mr Saracuna (“the father”), and the respondent mother, Ms Siddele (“the mother”).

2. The parties have one child, X, born 2014, who is currently 8 years old (“the child”).

3. The father was born in 1985 and is currently 38 years old and the mother was born in 1985 and is currently 38 years old. The parties commenced their relationship in 2011 and separated on a final basis on 12 February 2016 when the child was almost two years old.

4. The father commenced these proceedings on 7 November 2018 in the Federal Circuit Court of Australia (as it was then known). This matter has had a significant litigation history, with many judgments delivered concerning the parenting arrangements of the child and the ultimate progression of the matter to finality by way of orders made by Judge M Neville on 31 January 2020. Those orders provided for the child to live with the mother and spend time with the father. The orders also allocated parental responsibility to the mother, save in respect to certain aspects regarding the health of the child, including vaccinations.

5. As a result of the manner in which the mother presented in proceedings before Judge M Neville on 2 April 2020, her Honour reversed the issues of live with and parental responsibility arrangements and provided for the child to spend time with the mother on a supervised basis.  That arrangement continued until mid-2021, at which time the parties entered into consent orders whereby the child spent time with the mother every second weekend.

6. There has been an ongoing dispute between the parties regarding whether the child should receive the vaccination against the COVID-19 virus, with the mother seeking orders in the Supreme Court of New South Wales in early 2022 to restrain the father from arranging for the child to receive that vaccination. This was despite the fact that the father had been allocated sole parental responsibility in respect to the child’s vaccinations in the orders made on 31 January 2020.

7. Having considered the background to this matter and the parties’ conduct since the orders of Judge M Neville made on 31 January 2020, I am satisfied that it is in the best interests of the child for there to be a continuation of current parenting arrangements, save to the extent that I will make orders for the time that the child spends with the mother to be extended from changeover occurring on Sunday afternoon to changeover occurring at the child’s school on Monday morning.

   BACKGROUND

8. The background to the parties’ relationship is set out in the judgment of Judge M Neville dated 31 January 2020 and will not be further detailed in these reasons.

   First tranche of proceedings

9. The parenting arrangements for the first two years of the proceedings were as follows:[1]

   7.On 12 December 2018, the parties entered into interim consent orders providing for [the child] to live with the Mother and spend time with the father each alternate week from 10.00am Friday until 3.00pm Monday.

   8.On 1 October 2019 orders were made extending [the child’s] time with the Father from 1.00pm Thursday to 3.00pm Monday each alternate week. These orders continue to be in place at the time of the final hearing.

   [1] Saracuna & Siddele [2020] FCCA 174.

10. The parties participated in a final hearing before Judge M Neville from 13–16 January 2020. Her Honour delivered final judgment on 31 January 2020.

    Findings of Judge M Neville – 31 January 2020

11. In their affidavits filed in these proceedings, both parties traversed the history of their relationship, including in respect to matters that were the subject of factual findings by Judge M Neville in her reasons for judgment dated 31 January 2020: Saracuna & Siddele [2020] FCCA 174.

12. Neither party, however, presented evidence nor made submissions which satisfied me that the findings made by Judge M Neville were erroneous. In those circumstances, pursuant to s 69ZX(3)(b) of the Family Law Act 1975 (Cth) (“the Act”), I propose to adopt the findings of Judge M Neville as set out in those reasons for judgment. The findings that are significant for the purpose of the decision that I make in these proceedings are set out immediately below. On occasions, where relevant, I have related the findings of Judge M Neville to those that I am required to determine in respect to the evidence presented in the case before me.

13. At [38], Judge M Neville found the father to be a truthful witness. Comparatively at [51], her Honour found that the mother’s evidence “was, at times, non-responsive and tangential.” Judge M Neville further observed:

    51.At times, the Mother’s answers were not directed to the question she was asked, but rather directed to what she wanted to say. On more than one occasion, the Mother had to be reminded and directed to focus on the questions she was being asked and to provide responsive answers.

    52.For the most part, I formed the view that the Mother was a truthful witness insofar as she saw matters, however, I consider that at times she obfuscated by answering difficult questions in a non-responsive fashion or by becoming argumentative.

1. Judge M Neville also noted inconsistency between the mother’s evidence and evidence she had provided to a general practitioner, noting that when the inconsistency was drawn to the mother’s attention “the mother responded to the effect that she did not always tell the truth to doctors as it is easier” (at [52]).

2. As a result of the manner in which the mother gave her evidence and the inconsistency between elements of the mother’s evidence and other documentary evidence, Judge M Neville explained at [53] that “accordingly, I approach the mother’s evidence with some caution.” 

3. I observe at this point that, unfortunately, the mother’s evidence in these proceedings before me can also be characterised by the same concerns as observed by Judge M Neville. 

4. Subsequent events to the delivery of judgment on 31 January 2020 have confirmed the accuracy of Judge M Neville’s prediction at [55] that:

   55.It was abundantly clear from the Mother’s evidence that she is unable to come to terms with the fact that an order could be made that [the child] be vaccinated and that the Mother’s consent to vaccination would not be required in those circumstances.

5. While the mother indicated a preference for the child to be home schooled by the mother, it was observed by Judge M Neville that the mother “gave no evidence of having obtained or developed an educational plan for [the child], nor of having looked into any syllabus requirements” (at [56]).

6. Judge M Neville noted that the mother’s secondary preferences for the child’s education were that the child attend either a W School or a Y School. It was noted that the mother’s preference for those private school arrangements were because the mother “considered public schools to be too basic for [the child] when they had a depressing aesthetic” (at [59]).

7. The mother did not accept the risks said to arise, on the father’s evidence, from the mother’s attendance with the child at music festivals, body painting, drinking water from natural sources or the use of natural remedies to treat illness (at [61]).

8. While at the time of interviews conducted with the Single Expert Report writer, Ms S, for the purpose of those proceedings, the mother had proposed to relocate to Queensland, the mother changed her mind subsequent to reading the report of Ms S as she considered it would not be in the best interest of the child for her to be removed from “family and friends and community in her local area” (at [62]).

9. In response to concerns raised by the father, the mother had, as at the date of the hearing before Judge M Neville, removed some but not all of the photographs that had been posted on the her Facebook page showing images of the child unclothed (at [64]).

10. Judge M Neville found that Ms T, the father’s now wife and as she was then known, who I will subsequently refer to as Ms T, “gave evidence in a forthright and responsive manner” and considered her to be a witness of truth. Ms T gave evidence in a similar manner before me and I also find her to be a witness of truth.

11. Judge M Neville also found the child’s treating paediatrician, Dr C, to be an impressive witness, with his answers being given in a manner that was responsive to questions asked of him and given in a clear and logical fashion (at [79]). My observations of Dr C and the evidence he gave in these proceedings have led me to a similar conclusion.

12. Judge M Neville accepted the evidence of Dr C that blood tests conducted on the child in late 2019 confirmed evidence of iron deficiency requiring iron supplementation and an increase in her iron consumption. Dr C expressed the view that the deficiency could be remediated even in circumstances where the child remained on a vegan diet but recommended that the diet include supplementation using eggs and fish as a source of iron or taking an iron supplement (at [87]). Dr C did not otherwise express concern for the child eating a vegan diet but recommended that, if that occurred, the child should undergo regular dietary review (at [89]).

13. Judge M Neville noted Dr C’s qualifications including in respect to children’s immunology and accepted his recommendations that the child should be vaccinated. At [91], Judge M Neville noted that in reaching that opinion, Dr C:

    …undertook an assessment of [the child] and he considered and analysed serology and skin prick test results for allergies. He considered that the results did not indicate an allergy to any of the substances tested for. He did not consider that [the child] has a sensitivity to eggs or egg products that would cause him to eliminate eggs from her diet or that would place her at risk from vaccination.

14. Further, at [92]:

    [Dr C] maintained the view expressed in each of his reports that [the child] should be vaccinated as soon as possible. In his view, there was nothing to contraindicate vaccination. He considered that there was no indication that [the child] had a particular susceptibility to risk of disease, complications or death.

15. Significantly, Judge M Neville preferred the evidence of Dr C to that of Dr V, who was called to give evidence on behalf of the mother. Dr V’s qualifications related to philosophy and public health rather than as a medical doctor. Specifically, Judge M Neville did not accept the validity of Dr V’s opinion that the child should not be vaccinated (at [94]–[111]).

16. Judge M Neville noted but did not accept the opinion expressed by Ms S that orders should be made for the child to live with the father and for the father to have sole parental responsibility for her (at [114]). Judge M Neville summarised Ms S’s consideration of the alternative options in her reasons for judgment as follows:

    116.She described the Mother as being rigid and apparently unwilling to compromise her position on any issue. [Ms S] considered that the Mother was unable to critically evaluate differing points of view including on the issue of vaccination and that she assessed the Mother as being willing to engage in debate as long as the debate leads to answer that she wants.

    117.She considered that the Father was better able to countenance differing points of view than the Mother, using the example of his support for the option of a vegan or plant-based diet whilst [the child] was in his household. However, she considered that he was unwilling to move on other issues such as vaccination, schooling and relocation.

17. I note that my assessment of the evidence provided in the proceedings before me supports the evaluation of the respective parties provided by Ms S as summarised in those paragraphs.

18. At [132], Judge M Neville found that there is a clear benefit to the child having a meaningful relationship with each of her parents. That was not disputed in these proceedings.

19. At [135], Judge M Neville noted that while each of the child’s parents “had very different worldviews”, the child had the opportunity to benefit from “a rich and diverse life and each parent offers different opportunities in that regard.”

20. A significant issue in the proceedings before me was what was contended by the father to be a propensity on the part of the mother to engage the child in activities that are regarded as important by the mother but which may not be appropriate for the child. This included the mother’s desire to attend concerts and music festivals. The findings of Judge M Neville in respect to those events summarised as follows:

    141.In terms of attendance at music festivals, it appears that an important part of the Mother’s life is attending at community based festival events where there is live music and dancing. I had audio visual evidence of [the child] at some of these events. It is difficult to know what [the child] makes of these events, as in some of the images she is asleep, in others she is wearing headphones and in one image, she is riding or playing with a tricycle.

    142.The Mother accepted that there may be people in attendance at those events who are drug or alcohol affected, but that many of the events they attended had a family focus and a “no-drugs” policy.

    143.I was unable to conclude from the audio visual evidence whether or not [the child] was at risk of harm at such events. Whilst the Father gives evidence that in his view, [the child] appears uncertain and apprehensive when people were dancing around her, the Mother gives evidence that [the child] was not apprehensive.

    144.It appears in the audio visual images that the Mother was in proximity to [the child] during these events, and it does not appear that she left [the child] unsupervised or unattended.

21. The evidence presented before me in these proceedings is not such that it persuades me that Judge M Neville’s assessment that the child has not been placed at risk in attending the music festivals is inaccurate or misplaced. Nevertheless, in circumstances where, for reasons which I set out below, I have found that the mother has, on a number of occasions, failed to exercise proper judgment in respect the child, I do have concern as to the selection or identification of entertainment venues by the mother that she may consider to be appropriate for the child. 

22. The propensity of the mother to engage the child in activities favoured by the mother which may be contrary to the interests of the child nonetheless remains a concern for me. That includes, most relevantly, for instance, the mother’s inclusion on her Instagram, images of both herself and the child naked. Those images are attached to the father’s trial affidavit filed 20 April 2022.[2] While the fact that the mother had the child naked in a forest setting cannot, in itself, reasonably be said to adversely impact upon her parenting capacity, the posting of multiple naked photos of the child, which was acknowledged by the mother to have occurred, is a concern. In that context, it is most surprising that the mother did not act with due diligence in ensuring that those photographs were removed once the concern was pointed out to her (at [64] of Judge M Neville’s reasons for judgment).

    [2] Affidavit of the father filed 20 April 2022, Annexure “K” at p.106.

23. Judge M Neville also expressed concern regarding the mother’s failure to appreciate the inappropriateness of permitting other persons to apply paint to the child’s legs and arms. In that respect, Judge M Neville stated: [3]

    145.In terms of the body painting, it appears that [the child] has had paint applied to her legs and arms. The evidence does not indicate who applied the paint. If it was the Mother herself who applied the paint, I do not consider this to be a risk issue. If, however, body paint was applied by a person unknown to [the child] or other than under the Mother’s supervision, I consider that there may be a risk to her. I consider this to be the case given that in interview with [Ms S], the Mother failed to appreciate that there could be any risk arising to [the child] from having photographs of her, unclothed, on the internet. I consider that such comments demonstrate a naïve understanding of predatory behaviour in the community.

    [3] See also findings at [155] of Saracuna & Siddele [2020] FCCA 174.

24. It is to be observed that despite the concerns expressed by Judge M Neville, which were reflected in a specific order that her Honour made restraining the mother from painting the child’s body herself or permitting others to apply paint to the child’s body, the mother persisted in the proceedings before me, in asserting that such conduct was appropriate at least if it was applied by someone “who is a professional body painter.”[4] Indeed, so persistent was the mother in pressing this point in her cross-examination of the Family Report writer for these proceedings, Regulation 7 Family Consultant Ms AF, that I intervened with a view to changing the topic, indicating to the mother that it was unlikely that the Family Report writer would change her view and, in any event, I foreshadowed that I would not change mine that such painting of a child by an adult was of concern. At that point, the mother retreated somewhat from her assertions to indicate that she was only contending appropriateness in respect to herself painting the child’s face and arms. However, the manner in which she did so, after such protracted cross-examination on the issue was,[5] with respect, disingenuous.

    [4] Transcript 11 August 2022, p.393 lines 8–9.

    [5] Transcript 11 August 2022, p.392 lines 32 to p.395 line 9.

25. Judge M Neville also noted her concerns that the mother had not administered antibiotics prescribed for an ear infection that the child had succumbed to. In circumstances where the mother had taken the child for review by a general practitioner, Judge M Neville did not, however, find that the mother was negligent or reckless in respect to the treatment of the infection (at [152]). Nonetheless, for reasons which I set out below, there are concerns as to whether the mother will act with appropriate alacrity in complying with medical advice that the child receive antibiotics in the event that she succumbs to a serious bacterial infection.

26. Judge M Neville found, however, that the mother’s failure to vaccinate the child prior to an overseas trip in circumstances where it was possible the mother had been infected with a serious bacterial disease was irresponsible and presented an unacceptable risk to the child (at [154]).

27. Judge M Neville noted that the mother alleged that the father had been violent to her but subsequently conceded she was not contending the father had been physically violent towards her (at [163]). Judge M Neville noted that the “high point” of the mother’s evidence in respect to her allegations of family violence against the father were the mother’s allegations that the father had hit the steering wheel of the car in which the parties were travelling when he became agitated during the course of an argument (at [161]).

28. Judge M Neville rejected the mother’s contention that she had been forced from the car by the father, but rather that she had asked to get out of the car (at [164]).

29. Having regard to the nature of the mother’s evidence and the manner in which she gave that evidence, Judge M Neville did not accept that the father had engaged in family violence directed towards the mother, stating at [166]–[168]:

    166.I found the Mother’s evidence on this issue argumentative at points, glib at points and I do not accept her contention that the Father engaged in family violence upon her.

    167.It was not suggested to the Father that there is family violence in his relationship with [[Ms T]].

    168.I do not consider that there is any physical or psychological risk arising from family violence by the Father if [the child] is to live with him or to spend time with him.

30. It was unfortunate that the mother persisted with similar allegations during the course of these proceedings, including attempting to enlist the support of Ms T’s former partner in order to contend that the father had mistreated his step-son, AB, the child of Ms T and her former partner. In that respect, the mother contended that, while wrestling with AB, and the child, the father caused a neck injury to AB. The father strenuously denied the allegations and noted that AB had reported a sore neck after a football match but indicated that if the child had been injured during the course of their playful wrestling it was entirely unintentional and relatively trivial in circumstances where he was essentially engaging in mock wrestling as a partly fun and partly instructional activity for the children.

31. A discharge summary from a local hospital dated mid-2022 and marked as Exhibit “C” in the proceedings refers to AB, who had been taken to the hospital by his father, as having “nil clinical concerns safe for [discharge] home.”

32. I found that the mother’s allegations that the father had injured AB were overly melodramatic and unfounded. Regrettably, it may well be the case that the father will, in the future, be reluctant to engage in such playful activity with AB and the child, potentially depriving them of the opportunity to safely gain skills and self-confidence by engaging in such instructional activity with the father, who is clearly skilled in sport.

33. In itself, those misplaced allegations made by the mother would not be overly concerning.  However, the mother’s allegations regarding AB being injured by the father reflect a pattern of conduct in which the mother has alleged that the child is unsafe in the father’s care. In that respect, during the course of proceedings before Judge M Neville, the mother contended that the child was at risk of sexual harm from AB, contending that AB “showed [the child] his penis and asked her to suck it and that [the child] complied with this request.” Judge M Neville noted that the mother had made a complaint to the NSW Department of Communities and Justice in in respect to those allegations and the mother’s complaint was dismissed (at [170]). Judge M Neville noted that the mother pressed her allegation despite conceding there was insufficient evidence for the Court to make a positive finding about the matter (at [173]).

34. Even having regard to the mother’s concerns, however, Judge M Neville found at [174] that both the father and Ms T were alert to the situation and that “each present as protective and concerned parents” who were appropriately “monitoring the children’s interactions”. Having regard to that finding, Judge M Neville stated that she did not consider that any orders were needed “for monitoring of [the child’s] interactions with [AB]” and that she did not consider the potential risk, as alleged by the mother, to be “an unacceptable one” if the child were to live with or spend time with the father. 

35. More generally, I accept the findings of Judge M Neville that, as at the date of her judgment dated 31 January 2020:

    ·At the time of the hearing, the mother had been the child’s primary caregiver for most of the child’s life (at [180]), and that the mother was the child’s primary attachment figure at that time (at [194]).

    ·In circumstances where the child was five years old at the time, little weight should be placed on her views (at [176]).

    ·The relationship between the child and each of her parents “is loving and warm”, with the child having “a close and comforting relationship and a secure bond with both parents” (at [179]).

    ·The level of autonomy extended by the mother to the child was not always age-appropriate including, in that respect, for instance, seeking the child’s consent before the mother posted naked photos of the child on the internet (at [181]).

    ·The child’s relationships with Ms T and her step-siblings, AB and AC “are warm and loving” (at [184]). 

    ·Both parents have struggled to co-parent effectively (at [185]). Nonetheless, each parent seeks to be actively involved in the child’s life and has taken up the opportunity to make decisions, communicate and spend time with the child when the opportunity has arisen (at [188]).

    ·Notwithstanding the extent of the parental dispute, “on all of the evidence, [the child] is doing well. She is happy and has meaningful relationships with her parents and her extended family” (at [207]).

36. As previously noted, there was a significant issue in the proceedings before Judge M Neville as to whether the child should be vaccinated. Significantly, Judge M Neville concluded:

    224.Given the mother’s strident and steadfast refusal to give her consent to vaccinate [the child], I consider that it is in [the child’s] best interests that the Father have sole parental responsibility in relation to ensuring that [the child] is vaccinated.

37. In respect to the substantive issue in the proceedings, being with which parent the child should live, as at the date of the hearing, Judge M Neville concluded that “on balance” it was, at that time, in the child’s best interest to continue to live with the mother, subject to appropriate restraints and injunctions which were set out in the orders of her Honour. At [229], Judge M Neville explained that her reasoning for favouring the ongoing status quo that existed at that time was “[the child’s] likely sense of loss” in the event that her relationship with her mother was disturbed in combination with other significant changes in her life, including starting school and the associated challenges in forming new relationships with friends and teachers. 

1. In making orders for the child to continue to live with the mother, Judge M Neville recorded her concern at [230] “that there will be some ongoing difficulty with ensuring that [the child] spends time with the father, given the difficulties that the mother has had in ensuring that [the child] attends changeover on time.” Subsequent events have proven her Honour’s concern, in that respect, to be well-founded.

2. Having regard to the matters identified in her reasons for judgment, Judge M Neville essentially adopted the orders proposed by the Independent Children’s Lawyer (“the ICL”), who is an experienced and highly respected ICL. In broad terms, Judge M Neville’s final orders of 31 January 2020 provided for the mother to hold sole parental responsibility for the child other than in respect to vaccinations. The child was to live with her mother and to spend a three week cycle of time with her father from after school on Friday until 6.00 pm on Sunday. Provisions were also made for the child to spend half school holidays with the father, with changeover for all time to occur at Suburb P train station. The mother was also restrained from home schooling the child and was to ensure that she was enrolled to commence Kindergarten in Term 1, 2020.

3. As I will set out in greater detail below, at the hearing which occurred on 2 April 2020, the ICL joined with the father in contending that, despite the orders made on 31 January 2020, the concerns regarding the child remaining in the primary care of the mother were such that there should be a change of residence to that of the father. 

   Second tranche of proceedings

4. As indicated to the parties during the final hearing, I determined that, in considering the matter before me, I will substantially be focusing upon the events subsequent to the final orders made by Judge M Neville on 31 January 2020.[6] The relevant background after 31 January 2020 is as follows.

   [6] Transcript 8 August 2022, p.59 lines 35–46.

5. On 10 February 2020, the mother completed the enrolment forms for the child to attend AK School in Region R in New South Wales. This was in the context where Order 17 of the orders made on 31 January 2020 relevantly provided:

   The mother shall forthwith do all things necessary to enrol the child in, and have the child attend a school that is registered and accredited by the NSW Education Standards Authority ('NESA') and ensure that the child commences school in the first term of 2020 pursuant to the school's requirements.

   (Emphasis added)

6. Further, Order 19 relevantly required the mother to “do all things necessary to ensure that the father’s identity, address and telephone contact number is immediately included in the enrolment form.”

7. It appears from a reading of paragraph 246 of the mother’s affidavit sworn on 10 August 2022  that the mother construed Order 17 as being a requirement for the child to commence school “within the first term.” The father’s concern that the enrolment of the child at school was delayed by approximately 10 days is understandable, however, I have not taken that delay into consideration in respect to the orders that I make in these proceedings.

8. The father has also expressed concern that the child was enrolled in Year 1 rather than Kindergarten. In circumstances where I consider the father a witness of truth, I accept that he was informed by the school principal that the enrolment of the child in Year 1 rather than Kindergarten was at the specific request of the mother and was contrary to the advice provided to the mother by the school. The father’s evidence in that respect is consistent with an email sent by the deputy principal of AK School to the father dated early 2020, which noted that “enrolment options were discussed [with the mother] and it was at the specific request of the enrolling parent that [the child] be placed in Year 1”.[7]

   [7] Affidavit of the father filed 20 April 2022 at Annexure “R” p.123.

9. The mother acknowledged that, at the time of enrolling the child at AK School, she advised the school that the main language spoken in the household with the child was the language of Country AM.[8] It was clear, however, that when tested as to her knowledge and competence in the language of Country AM during cross-examination by counsel for the father, the mother’s knowledge was limited. Indeed, the mother conceded that she can only speak “a little bit of [Country AM language]”.[9] While denied by the mother, I accept the submission of counsel for the father that in so asserting her competence in the language of Country AM, the mother was seeking to convey “a grandiose impression”[10] of herself to the school at the expense of presenting accurate information. 

   [8] Transcript 10 August 2022, p.277 lines 23–25.

   [9] Transcript 10 August 2022, p.277 lines 46–47.

   [10] Transcript 10 August 2022, p.277 lines 43–44.

10. The mother further acknowledged that, despite Order 19 of the orders made on 31 January 2020 requiring her to include in the child’s enrolment the telephone contact number for the father, she failed to do so.[11] The mother’s conduct in respect to the child’s schooling is significant because, in the circumstances that I have described, it is an example of where she has failed to comply with the orders of 31 January 2020 in a manner that was disrespectful of the child’s relationship with the father.

    [11] Transcript 10 August 2022 p.281 lines 32 to p.282 line 36.

11. A further event of significance occurred in early 2020, when the child was due to spend time with the father in accordance with Order 12 made by Judge M Neville. In the absence of agreement, Order 14 provided for changeover to occur at Suburb P train station. In accordance with those orders, it is not in dispute that the mother attended Suburb P train station in early 2020 with the child for the purpose of facilitating the changeover. However, unfortunately, the parents became involved in conflict that resulted in police involvement and the child being exposed to a very distressing situation.

12. The evidence of the father in respect to those events is set out at paragraphs 188–194 of his affidavit filed 20 April 2022. Comparatively, at paragraph 203 of her affidavit sworn on 10 August 2022, the mother cross refers to a statement that she made regarding the event. That statement is set out at Annexure “N” of her affidavit sworn on 10 August 2022. While the statement was made on 23 April 2022 to NSW Police, it relates to the events which occurred at the Suburb P train station in early 2020. In view of the length of that statement, I will not extract it in the body of these reasons.

13. Save for one aspect, for reasons which I subsequently explain, I prefer the evidence of the father as contained in his affidavit filed 20 April 2022 in relation to the event as follows:

    190.When we arrived, I held one (1) of [the child’s] favourite […] toy behind my back. As we saw [the child] arrive, she noticed us and began running towards [[Ms T]] and I. [The child] had a huge smile on her face and said, “I can see her” as she became elated when she saw her toy.

    191.[The mother] then proceeded to hand me a ring-binder of anti-vaccination documentation. She said, “I am not letting [the child] go with you unless you promise not to vaccinate her.”

    192. I then said. “[the mother], there are orders for me to vaccinate her. I will be vaccinating her.” She replied by saying, “We are her parents and we can decide. I want you to tell [the child] you won’t immunise her and then I will let her go with you.”

    193. When I refused to say this to [the child], [the mother] turned to [the child] and said, “[the child], Dad is trying to immunise you and it will hurt you and can kill you.” Unsurprisingly, [the child] became extremely distressed and in order to not cause her further anxiety, I left.

    194. [The mother] proceeded to follow me down the street saying, “Daddy is going to hurt you.” [the child] was becoming increasingly distressed. I felt helpless and asked [[Ms T]] to call the Police. [The mother] then said, “If you chose to vaccinate [the child]. I will ensure you have no relationship with her.” The police arrived, interviewed [the child] and [the mother] and then explained that would not be getting involved any further and that [the child] would return home with [the mother].

    (As per the original)

14. I prefer the evidence of the father for the following reasons:

    ·I have accepted the father to be a witness of truth.

    ·The father’s version of events was corroborated by Ms T, who I have also accepted to be a witness of truth.

    ·The father’s version of events that the dispute arose in circumstances where the mother provided him with a “ring binder of anti-vaccination documentation” is consistent with the mother’s statement to the police that she “offered [the father] a folder of information in relation to the welfare of [the child]”. In that respect, I accept that the information was likely to contain what could be described as anti-vaccination material, having regard to the mother’s social media posts, to which I will subsequently refer, in which the mother expressed vehement anti-vaccination views.

    ·The provision of such a folder to the father is consistent with the father’s evidence as extracted above that the mother said to him “I am not letting [the child] go with you unless you promise not to vaccinate her”. It is entirely plausible that the mother made such a demand, having regard to the Facebook materials which I will subsequently set out and it is also consistent with the fact that, in early 2022, the mother sought orders in the Supreme Court of New South Wales to restrain the father from administering the COVID-19 vaccination to the child. 

    ·The father’s evidence that the mother said to the child “daddy is trying to immunise you and it will hurt you and can kill you” is consistent with the Facebook postings to which I subsequently refer wherein the mother asserted the harmful effects of vaccinations.

    ·The father’s account of the child enthusiastically running towards him is consistent with the observations of the expert who gave evidence in the proceedings before Judge M Neville and also with the findings of Judge M Neville. The mother’s version of events that the child was reluctant to go with her father, at least until the point that the issue of vaccinations had been raised, is inconsistent with that evidence and those findings. 

15. The one aspect of the father’s evidence, in respect to the event, that I am satisfied is likely to be inaccurate is the father’s account that the mother followed him down the street saying “daddy is going to hurt you.” During the course of the proceedings,[12] the mother acknowledged that she had set up her telephone such that she was recording the incident on her telephone. The mother admitted that, in the recording, she can be heard repeatedly saying to the child “he won’t hurt you, he won’t hurt you, he won’t hurt you.” I am satisfied that statement was made in the context where the mother knew that her own statements were being recorded and were made for self-serving purposes. However, I am nonetheless satisfied, on the evidence of the father, that the tone, volume and context in which those statements were made, having regard to the events that had already occurred on that day, were such that the statements were likely to have caused the child to be alarmed and unwilling to accompany her father.

    [12] Transcript 10 August 2022, p.287 lines 38 to p.289 line 3.

16. At the request of Ms T, the police attended the parties’ location and, on assessing the situation, suggested the child return home with the mother due to her level of distress. The father accepted that advice and, as a result, the child did not spend time with him for approximately one month in early 2020. The events of early 2020 are concerning because it is an indication of the mother’s preparedness to involve the child in her manipulative conduct with a view to securing the outcome that she desires. In that case, the first outcome that the mother sought was a commitment by the father not to vaccinate the child and the second being, having regard to events that unfolded, retaining the child in her possession.

17. Subsequent to the child commencing school, Order 12(b) provided for the child to commence spending time with the father from after school on Fridays. In anticipation of changeover occurring in early 2020, the father made enquiries of AK School and received confirmation of the child’s attendance on that day. It was not disputed that, when the father arrived at the school at 2.40 pm, the mother had already removed the child from the school prior to the end of the school day. The mother sent a text message to the father advising that she would not facilitate changeover at the school, but rather required the father to attend at AQ Town police station. The father did not press spend time arrangements for the child on that day.

18. On 23 March 2020, the father filed a contravention application alleging that the mother had contravened the orders made by Judge M Neville on 31 January 2020.

19. In early 2020, at the request of the mother, the child’s treating practitioner made an application for the child to be placed on the Australian Immunisation Registrar Immunisation Medical Exemption contraindications list. The father was not consulted about that initiative on the part of the mother despite the fact that, as noted, the orders of Judge M Neville dated 31 January 2020 allocated parental responsibility in respect of vaccinations to the father.

20. The father’s contravention application was listed for mention before Judge M Neville on 2 April 2020, with that hearing to be conducted electronically. The mother’s conduct during the course of those proceedings was such that, understandably, it motivated the ICL to revisit the position that he had taken during the course of the trial to supporting an order proposed by the father’s legal representatives that orders should be made for there to be a change in the child’s primary place of residence from the mother to the father. I will subsequently set out further details of events that occurred on that day.

21. As a result of the mother’s conduct in the course of the proceedings on 2 April 2020 and the concerns it raised for the welfare of the child, Judge M Neville suspended Orders 2–15 and Orders 17–21 of the final orders dated 31 January 2020 and granted the recovery order sought by the father and supported by the ICL. Judge M Neville also made interim orders for the father to have sole parental responsibility, for the child to live with the father and for the child to spend supervised time with the mother.

22. The child has remained living with the father in Sydney with his wife, Ms T, and the child’s step-siblings, AC and AB, since those orders were made. I will subsequently expand upon events that occurred during the course of those proceedings which I have found to give rise to further concerns regarding the mother’s parenting capacity.

23. In early 2020, the child was enrolled in Kindergarten at AN School in the Sydney suburb of Suburb AO.

24. Throughout May 2020, the child spent supervised time with the mother on three occasions.

25. On 4 June 2020, the father filed an Application in a Case seeking that the child live with the father, spend supervised time with the mother, that the mother be restrained from attending or communicating with the child’s school and for the mother to disclose any medical practitioner who has assessed the child and placed her on the contraindications list with the Australian Immunisation Register.

26. On 5 June 2020, the matter was listed for interim defended hearing before Judge M Neville to determine the father’s Application in a Case.

27. On 10 June 2020, Judge M Neville delivered judgment: Saracuna & Siddele (No 2) [2020] FCCA 1555. Her Honour ordered for the suspension of the final orders dealing with parental responsibility, vaccination, live with and spend time. Essentially, the orders provided for the father to have sole parental responsibility, for the child to live with the father and spend supervised time with the mother for three hours per fortnight.

28. The child spent supervised time with the mother through AP Family Services from the June 2020 orders up until 24 December 2020.

29. On 21 September 2020, the father filed an Amended Application for Final Orders seeking sole parental responsibility, for the child to live with the father and to spend supervised time with the mother one day per fortnight.

30. The mother filed her Amended Response on 4 November 2020, seeking sole parental responsibility, for the child to live with the mother and for the child to spend time with the father on each alternate weekend. The mother also filed an Application in a Case seeking orders for the child to spend time with the mother each alternate weekend, unsupervised.

31. In early 2021, the parties changed their supervision service for the supervised time between the mother and the child to AJ Family Services.

32. On 22 January 2021, the matter came before Judge M Neville for interim defended hearing. Her Honour ordered that the suspension of the final orders should continue and for the child to spend time with the mother for a period of three months each alternate Saturday from 11.00 am to 3.00 pm. This was to be supervised by the maternal step-grandmother or the maternal uncle. Changeover was to be facilitated by AJ Family Services. The mother was to communicate with the child via FaceTime or Skype each alternate Saturday where she was otherwise not spending time with the child from 5.30 pm until 6.00 pm. The father was also ordered to make arrangements for the child to be assessed by her paediatrician, Dr C.

33. On 29 June 2021, the parties entered into interim consent orders. The orders provided for the child to spend unsupervised time with the mother during the July school holidays and on each alternating Saturday thereafter. From 21 August 2021, the child was to spend time with the mother as agreed between the parties or, in default, each alternate weekend from 10.00 am Saturday until 5.00 pm on Sunday. Changeover was to occur at a train station in Sydney. The child has been spending unsupervised time with the mother since that time.

34. As at the date of the hearing, the child was spending time with her mother every second weekend from after school Friday until Sunday afternoon, together with school holidays.[13] Changeovers that do not occur after school continue to be supervised.[14]

    [13] Transcript 11 August 2022, p.380 lines 20–21.

    [14] Transcript 8 August 2022, p. 52 lines 43–44.

35. On 5 November 2021, the mother filed an urgent Application in a Proceeding seeking, on a without admissions basis, for the child to live with the father and for the child to spend each alternate weekend with the mother, until the commencement of Term 1, 2022 where the child was to spend time with the mother for two weekends in three. Changeover was to occur at AQ Town train station in Region R. The application was to be listed before Judge M Neville on 24 January 2022.

36. In early 2022, the mother filed in the Supreme Court of New South Wales Equity Division parens patriae jurisdiction, seeking to restrain the father from having the child vaccinated against the COVID-19 virus. The mother was granted an order for short service, which was to take place by 5.00 pm on that day and the matter was listed at 2.00 pm on the following day before Kunc J of the Supreme Court of New South Wales. 

37. The father acknowledges that the documentation issued by the Supreme Court was served upon him at some time during the day on the day of filing in early 2022, but it did not come to his attention in circumstances where he was engaged in preparation for an important event, which was to take place the following weekend. There was no challenge to the father’s assertion that his lawyers, who had been acting for him throughout the family law proceedings, were not served with the documentation. The material filed by the mother in the Supreme Court proceedings did not set out the details of the order made by Judge M Neville on 31 January 2020 giving the father sole parental responsibility in respect to the issue of the child’s vaccinations. I respectfully agree with the submission of counsel for the father that it is most unlikely that, if Kunc J had been made aware of the existence of those specific orders concerning vaccination, as made by Judge M Neville, it can reasonably be inferred that his Honour would not have granted the interim injunction as sought by the mother. It is, however, unnecessary to make a definitive determination in respect to that issue, which ultimately can only be one of speculation. It is also not necessary for me to make a determination whether, in the context of a specific order being made granting the father sole parental responsibility in respect to the child’s vaccinations, the injunction made by Kunc J is, by virtue of s 109 of the Australian Constitution, invalid to the extent that it was inconsistent with Orders 4, 5, 6 and 7 of the orders made by Judge M Neville on 31 January 2020, being orders of a Federal Court specifically addressing the issue of the child’s vaccination. In that respect, I note there have been no notices sent to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth).

1. For reasons set out in his decision of Brown v Brown [2022] NSWSC 16, in early 2022 Kunc J declined to exercise the Supreme Court’s parens patriae jurisdiction, noting that this Court has a specialist COVID-19 List that addresses the issues that the mother required for determination. His Honour ordered for the mother to file her application in this Court and restrained the father from vaccinating the child with the COVID-19 vaccination until the matter is resolved in this Court.

2. On 17 January 2022, the mother filed the required Application in a Proceeding, seeking for the vaccination to be treated as a major medical procedure under r 1.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and for any COVID-19 vaccination to be delayed to provide time “for a reasonable amount of material scientific research to be accumulated in relation to their long term benefits and risks.”

3. The matter came before Judge M Neville once more on 17 February 2022 to address the mother’s application filed on 17 January 2022. The mother sought further interim relief seeking for the matter to be stayed pending the result of a Federal Court case, the removal of the matter from the COVID-19 List and for further time to prepare her matter. Her Honour delivered ex tempore reasons for judgment in Saracuna & Siddele [2022] FedCFamC2F 186 dismissing the mother’s application for a stay of proceedings and confirming the interim hearing date of 21 March 2022.

4. Following the listing on 17 February 2022, the matter was subsequently transferred to my docket, sitting as a judge in Division 2, with the interim defended hearing listed before me. On 16 March 2022, I heard the matter for a compliance hearing prior to the interim hearing. The mother sought further relief with a request for the interim defended hearing to be adjourned for a period not more than four months. I delivered ex tempore reasons for judgment in Saracuna & Siddele(No 2) [2022] FedCFamC2F 293 granting the adjournment request of the mother. I subsequently determined that it was in the best interests of the child to set down the matter in its entirety for final hearing, with the matter listed on 9 May 2022 with an estimated hearing time of four days. I also transferred the matter to Division 1 and secured an expedited Family Report to be prepared in time for the final hearing.

5. In preparation for the May 2022 hearing date, the father filed his trial material on 20 April 2022 but sought an urgent listing on the basis that the mother did not consent to the Single Expert Report written by Ms S tendered in the original hearing before Judge M Neville being made available to Ms AF, the Regulation 7 Family Consultant who was preparing the new Family Report. I set down the matter for a case management hearing on 27 April 2022.

6. On 27 April 2022, I heard the matter for case management. The mother filed an affidavit the night before the hearing seeking an adjournment of the final hearing for a minimum of nine weeks. I delivered ex tempore reasons for judgment in Saracuna & Siddele [2022] FedCFamC1F 275, granting the adjournment application on the basis that the mother was currently appealing a decision of Legal Aid NSW regarding the cancellation of her grant of aid. I subsequently set the matter down the final hearing on 8 August 2022.

7. On 3 May 2022, the Family Report of Ms AF was released to the parties.

8. On 2 August 2022, the mother filed an Application in a Proceeding seeking that the final hearing be adjourned once more in order to allow for the mother’s legal aid application and further appeal of the cancellation of her grant of aid to be heard. Alternatively, the mother sought the adjournment to allow time for her to seek representation pursuant to the s 102NA Family Violence Cross-Examination Scheme or to seek representation through the Law Society of New South Wales’ pro-bono scheme.

9. On 3 August 2022, I notified the parties that I would not have the capacity to hear the mother’s fresh adjournment application until the first day of the final hearing, which was due to commence on 8 August 2022.

10. On 8 August 2022, I heard the mother’s adjournment application. I subsequently refused the application and delivered ex tempore reasons for judgment in Saracuna & Siddele (No 2) [2022] FedCFamC1F 707. The final hearing concluded on 11 August 2022. During the course of the final day of the hearing, counsel for the father and the ICL provided oral submissions to the Court. Upon request by the mother, I granted her leave to file and serve written submissions by no later than 1 September 2022. The father was granted leave to file his written submissions in reply by 8 September 2022. Judgment would stand reserved upon receipt of the parties’ submissions.

11. On 3 September 2022, I received a joint minute of order by consent for the timeline for the parties to file their submissions to be extended. On 5 September 2022, I made orders by consent for the mother’s time to file her written submissions to be extended to 16 September 2022 and the father’s reply submissions to be filed by 23 September 2022.

12. The mother and father both failed to file their submissions on time. I chose to reserve judgment on the date that final submissions were due, being 23 September 2022.

13. On 7 October 2022, the mother emailed her written submissions directly to my chambers. Noting that the deadline for filing had now passed, my chambers responded to the mother requesting that in the event that she wished to rely upon the submissions, she would need to seek relief pursuant to r 1.34 of the Rules. On 10 October 2022, the mother emailed her trial affidavit dated 10 August 2022 with updated and amended annexures. Also on 10 October 2022, the mother sent a document titled “Orders Sought by Mother” and dated 10 October 2022.

14. On 18 October 2022, the father filed his submissions in reply. Further correspondence was received by my chambers in light of the subsequent filing of submissions by the parties. Following the unavailability of the father to provide instructions to his solicitors in the following weeks, I set down the matter for mention on 16 November 2022 in order to seek clarification from all parties regarding their respective positions regarding their consent to the affidavit and submissions of the mother being received into evidence.

15. On 15 November 2022, the day prior to the date scheduled for the further listing, the mother filed an urgent Application in a Proceeding seeking to re-open proceedings for “admission and ventilation of fresh evidence that was not available during the hearing in August 2022” and for “the reports provided to the Court by [the AG Organisation] be released to the parties for possible adduction as further evidence in the proceedings.”

16. On 16 November 2022, the matter was mentioned to hear the parties’ respective positions and submissions regarding the mother’s urgent application. Save in respect to one limited issue, I dismissed the mother’s application to re-open proceedings and for the reports by AG Organisation to be released to the parties, delivering ex tempore reasons for judgment in Saracuna & Siddele(No 3)[2022] FedCFamC1F 915. The parties all consented to the mother’s and father’s respective submissions filed out of time to be admitted into evidence. I acceded to the mother’s application to receive into evidence a letter from the Commissioner of Fines Administration dated 19 August 2022 advising the mother that New South Wales Police did not wish to proceed with seeking the imposition of a fine in respect to a notice “issued for the offence: [COVID-19 related offence] - issued [in mid-2021].” That letter was marked as Exhibit “M” in the proceedings at the hearing on 16 November 2022.

17. I also made orders in respect to the father’s oral application for costs, made at the hearing on 16 November 2022, for the parties to file written submissions that were to be considered in these reasons for judgment.

18. Judgment in this matter was thereafter reserved as and from 16 November 2022, being the last date that evidence was received in the proceedings.

19. On 3 March 2023, the father filed an urgent Application in a Proceeding seeking leave to re-open the proceedings after receiving information that the mother had taken the child to receive the first dose of the Pfizer COVID-19 vaccination in late 2022. The mother filed her Response on 17 March 2023 with a supporting affidavit, conceding that it did occur but that she remains opposed to the child receiving a second dose of the vaccine.

20. In her Response, the mother also sought to re-open the proceedings for the purpose of admitting documentation which she contends establishes that the administration of a second dose of the COVID-19 vaccination presents an unacceptable health risk to the child. The mother also sought to tender documentation with a view to establishing that it continues to be the wish of the child to spend more time with her and also, to support her contention that the father is failing to facilitate the child’s relationship with the mother.

21. On 20 March 2023, I listed the matter for interim defended hearing. After hearing submissions from the parties, I delivered ex tempore reasons in Saracuna & Siddele (No 4) [2023] FedCFamC1F 165 dismissing the father’s Application in a Proceeding filed 3 March 2023 and the application within the mother’s Response filed 17 March 2023.

    DOCUMENTS RELIED UPON

22. The father relied upon the following documents:

    ·Case Outline filed 4 August 2022;

    ·Affidavit of the father filed 20 April 2022;

    ·Updating affidavit of the father filed 1 August 2022;

    ·Affidavit of Ms T filed 19 April 2022;

    ·Affidavit of Dr C filed 11 February 2022;

    ·Further Amended Initiating Application filed 21 April 2022;

    ·Judgment of Judge M Neville dated 31 January 2020; Saracuna & Siddele [2020] FCCA 174,

    ·Judgment of Judge M Neville dated 10 June 2020; Saracuna & Siddele (No 2) [2020] FCCA 1555;

    ·Single Expert Report of Ms S dated 28 December 2019;

    ·Family Report of Ms AF dated 29 April 2022;

    ·Tender bundle of subpoena material;

    ·Minute of Orders Sought dated 11 August 2022;

    ·Submissions in reply dated 17 October 2022; and

    ·Costs written submissions filed 22 November 2022.

23. At the commencement of the final hearing, the mother had not filed any evidentiary material for the substantive hearing. The mother was granted leave on the first day of proceedings to rely upon the materials filed for her Application in a Proceeding as follows:[15]

    ·Amended Application in a Proceeding filed 8 August 2022; and

    ·Affidavit of the mother filed 2 August 2022.

    [15] Transcript 8 August 2022, p.8 lines 14–17.

24. On day three of the hearing, the mother provided to the Court a trial affidavit dated 10 August 2022. That affidavit was not filed on the Court portal.

25. As noted above at [100], the mother provided an affidavit dated 10 August 2022 to the Court on 10 October 2022. This document differed from the affidavit provided on 10 August 2022 in that it contained updated and amended annexures. The mother was granted leave to rely upon her affidavit filed 10 August 2022 with updated annexures during the hearing on 16 November 2022.

26. For completeness, the mother relied upon the following documents:

    ·Document titled “Orders Sought by Mother” dated 12 October 2022;

    ·Affidavit of the mother dated 10 August 2022 (as received on 10 October 2022);

    ·Mother’s Tender Bundle received 10 August 2022 (comprising Affidavit of mother dated 18 January 2022, Affidavit of mother dated 26 April 2022, Affidavit of mother dated 2 August 2022, annexures MS-1 through MS-13, Unsworn Affidavit of mother dated 10 August 2022) (marked as Exhibit “A”);

    ·Written submissions received on 7 October 2022; and

    ·Costs written submissions filed 1 December 2022.

27. The Independent Children’s Lawyer ( “ICL”) relied upon the following documents:

    ·Case Outline filed 7 August 2022;

    ·Family Report of Ms AF dated 29 April 2022; and

    ·ICL’s tender bundle dated 8 August 2022 (marked as Exhibit “F”).

    APPLICATIONS

28. By minute of order received on 11 August 2022, the father sought the following orders:

    1.        That all prior parenting orders be discharged

    Parental responsibility

    2.The father shall have sole parental responsibility for the child [X] born […] 2014 (‘the child’) including, without limitation, for the issue of passports under s11 of the Passports Act 2005, and for the determination of what, if any, vaccinations are to be administered to the child, and:

    2.1.The father shall keep the mother informed of the child’s progress including but not limited to matters of the child’s well-being, health, education or extra-curricular activities;

    2.2.The mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and well-being of the child; and

    2.3.The father shall give due regard to such matters as are raised by the mother but, in the event that no agreement is reached, then the father shall be the person to make the final determination or decision.

    Live with/spend time with

    3.        The child live with the father.

    4.The child shall spend time with the mother during the NSW school term as agreed between the parties and, in default of agreement the following shall apply:

    4.1.1.The mother shall spend time with the child each alternate weekend from 4:00PM on Friday until 5:20PM on Sunday;

    4.1.2.In the event that Monday falls on a public holiday, the mother’s time shall be extended to 5:20PM on Monday.

    5.For the purposes of any changeovers from school/after-school care, and on a without-admissions basis:

    5.1.1.The child shall be collected from after-school care (“[AH Care]”) by the mother, or a nominee known to the child with the father’s consent;

    5.1.2.Once the child is collected, the mother and the child shall leave the premises as promptly as possible.

    6.Otherwise, the father shall collect the child from [the train station] at the conclusion of her time with the mother and this changeover will be supervised by [AJ Family Services] up until the child turns thirteen (13).

    7.The costs associated with the supervised changeover in Order 6 above will be shared equally between the parties.

    School holiday time

    8.The child shall spend time with each parent during NSW school holiday periods as follows:

    8.1.Short NSW school holidays: With the father in the 1st week and with the mother in the 2nd week.

    8.2.     Long NSW school holidays:

    8.2.1.Even numbered years: With the mother in the 1st, 2nd and 5th weeks and with the Father in the 3rd, 4th and 6th weeks.

    8.2.2.Odd numbered years: With the mother in the 1st, 3rd and 5th weeks and with the father in the 2nd, 4th and 6th weeks.

    9.        For the purposes of calculating school holidays:

    9.1.School holidays are calculated in accordance with the calendar of the school that the child is attending;

    9.2.School holidays commence at 4:00PM on the last Friday of the school term and conclude at 4:00PM on the Friday immediately prior to the next school term commencing;

    9.3.     Weekly changeovers will occur each Friday at 4:00PM;

    9.4.The mother’s usual time pursuant to Order 4 is suspended throughout the duration of the school holiday and resumes on the first Friday of Week 1 of the following school term.

    10.Changeover over the school holiday periods will be in accordance with Orders 6 and 7 above.

    Special Days

    11.The child shall spend the following special occasions with each parent as agreed between the parties and, in default of agreement, as follows:

    11.1.With the father on the Father’s Day weekend from the conclusion of after-school care (or 4:00PM) on Friday until Sunday 5:20pm.

    11.2.With the mother on the Mother’s Day weekend from the conclusion of after-school care (or 4:00PM) on Friday until Sunday 5:20pm.

    11.3.The child shall spend time with each parent on Easter, as agreed between the parties, and failing agreement, as follows:

    11.3.1.In even numbered years, with the father from 4:00PM on the Thursday before Good Friday until 4:00PM on Easter Monday.

    11.3.2.In odd numbered years, with the mother from 4:00PM on the Thursday before Good Friday until 4:00PM on Easter Monday

    11.4.The child shall spend time with each parent on Christmas as agreed between the parties and, failing agreement, as follows:

    11.4.1.In even numbered years, with the father from 12:00PM on Christmas Eve until 12:00PM on Boxing Day.

    11.4.2.In odd numbered years, with the mother from 12:00PM on Christmas Eve until 12:00PM on Boxing Day.

    And any other Orders that are inconsistent with this paragraph is suspended so as to allow time with each parent on these special occasions to occur and changeover will occur in accordance with Order 6 and 7 above.

    Communication

    12.That the father facilitate telephone, FaceTime, Skype or Zoom calls between the mother and the child each Wednesday at 5:00pm and Sunday at 8:30am for a period of no longer than 15 minutes.

    13.That the father be permitted to remain within earshot of the child’s calls with the mother and he be at liberty to disconnect these calls if the mother commences speaking inappropriately to the child.

    14.That the father have one (1) telephone, FaceTime, Skype or Zoom call with the child for a period of no longer than 10 minutes twice a week whilst the child is spending time with the mother.

    15.The parties keep each other informed as to their current residential address, email address, landline and mobile telephone numbers and inform the other party of any changes to any of these details within 48 hours of such change.

    16.The parties shall communicate in respect of arrangements for the child only and in writing by e-mail only.

    Specific orders 

    17.That the mother is authorised to obtain from the school or any extracurricular organisation at which the child is enrolled or registered, any notices, newsletters, letters, reports, certificates and photograph order forms.

    18.The parties are to adhere to the recommendations of any medical practitioner selected by the father or to whom the child is referred.

    19.Notwithstanding any injunction to the contrary, the child receive age-appropriate vaccinations and maintain an appropriate vaccination schedule in accordance with the recommendations of [Dr C] (or his nominee or such other paediatrician or medical practitioner attended upon by the child), including any COVID-19 vaccination.

    20.In the event the child suffers any significant injury or illness while in their care, the parent with the care of the child is to inform the other parent without delay of the nature of the injury or illness and the name of any health professional to whom the child has been referred.

    21.The father is permitted to provide a copy of these orders to the child’s school, medical practitioners, and any passport authority.

    22.The parties be restrained from:

    22.1.Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent has a relationship with, with the parent’s knowledge or in their presence;

    22.2.Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;

    22.3.Permitting the child having access to any of the documents filed in these proceedings;

    22.4.Causing the child to be a medium in any way to adult members between the mother and the father or between the mother and the father and any other person;

    22.5.Communicating any information intended for the other parent through the child;

    22.6.Consuming illicit substances within 24 hours of spending time with the child;

    22.7.Causing or allowing to cause the child to be in attendance at any music festivals;

    22.8.Causing or allowing to cause any naked photograph of the child to be uploaded and accessible over any social media or internet platform;

    22.9.Causing or allowing to cause the child to be naked in a public place or social event including but not limited to festivals, the beach, parks etc;

    22.10.Bringing the child into contact with or allowing the child to remain in the presence of a person who the mother or father knows is under the influence of illicit drugs or mind-altering substances, other than as prescribed by a general practitioner;

    22.11.Posting or publishing anything about any aspect of these proceedings online;

    22.12.Painting on the child’s body or allowing a third party to do so.

    23.      The mother is restrained from:

    23.1.Attempting to restrain the father from taking the child to receive her vaccinations;

    23.2.Discussing with the child her views of vaccinations;

    23.3.Making inappropriate remarks in the presence or hearing of the child about the father’s household including but not limited to diet, hygiene, lifestyle differences;

    23.4.Removing the child from the Greater Metropolitan Sydney, [City AL] or [Region R] areas unless otherwise agreed;

    23.5.Recording telephone calls or changeovers with the father;

    23.6.Criticising the father, his parenting, or discussing the orders or these proceedings to the staff at the child’s school, staff at the extra-curricular activities the child attends, or after-school care staff;

    23.7.Attending the child’s school events or extra-curricular activities to which parents are normally invited, unless the father consents;

    23.8.Communicating in any way whatsoever with [AC] and [AB].

    24.That the father be granted liberty to restore these proceedings on 24 hours’ notice in the event there is a concern of, or evidence or the child be relocated, withheld or abducted.

    (As per the original)

1. But that is not the case at hand. The child’s treating paediatrician, Dr C, prepared a report attached to his affidavit of 11 February 2022 and gave oral evidence in these proceedings. His evidence was clear and logical and explained why he did not consider the child to be at any particular risk from being vaccinated with the standard COVID-19 vaccinations that have been approved by health authorities for administration to children of her age.

2. In that respect, Dr C noted that it is in the child’s clinical interest as well as the community to be vaccinated against the COVID-19 virus and “be include[d] in all the vaccinations as per Department of Health schedule for vaccination.”

3. Dr C is, by virtue of his training, qualifications and experience, clearly qualified to provide that evidence. As the child’s treating paediatrician, he has also had the benefit of a history of treating the child over a period of several years. He was an impressive witness who gave his evidence in clear and precise terms and, where appropriate, referred to relevant public health advice and explained why he accepted that advice. I accept his evidence and the validity of his opinion and therefore determine that, in the circumstances of this case, the proposed vaccination of the child is not a medical procedure that falls within the ambit of r 1.11.

4. In considering whether to make an order confirming that the father has parental responsibility in respect of the child’s vaccinations, it is not necessary for me to undertake a scientific evaluation of the efficacy and effectiveness of COVID-19 vaccinations. Instead, in making orders to resolve this aspect of the parental dispute, I approach the issue from the perspective of making a determination as to which parent is best equipped to make a balanced and considered determination as to whether administration of the vaccination is in the best interests of the child.

5. I am satisfied that the father is best equipped to make that decision. In forming that view, I have had regard to his evidence as to the extent of the research he has undertaken in respect to the efficacy of the vaccination. I also note that he has given consideration to advice he has received from Dr C, including that set out in his report dated 7 February 2022 that is attached to his affidavit sworn on 11 February 2022. 

6. It is entirely understandable that, having regard to that advice, the father remains committed to arranging for the child to be vaccinated against the COVID-19 virus.

7. The substance of the evidence provided by Dr C is best reflected in the following exchange between the ICL and Dr C:[63]

   [The ICL]:If we – thinking about [the child] as an individual child, and I think you’ve made recommendations that, based on her isolated existence as single human being, that being vaccinated is in her best interests from a purely health perspective, could you say something about the broader reasons why that might be in her best interest, having regard to her social context?

   [DR C]: When one looks at a group of children of this age group those that are – those that are at school are going to have a lot of contact with COVID, and a lot of people, particularly in that early period of time when one is unaware of one’s infectivity – and there’s no doubt that this remains a very – a very rapidly spreading viruses, which is what viruses want to do to – to survive, and – and occasionally, when – if children do – if – if adults and children do have issues with their immunity, then they’re at risk from getting really sick from this disease, still. Not dissimilar to, I guess, the – the analogy would be meningococcal disease, which is a kind of a – a very – it’s actually in the paper at the moment – but, you know, people are vaccinated against pneumococcal disease but very few people get – who are unvaccinated get the disease. But, of those who do get the disease, they can get extremely unwell and ..... intensive care and die very rapidly. So COVID is not a dissimilar infection in its kind of – in its – in that a lot of people will have the infection and not get very sick. Some people will have the infection and – and some children will have the infection and get moderately sick, and then you get a few children who get very, very sick indeed.

   [63] Transcript 8 August 2022, p. 15 line 47 to p.16 line 15.

8. The mother did not, in these proceedings, present evidence of an authoritative nature that caused me to doubt the efficacy or wisdom of the opinion expressed by Dr C.

9. As I have noted, I do not purport to make a determination as to scientific merits of a particular or number of COVID-19 vaccinations in this decision. The order I make is a result of the determination I have made that the father is best equipped to make a decision regarding the child’s vaccinations because he is prepared to consider the issue in a balanced and objective manner, having regard to a diverse range of information including from the child’s treating paediatrician.

10. Comparatively, the mother’s approach to this issue has been impacted by the pervasiveness of her views which, in my opinion, are reflected in the social media posts made by the mother to which I have earlier referred. Those sensationalist posts made by the mother cause me to accept the validity of the opinion expressed by the Family Report writer that, in respect to certain issues, the mother can have a poor grasp of reality. The issue of vaccinations is one such issue where I have found that to be the case. 

11. Accordingly, for these reasons, I propose to make specific orders that clarify that the father is empowered to exercise sole parental responsibility in respect to the child being vaccinated, including against the COVID-19 virus.

    ORDERS

12. For reasons which I have earlier set out and, in particular, having regard to the issue of risk, I am of the opinion that orders should be made for the child to continue living with her father, her stepmother and stepsiblings and for her to spend time with her mother every second weekend.

13. Although, as often is the case, litigation between the parties has caused a further souring of the parties’ relationship, at least as at the date that the Family Report was prepared, the father reported to the Family Report writer that “he would be happy to arrange additional time between [the child] and [the mother]”. In that respect, the Family Report writer stated:

    46.[The father] said that he would be happy to arrange additional time between [the child] and [the mother], such as in the week where [the child] does not usually see her mother, as much as the distance between the parents’ homes allows.  He said that [the child] would probably enjoy this more when [AC] and [AB] are not home (and spending time with their father), such as every second Wednesday for dinner after school. 

14. Having regard to that evidence presented in these proceedings regarding the difficulty that the parties experience at the point of changeover, I am satisfied that orders should be made that provide for the child to spend time with her mother every alternate weekend from after school until the following Monday morning before school, with that time being extended to Tuesday morning in circumstances where Monday is a public holiday or Wednesday following the Easter long weekend. 

15. Additionally, as I have earlier indicated, during the course of the proceedings, I indicated that the parties would also be receptive to a proposal for the child to spend one night with the mother during the off week that she was not spending the weekend with the mother. It is to be noted that, while broadly supporting the orders proposed by the father, the ICL submitted that, subject to the issue of practicality being addressed, he thought orders that provided for the child to spend some additional time with her mother would be appropriate including, potentially, midweek time during the off week.

16. In the absence of that evidence being called, I am not in a position to determine that there would be suitable accommodation arrangements for the mother and the child in the event that the child spent time with the mother on one night per week in the off week that she was not spending the alternative weekend with her mother. 

17. While it is not appropriate or possible for me to bind a judge considering an application in the future, it would appear to me that in the event of the mother presenting evidence to the father that she can access appropriate accommodation in Sydney for one night per week in that off week, it would be entirely reasonable and, indeed in the interests of the child, for the child’s wishes to be recognised and respected by facilitating the child spending that additional night with the mother. 

18. In the meantime, in circumstances where, as a result of the orders that I make, the child is to spend time with the mother from after school on Friday until before school on Monday, the parties will be relieved of the expense of paying for a professional supervisor to supervise changeover between the parties.

19. Having regard to the recommendation of the Family Report writer as set out at paragraph 111 of her report, I am of the view that, consistent with the child’s wishes, there should be facility for the child to spend additional time with the mother during the week that she is not in the mother’s care by way of spending time one evening per week in the period after school until approximately 6.30 pm. In circumstances where I cannot, however, be satisfied of the practicality of that arrangement, I do not make orders in these proceedings for that to occur. In that respect, for instance, no evidence has been presented to me regarding the practicality of a supervisor being available to supervise changeover between the mother and the father after usual business hours. Nonetheless, for reasons which I have previously set out, I would encourage the parties to consider other possible arrangements such as the possibility for the mother to spend time with the child at her sister’s residence, that is, the maternal aunt’s residence, with the changeover to be facilitated by either the maternal aunt or the maternal uncle.

20. Having regard to the spend time arrangements and the other issues that I have considered in these reasons for judgment, I am satisfied that the orders proposed by the father would establish the most efficacious parenting arrangements that are in the best interests of the child, save to the extent that it is my view that it would be in the child’s best interest to spend the entire weekend with the mother on the alternative weekend that she already spends time in the mother’s care. I note the orders proposed by the father are substantially supported by the ICL, save to the extent that the ICL would encourage the father to explore the child spending an additional night with the mother during the week that she is not spending weekend time with the mother. The parties had the benefit of a highly competent and particularly experienced ICL in this matter and I would encourage the father to give further consideration to that suggestion on the part of the ICL.

21. In determining that the orders proposed by the father are in the best interests of the child, I note the following.

22. To avoid ongoing conflict between the parties, it is appropriate that all previous parenting orders be discharged.

23. For reasons which I have set out, it is appropriate that the father have sole parental responsibility. In circumstances where there has been conflict between the parties regarding the mother complying with orders previously made by Judge M Neville requiring the mother to provide the child’s passport to the father, I am satisfied that parental responsibility should include the ability for the father to solely be responsible for obtaining a passport on behalf of the child.

24. In light of its significance during the course of these proceedings, the order for sole parental responsibility should also, as proposed by the father, specifically refer to the father having sole parental responsibility in respect to what, if any, vaccinations are to be administered to the child.

25. The live with and spend time orders proposed by the father in proposed orders 3 through to 7 are appropriate, save to the extent that they will be modified to provide that in Order 4.1.1, in place of the words “on Friday until 5:20 PM on Sunday”, the order will read as follows:

    (a)The mother shall spend time with the child each alternate weekend from after school on Friday or 4.00 pm on a non-school day until;

    (i)        before school on the following Monday, or;

    (ii)       before school on the subsequent day to a public holiday, or

    (iii)      9.00 am on the following Monday, in the event it is a non-school day.

26. I will also not make proposed order 4.1.2, noting that the issue of public holidays has been considered in Order 4.1.1.

27. Order 6 will also be amended to clarify that the changeover arrangements at a train station will continue to be the arrangements for non-school days. 

28. The proposal for the child to spend equal time with each parent during school holidays as reflected in proposed orders 8 and 9 are appropriate, as is the confirmation of arrangements for changeover in proposed order 10. 

29. There did not appear to be significant dispute between the parties regarding the child spending time with each parent on special days and the orders proposed by the father in proposed order 11 are, in my view, appropriate to recognise and respect the child’s right to spend time with each parent on those special days. 

30. It is to be noted that there has been a dispute between the parents regarding communication with the resident parent when the child is not spending time with that parent.  It is appropriate for the orders to establish an appropriate regime to facilitate the child communicating with each parent while not unduly restricting the household in which the child will be staying. In circumstances where the evidence satisfies me that the mother has, on occasions, made inappropriate comments to the child including, for instance, in respect to issues of health and nutrition, I can understand why the father is seeking an order empowering him to remain within earshot of the child’s communications with the mother with a view to potentially disconnecting the communication makes such an inappropriate statement to the child as proposed in Order 13.  However, the reality is that the child will be spending a considerable amount of time with the mother in circumstances where that time and the communication between the mother and the child are not supervised.  In other words, there is ample opportunity for the mother and the child to communicate about a range of matters, irrespective of whether they are doing so by way of electronic means. Moreover, as a child matures and enters the years of puberty, there may well be some intensely private issues that she wishes to discuss with her mother.  Additionally, it is quite clear that the child is well aware of the extent of the ongoing disputation between her parents and she should be relieved of the tension associated with that disputation to the extent that it is reasonably practicable.  Having the father in the vicinity while she is communicating with her mother has the potential to create an uncomfortable background environment that may cause unnecessary tension for the child at a time that she otherwise should be able to communicate freely with her mother.  Accordingly, I have not made that order as proposed by the father.

31. One concern I do have, however, is that the orders for communication do not sufficiently accommodate a revision of the arrangements as a child matures. In those circumstances, I propose including an additional Order 12 that will be inserted prior to the existing order 12 which will provide that “at those times that the child is living with the father, the father shall facilitate the child communicating with the mother as agreed between the parties in writing, and, in the absence of agreement, the following Orders 13 and 14 shall apply.”

32. In circumstances where there has been conflict between the parties as to the location of the child when the child has been in the mother’s care, it is appropriate that order 15 as proposed by the father be made to require each party to notify the other of their residential address and contact details, including any changes to those details.

33. In the context where there has been significant dispute between the parties when they have communicated with each other, it is appropriate that communication be restricted to electronic communication by email as proposed in order 16. That order should, however, in my opinion, be modified such that it is introduced by the words “other than in the case of emergency.”

34. The specific orders proposed by the father are also, in my view, appropriate. In that respect proposed order 17 appropriately provides for the mother to obtain information regarding the child’s activities at school and any extracurricular activities. 

35. Order 18 is consistent with the order that I have made for sole parental responsibility in that it confirms the father will be responsible for selecting the child’s medical practitioner and will require the parties to comply with recommendations from that practitioner. 

36. In one sense, proposed order 19 may be superfluous in the context of the order for sole parental responsibility, however, given the extent of the dispute between the parties, which resulted in the mother seeking orders from the Supreme Court of New South Wales, I am satisfied that order 19 is appropriate and will confirm that, as a result of these orders, the orders made by Kunc J in early 2022 no longer have any force or effect.

37. Order 20 requires each party to notify the other in the event that the child succumbs to a significant injury or illness. This is entirely appropriate.

38. Order 21 is consistent with the order I have made for the father to have sole parental responsibility in that it will facilitate the father providing a copy of these orders to the child’s school, medical practitioners and any passport authority. 

39. The non-denigration orders proposed by the father in proposed order 22 are appropriate.  Having regard to concerns expressed by Judge M Neville in her decision dated 31 January 2020 and other concerns that I have referred to in these reasons, the balance of the restraints referred to in proposed orders 22 and 23 are, in my view, appropriate.

40. I do not, however, make an order in terms of order 24 as proposed by the father. The rules of the Court and the Court’s Central Practice Direction already facilitate a party making an urgent application in the circumstances referred to in that order. The practicalities of exercising liberty to apply in circumstances where I will no longer continue to be the presiding judge in this matter are such that the father’s order has the potential to cause administrative uncertainty and delay, rather than to facilitate the outcome that he seeks to achieve. 

41. I will also make an order to discharge the ICL, who has been of great assistance during the course of these proceedings including appearing remotely in circumstances where he had succumbed to the COVID-19 virus during the course of the final hearing. 

42. In making the orders as set out at the commencement of these reasons for judgment I have, as I have indicated, made orders that are substantially in accordance with the orders proposed by the father. I have explained why I have done so. In making those orders, I have also considered the orders proposed by the mother. I have not, however, made orders in those terms because, for the reasons which I have set out, they are not, in my view, in the best interests of the child. The issues of parental responsibility, live with and spend time arrangements and the balance of issues in these proceedings are, for the reasons which I have set out, best addressed in the orders proposed by the father which have been supported by the ICL.

    COSTS

    16 November 2022 hearing

1. The applicant father sought costs of the proceedings of 16 November 2022 which, as noted, involved the hearing and determination of the mother’s application to re-open the proceedings as contained in the Application in a Proceeding filed 13 November 2022.

2. In circumstances where the mother was partially successful in that application, with the Court receiving into evidence a letter from the Commissioner of Fines Administration dated mid-2022 advising the mother that the New South Wales Police Force did not wish to proceed with seeking the imposition of a fine, it cannot be said that the mother’s application was wholly unsuccessful.

3. In those circumstances, I am not satisfied that the father has displaced the presumption set out in s 117(1) of the Act that, in the usual course, parties should bear their own costs in respect to family law proceedings.

   20 March 2023 hearing and the substantive hearing

4. As noted, on 20 March 2023 I dismissed both the application by the father and also the mother to re-open proceedings for the purpose of presenting further evidence. I reserved costs of that application. 

5. In those circumstances, in the event that any party wishes to make an application for costs in respect to the proceedings occurred on 20 March 2023 and/or the substantive proceedings, they will be able to do so by written submissions of no more than two pages that are to be provided to my associate and served on each other party within 14 days of the date of these orders. 

I certify that the preceding two hundred and ninety-nine (299) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       21 March 2023