Smits & Jansen - [2022] FedCFamC1F 33

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Smits & Jansen [2022] FedCFamC1F 33

File number(s): HBC 511 of 2020

Judgment of: MCGUIRE J

Date of judgment: 10 February 2022

Catchwords: FAMILY LAW – CHILDREN – Application by father seeking orders that the child live with him – that he have sole parental responsibility for the child – that the child spend time with the mother each second weekend and for half of all school holidays – Application opposed by the mother who seeks mirror orders to those of the father whereby the child live with her and she have sole parental responsibility – The father lives in City E and the Mother lives in City Z - Orders that child live with father for 8 nights per fortnight and with the mother for 6 nights per fortnight – Order that child spend half of all school holidays with his mother - Order that father have sole parental responsibility for the child subject to the father notifying the mother in in respect of important issues regarding the child’s medical treatment and education

Legislation: Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CC, 61DA(2) and (3), 65DAA(1)(a) and (b)

Cases cited:
Goode & Goode (2006) FLC 93 – 286

MMR v GR (2010) 240 CLR 461

Mazorski v Albright (2007) 37 Fam LR 518

Champness & Hanson [2009] FamCAFC 96

Division: Division 1 First Instance

Number of paragraphs: 189

Date of hearing: 6, 7, 8, 9 & 10 December 2021

Counsel for the Applicant: Mr Mead

Solicitor for the Applicant: Baker Wilson Davies Lawyers

Counsel for the Respondent: Ms Higgins

Solicitor for the Respondent: Bishops

Counsel for the Independent Children's Lawyer: Mrs Mooney SC
ORDERS

HBC 511 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SMITS

Applicant

AND:
MS JANSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 FEBRUARY 2022

THE COURT ORDERS THAT:
1.That all previous parenting orders in respect of the child X born 2014 (‘X’) be discharged.
2.That the father, Mr Smits, have sole parental responsibility of X.
3.That the father notify the mother, Ms Jansen, in respect of important issues regarding X’s medical treatment and education.
4.That commencing 9 February 2022 X shall live with the mother at the following times:

School term
(a)During week one of the school term from the conclusion of school on Wednesday (such time to commence at 10.00am if a non-school day/student free day/public holiday) until commencement of school Friday (such time to conclude at 3.00pm if a non-school day/student free day/public holiday);
(b)During week two of the school term from the conclusion of school Wednesday (such time to commence at 10.00am if a non-school day/student free day/public holiday) until 4.00pm Sunday (extending to 4.00pm Monday in the event of a non-school day/student free day/public holiday) with handover to take place at Location V at the conclusion of the visit and in the event the mother is in City E on that weekend the mother shall provide a minimum of 24 hours’ notice via SMS or email to the father that she is in City E and, therefore, X will be delivered to the father outside the W Shop, B Street and/or in the event the father is in City Z the father shall provide a minimum of 24 hours’ notice via SMS or email to the mother that he is in City Z and, therefore X will be delivered to the father outside the C Shop, D Street.

School holidays
(c)For one half of each of the term Tasmania gazetted school holiday period as agreed between the parties and failing agreement from the conclusion of school on the last day of term until 4.00pm the following Saturday with handover to take place at Location V;
(d)For one half of the longer Christmas/summer school holiday period as follows:
(i)In each odd numbered year for the first half of the holiday period commencing at the conclusion of the last day of the school term;
(ii)In each even numbered year (commencing 2022) for the second half of the longer Christmas/summer school holiday period;
(iii)That handovers during the longer Christmas/summer school holiday periods shall take place at Location V at 10.00am unless otherwise agreed in writing 48 hours prior to the handover taking place.

(e)The weekend of Mother’s Day with X to be in the care of the Mother exclusively commencing at 3.00pm Friday (the mother to collect from school if a school day and if a non-school day handover at Location V) and concluding at 4.00pm on Mother’s Day with the handover to take place at Location V;
(f)At such further and/or other times as agreed.

5.THAT X shall live with the father at all other times.
6.THAT notwithstanding anything to the contrary in these orders, X shall be in the care of the father over the longer Christmas/summer school holiday period as follows:
(a)In each even numbered year for the first half of the holiday period commencing at the conclusion of the last day of the school term;
(b)In each odd numbered year for the first half of the holiday period commencing at the conclusion of the last day of the school term; and
(c)That handovers during the longer Christmas/summer school holiday periods shall take place at Location V at 10.00am save and except unless the mother is in City E with X then handovers shall take place outside the W Shop, B Street or the father shall provide a minimum of 24 hours’ notice to the mother in the event the father is in City Z and to collect X from outside the C Shop, D Street in City Z.

7.THAT the weekend of Father’s Day, X is to be in the care of the father from 3.00pm Friday until 4.00pm on Father’s Day.
8.THAT in the event the father is overseas then X shall be placed into the care of the mother should the mother be able to ensure X’s continued attendance at school.
9.THAT each party will take into account X’s activities when making weekend plans.
10.THAT the father is able to communicate with X via telephone on Friday at 5.00pm (week 2) with the father to initiate the telephone call to X and three times a week during holiday periods provided otherwise that X be able to communicate on a reasonable basis with the parent with whom he is not living at his request by telephone or other available medium.
11.THAT if X is attending school and is required to leave school because of illness, the parent with whom X would ordinarily be spending time with immediately following the school day, shall be the parent responsible for the collection and caring for X from school.

THE COURT DECLARES THAT
12.Australia is the habitual residence of the child X born 2014.

Overseas travel
13.In each alternate Christmas school holidays commencing in 2022/2023, the father be permitted to remove X from the Commonwealth of Australia to travel with him to Country AA for a period of not more than 21 days, including travel time, unless otherwise agreed in writing, such time to commence at the commencement of the Christmas school holidays, unless otherwise agreed in writing.
14.That the father be permitted to remove X from Australia to travel to New Zealand during his school holiday time with him, or such other time agreed in writing, commencing in 2022.
15.In relation to all travel overseas the father must on each occasion:
(a)provide the mother with a photocopy of the return airline tickets in X’s name no later than 14 days prior to X’s departure date;
(b)provide the mother with an itinerary indicating the places at which X will be staying, the addresses of where X will be staying, and where possible, a landline telephone number of each place no later than 14 days prior to X’s departure date;
(c)provide to the mother forthwith upon his arrival a mobile telephone number on which X may be contacted throughout the period he is to spend overseas with the father; and
(d)pays to the mother’s solicitors, no later than 30 days prior to the date of travel, the sum of $20,000 security, to be held by those solicitors in a controlled monies account, and to be repaid to the father if X is returned to Australia in accordance with these orders, or if X is not so returned, to be applied in payment of the mother’s expenses incurred in seeking X’s return to Australia, including the mother’s legal costs and disbursements, and her travel and accommodation costs incurred in travelling to seek X’s return.

16.THAT that each parent be at liberty, during their scheduled time with X to remove X from the Commonwealth of Australia on the following conditions:
(a)such travel to occur with each parent not more than once every two years;
(b)travel is only to be to countries where the Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and that country, unless agreed in writing in advance between the parties;
(c)the travelling parent shall provide the other parent with a photocopy of the return airline tickets in X’s name and travel insurance policy no later than 28 days prior to X’s departure date;
(d)the travelling parent shall provide the other parent with a photocopy of an itinerary indicating the places at which X will be staying, the addresses of where X will be staying, mobile telephone number on which X may be contacted and where possible, a landline telephone number of each place no later than 28 days prior to X’s departure date;
(e)the travelling parent shall pay to the other party’s solicitors no later than 30 days prior to the date of travel (or two days in the case of a family funeral), a bond in the sum of $20,000 by way of security, to be held by those solicitors in a controlled monies account, and to be repaid to the travelling parent if X is returned to Australia in accordance with these orders, or if X is not returned, to be applied in payment of the other parent’s expenses incurred in seeking X’s return to Australia, including that party’s legal costs and disbursements, and any travel and accommodation costs incurred in travelling to seek X’s return.

17.THAT during any travel overseas, the travelling parent shall ensure that X communicates with the other parent by Skype, FaceTime or telephone on at least two occasions each week.
18.The mother shall spend compensatory time with X for any time missed by her as a result of the overseas travel in orders 13 and 14, such time to occur at times nominated by her in writing.
19.The mother shall retain X’s passport at all times apart from when X is travelling. If the father is the travelling parent, upon payment of the security bond, in order to facilitate X’s travel overseas, the mother must provide the father with X’s Australian Passport to enable the father to book airline tickets for him. The father must return X’s passport to the mother upon X’s return.
20.The parties shall do all acts and sign all documents necessary to ensure that X has an up-to-date Australian passport and sign all necessary travel documents.
21.Any agreed changes to the above travel arrangements shall be made in writing and signed by both parties.
22.For the purposes of these orders, school holidays are defined as commencing on the day after school finishes and concluding on the day before school starts in accordance with the Term dates for Tasmanian Government School Students prepared by the Department of Education, Tasmania.
23.The father, his servants or agents are hereby restrained from applying for a Country AA passport for X.
24.The father is not permitted to apply for Country AA citizenship for X unless agreed by the mother or unless otherwise ordered by the Court.
25.The parents shall be and are hereby restrained by injunction from denigrating the other parent, their partner or family to or within the presence or hearing of X or allowing him to be in the presence or hearing of any third party who is doing so.
26.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

The father, Mr Smits, is the applicant in respect of parenting orders for the parties’ one child X born in 2014 (age 7 years).
The father seeks the following orders: –
(a)that he have sole parental responsibility for X;
(b)that X live with him; and
(c)that X spend time with the mother each second weekend and for half of school holidays.
The mother, Ms Jansen, seeks mirror orders to those of the father whereby X live with her and she have sole parental responsibility.
There are some more discreet issues for determination such as the father's desire to travel internationally with X. There are issues of psychological treatment for X and/or the parties. There were, but apparently no longer, issues in respect of the first name by which X should habitually be known.
The Court has had the very great benefit of an Independent Children's Lawyer, Mrs Mooney (‘ICL’). She has provided a comprehensive draft set of orders but essentially proposes orders broadly in terms supportive of the mother's application.
CURRENT SITUATION
Litigation for X has been a prominent aspect of his life. The parties previously went to trial on these parenting issues in May 2018. At that time an issue of the father’s potential relocation with X overseas was agitated. However, the matter resolved on the second day of the trial and orders were made by consent whereby X was to live with the father for eight nights per fortnight and with the mother for six nights during school terms but with the holiday periods to be equally shared. The arrangement for X with the mother was as follows:
(a)in week one from 3.00pm Wednesday until Friday morning (two nights); and
(b)in week two from 3.00pm Wednesday until 4.00pm Sunday (four nights).
The orders of 30 May 2018 restrained the father from applying for a Country AA passport and/or Country AA citizenship for X. The father was permitted to travel overseas with X contingent upon a $20,000 bond being paid by the father together with other common conditions but with the mother to hold X's passport.
The evidence suggests that X's time with the mother takes place in week one in City E being from Wednesday until Friday. The mother who is employed in allied health can engage her employment in City E on those days. X then enjoys each second weekend at his mother's home in City Z but spends the Wednesday until Friday of that week also in City E.
X has an all times attended the Q School in City E.
The father lives in City E. The mother lives in City Z. She accommodates X when in City E in temporary accommodation and/or at the residence of a friend, Dr H, in Suburb J.
The orders from May 2018 were based on the mother’s stated anticipation of either moving permanently to City E or to obtain more permanent accommodation in City E to supplement her primarily living in City Z.
ISSUES
Superficially, this is a determination between competing applications for the primary care of X with mirror orders for weekend and holiday time where the two parents live in City E and City Z respectively. The matter, however, is far more complex and primarily so given the personalities of these two parents.
The evidence in this matter, including by two prominent experts being a Clinical and Forensic Psychologist, Dr K and Psychiatrist, Dr L, centred on the inability of these parents to functionally communicate in respect of X where they are of diametrically extreme personality types and where, in an attempt to put a complex issue simply, the father complains that the mother is non–responsive to his communications whereas the mother says that the father over and repeatedly communicates to an extent that she considers it harassment.
The father says that the mother alienates him from the child. He has taken the assistance of counselling from an apparent expert in this field who supports his self–diagnosis. He is in the process of a University combined Degree where he also studies a course in family relationships, interestingly conducted by his own therapist.
The mother feels persecuted by the father's zealous parenting style and his propensity for litigation as a response to all issues in respect of X to the stage that she is litigation–fatigued such that she has been prepared to “walk away” from any relationship with X.
There is an issue in respect of X's gender identity where the child previously, and continues, to identify at times as female with the wish to wear female clothes, be known as female, and to be called 'G'. Whilst both parents have been sympathetic to this issue for the child, they have taken different approaches.
There have been issues in respect of the father's alleged over–servicing of medical and other support services in respect of X where again these parents exhibit different parenting styles, models and personalities. The assertions in respect of the father have previously gone to the extent of suggestions of him exhibiting Munchausen's by proxy although apparently no longer alleged.
There remains of an issue of overseas travel for X where the father being a Country AA citizen wishes X to experience his Country AA culture and identity and to spend time with extended family. The father's preferences in this matter extend to X spending block times in Country AA including attendance at school. Not surprisingly, the mother views the father as a flight risk in respect of X but in May 2018 agreed to orders which would permit travel for X with the father overseas and the provision of a bond. The evidence before me is that the mother remains concerned as to him being a flight risk.
BACKGROUND FACTS
The father is 52 years of age. He is of Country AA origin and citizenship. He is a professional with substantial tertiary qualifications who has previously studied in the United States. He came to Australia to take up employment in Tasmania. He is now a student studying towards a Degree at the CC University with a stated intention to concentrate postgraduate studies in family relationships.
The father became an Australian citizen in June 2020.
The father has been in a relationship with Ms M since May 2019. They live together in Ms M's home. The father has his own home but he now rents that through Airbnb.
There are no children of the relationship between the father and Ms M. Ms M does not herself have children. She does, however, have an immediate and large extended family in City E. The evidence is that X is the only child of the father.

Ms M has been an educator but now works in the arts.
The mother is 49 years of age. She lives in City Z. She is not in a relationship. She has no children other than X.
The mother is employed in allied health with qualifications and previous employment as a health professional. The mother owns her own home in City Z encumbered by mortgage.
The mother is originally from City Z although she has lived interstate for several years. Her extended family lives in City Z.
The parents met on an online dating site in July 2011. Their relationship, such as it was, appears to have been short with each having different interpretations as to the status and duration of their relationship and cohabitation.
The parents do agree that they commenced IVF treatment in November 2011 and continued over seven years. The mother commenced her first IVF treatment cycle in October 2012 asking the father to be a donor. The mother says that she initially signed the N Health Service paperwork as a 'single person' but that the father later requested a change to that paperwork to having him listed as 'partner' as distinct from 'known sperm donor'.
The IVF process has been long and difficult with the mother enduring 10 documented pregnancies but with X being the only successful live birth.
The parents’ capacity for conflict and lack of communication appears to have been evident during the IVF process by reason of the evidence of the both of them. The father's trial affidavit at [33] deposes thus:
Directly after birth, my status appeared still that of a donor. With our continuing difficulties, I had hesitation signing X's birth certificate, which would formalise my responsibility as X's father. With reassurance from [the mother] and a leap of good faith I signed the birth certificate on what [the mother] said was the last day for registering X's birth.
Whilst there is some dispute as to the nature of the relationship and parenting responsibilities in 2015, the mother agrees that on 30 October 2015 she left City E to return to City Z leaving X in the care of the father. The father says that as early as November 2014 the mother had offered to leave X in his care and repeated this offer in September/October 2015 being “to provide me with full custody and full responsibility”.
The parties agree that between 2014 and March 2017 X lived with the father and spent only ad-hoc time with the mother.
The father says that he arranged mediation through both P Family Services and Legal Aid but the mother refused to engage.
The mother says that there was dispute between the parents from the time of X's birth. She said she was monitored by the father. She says that the father insisted on co-sleeping with X.
The mother was the applicant in initial proceedings in these Courts in February 2017 seeking both interim and final parenting orders.
On 21 March 2017 interim orders were made for X to spend two nights each week with the mother. On 14 July 2017 further interim orders were made for X to spend five nights each fortnight with the mother.
In May 2018 the parties reached final parenting orders made by consent, albeit during a trial, with X to live with the mother six nights per fortnight and with the father for eight nights but for school holiday times to be equally shared.
On 21 December 2018 the father filed a fresh application in respect to further schooling issues culminating in an order of 15 February 2019 for X to attend Q School. He commenced kindergarten in that year.
These appear to have been interim orders only and the litigation continued in 2019 until being disposed of by Judge Harman on 6 May 2019.
X has remained a student at Q School and is about to enter year two.
The father was the applicant in the application now before me commenced 16 June 2020. He says that the impetus for this application was an urgent need for dental intervention for X and again where the parties could not communicate.
Dr K, Forensic and Clinical Psychologist, was appointed on 3 March 2021 to provide an independent psychological report for the Court. Her first report is dated 8 June 2020 and its release prompted an application by the Independent Children's Lawyer seeking an order in the interim that X live primarily with the mother in City Z. That application was dismissed with the status quo from May 2018 remaining pending this trial.
THE EVIDENCE
The father
The father relied on his trial affidavit affirmed 25 November 2021. That document takes the form of a narrative of the relationship. It is almost entirely critical of the mother with little or no acknowledgement of her either personally or of her parenting.
At [425] of his affidavit the father references X’s preferences which he told the expert, Dr K, as wishing to live with his mother but where the father says:
X has also spoken of how he does not want to tell Mummy that he doesn't want to move to City Z as it would make Mummy sad. He has also asked me to buy a house in City Z.
The father gave evidence and was cross-examined. He had a good command of English although not his first language. He presented as a rigid, assertive but candid witness. Similar to his affidavit, he was singularly negative in respect of the mother but whilst apparently child–focused in his responses. He fits the profile suggested of him and of his profession as being vigilant, ordered and structured in respect of both his personality and his parenting of X. He was of generally calm disposition but on occasion became emotional and teary in the witness box. He was unbending in his conviction that he is the victim of a process of alienation by the mother even when aspects of the mother's efforts at contributing to his relationship with X were put. Consistent with his personality, the father thought it entirely proper and reasonable that he should seek counselling and support from a psychologist in respect of his views as to being alienated and then to pursue a university course or similar on the subject of alienation.
Nevertheless, there were some positive signs from the father in the witness box not evident in his written affidavit material. As mentioned, he became emotional during some vigorous cross-examination in what I saw as a sign of objective self–reflection being perhaps a unique experience for him. He attempted on two occasions to apologise to the mother from the witness box and on one occasion successfully so although on the second attempt being stopped by the mother's counsel.
The father conceded his contribution to the entrenched communication difficulties between he and the mother. He presented to me as being willing to address these issues and contrary to his otherwise rigid demeanour.
The father presented in many ways as the 'victim' of the difficult parenting dynamic between he and the mother.
He defended accusations against him of Munchausen's by proxy and over communication and vigilance as part of his parenting style.
Overall, I saw the father as a good and candid witness but one who exposed his own personality which tends towards rigidity, vigilance and structure but where however, the trial process was able to break through that rigidity to an extent where I saw something of a “road to Damascus” insight into this man.
As stated many times to each of these parents during the course of their evidence, these observations are not meant in the form of criticism but rather noting and emphasising the differences in personality and style of these two parents.
The mother
The mother presented, as expected, as a completely opposite personality than the father. Her affidavit material, however was similar to the father being entirely negative and critical of the father.
The mother's demeanour in the witness box was notable by a distant emotionless and reluctant participant in the proceedings. She appeared in the main to be disassociated, remote and uninterested in the proceedings. She professed litigation fatigue. She says that she feels besieged and under attack by criticism and over–communication from the father. She showed a personality consistent with conflict avoidance.
On at least two occasions the mother stated from the witness box her preferred response to simply “walk away from X's life entirely”. Similarly, and as was expressed to Dr K, the mother, being the respondent in these proceedings, stated candidly that she would be content with, and perhaps preferred, a continuation of the status quo. She gave the impression of being entirely reluctant as a respondent with no inclination to being an “applicant” despite the case put by her counsel in opening for the mother to assume primary responsibility for X and supported by Dr K and the ICL.
The mother seemed both unwilling and unable to say or find anything positive in respect of the father. She was entirely negative in respect of any future prospects for improvement in their communication or relationship. She seemed resigned to the inevitable. She was unwilling to even contemplate efforts towards better communication between herself and the father.
At times the mother was unresponsive in cross-examination. Where she has previously delegated primary care of X to the father and where she now states that she would be willing even to sever any relationship with X, she presented at times with the demeanour of disinterested negativity in respect of the entire parenting process.
Ms M
Contrary to each of the parents, Ms M’s evidence was a revelation. She was positive, objective and supportive. She in no way appeared partisan to the case of her partner, the father. Rather, she presented as a balanced and child focused adult whom I can only find to be a positive and beneficial influence in X's life. I am therefore not surprised that X himself states to Dr K that he enjoys a close, supportive and comfortable relationship with Ms M.
Significantly, when giving his evidence the father said that he now deals with the allegations against him of over vigilance and over–servicing of medical matters by deferring to Ms M. She is an educator who displayed a considerable insight generally into the needs of young children and particularly in respect of X and the issues that confront him by reason of his parents’ toxic relationship and specific issues such as his gender identity. Notably, the only positive indications given by the mother in the witness box were directed towards Ms M.
Ms M gave her evidence in a positive and child focused manner. Again, whilst she presented as supportive of the father in his parenting, she at no time came across as partisan to his cause.
Ms M presented as an astute, genuine and impressive witness.
Dr K
Dr K is an experienced Forensic and Clinical Psychologist who frequently prepares reports for and gives evidence to these Courts. She prepared two reports in this matter dated 8 June 2021 with a supplementary report of 1 December 2021.
Dr K confirmed that the father holds an entrenched view that he is the victim of alienation. She confirmed that the mother holds a view that she is persecuted by the father's parenting and communication styles and she suffers 'litigation fatigue'
X expressed to Dr K his preference to live with the mother on each of the interviews for the reports being six months apart.
In her conclusions at [21] of her second addendum report Dr K says:
It is evident that co-parenting in this case is not possible. It is becoming increasingly evident that parallel parenting is also fraught with difficulty. The current path shows no sign of resolution between the parties. It is evident that if the current path continues, X will continue to be psychologically harmed by the stress of this acrimonious situation. It is foreseeable that he will lose his relationship with one of his parents, and the extended community in which they live, because of this dynamic between the parents. It is likely that the outcome of these proceedings will determine which relationship X will lose.
At her interview with X for the second report in December 2021 Dr K says that X made no reference to gender identity issues such that were prevalent at the interviews for her first report in June 2021.
In her evidence in court, Dr K presented as balanced and informed. She highlighted the lack of any effective communication between the parties as being the prime difficulty which far outweighed any practical issues such as travel and accommodation.
Dr K noted issues for X with the current regime of shared care in that it presented problems of settling him between households and issues at changeovers between the parents. She did, however, note potential issues for X on the proposals of each of the parents which would effectively leave a twelve day gap in the contact between X and the non–primary carer/parent. In this respect, and despite her previous understanding Dr K acknowledged that travel for X between City E and City Z would be the same on the parents’ mirrored proposals as it is now where there is only one trip to City Z and return each fortnight. Dr K also identified a positive of the current arrangement whereby the father and X live permanently at Ms M’s home whereas previously they may have moved between his home, Ms M’s home and where X would be spending time with his mother at her home in City Z and in City E.
Dr K accepted that X's preferences to live with his mother are revealed only against the conflictual relationships with his parents in which he is undoubtedly embroiled and where he, at just seven years of age, is unlikely to be able to properly rationalise his best interests. She identified X’s statements signifying that he may be more ‘comfortable' in his time with his mother and again noting what are obviously diametrically opposed parenting styles between these two parents.
In respect of the competing proposals between the parties, Dr K expressed a professional view point towards the mother being the primary carer with some emphasis on the comfort of X with his mother but whilst noting the positives of the father's proposal including consistency of school and the presence of Ms M. Notably, Dr K’s evidence in court and her recommendations were not so equivocal as were her written reports.
Throughout her evidence, however, and where asked her opinion, Dr K consistently returned to the dynamic between the parents and their inability to communicate as the root cause of all issues for X
Dr K, only with a great deal of hesitation and perhaps some reluctance, opined that these parents might benefit from some form of therapy towards better communication. She stressed, however, that the practitioner would need to be highly skilled and experienced where the danger otherwise would be to entrench or exacerbate the current difficulties.
Dr L
Dr L is a Forensic Psychiatrist again experienced in preparing reports and giving evidence to assist these Courts. Dr L accepted an appointment as court expert to provide a psychiatric assessment on these parents and was properly briefed and instructed by the ICL. His report is dated 13 November 2021.
At [200] – [202] of his report Dr L provides a summary in respect of his assessments as follows:
[200]Assessed individually, neither parent presents with striking psychopathology or evidence of personality disorder. However, the parent’s (sic) personality styles appeared to be extremely incompatible, the dynamics of the relationship were troubled from the outset and the situation was complicated by an IVF arrangement which was characterised differently by each party. The Father describes a strong need to communicate and discuss issues whereas the Mother describes being very adverse to conflict intending to withdraw. This has contributed to difficulties in resolving issues throughout the relationship and lead to a situation where the Father's heightened attempts to communicate have been met by the Mother’s withdrawal and disengagement, which has eventually led to the sort of conflict that the Mother sought to avoid and prevented the sort of open and productive communication that the Father sought to achieve.
[201]Over time, the parents have become increasingly suspicious of each other's motives leading to both parties concluding that the other’s (sic) is intentionally causing them or the child harm, external services have become involved due to concerns raised by both parties and the focus put on the situation by court proceedings and the adversarial nature of litigation has resulted in the dynamic becoming increasingly toxic. At the centre of the situation is a child who appears to have struggled with the changes in accommodation and care, and their perception that the parents have different expectations of them with respect to gender and other issues.
[202]The Father became increasingly focused on the child's health and his attempts to liaise with the Mother resulted in her feeling harassed informing the view that he was potentially causing harm to the child. It is clear that a co-parenting relationship is not going to be possible without significant changes in both parent’s (sic) attitudes to one another. Psychological or psychiatric treatment is not very likely to remedy the situation as the parent’s (sic) personality styles are unlikely to change significantly and it will be difficult for the parents to change the way they view one another, in light of past occurrences and ongoing litigation. The child's experience of gender dysphoria or uncertainty could have been a challenging issue to negotiate for parents who did communicate well. It has proved to be a point of contention despite the parents actually having remarkably similar views on the matter. It seemed that both parents did have the child's best interests at heart and while it seems possible that this shared focus could help them to communicate better and to become more sensitive to the others communication style this is yet to occur.
Dr L dismisses the assertions that the father suffers a diagnosis of Factitious Disorder (Munchausen's by proxy) but notes a presentation suggestive of an adjustment disorder with anxiety albeit one not meeting the criteria for a mood disorder or a specific anxiety disorder.
He notes that the father's behaviours as characterised by the mother could be construed as evidence of narcissistic personality traits but not borne out by clinical assessment or psychometric testing.
Dr L saw the mother presently as reasonably sociably skilled and demonstrating a theory of mind. He saw a “degree of obsessionality sometimes associated with harm avoidance”. He noted the mother experiencing difficulty in interacting with services or issues raised by the father and tends to take a defensive stance. He dismisses any allegation of indifference by the mother to X's difficulties partly on the basis of her professional experience and partly on her view that the father exaggerates concerns. Dr L identifies some autism traits in the mother but not such to qualify for psychiatric diagnosis. He notes some obsessional personality traits but that she tends to communicate in a “factual, succinct manner and to the point”. He suggests that the mother has some tendency to use avoidance as a psychological coping strategy.
Relevantly, given the communication difficulties between the parties and the issue of gender identity which assumed importance mid-2021 but not so much now, Dr L says at [226]:
In regard to the issue of gender identity, I think both parents are capable of supporting the child in relation to this. Again, the troubled relationship between the parents appears to be unnecessarily complicating the situation. I came across no evidence that the child was receiving inappropriate nutrition from either parent or suggestion that either parent physically or emotionally abused the child directly.
More generally in respect of the parents Dr L says at [227]:
It seems that some handovers have been traumatic but I am uncertain whether this would have met the threshold for emotional abuse, or to what extent each parent might have contributed to that situation occurring. Both parents should be psychologically capable of modifying their behaviour during changeovers to the extent of harm does not occur.

Further, and perhaps in accordance with my own observations, Dr L states at [232]:
In the absence of a conflictual parental relationship, both parents are educated and open-minded enough to be able to deal with the situation appropriately. In my opinion, unless the parents are able to change their perspectives and approach, ongoing attempts at co-parenting are going to place the child at risk of emotional harm, as neither parent appears to be fully capable of setting aside their distrust and dislike for the other party so as to be able to put the needs of the child first.
Dr L presented in the witness box as an experienced, informed and insightful practitioner. He too suggested robust psychotherapy for the parents to challenge the veracity of their versions of their joint history. Dr L noted “the incompatible parenting styles”. He also noted that the parents have already endured some 15-20 hours of mediation but remain polarised. Importantly, however, Dr L said that psychotherapy would be of no assistance unless both parents were motivated towards improvement.
Significantly from the witness box and in a colloquial form Dr L stated that he wanted to “shake each of these parents towards a recognition of the damage that they have the put upon the child”
Dr H
Dr H provided an affidavit dated 11 November 2021 in support of the mother. He is a health professional and lives in Suburb J. He has known the mother for about eight years as a friend and work colleague. There has been no romantic relationship. Dr H provides accommodation for the mother and X during their time in City E usually by way of temporary accommodation but on occasion accommodation in his home. They use the facilities of his home when they sleep in temporary accommodation.
Dr H was a good witness. He is supportive of the mother. He is positive in respect of the mother’s parenting of X and the child's relationship with her.
Dr H deposes that the father contacted him on an occasion telling him that the mother was “mad” and a danger to herself and X.
Ms R
Ms R provided an affidavit sworn 30 November 2021 for the father's case. She was not required for cross-examination.
Ms R is a school teacher and friend of the father since 2012. She deposes to some frequent contact with the father and X on a social basis.
Ms R refers to an occasion in June 2019 were she came across a changeover between the parents for X at Location V, on S Street. The father asked her to witness the changeover. She says that the father attempted warm communication with the mother but without response from the mother. She deposes as follows:
[7]As we stood there, I could see that X’s mother was just sitting in the car, had not gotten out or acknowledged [the father] standing outside who was obviously waiting to collect X. She made no attempt to interact with [the father] at all.
[8]After a few minutes, she got out of the car to go to the toilet. She walked straight past us, making no eye contact or any attempted acknowledgement.
[9][The father] warmly said hello to her. She didn't respond at all but just walked right past him. On her way back from the toilet, [the father] again said hello and asked whether she was ready to/going to hand over X now. He did that in a kind, gentle, calm voice.
[10][The mother] didn't respond in any way, just kept walking to the car and got in. She put her belt on, reversed and drove away with X still in the back of the car.
[11]The three of us stood there shocked at her behaviour and the fact that X was still in the car. [The father] never approached the car remained calm and respectful through the whole interaction. He was however obviously shaken by the interaction and upset that he didn't get to take home his son.
Dr T – medico legal report
Dr T is a Paediatrician. She provided a report to the ICL dated 28 October 2021.
At [1] of her report Dr T states:
… My understanding is that this is required due to allegations by [the mother] that [the father] is seeking excessive medical opinions regarding X and counter-allegations by [the father] that [the mother] is neglecting X's medical needs.
Dr T says that she had refrained from commenting on issues of possible gender dysphoria and the overall psychological state of the child as they are not her areas of expertise.
The father reported that he had been worried about X's weight loss in early infancy. Unsurprisingly, the mother reported that she was not concerned as to X's weight during infancy or subsequently and that she thought the father to be “overly concerned and weighed the baby too often”.
Dr T concludes in respect of this issue between the parents:
Thus, it is a reasonable question to ask why X is not taller, and investigations which were undertaken in this regard were understandable. Importantly, [the father] now appears to have been satisfactorily reassured about this issue.
Dr T considered the issue of a bee sting which caused considerable conflict between the parents and occupied much time in the trial before me.
Dr T appears sympathetic to the father's response and position when she says:
However, anaphylaxis is potentially life–threatening, and when the clinical picture is uncertain, prescription of EpiPen, is a safe choice as long as the prescriber feels the responsible adult is competent to safely and responsibly administer the EpiPen as instructed. If the EpiPen is never used, no harm has been done. The alternative of not having an EpiPen on hand and then actually needing it, could result in death. It is not uncommon for families to have more than two Epipens (sic) prescribed.
I am surprised that [the mother] did not discuss the possibility of an insect sting when speaking to the ED doctor, when it is clear she at least entertained the idea based on what X was telling her at the time and saw a red mark on his hand. Similarly, in the face of an expert opinion that having an EpiPen is the safest course of action, she maintains her insistence that none is required. This suggests that for Ms Jansen, being right is more important than being safe. (Emphasis added)
Dr T provides a summary as follows:
X is a 7 year–old child whose current medical conditions are, in order of importance; possible bee sting anaphylaxis, significant dental caries, recurrent foreskin irritation/balanitis, episodic chilblains and episodic thread worm infestations.
[The mother’s] pattern of behaviour of refusal to actively take part in or accept treatments advised by F Health Service, DD Hospital Paediatricians and General Practitioners is not helpful in terms of managing X’s health long term. Her response to question of possible anaphylaxis seems hardest to understand; perhaps being tied to an unshakeable position that all of [the father’s] concerns regarding X are, by definition, without basis.
[The father] seek medical advice more than most parents, but this has almost always (sic) in the setting of an understandable and justifiable concern – even if it is very minor (for example the small cut to the finger from the blender blade which would not prompt an ED visit in most households). He seems able to be reassured when adequate explanation is given and has been adherent to recommended treatment plans.
Both adults appear to hold real fears that the other has the potential to intentionally harm X. All of the presentations to medical care documented are due to injuries that are typical of young children this age (fall from bike, swallowed doll’s head, etc) and there has been nothing I have heard or read that suggests either adult is intentionally harming X.
[The father] and [the mother] appear to be unable to work together in X's best interests in terms of medical decision-making.
Dr T was not required by any party for cross-examination.
THE RELEVANT LAW
Parenting orders are provided for at Part VII of the Family Law Act 1975 (Cth) (‘the Act’) where at s 60CA the Court is to focus on the best interests of the child as the paramount consideration.
In determining these best interests the Court is obliged to reference the parties’ proposals and the probative evidence to the numerous mandatory considerations set out at s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out at s 60B as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining parenting orders the Court is to follow a pathway of statutory and intellectual consideration consistent with the well-known decision of the Full Court in Goode & Goode[1] where the starting point for that consideration is a presumption which sits at s 61DA of the Act that it is in a child's best interests for the parents to have equal shared parental responsibility for that child. Parental responsibility refers to those duties, powers and responsibilities which parents have in relation to children by way of law. Those responsibilities usually manifest in the long-term and important decisions for children as opposed to the more mundane day–to–day decisions that parents habitually make for their children. Issues such as education, religion, medical procedure and the like are often given as examples of parental responsibility.
[1] (2006) FLC 93–286.
The presumption of equal shared parental responsibility in parents applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with a parent has engaged in the abuse of a child or in family violence.[2]
[2] Section 61DA(2) of the Act.
Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that it would not be in the child's best interests for the parents to exercise that responsibility.[3] In the matter now before me, each parent argues for an order for sole parental responsibility. The ICL argues for parental responsibility to be placed with the parent with whom X primarily lives and in circumstances where it is argued that an order for equal shared parental responsibility is rebutted by reason of the conflictual and toxic relationship between the parents together with their entrenched inability to communicate and co-operate in respect of X.
[3] Section 61DA(3) of the Act.
An order for equal shared parental responsibility would usually obligate the Court then to consider a series of parenting regimes for the child. Firstly, the Court must consider whether the child living in an equal time arrangement between the parents is both in the child's best interests and reasonably practicable.[4]
[4] Section 65DAA(1)(a) and (b) of the Act.
If the answer to either of these questions is in the negative the Court turns to consider whether the child spending 'substantial and significant' time between the parents is both in the child's best interests and reasonably practicable.[5] The concept of 'substantial and significant' time is defined in the Act[6] as:
[5] MMR v GR (2010) 240 CLR 461 and s 65DAA(2).
[6] Section 65DAA(3).
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the matter now before me, the primary positions of each of the parties are, by reason of geographical considerations, such that they could not incorporate either 'equal time' or 'substantial and significant time' where the mother's proposal is that X lives with her in City Z and the father's proposal being that X live with him in City E thereby leaving time with the other parent to be accommodated by weekends and school holidays. Nevertheless, the current arrangement for X sits comfortably with the definition of 'substantial and significant time' whereby X spends time with the mother in City E and in City Z in an unusual arrangement where the mother's work takes place in both locations albeit with some inconvenience to her. Importantly, during the course of the evidence in this matter, firstly the mother stated on a number of occasions that she would be content with a continuation of the current arrangement or a regime in similar form although her documents and her counsel’s submissions continued to agitate her primary position being to live with X in City Z. Secondly, in his final submissions, counsel for the father on instructions informed the Court that the father likewise would be content with a continuation of the current arrangement of X spending eight nights per fortnight with him and six nights with the mother but conditional upon an order that the father have sole parental responsibility for X.
SECTION 60CC FACTORS
Primary Considerations
Section 60CC(2)(a) the benefit to X of having a meaningful relationship with both of the his parents
By reason of the time that X has spent with each of his parents it is reasonable to assume that he has developed a familiar and comfortable relationship with each of them. Unfortunately, the nature of his relationship with each of his parents differs by reason of the parents' different personalities, styles and attitudes.
The father is anxious that his relationship with X will be negatively impacted by the orders sought by the mother in that this would provide for twelve day gaps in direct contact between father and son where X is just seven years the of age and where the experts unanimously suggest that a high frequency of direct contact is an important ingredient in establishing meaningful relationships and particularly for younger children. The mother is less assertive in these concerns but where they obviously apply should the father's primary proposal be successful.
The adjective 'meaningful' has been the subject of considerable judicial interest and debate. Suffice to observe that the consideration for the Court in this respect is both a qualitative and prospective one. That is, courts look at the quality of relationships between children and parents rather than simply the mathematical exercise of quantity of time. Secondly, the orders that courts make must assist children in having meaningful relationships with their parents into the future although, of course, current and historical circumstance and facts are relevant.[7]
[7] Mazorski v Albright (2007) 37 Fam LR 518.
Further, and whilst the consideration here is a 'primary' one, it is not determinative and as noted by the Full Court in Champness & Hanson[8] at 103 where their Honours observed:
[103]The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.[9]
Section 60CC(2)(b) the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect of family violence
[8] Champness & Hanson [2009] FamCAFC 96.
[9] Footnotes omitted.
Recent amendments to the Act at s 60CC(2A) oblige the Court to put ‘greater weight’ on the balancing process of this sub-section.
The father's affidavit, his case summary, and comments to the experts suggest that he has “serious concerns” in respect of the mother ignoring or not properly attending to medical matters in respect of X. The father says that X is as a consequence placed at risk in the care of the mother. He suggests that the mother has refused to administer antibiotics and/or other medication for X. Much was canvassed at the trial in respect of bee sting anaphylaxis where the father again argues that the mother's lack of acknowledgement presents a risk for X.
There has been a major issue for the parents, but arguably not so much for X, in respect of X’s exploration of gender identity where for a period he was known in the father's home as “X” and in the mother's home as “G”. Whilst each of the parents argues some sympathy in their dealings with X, their approaches to this issue have been diametrically opposite. Dr K, particularly in her first report, anticipated some risk to the child by reason of these differing approaches, lack of consistency, and confusion for X in an area which must in any event cause this seven year old child some stress.
The mother generally argues harassment, control and/or coercion on the part of the father. She cites repeated communications as examples.
There has been a suggestion of over-servicing of X by the father particularly in respect of medical matters consistent with what the mother says are his obsessive personality traits.
Whilst a reading of the parties’ affidavits causes the Court real concern in respect of these issues which can all be categorised under subsection s 60CC(2)(a), it became apparent during the evidence in court that the genesis for much of the dispute, allegation and counter–allegation sits at the entrenched lack of any positive or constructive communication between these two parents in respect of X. They each tend towards strong criticism of the other. They are unable to identify any positives in respect of the other. They are mutually suspicious and lacking in respect of the other.
Section 60CC(3)(a) any views expressed by X and any factors (such as his maturity and level of understanding) that the court thinks relevant to the weight which would be given to X’s views
X is just seven years of age. He has endured and has undoubtedly been impacted by the conflict between his parents. Any weight to be afforded to his views must take into account these factors. However, he has stated to Dr K on two separate occasions, approximately six months apart, that he has a preference to live with his mother. This does not seem to be so much a rejection of his father (which is how his father would most likely take it) but, as Dr K opined in her evidence in court, simply a preference as to comfort where the two homes presented to him operate as significantly different models as do his parents by reason of their own personalities and parenting styles. X’s comments in respect of his mother are positive whereas he makes negative comments in respect of his father, but again these must be seen within the context of his age.
Section 60CC(3)(b) the nature of the relationship of X with:
(i) each of his parents; and
(ii) any other persons (including any grandparent or other relative of X)

The parents are of different and in many ways distinctive or unusual personality types. The father is highly vigilant. He communicates to a high level. He utilises services. The mother is not so vigilant and parents in a less assertive style whilst still accommodating X’s needs. She does not communicate unnecessarily. She does not involve services unless necessary. X moves fortnightly between his parents and must settle into each of their homes and styles. The nature of his relationship with his parents varies accordingly. It is suggested that his stated preference to live primarily with his mother and negative comments made to Dr K in respect of his father are a factor of these parenting styles where there might be less structure with the mother but also where the father has, effectively by the mother's delegation, being required to take on a greater role for X in dealing with matters of education and medical issues and where, also by the mother’s delegation, the father assumed the role of primary parenting very early in this young boy’s life, initially as a sole parent with no previous experience.
Dr K opines that the father and X might share personality types which in itself might lead to conflict, but where the father may feel rejected and unappreciated by X accordingly.
The nature of X's relationship with his parents now is characterised by relative high frequency. He spends block periods with each parent including parts of the school week. The primary proposals of each of the parents would change the nature of X's relationship with each of them whereby one would become the primary parent including for all of X’s school week whereas the other would become the visiting or weekends/holiday parent only. Nevertheless, Dr K's report, and perhaps supported by Dr L, suggests that these current arrangements have some detrimental effect on X in respect of his emotional well-being. In her evidence in court, however, Dr K emphasised that perhaps the genesis of this issue, as indeed with the majority of the problems for X, is the parents' singular inability to communicate with the implication being that it might not be the regime itself which was at fault.
The evidence of both parents and the observations of Dr K make it clear that X has a comfortable, successful, and supportive relationship with the father's partner, Ms M. She undoubtedly provides some balance in the father's home and perhaps something of an antidote to the father's vigilance where the father himself suggests that he now defers to Ms M's as his first response.
Section 60CC(3)(c) the extent to which it each of X’s parents has taken, or failed to take, the opportunity;
(i)     to participate in making decisions about major long – term issues risk in relation to X; and
(ii)    to spend time with X; and
(iii)   to communicate with X; and
Section 60CC(3)(ca) the extent to which each of X’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain X
The mother has effectively delegated medical and educational matters to the father. She previously delegated primary care of X to the father. This is not because she is uninterested but rather for reasons of conflict avoidance. The father has assumed these roles but does so arguably with hypervigilance and potential over–servicing albeit, on the evidence, mitigated to a degree by the role of Ms M in the father's household.
Section 60CC(3)(d) the likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from:
(i) either of his parents; or
(ii) any other children, or person (including any grandparent or other relative of X), with whom X has been living;
This is a crucial consideration where primary arguments from both sides are supported to a degree by the experts and suggest that a change from the current regime would be in the X's best interests. Put simply, he would then settle into the home of one or other of the parents providing a greater routine and less exposure to conflict. His relationship with the non–primary parent would necessarily then become less frequent and one of 'visitor'. Whilst undoubtedly there are strong arguments in respect of the positives of these changes, the Court must still be aware of the potential negatives for X. That is, will the conflict, non–communication, and non–cooperation between these parents be alleviated by simply changing the regime of time for X?
The mother's proposal brings further changes for X not least being a change of school from City E to City Z which would then bring with it the severing of current peer group relationships and the creation of new relationships. The evidence is strongly persuasive that X's current school, Q School, have been supportive, sympathetic and positively reactive to X's circumstances and needs including issues of gender identity. They have dealt appropriately with the difficulties confronting the school by reason of the parents’ personalities. Where this child has spent his seven years embroiled in and exposed to conflict between his parents, this school has undoubtedly provided him with much needed stability and respite. Similarly, X's peer-group relationships appear important to him and his development and where arguably his friendship with 'Ms G' in his current school has been influential and positive.
Changeovers have been problematic for these parents and hence for X but where currently the majority seem to take place at school. This issue will not, however be lessened by the primary proposals of each of the parties and may well be exacerbated.
Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother's personal and work circumstances together with the current regime allow for most of the changeovers between these parents to occur with the assistance of school. Currently X travels with his mother to City Z each second weekend. Realistically, the primary proposals of each of the parents will continue this travel for X whether he lives with his mother or with his father. Almost ironically for parents who are so conflictual and non–cooperative, both appear willing to contribute to the costs and efforts of the logistical changeovers for X.
Section 60CC(3)(f) the capacity of each of:
(i) X’s parents; and
(ii) any other person (including any grandparent or other relative of X);
to provide for the needs of X, and including emotional and intellectual needs
Each of these parents is intelligent and high achieving in their employment. They have much to offer X. Ideally X should benefit by the breadth of the parenting styles and different personalities offered by his parents. Sadly, he does not so benefit where conflict, mistrust and lack of respect dominates the adult relationship. Both are caring and loving parents. They simply parent in different styles neither of which is objectively preferable or better than the other. In this matter, these intelligent and worldly adults will not or cannot see any benefit or positive in the other parent. Their focus is almost entirely on criticism, fault and blame.
Each of the parents individually has a capacity to parent X. However, attitude rather than capacity is the issue here where the capacity of the parents is seriously impeached only by their negative focus on each other rather than the joys and satisfaction of being a parent.
The positive factor in respect of capacity is again Ms M. Her evidence in court demonstrated a high degree of child focus and objectivity not apparent in either the father or the mother and where the Court is not surprised by the close, happy and supportive relationship enjoyed between X and Ms M.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of X and of either of his parents, and any other characteristics of X that the court thinks are relevant
The father is of Country AA origin. He has a desire for X to understand and enjoy his Country AA identity. He anticipates frequent travel to Country AA with X and ideally to the stage of a period of living in Country AA. The mother’s evidence satisfies me that she is sympathetic to X exploring his father's culture and identity and has previously permitted travel for father and son. She does, however, and consistent with her mistrust of him, consider the father to be a flight risk with X.
X at just seven years of age has explored gender identity issues. His best friend at school is Ms G. He has asked to be referred to as G. The mother has been accommodating of this wish and to allow female dress for X. The father has not been so accommodating and the child is referred to as 'X' in his home.
Dr K in her first report sees X as age appropriately being curious about the attributes of boys and girls. She does not identify issues of Gender Dysphoria. At [48] of that report Dr K says:
X's conversation, behaviour and preferences regarding his gender are reflective of his own wishes, and his presentation is consistent with the evidence–based literature regarding gender identity development in children. His choice of the name G appears to genuinely be his own, and is anchored in his admiration for his friend Ms G. Although he seems to feel more comfortable expressing his female identity when in the care of his mother, I did not find evidence that this was being imposed upon him by her.
Consistent with the relationship between the parents, the father is suspicious that the mother is, in fact, imposing female identity on X. The mother’s evidence in court, being some six months after Dr K's report, is contrary to the father's suspicion. She suspects that this is simply a 'stage' for X and may not endure. She does, however, remain supportive.
The father and Ms M, as identified by Dr K, are also supportive of X's gender identity exploration. His views and methods not surprisingly differ from those of the mother.
Section 60CC(3)(h) if X is an Aboriginal or Torres Strait Islander child;
(i) X’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each X’s parents
The mother has delegated some important parental roles such as education and medical matters almost entirely to the father. Perhaps, consistent with her personality, she does so only to avoid conflict. Nevertheless, not only has this mother previously delegated primary care of X and responsibility for his education and health to the father, she continues to express a preference to walk away from the child. Frankly, these sentiments seem to me to be very much disproportionate to her complaints of the father which whilst valid are in themselves, after hearing the evidence, somewhat disproportionate in her responses and reactions.
Section 60CC(3)(j) and (k) any family violence involving X or a member of his family and any family violence orders
These matters are dealt with elsewhere in these Reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
The mother claims and exhibits litigation fatigue. She says that the father litigates rather than negotiates and, at least historically, comments made to Dr K suggest this to be the case. In the witness box, however, I observed the father to show a newfound insight and understanding that litigation is not the first port of call in respect of a dispute. He attempted to apologise from the witness box to the mother and with a sentiment which I saw to be genuine. He expressed a desire to work on the communication difficulties between the parents including attending therapy. The mother, however, seems resigned to a continuation of the past. Unfortunately, she does not show the same inclination towards therapeutic assistance. Her attitude generally was problematic in respect of communications and her views of the father seem entrenched.
I do not necessarily share the views of the ICL and Dr K in respect of the father's obsession with litigation. Rather, I see it as a factor of his own personality and naivety as a parent and as his perceived lack of response from the mother. That is, and yet again, the lack of any form of constructive communication leaves each of these parties with few options but where the father explores litigation and the mother prefers avoidance. It is trite to observe, therefore, that against this background further litigation is a strong likelihood unless both of these parents learn to communicate and co-operate whilst compartmentalising their own personal residual animosity. The observations of this Court are certainly that these two parents are not unique in this respect but that others, with assistance, have learned to communicate and co-operate as parents.
The experts and the ICL quite properly identify the impact on X of his parents’ conflict and attitudes. They suggest that a change of regime might alleviate these problems for X although Dr K in her evidence in court was more pointed in identifying the problems not being so much with the regime but the attitude of the parents being a viewpoint with which I agree. That is, in my opinion, regardless of the regime of time for X between his parents, there remains an almost inevitable probability of further litigation as disputes arise.
FINDINGS AND CONCLUSIONS
It is difficult to find that these two parents had any relationship whatsoever as generally understood. Cohabitation, such as it was, was brief at best. The process of X's conception was more by reason of contract than relationship. Their parenting and personal relationship has since been based on conflict, mistrust and disrespect. They have been unable to communicate productively in respect of their son.
On the evidence, however, and despite his parents rather than because of them, X has developed significant and meaningful relationships with each of the father and the mother. He is undoubtedly confused and negatively impacted by his parents’ failure to co-operate in respect of him and to expose him to their conflict. In this respect, I generally accept the evidence of Ms M in her affidavit, such being unchallenged, as to the negative comments reported by X from his mother in respect of the father and in this regard I reject the denials of the mother. Similarly, I generally accept that X has not been exposed to any positive comment in either household in respect of the other parent.
The evidence is that X is an intelligent but sensitive child where such conflict and impact is accentuated by reason of those sensitivities.
Pre-trial issues of X exploring his gender identity and mention of Gender Dysphoria for this seven year old were emphasised and indeed formed some considerable basis for interim applications. Whilst matters of gender identity might remain for X, there is no evidence to suggest any issue of Gender Dysphoria. I am generally satisfied that each of the parents have acknowledged and acted sympathetically in respect of X's exploration of his identity. Again, however, they have approached this issue with conflict and suspicion and their support for X has been individual rather than unified where their approaches differ to a degree and thereby inevitably burdening this young child even further.
In circumstances where these parents are separated actually and emotionally, if indeed they were really unified, issues of family violence between them do not feature prominently. I accept, however, that the mother feels harassed and perhaps controlled or coerced by the father's propensity for over communication by email or similar. I also accept, however, that the father is frustrated in his attempts to obtain adequate responses from the mother which again demonstrates only the personality differences and capacity for negativity by each of these parents. Whilst the father was criticized for over-communication, the evidence is that his repeated communications to the mother came by reason of no or no adequate response where he is the primary carer of a child in a system which frowns on unilateral decision making.
I find the father to be a keen, capable and vigilant parent. I reject the allegations of over–servicing by him in medical and similar matters. In this respect, I accept the evidence and opinions of Dr L and Dr T. To the contrary, the father acts in accordance with his own personality. He is a first time father. He suspects conflict and criticism from the mother. He seeks medical intervention when others might not but yet again this is simply a factor of his personality and lack of experience rather than a criticism or fault with his parenting.
The mother, to the contrary, and also by reason of her passive and avoidant personality, has effectively delegated these roles to the father. Her communication style is different. She feels harassed by repetitive communication. She too, also by reason of her personality, saw fit to delegate to the father rather than subject herself and potentially X to conflict. This is an understandable response having seen and heard the mother give her evidence and completely consistent with her extraordinarily passive personality. Again, I do not criticise her.
The father's partner, Ms M, was a revelation in her evidence in this Court. Contrary to the parents, she was entirely positive and objective. Notably, the mother herself was able to be positive and gracious in respect of Ms M. Not surprisingly, X professes and demonstrates a close and beneficial relationship with Ms M who is undoubtedly an influential adult in his life. She is an experienced early childhood teacher who showed considerable insight into the needs of this sensitive child. She was objective and, whilst supportive of the father in his parenting of X, presented in no way as being partisan. It was a significant revelation by the father from the witness box that he now defers to Ms M in parenting issues rather than reacting by medical intervention and the like such as has caused him to be criticised in the past. Not surprisingly, this father’s ability and confidence as a parent has risen with the development of his supportive relationship with Ms M.
The father initially presented in a rigid, structured, assertive and formal presence in the witness box and perhaps consistent with his career as a professional. I gleaned that his communication skills in the sense of empathy might be limited. He was, however, at all times child focused, even in his criticisms of the mother which he was keen to articulate. I saw him as a first–time father in his 50’s who has long wanted a child and is now learning his trade as a parent without the benefit of the mother’s presence, support and assistance but where Ms M has skilfully and sympathetically taken that role without seemingly trying to usurp the mother herself.
The mother in the witness box presented with a problematic attitude. On a number of occasions she expressed a wish to simply “walk away”. She was devoid of emotion. She professed to litigation fatigue and showed a complete unwillingness to attempt any communication with the father. She seemed resigned to a future parenting role simply as a continuation of the present. Nevertheless, it was not difficult to detect a deep maternal love for X.
Dr K opines that X's stated preferences are most likely seen in him being more comfortable in the care of his mother. I gleaned a similar impression. Whereas the father might emphasise routine and something of a regimented lifestyle for X, I expect that X's life with the mother is less about rules and certainty with an emphasis on spontaneity and flexibility. It is the father however, who has been delegated the primary carer role by the mother herself together with sole responsibility for schooling and health.

The irony again is that neither of these parenting styles is ‘wrong’. Ideally X would benefit from the breadth of those styles if only the parents could avoid conflict and recognise those benefits and positives in each other.
X expressed a preference to live with his mother and did so twice to Dr K in interviews six months apart. He is, however, just seven years of age. He is a sensitive child. He is exploring his own issues. He has been exposed to conflict. The parents each give different versions of his preferences. In all of those circumstances I place little weight on X's stated preference to live with his mother.
This matter, as it proceeded through its evidence, developed unusual characteristics. Despite a current arrangement of shared care whereby X spends block periods of time with each of his parents, they each came to this trial with case summaries seeking orders whereby one parent would have sole parental responsibility; with X to live with that parent in either City E or City Z and spend weekend and holiday time with the other parent. Firstly, this would present as a significant change in routine and understanding for this young boy who, despite the difficulties placed upon him by his parents, has had the opportunity to develop his relationships with each of his parents by reason of the block times that he now spends with them.
The potential advantages of the personality and parenting style differences between these parents would be lost by such orders where X would become primarily entrenched with one parent and be simply a visitor to the other and particularly if communication and cooperation between these two parents remains as it is. Much was highlighted by the detriments of the current regime for X with little emphasis on the positives or the potential positives.
The current regime also presents some logistical problems although again perhaps not as weighty as initially understood. X's time with his mother now takes place in both City E and in City Z. That is, he spends each second weekend in City Z with his mother as part of the four day block.
This regime involves one return trip to City Z each fortnight. Dr K initially saw onerous travel as being a problem for X. However, closer scrutiny of the parents’ primary proposals shows that he would still be doing one return trip between City E and City Z each fortnight on either party’s proposal. That is, travel for X would be no different than now.
Dr K was also concerned as to the lack of stability and accommodation for X with each of his parents. At the time of her first report the father was accommodating himself and X variously at his own home and at Ms M’s home. That situation has been rectified. They now live together as a family unit in Ms M home and the father leases out his property. X has his own room available and the accommodation is entirely appropriate.
X's time with the mother is divided between her home in City Z and for the remainder in City E. She utilises a campervan and has the real support of her friend and colleague, Dr H. The mother is skilled and adaptable as evidenced by her employment arrangements around X's parenting regime. There is no evidence of any manifest negative effect on X of the current accommodation arrangements which are not generally dissimilar to many coming before these Courts, but where I am confident that the mother has an insight and ability to positively react if she became aware of any such negative impact. This is the arrangement incorporated by the parents into the existing consent orders albeit on some anticipated future return of the mother to City E.
There are a number of positive factors for X on the father's proposal that the child live primarily with him. Significantly, X would remain at the Q School. The evidence is entirely positive as to this school generally and specifically in respect of their insight and empathy with X. The School’s responses to X's gender identity issues have been entirely appropriate and present a model of which each of these parents might adopt.
The father has been the primary carer for X for some time despite the current regime of shared care. The mother has delegated important functions to him in respect of education and medical issues. He is a competent parent albeit one with a diametrically opposed style to the mother. He provides vigilant and appropriate medical care and a considerable interest in X's education.
Put simply, the father can provide stability and continuity for this sensitive child who brings his own issues to the equation.
Importantly, in my view, the father's proposal also provides the continuing influence of Ms M. Again, she presented by far as the most objective of the adults in this matter. She does not involve herself in the conflict. She understands the styles and issues with each of the parents. She remains focused on X. She has considerable skills and X has a close and loving relationship with her which provides him with appreciable benefit.
Importantly, and as opposed to the mother, the father in the witness box genuinely, in my view, presented as wanting to improve his relationship with the mother. He was able to identify his own shortfalls. He wished to apologise to the mother for those shortfalls. He is prepared to accept the advice of the experts and undertake a form of therapy towards a better relationship with the mother. Of course, all of these brought to fruition would be of sizeable benefit for X.
Despite the orders sought in his application and his case summary as put by his counsel at the commencement of the trial, the father's counsel in his final submissions, after taking instructions and the father having had the benefit of the testing of the evidence of Dr K, Dr L and with the evidence of Dr T, now puts a position whereby the status continue insofar as X's living arrangements are concerned, but where one or other of the parents should have sole parental responsibility for those important decisions which may need to be made for X and which potentially would cause conflict. This was a significant move of position and insight by this father and consistent with some demonstration of emotion in the witness box from an otherwise rigid and 'scientific' personality.
There are, also however, advantages both current and potentially for X on the mother's proposal.
I accept and share Dr K's observations of the mother as being a less rigid personality than the father which consequently provides a more comfortable climate and home environment for this child. Similarly, the mother's style can be seen as being more sympathetic to the sensitivities of X as indicated by her responses to his gender identity issues. Whether that more laissez-faire approach is compatible with being the responsible primary parent remains, however, an unknown.
Despite criticism from the father and particularly in his affidavit material, I find the mother to be a highly capable, insightful and adaptable parent. She has organised her employment in both City Z and City E around X and, I expect, at some inconvenience to her.
Despite her manner in the witness box, she is undoubtedly a child focused parent who loves X dearly. In this sense her claims to “walk away” might be seen not as any rejection of her child but rather as reflective of her conflict–avoidance personality and where she herself does not to want to impose such conflict on her child. As such, her proposal would give X stability in his home with her and enable him to settle without the current need to settle into each of these fundamentally different home environments over a fortnight.
Unfortunately, however, whereas the father showed an indication to improve himself and his communication with the mother, she was completely dismissive of any such prospects. This is again consistent with her own personality and notably manifested in her delegating these important roles to the father in the past. As such, if X is to live primarily with the mother then the Court can have little or no confidence that she herself will address these issues which, of course, are a fundamental trait of a primary parent in being able to communicate with the other parent.
Importantly, as mentioned above with the father, and despite her application and the submissions of her counsel, this mother has stated frequently to this Court and to Dr K that she would be content with a continuation of the current arrangements. The Court gleans an impression that the mother, as the respondent, has been dragged reluctantly into these Court proceedings by the father's application but where she would not herself have initiated an application seeking orders in the terms that she now does as a respondent. Indeed, on at least two occasions during her evidence from the witness box she expressed exactly this sentiment that she would be content with the current arrangement.
Consequently, in circumstances where the Court is not, of course, bound to simply choose between the two options put by the parents but is obliged to make orders which on balance attend best to the interests of the child and where the Court is not so presumptuous as to think it can make ideal or optimum orders for X, then the Court must consider the positives and negatives of the current arrangement for X.
The negatives of the current arrangement have been much emphasised in this trial by the experts and certainly by the negative content and tone of the affidavit material of each of the parties and the cross-examination of their counsel, presumably on instructions. Sadly, there has been little airing or any positives in the current arrangement but where I can identify such positives for X.
Firstly, and almost perversely, where Dr K and Dr L, correctly in my view, identify the genesis of all of the issues between these parties being their lack of communication, cooperation and trust, I ponder as to whether any or all of these issues will be addressed to the advantage of X on the proposals of each of the parents? Should I place X in the primary care of the father then I expect the mother will continue to distance herself emotionally from X and become more resigned to a lack of involvement in his life. This would be a tragic circumstance for X where this mother has much to offer him. Such orders would not, in my view, do anything to improve parental communication, cooperation and respect but would, to the contrary, entrench or exacerbate those current difficulties.
Similarly, if I were to place X into the primary care of the mother, then the father, by reason of his personality, would remain suspicious and vigilant with further prospect of litigation. He would remain frustrated by what he perceives to be the mother’s lack of responsive communication. His vigilance would lead to criticism of the mother's parenting and his time with X would be highlighted by such investigations into X's relationship with his mother, matters of education, medical issues and the like.
Put simply, therefore, I am not confident and cannot find that orders in the terms of the primary positions of each of these parents would solve or in any way address the genesis of the current issues which rests with the parents themselves but fear that they would be more entrenched, prominent and exacerbated.
There are considerable prima facie benefits for X in the current arrangement. He gets to settle for block periods with each of his parents albeit not for the 12 day period contemplated by each of the primary positions. He experiences the positives of each of their parenting styles albeit where the parents themselves fail to see those positives. It is generally accepted that a breadth of parenting style can and should be advantageous to a child.
The practicalities of the current arrangement are not onerous and particularly where the mother has organised her employment accordingly. Significantly, from the witness box, the mother stated that she would, in any event, continue to work in City E for at least some time even if the Court acceded to the primary position she has taken. The current arrangement is on an eight night/six night basis. That is not unusual. X currently travels for two hours to City Z and returns each second weekend. That is not unusual.
Whilst there are some issues with the mother’s current accommodation in City E, I find her to be an astute, adaptable and in many ways a child focused parent who would react to any manifest difficulties for X into the future.
Yet again, the current arrangement exposes X to the considerable benefits provided by Ms M. Where there seems to be some mutual respect between the mother and Ms M, not seen between the parents themselves, there are further potential advantages for X if a line of communication could be established between these two adults.
The disadvantages of the current regime have been well ventilated in this case and must be seen on balance rather than determinative. Some of those disadvantages perceived by Dr K have been completely alleviated or diluted.
Finally, both of these parents now articulate that they could ‘live with’ the current arrangement. This is obviously an unusual circumstance for courts dealing with parenting matters which are inevitably highlighted by extremes and ambits of positions. Dare I say that this apparent consensus gives a scintilla of hope that this trial process can assist these two parents in identifying the very and fundamental basis of X's issues being their own toxic relationship.
CONCLUSION
In circumstances where the problems and issues for X are highlighted in his current living regime but where I am not persuaded that these issues, being fundamentally his parents relationship, will be improved or even addressed by the primary proposals of the parties, I intend to make orders which continue the status quo for X. That is, where the attitudes of these parents most likely cause this sensitive young boy to feel that he must make a choice between his parents and where therefore he might view them as potentially ‘unequal’ he should not have this onerous responsibility.
I accept the evidence of each of the parents now that they would be willing to continue the current regime.
I am satisfied that any issues in respect of the mother’s accommodation can be addressed by her if and when they become manifest. There is no issue of onerous travel for X as the current regime and each of the parent’s proposals offer exactly the same travel obligations.
Importantly, I maintain that each of these parents have much to offer their child if only because of the differences in style and personality. X should have the benefit, actual and potential, of those styles but should be quarantined from the difficulties that they bring.
On reflection, and whilst I am not confident that the current issues for these parents would be addressed by a move to X living primarily with the one or the other, I fear that he would be encumbered by further or exacerbated issues arising from such orders. Put bluntly, the issues that confront young X will not be rectified or removed by this Court making orders in terms of either parent’s application.
The hope of these Court’s is that these parents, armed with these Reasons, and having had the benefit of seeing and hearing their positions put and tested in court, can identify and address their failings and also identify the positives in the other parent. These parents did not have the benefit of any type of relationship in its usual understanding or form, they now have the opportunity to parent their child for his and their mutual benefit.
There remains an issue of parental responsibility. Whilst I might be confident in the benefits of the current regime for X insofar as his living arrangements are concerned, there remains considerable work to be done with and by these parents in respect of their communication and cooperation. They do not currently have the skills to discharge the obligations of parental responsibility. The mother has effectively previously delegated these responsibilities to the father. I do not find the criticism of the father in respect of his dealing with education and medical matters and glean support in this respect from Dr L and Dr T. I am confident that Ms M now offers a buffer to the father's previous vigilant and spontaneous reactive approach to issues in respect of X. The father, at least, now understands his role in the communication difficulties. He professes a desire to improve. The mother offers only resignation and complete disinterest in addressing these issues. Whatever, her personal motives or even mental or emotional conditions, she does not therefor offer herself as a leading candidate to exercise parental responsibility. This might hopefully change in the future and with some assistance, trust and confidence. Consequently, I am of the view that X's best interest are served by the father continuing to exercise parental responsibility but where he must, of course, report to the mother. The father now professes some understanding of the mother’s responses to his over–communication and I am confident that, together with the assistance of Ms M, he will manifest that understanding. As a part of his obligation and responsibility he will, of course, need to communicate with the mother and seek her input. Ideally, in this respect, psychotherapy as suggested by Dr L might be of assistance. Nevertheless, Dr L also emphasised that the parents need to acknowledge the necessity for therapeutic assistance and be willing to engage. I am confident the father has come to this point but I am not so confident in respect of the mother. As such, I accept Dr L’s opinion that forced therapy in respect of one or both of these parents could be a destructive rather than productive exercise. Consequently, I simply invite each of these parents to read these Reasons, the reports of Dr K, Dr L and Dr T carefully and, if so inclined, to utilise the facilities in the community that are available to assist them which, in my view, would ultimately be of considerable benefit to X.
In circumstances where I am satisfied that X has been exposed to negative comment, I will make injunctive orders in the usual terms.
Finally, I must deal with the specific issue of overseas travel. The father is more assertive in this respect. The mother still considers the father to be a flight risk consistent with her entirely suspicious view of him. The father is a Country AA citizen. He previously espoused ambitions for X to live for a period in Country AA are not helpful towards alleviating the mother’s concerns. Similarly, the father’s statements to this Court that he considers Tasmania as his home will not give the mother confidence. Nevertheless, and to her credit, the mother acknowledges the benefits for X travelling to Country AA culturally and so as to identify with his extended family. Judge Baker in previous litigation addressed these issues, allowing travel but with a substantial security deposit of $20,000. Whilst noting Country AA to be a signatory to the Hague Convention the deposit must be such as to act as a deterrent to flight. I will continue the orders of her Honour.

I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.
Associate:
Dated: 10 February 2022

File number(s):	HBC 511 of 2020
Judgment of:	MCGUIRE J
Date of judgment:	10 February 2022
Catchwords:	FAMILY LAW – CHILDREN – Application by father seeking orders that the child live with him – that he have sole parental responsibility for the child – that the child spend time with the mother each second weekend and for half of all school holidays – Application opposed by the mother who seeks mirror orders to those of the father whereby the child live with her and she have sole parental responsibility – The father lives in City E and the Mother lives in City Z - Orders that child live with father for 8 nights per fortnight and with the mother for 6 nights per fortnight – Order that child spend half of all school holidays with his mother - Order that father have sole parental responsibility for the child subject to the father notifying the mother in in respect of important issues regarding the child’s medical treatment and education
Legislation:	Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CC, 61DA(2) and (3), 65DAA(1)(a) and (b)
Cases cited:	Goode & Goode (2006) FLC 93 – 286 MMR v GR (2010) 240 CLR 461 Mazorski v Albright (2007) 37 Fam LR 518 Champness & Hanson [2009] FamCAFC 96
Division:	Division 1 First Instance
Number of paragraphs:	189
Date of hearing:	6, 7, 8, 9 & 10 December 2021
Counsel for the Applicant:	Mr Mead
Solicitor for the Applicant:	Baker Wilson Davies Lawyers
Counsel for the Respondent:	Ms Higgins
Solicitor for the Respondent:	Bishops
Counsel for the Independent Children's Lawyer:	Mrs Mooney SC

HBC 511 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SMITS Applicant
AND:	MS JANSEN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	10 FEBRUARY 2022