Sykes & Sykes
[2023] FedCFamC2F 334
•24 March 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sykes & Sykes [2023] FedCFamC2F 334
File number(s): PAC 5515 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 24 March 2023 Catchwords: FAMILY LAW – CHILDREN – Best interests of the child – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 353 Date of last submission/s: 16 March 2023 Date of hearing: 28–30 March 2022, 24 February 2023 Place: Parramatta Counsel for the Applicant: Ms McMahon Solicitor for the Applicant: Cominos Family Lawyers Counsel for the Respondent: Ms Ticehurst Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Greg Tyler & Associates Counsel for the Independent Children's Lawyer: Ms Kaiti Solicitor for the Independent Children's Lawyer: Mr Nasti ORDERS
PAC 5515 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SYKES
Applicant
AND: MR SYKES
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.The applicant mother have sole parental responsibility for the child, X, born in 2013 (hereafter “X”).
2.X shall live with the mother.
3.To facilitate Order 2:
(a)The Senior Court Child Expert at Court Children Services at the City B registry of this Court at Level 2, Commonwealth Law Courts Building, CITY B, NSW shall endeavour to explain these Orders to X before introducing the mother to X;
(b)The Senior Court Child Expert shall endeavour to assist X in leaving the above registry with the mother;
(c)The father is not to return to Level 2 of the City B registry following the pronouncement of these Orders today.
4.X shall not commence to spend time with the respondent father until the expiration of eight weeks from the date that X begins to live with the mother.
5.After the expiration of the eight week period referred to in Order 4 above, X shall spend supervised time with the father for a period of eight weeks and such time shall be supervised by a supervisor to be agreed by the parties in writing and failing agreement by C Contact Centre, as follows:
(a)Each Wednesday from after school to 5.30pm; and
(b)Each Saturday from 10.00am to 1.00pm.
6.The paternal grandmother shall be permitted to attend the child’s above supervised visits with the father but only after the father has spent three supervised visits with the child.
7.At the conclusion of Order 5, X shall spend unsupervised time with the father as follows for 12 weeks:
(a)Each alternate Wednesday from after school to 6.30pm; and
(b)Every alternate weekend from Saturday from 10.00am to Sunday 3.00pm.
8.At the conclusion of Order 7, X shall spend time with the father as follows for 12 weeks:
(a)Each alternate Wednesday from after school to 7.00pm; and
(b)Each alternate week from Friday after school to Sunday 3.00pm.
9.At the conclusion of Order 8, X shall spend time with the father as follows:
(a)Each alternate Wednesday from after school to before school on Thursday; and
(b)Each alternate week from Friday after school to Monday morning before school.
10.The costs incidental of the father spending time with X pursuant to Order 5 above be borne by the father.
11.The mother, at her sole discretion, may arrange counselling for X to assist with the change of residence and his mental health. The costs incidental to the treatment of X shall be borne by the mother. The mother shall be permitted to provide a copy of the Family Report and the Court’s Reasons for Judgment to any such counsellor for X.
12.The father shall ensure X is taken to his counselling session in the event that the scheduled visit is on a day that X is in his care.
13.During the Term 3 2023 school holidays, unless otherwise agreed in writing, X shall spend four days Monday 10.00am–3.00pm to Thursday 10.00am–3.00pm with the father during the second week of the holiday.
14.From 2024 and every even year thereafter, X shall spend the second half of the Term 1, 2 and 3 school holidays with the father.
15.From 2025 and every odd year thereafter, X shall spend the first half of the Term 1, 2 and 3 school holidays with the father.
16.During the 2023/2024 Summer/Christmas holiday, X shall spend the alternate fortnight with each parent, commencing the first two weeks of the holidays with the mother, then the following two weeks with the father, continuing until the commencement of the 2024 school term.
17.During the Christmas school holiday periods from 2024 and thereafter, each of the parties shall spend time with X for one half of all Christmas school holiday periods as agreed by the parties in writing and failing agreement:
(a)With the mother for the first half of the Christmas school holiday periods in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and
(b)With the father for the second half of the Christmas school holiday periods in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter.
18.Notwithstanding any care arrangements set out in these Orders to the contrary, X shall spend time with the parties as follows and that any provision for time in these Orders that is inconsistent with this paragraph be suspended so as to facilitate time under this Order:
(a)In all even numbered years:
(i)With the father from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii)With the mother from 12 noon Christmas Day to 12 noon Boxing Day;
(iii)With the mother from the conclusion of school Good Friday until 12 noon Easter Sunday;
(iv)With the father from 12 noon Easter Sunday until the commencement of school on the Tuesday following the Easter Monday (or 10.00am in the event of a non-school day);
(b)In all odd numbered years:
(i)With the mother from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii)With the father from 12 noon Christmas Day to 12 noon Boxing Day;
(iii)With the father from the conclusion of school Good Friday until 12 noon Easter Sunday provided the child has begun to spend unsupervised time with the father pursuant to the above Orders;
(iv)With the mother from 12 noon Easter Sunday until the commencement of school on the Tuesday following the Easter Monday (or 10.00am in the event of a non-school Tuesday);
(c)On Father’s Day, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 9.00am to 7.00pm on Father’s Day;
(d)On Mother’s Day, if X is with the father, X shall spend time with the applicant mother from 9.00am to 7.00pm on Mother’s Day;
(e)On the mother’s birthday, if X is with the father, X shall spend time with the mother from 3.00pm to 7.00pm in the event of a school day and 9.00am to 7.00pm in the event of a non-school day on the mother’s birthday;
(f)On the father’s birthday, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 3.00pm to 7.00pm in the event of a school day and 9.00am to 7.00pm in the event of a non-school day on the father’s birthday;
(g)On X’s birthday, if X is with the father, X shall spend time with the mother from 3.00pm to 7.00pm in the event of a school day and 9.00am to 2.00pm in the event of a non-school day on X’s birthday;
(h)On X’s birthday, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 3.00pm to 7.00pm in the event of a school day and 9.00am to 2.00pm in the event of a non-school day on X’s birthday.
Changeovers
19.In order to facilitate time between each of the parties and X in accordance with these Orders, the mother shall be responsible for collecting X from school/the father’s residence (as applicable) at the commencement of her time with X and the father shall be responsible for collecting X from school/the mother’s residence (as applicable) at the commencement of his time with X.
Interstate Travel
20.In the event either parent takes X on an interstate holiday, the parent with whom X is holidaying shall notify the other of the location where X will be accommodated together with any contact details and travel schedule (if relevant) in writing at least one week prior to the holiday in the event the holiday is outside the state of New South Wales (but within Australia).
International Travel
21.The parties shall sign all applications and other forms and do all things necessary to ensure X has a current British and Australian passport with the costs of such application to be born equally between the parties.
22.The mother shall retain the passports of X and provide to the father one week before any planned travel overseas with X during the school holidays. The passports will be returned to the mother at the conclusion of the overseas travel.
23.Either parent is permitted to take X out of the Commonwealth of Australia and travel with X provided that:
(a)The travelling parent gives the non-travelling parent not less than four weeks written notice of their intention to travel overseas with X, including the primary destination;
(b)Subject to the preceding sub-paragraph, the travelling parent provides written confirmation to the non-travelling parent that any travel overseas shall be limited to countries which:
(i)Are parties to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trading; or
(ii)A country that is not a party to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trading and the non-travelling party gives written consent for X to travel in that country;
(iii)At least 14 days prior to departure, the travelling parent provides to the non-travelling parent:
A.Copies of return tickets for X;
B.A detailed itinerary including addresses and telephone numbers for the accommodation in which X will be staying;
C.A list of all the countries X will be visiting (including transit destinations).
24.Subject to the above Orders, for the purposes of Order 20 and Order 23, X’s travel with each of the parents shall occur during the times X spends with each of the parents pursuant to these Orders unless otherwise agreed by the parties in writing.
Extra-curricular activities and schooling
25.Each of the parties are at liberty to enrol X in any extra-curricular activities including extracurricular activities which accord to X’s wishes from time to time.
26.In the event X’s extra-curricular activity in which a parent wishes to or has enrolled X in pursuant to the above Order falls during X’s time with the other parent, the parties must consult one another regarding X’s enrolment in the said extra-curricular activity and X’s enrolment in the extra-curricular activity must be mutually agreed between the parties.
27.In the event X’s enrolment in an extra-curricular activity pursuant to Order 25 is agreed between the parties, each of the parties shall ensure that X attends the extracurricular activity when X is in their care pursuant to these Orders.
28.Subject to Order 38 below, each of the parties is at liberty to attend X’s extracurricular activities including but not limited to practices, games, matches, rehearsals, auditions, shows, concerts recitals and/or assemblies even if not during their allocated time with X.
29.The mother is at liberty to attend all school, sporting and music events that X attends or participates in even if not during her allocated time with X.
30.Subject to Order 38 below, the father is at liberty to attend all school, sporting and music events that X attends or participates in even if not during his allocated time with X.
31.Subject to Order 38 below, each of the parties are authorised to liaise directly with X’s schools and sporting bodies to obtain all notices, information, newsletters, school reports, school photographs, invitations and will attend parent/teacher interviews or other activities to which parents are invited.
Communication & Exchange of Information
32.Subject to Order 39 below, each of the parties and X shall communicate with each other by telephone or FaceTime at any reasonable time and if not agreed between the parties in writing then between 6.00pm and 6.30pm twice a week when X is not in that party’s care.
33.X’s smart watch shall remain at the father’s residence and communication pursuant to Order 32 shall be via the mother’s telephone when X is in her care.
34.The parties shall communicate with each other by way of parenting app “Divitto” save for in the event of an emergency situation, where the parties shall communicate with each other by any means to cause the other parent to be contacted as soon as reasonably practicable.
35.The parties shall keep each other informed of:
(a)Any serious medical problems or illnesses suffered by X while in the other’s care;
(b)Any medication that has been prescribed for X;
(c)Any medical emergency pertaining to X; and
(d)Any other matter relevant to X’s welfare.
36.Each party shall advise the other of any change of telephone number, including mobile telephone number and email address, within 72 hours of such change occurring.
37.Each party shall advise the other of any intended change of residential address 28 days prior to such change occurring.
Injunctions
38.Until the father commences spending unsupervised time with X pursuant to Order 7 he shall be restrained from attending X’s school or any extra-curricular activities that he participates in.
39.Until the father commences spending unsupervised time with X pursuant to Order 7 he shall be restrained from communicating with X, whether directly or indirectly, through any medium.
40.The father shall forthwith return X to the mother if for any reason X attends the father’s residence (or other place where the father is situated) at a time when he should be in the care of the mother pursuant to these Orders or at school.
41.The parties shall encourage and not undermine X’s relationship with the other party.
42.Each party be restrained by injunction from denigrating the other parent or that parent’s spouse, friends or relatives in the presence or hearing of X.
43.Each party be restrained by injunction from discussing the current proceedings, disagreements over parenting arrangements or other issues with X or in the presence or hearing of X.
44.Each party be restrained by injunction from using X as a “conduit” for passing messages or information to one another concerning any parenting arrangements or proposed changes thereto.
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 Sykes & Sykes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of a final parenting hearing held on 28, 29, 30 March 2022 and 24 February 2023 relating to the child, X, born in 2013. He is now aged 10 years. This year he is in Year 5 at school.
The mother is aged 49 years. She works for Employer D. She now lives at Town E.
The father, aged 48 years, works as a transport worker. He lives with the child at Town F. His residence is about 15 kilometres from the mother’s residence.
The parties commenced cohabitation in 2005. They separated in August 2020. The mother left the family home, leaving the father living there with the child. After separation and prior to commencing proceedings on 16 October 2020, the mother had some very short visits from the child, usually at her front door.
The father ceased the child’s time with the mother on about 21 October 2020 after the child reported to him that during a brief visit to the mother she had restrained him when he was on his bicycle.
Despite interim parenting Orders made by consent on 24 December 2020, 25 May 2021, and 30 March 2022 providing for, inter alia, supervised time to occur between the child and the mother, such time has substantially not occurred by reason of the child’s refusal to engage with the mother in such time.
On 5 August 2021, interim parenting Orders were made by consent in relation to family therapy occurring through Mr G. That therapy did not occur by reason of the child’s refusal to engage with the mother in such therapy.
Following that part of the final parenting hearing held on 28, 29, 30 March 2022, the Court, on 30 March 2022, made interim consent parenting Orders relating to the child beginning to spend time with the mother, initially on a supervised basis and progressing to unsupervised time, together with regular telephone/FaceTime time between the child and the mother. The proceedings were adjourned for mention to 15 August 2022. An agreed Notation provided for the child to receive counselling if the parties jointly believed that the child would benefit from such counselling and in such event they were to liaise through their solicitors with the ICL who in turn would liaise with the parties’ solicitors in the nomination of an appointed counsellor. Unfortunately, the child continued to refuse to spend time with the mother and the above interim Orders were not implemented. Psychological counselling for the child did not occur with the child ultimately unwilling to engage in therapy with a psychologist in August 2022.
The father contends that the child’s refusal to engage in spending time with the mother is significantly by reason of the child’s adverse lived experience with the mother. On the other hand, the mother contends that the father has unreasonably influenced the child to view the mother as an unsafe person to spend time with and has failed to positively facilitate the child having a meaningful relationship with her.
PROPOSALS
The mother seeks final orders, as set out in her proposed Minute of Order, inter alia, that the mother have sole parental responsibility for the child; the child live with the mother; for 12 weeks the child spend no time with the father and his family does not see or speak with the child; that thereafter the child spend supervised time with the father for a period of 12 weeks being each Wednesday from after school to 5.30pm, and each Saturday from 10.00am to 3.00pm; and thereafter the child spend time with the father, on a graduating basis, unsupervised, culminating in the child spending time with the father each alternate Wednesday from after school to before school Thursday, and each alternate week from Thursday after school until Sunday 3.00pm
These proposed orders (see the mother’s proposed orders 5 to 8) relating to the child’s time to be spent with the father, after the first 12 weeks of the child spending no time with the father or his family, is subject to the father positively engaging in certain therapy with a psychologist and having attended at least four therapy sessions.
The mother sought an order (proposed order 14) that she arrange counselling for the child to assist with the change of residence and his mental health.
The father proposed, inter alia, that he have sole parental responsibility for the child; the child lives with the father; and the child spend time with the mother as agreed between the parties.
The Independent Children’s Lawyer (“ICL”) supported the mother’s proposed orders with minor amendments.
DOCUMENTS RELIED UPON
The mother relied upon her case outline filed 23 March 2022 and the documents and reports set out in that document.
The father relied upon his case outline filed 23 March 2022 and the documents set out in that case outline.
The ICL relied upon his case outline filed 22 March 2022 and the documents set out in that case outline.
EVIDENCE
In the determination of this case the Court has had regard to all of the documentary evidence referred to above, together with the oral evidence of the parties, the paternal grandmother, Mr H (mother’s treating psychologist) and the Single Expert Report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC factors (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
The Court, before it refers to the content of the affidavit and oral evidence of the parties, should set out its impressions of the mother and father having observed them in the witness box.
The mother presented as particularly intelligent, calm, and gave responsive answers to questions asked of her. Whilst containing her composure, she was on occasion appropriately emotional to sensitive questions asked of her such as the death of her father. She impressed as a competent and loving mother who was committed to restoring her former relationship with the child.
The father presented as intelligent, and usually gave responsive answers to questions asked of him, whilst on occasion he volunteered an adverse comment in relation to the mother (for example, that the mother had lied in some respect in her affidavit) and gave his answer before the cross-examiner had completed the question. Whilst he was usually composed, on occasion he was verbally forceful in the giving of his answers. The father impressed as a father determined to protect the child from the mother whom he regarded as unsafe, both by reference to the mother’s alleged past behaviour towards the child and her alleged vulnerable mental health.
Mother’s trial affidavit filed 15 March 2022
The mother relocated to Australia from the UK in 2004.
The parties’ cohabitation commenced in about 2005 and they separated on about 27 August 2020.
The child attends J School, City K and is aged 10 years.
The child now lives with the father.
The mother is employed full-time as a professional at Employer D.
After the birth of the child, the mother took 11 months of maternity leave to care for the child. Thereafter she returned to work full-time and worked from home each Monday and Friday.
During the relationship the mother asserts that she was the primary carer of the child.
The mother asserts that the constant verbal abuse from the father during their relationship caused her great anxiety and stress so she attended upon Mr H, psychologist, since August 2019 and she has continued to see him on a regular basis to assist the mother in dealing with her mental health. The mother asserts that the psychologist has assisted her greatly.
Between separation and late October 2020, the mother spend limited time (about a total of half an hour) with the child on her front doorstep; there were about 18 separate visits.
The mother spent five minutes with the child on Christmas Day 2020.
Pursuant to Orders of 24 December 2020, the mother has telephoned the child each Monday and Wednesday at 6.30pm on those days; those calls last about one minute.
In March 2021, L Contact Service ceased the child’s supervised time with the mother.
The mother asserts that on 7 June 2021 a supervised visit was scheduled but was terminated after less than five minutes as the supervisor held concerns for the child’s psychological and emotional wellbeing.
The child attended upon Mr M, psychologist, on 9 October 2020.
On 5 August 2021, Orders were made for the mother to attend family therapy sessions with the child with Mr G, psychologist.
Mr G informed the mother that he had spoken with Ms O, counsellor, and that she last saw the child in about early July 2021 and that she did not see the child on a regular basis. An attempted joint family therapy session with the child and the mother occurred on 20 September 2021 but the child arrived and left even before the mother’s scheduled time of arrival.
The mother states that there is clearly a communication issue between herself and the father.
In late 2021, a dispute arose between the parties relating to the mother’s inability to attend short daytime visits between the child and the mother by reason of the father failing to give the mother 48 hours’ notice of the proposed visit.
On Christmas Day 2021, the mother attended a park with her cousin for support to meet with the child. The father was present. The child refused to talk to the mother and told her that he had previously told her not to bring anyone with her. The child refused to accept the mother’s Christmas presents.
The mother stated that at present her relationship with the child was almost non-existent.
The mother lives ten to 15 minutes from the child’s current school.
The mother states that she knows that the initial time when the child moves in with her will be difficult, but that her friends, family and work are all aware of the current situation and will provide support where needed. The mother states that she understands that it will be difficult for the child to adjust to living with her after living solely with the father since August 2020 and having very little interaction with the mother. The mother states that she has sought advice from a psychologist with P Counsellors and obtained tips and strategies to work with the child during what will no doubt be a difficult time for him. She has had two sessions as recommended. The mother states that she will continue to see her psychologist, Mr H, at least once a month.
The mother completed the Parenting After Separation course in January 2021 and in January 2022 she completed P Counsellors Online, being an interactive e-therapy program for parents experiencing high conflict separation.
Father’s trial affidavit filed 11 March 2022
The father is a self-employed transport worker. He states that he is able to regulate his working hours so that he can often take the child to school and pick them up.
The paternal grandmother can assist the father in drop-offs and pickups for the child’s school.
The paternal grandmother has assisted the parties in caring for the child, as well as the maternal grandfather to a lesser extent.
The child went to daycare for three days each week from when the mother resumed work after her maternity leave.
The father’s routine has always been to get the child’s breakfast and look after him on the weekends.
The father asserts that from the time the child turned one year of age he has been his primary carer.
The child attends sports weekly and competes in competitions.
The child began to see the school counsellor in August 2020. This was arranged by the mother.
The child told the father of the events of the afternoon on 27 August 2020, the separation date. The mother had taken the child to her aunt’s place which is very close to the parties’ house. On arrival there the mother told the child that that home was where he was now going to live with the mother week about. The child was shaking and crying when he related these events to the father later and asked the father, “Please do not let mummy back into the house and take me away.”
After separation, the father asserts that he encouraged the child to see the mother. The child would respond by stating that he was not going to stay at the mother’s place and he would not go alone.
On 21 October 2020 the child, shaking and crying, told the father that when he went to his mother’s place the mother had told him that he was not leaving and she grabbed him and the handlebars of his bike and would not let him go. He told the father that he was able to break free and ride home. The father asserts the child saw his psychologist Mr M the next day and reported the incident.
In February 2021 the father completed the workshop at Q Family Centre, “R Program.”
After the interim hearing of 24 December 2020, the child has been very reluctant to spend time with the mother.
The father asserts that at the end of March 2021, L Contact Services stopped supervised time because of the child’s distress in relation to having to spend supervised time with the mother.
The father denies that he has intentionally tried to influence the child not to spend time with the mother. The father asserts, for example, that he had sent invitations to attend at the park (with the father being present) but the mother has not accepted them. The father asserts that he has encouraged the child to see and speak to the mother and will continue to do so.
In relation to a proposed supervised visit on 7 June 2021, the child told the father, on the morning of the visit, that he did not understand why he was being forced to do the visit and that he just wanted to be safe. At the visit, the supervisor telephoned the father asking him to return to the park to collect the child as he was becoming increasingly upset and agitated.
At the consultation with Mr G on 20 September 2021, the child told Mr G that he did not want to see the mother and that he just walked out.
At the music concert at school on 21 June 2021, when the mother was present, the child told the father that he was shaking so much from fear that he was unable to concentrate and play his instrument correctly.
The father stated the telephone time has been taking place each Monday and Friday for varying durations of time between the child and the mother.
In the school counsellor’s report of Ms S dated 13 November 2020, she states, inter alia:
[X] has attended 6 counselling sessions at school, beginning 20th August 2020. During these sessions, [X] has been learning coping strategies for managing anxiety. [X] displayed difficulty engaging in class following his parent’s separation. [X] often became emotional during class and reported somatic complaints such as stomach aches and headaches. After approximately 2 weeks he engaged in the classroom as he had previously. [X] has expressed experiencing anxiety following his parent’s separation, including difficulty sleeping and preoccupation with thoughts about where he will live. In the last week, [X] has demonstrated difficulty regulating his emotions in class. [X] has responded well to mindfulness activities to regulate his emotions.
In the psychologist’s report of Mr M dated 16 November 2020, that psychologist refers to consultations between the child and the psychologist with, it would appear, the father also attending. The psychologist stated, inter alia:
[X] attended his initial session on 9 October 2020. At this session I was able to take a history from [X] and his father about his mother’s sudden departure from the family home on the 27th August while [X] was at school. She also removed [X]’s belongings to the new location and took [X] there after school. [X] has been traumatised by this experience. His mother retained him until [X] became so distressed that she returned him to his father. Since this time his mother is insisting that [X] continue to visit her regularly. [X] is extremely anxious that his mother will once again try to retain him at her home against his will. He only visits her on his bike with at least two friends and talks to her over the fence. Most recently on 23 October during one of these visits his mother grabbed [X]’s hands and handlebars of the bike and told him words to the effect that he was not to leave. [X] had to struggle free and rode home to his father in an extremely distressed state that his mother had tried to retain him against his wishes. [X] has been too anxious to go near his mother’s house since. I plan some further sessions of supportive IPT counselling for [X] to talk through the issues that are troubling him. (Court’s italics)
The father refers to some diary entries of the mother which the father discovered before the mother left the matrimonial home at separation. In those copy diary entries, the mother, states, inter alia, that she wished that the father would have died in a car crash; and that she was so depressed that she wanted to kill herself but that she would not do that because she would never leave the child with the father and the paternal grandmother.
A supervised visit with C Contact Centre was attempted on 7 June 2021 between the child and the mother. It was unsuccessful.
Oral evidence of the parties
The mother gave oral evidence.
The mother is currently employed full-time as a professional at Employer D.
The mother stated that it may take some time for the child to adjust living with her.
The mother stated that the child’s maternal aunt has not been able to see the child since separation.
The mother stated that she has flexible working hours with her employer. She stated that as long as the work gets done, it does not matter what hours that work is conducted in, and there are no set guidelines about the time she may need to spend in Sydney for her employer, again as long as the work gets done. The mother stated that she would take leave from her employment if she was successful in her application to the Court. In this context she stated there was a few weeks’ worth of leave accrued. The mother stated that if she needed more than a few weeks off work to help with settling the child into her care she was sure it could be discussed with her employer. The mother stated that she has flagged with her employer what was happening (in relation to these proceedings) and they were very supportive. The Court accepts this evidence of the mother.
The mother was questioned as to Annexure D to the father’s trial affidavit, being copy diary entries of the mother. The mother stated that if the writing was in her diary then she wrote it. She stated that she kept her diary securely locked. The mother agreed that she had written in her diary that she wanted the father dead. The mother stated that she wrote these diary entries in 2014 to 2015 and definitely before 2018.
The mother’s attention was drawn to one of the diary entries in which it was written that she had told the child that she wanted the father dead. The mother denied that she had said this to the child. The Court is not satisfied that the mother said this to the child, taking into account that part of the diary entry in this context which states, “Which I often think (wanting the father dead) but don’t remember saying it in front of X (the child)” and noting the child had not asserted to any third person including the Single Expert Report writer that the mother has said this to him.
The mother stated that she had sought help following her diary entries.
The mother’s attention was drawn to an incident at Town T in about April 2019 at one of the father’s friend’s properties. The mother stated that the child had told her that he wanted to stay where he was and play with his friends. The mother agreed that she told the child to get into the car. The mother did not dispute that she had told the Single Expert Report writer (paragraph 83 of the Single Expert Report) that she had tried to drag the child to the car around the shoulders. The mother agreed that it was an incredibly upsetting incident for the child. She agreed that an incident of that type impacted on her relationship with the child.
The mother stated that once or twice, in response to the child’s behaviour, she had sent the child to his bedroom. She stated that she would have closed the child’s bedroom door however the bedroom doors did not lock.
The mother’s attention was drawn to paragraph 79 of the Single Expert Report which had stated that, “The mother agrees that she found it difficult to retain a close and connected relationship with X prior to her separating from the father.” The mother was asked whether she was able to pinpoint the time when she said that she had difficulty retaining such a relationship with the child. In response, the mother stated that as the child got older, the last couple of years prior to the parties’ separation.
The mother stated that it would have been a little bit confusing for the child, at separation, showing the child his belongings in her new home.
The mother agreed that there had been an incident where she grabbed the handlebars of a pushbike the child was riding. The mother stated that she was trying to find out what clothes the child would be wearing. She stated that as soon as the child let go of her hand, she let go.
In relation to a Court Order made in late December 2020 in relation to telephone time between the child and the mother on Mondays and Wednesdays, the mother agreed that since that Order there had been about 130 telephone calls. In relation to these calls, the mother stated that mostly the child screamed accusations at her and would hang up. Each call lasted about one minute and that was it. The mother stated that she had heard the father in the background of these calls on multiple occasions. The mother stated that she would like the child to be nowhere near the father when these phone calls were made, and she would like FaceTime with the child.
The mother’s attention was drawn to the supervised visit on 7 June 2021 that was terminated after less than five minutes as the supervisor held concerns for the child’s psychological and emotional wellbeing. The mother was asked whether in light of that event it may have been better for the mother not to have attended a concert of the child at his school and 21 June 2021. The mother disagreed, stating that she had tried to remain out of the child’s sight, there was a Court Order stating that she was permitted to attend the child’s school for such events, and it was also an important event for herself as a parent.
The mother’s attention was drawn to Christmas Day 2021 at a proposed visitation at a park. The mother confirmed that the child had told her that he had not wanted her to bring anyone with her, the mother having arrived with her cousin for support. The mother agreed that she had told the child that she had brought her cousin for her protection. She agreed that having told that to the child that probably would have made him nervous.
The mother’s attention was drawn to the proposed park visits since 6 November 2021. The mother agreed that she had not attended the proposed visits at the park because the father was meant to give her 48 hours’ notice of the proposed visits and he had not done so. The mother stated that it would not have been wise for her to have attended these proposed park visits because the father was present. She stated that she was concerned that the father might make things up about what occurred at the visit.
The mother was asked whether she had discussed her above diary entries with her psychologist Mr H. In response the mother stated that she had discussed her feelings with the psychologist but not specifically the diary entries.
The mother stated she lived about a 20 minute drive from the father’s residence.
The ICL questioned the mother.
The mother was asked why she was now seeking an order for sole parental responsibility when she had previously sought an order that the parties have equal shared parental responsibility for the child. The mother in response stated that this was because of her inability to see the child since the child lived with the father.
The mother confirmed the child was now in Year 4. The mother stated that it was her intention for the child to remain attending the J School at City K for high school if that school was offering the right subjects for him that he might be interested in for Year 12.
The mother was asked whether the child was abusive to the mother during telephone calls, to which the mother stated that the child accuses her of things, such as having a replacement family. The mother stated that she asks the child where he gets that information from and then the child hangs up the telephone.
The mother stated that she had attended the child’s school two to three times to pick up a friend’s child. She stated that the father becomes upset if the mother does this activity. The mother stated that the father or the child’s paternal grandmother usually collects the child from school.
The mother stated that the telephone calls between herself and the child occur through the father’s mobile telephone. The child will pick up the phone and answer it. The mother was asked whether the child should have his own special mobile phone. The mother responded by stating that maybe this could be the case but the father might still be there. The mother stated it would be more helpful (for the telephone calls) if the father was not there.
The mother confirmed that she expected the child to have difficulties initially living with her during the 12 week period when the child would not spend time with the father or his family; she stated that it would be a difficult time for the child. The mother stated that she did not know how much work leave she had but stated that her employer was aware that she might need 12 weeks off work or some leave.
As to the mother’s proposed order that, “The Applicant Mother is to arrange counselling for X to assist with the change of residence and his mental health”, the mother was asked who might be the counsellor and the mother stated possibly Mr G, if he has availability.
The mother clarified her proposed orders that the child begin to spend supervised time with the father after having spent 12 weeks of no time with him. She stated that it was her understanding that the counsellor, the subject of her proposed order, should determine when the child was ready to begin to spend any time with the father. She then stated that this counsellor should determine whether there should be a period of greater than 12 weeks of no time between the child and the father (the subject of the mother’s proposed order).
The mother was asked whether she would agree that her proposed period of no time between the child and the father was more of a time to break any alignment between the child and the father, to which the mother replied, “It’s a time for me to rebuild my relationship with X.”
The mother was asked whether she had anything positive to say about the father. The mother replied that the father taught the child matters pertaining to trucks, bikes and cars.
The mother stated that she sees her own psychologist Mr H once each month at least.
The mother stated that she takes medication for her mental health condition. She began to take this medication post separation.
The mother was asked to confirm her proposal that the child see another psychologist to support him in the transition (to living with the mother). The mother stated that, “If that’s what is best for the child”.
The mother stated that from her residence to the father’s residence is about a two hour walk or a 20 minute drive.
The mother stated that if the child was to live with her and the child did not return to her care after school she would call the police and the father.
The mother stated that if the Court was to make the father’s proposed order that the child spend time with the mother as agreed between the parties it would not be possible for parties to agree.
The mother confirmed that she has not been prepared to see the child if the father was present.
The mother agreed that her proposed orders (inter alia, that the child live with her, and not spend time with the father for the first 12 weeks) were orders of a last resort.
The mother stated to the Court that she had sought counselling help from P Counsellors NSW for about one year (consultations once each month) about one or two years after she had written her diary entries.
The mother gave this evidence as to prospective parenting of the child if he was to come into the mother’s primary care with an initial period of no time with the father:
MS KAITI:If the Court was to make your proposed orders and [X] goes to live with you – and let’s assume the Court makes an order that he spends no – he’s to spend no time with his father for 12 weeks after he moves back in with you. If it gets to a point – I’m just hypothesising now – he has moved back in with you. He knows he can’t see the father for 12 weeks – this is your proposed order. And let’s assume you get into an argument with the child, and let’s assume that he starts screaming at you. What are you going to do?
[MS SYKES]:Walk away, tell him I’m walking away, because that’s important for him to know – that I’m not going anywhere; I’m just leaving his space. And I was advised to get him, like, a box of stress toys so that he could play with those until he calms down, and then we can try and---
MS KAITI:Yes. Well, what if he throws the toys away, keeps on screaming at you; what are you going to do?
[MS SYKES]:Call a friend or a family member.
MS KAITI:Right. And what are you going to do in the meantime with [X] while you wait for the friend to come?
[MS SYKES]:Just let him scream, as long as he’s not hurting himself.
MS KAITI:Is it possible you might ask him to go to his room?
MS SYKES:It’s a – it’s a small house. It – I don’t think that would help too much.
MS KAITI:What if he says to you, “I’m leaving. I’m going back to Dad’s,” and he proceeds to walk out the front door; what are you going to do then?
[MS SYKES]:I would have to try and ask him to stop and then just follow him and call somebody for help.
MS KAITI: All right. Well, what if he doesn’t stop; what are you going to do?
[MS SYKES]: Then I would keep following him.
MS KAITI: Would you physically apprehend him and bring him home?
[MS SYKES]:If he was getting into danger, like running across a road, then I would stop him.
In re-examination, the mother stated that her diary entries were private and she had not given permission for the father to read them.
The mother stated she does not keep yearly diaries any more. The mother stated that she had never planned to kill the father or tried to kill the father.
The mother stated that her diary entries became a concern to her and she sought help.
The father gave oral evidence.
The father stated that the paternal grandmother assists him with caring for the child a great deal.
The father stated that most of his work was night work. He normally leaves for work at 8.30pm/9.30pm and returns home prior to 4.00am. He stated that it was possible for him to do daytime work as a transport worker.
The father stated that his income for the last tax year was somewhere between $20,000 and $40,000.
The father stated that the mother was the main breadwinner during the parties’ relationship.
He stated that after the mother returned to work after maternity leave she worked from home about two days each week. The mother had arranged for the maternal grandfather to assist with the care of the child two days each week. The father arranged for the paternal grandmother to assist in the care for the child two days each week.
The father disagreed that the mother was just as involved as him in bringing up the child. He stated that his care of the child was greater compared to the mother. He stated the mother was working. He stated the mother was there in the evenings and was involved in the child’s routine then. He stated the mother was usually not involved in the care of the child on Saturdays. He stated that on Sundays they would try to make it family time. He stated that he was the child’s primary carer after the child turned one year.
The father stated that if the mother was working from home, she would turn up to school functions for the child.
The father was asked whether the child loved the mother. In response, the father stated that the child and the mother had always had “a bit of a different relationship”, and he stated it was not a loving relationship. He stated the mother was not a very maternal person. The father stated that he thought the child still loves the mother. He stated that the child and the mother don’t have a relationship like a normal mother-son. For example, the child never said to the mother that he loved her, apart from an occasion over five years ago.
The father stated that the parties hadn’t shared a room for years, about four years ago.
The father agreed that his oral evidence to the effect that the mother only embarrassed herself in public on occasion, but not the father, was to be preferred to his incorrectly worded affidavit which had stated that the mother’s conduct on occasion had embarrassed the father.
The father stated that the mother had made a diary entry about killing herself and the child as well. The father stated that he was afraid of that happening.
The father asserted that the mother’s diary entries had included threats by the mother to kill herself, and he stated that he had also heard the mother makes such threats several times. He agreed that he had not stated in his affidavit that he had heard the mother make such threats. The father agreed that the mother’s alleged statement to kill herself would have been a very significant event in his household. He agreed, in this context, that he had not called an ambulance, he had not contacted the police, and he stated that he did not remember what he did immediately after she made that statement to kill herself. A short time later the father stated that he tried to get the mother to go to counsellors and that was all he could do.
The father also stated that the mother, in person, had made threats to kill other persons and he agreed that he had not asserted such threats in his affidavit, and he agreed that he had taken no steps to contact the police, advise the child’s school, or do anything to protect himself, the child or the mother.
The father agreed that despite the mother’s threats to kill herself and others it was his view that the mother could return to the family home after separation, albeit that he realised that that was a mistake.
The father stated that presently he does not have a bad view of the mother. He stated he tries to have a positive view of her. He stated the mother’s strengths as a parent was that she was very smart, she was good with education, she was good with culture and good at lots of things like that. He said he has told the child that he believes the mother is somebody who can be a positive presence in his life. He stated that he had not told the child that he does not really like the mother.
The father stated that the child had asked him if he could stay with him.
The father was questioned as to the child’s statement to the Single Expert Report writer that the father wants the child to stay with him and that the father “knows I will get in trouble and he doesn’t want me to be like that.” (Paragraph 126 of the Single Expert Report). The father stated in response, “Yes, exactly what it says. He will get screamed at and get abused, and I don’t want him to have to live his life like that.”
The father stated that he has not been telling the child that he would not be safe in the mother’s care.
The father stated that the first Christmas after separation the mother sent the father a picture (on Christmas Day) of the child’s Christmas presents under the mother’s Christmas tree and the mother told the father to tell the child that he if wants the presents he has to come down and get them. The child had refused to go to the mother’s home to get them.
The father agreed that so far supervised time between the child and the mother through L Contact Services or C Contact Centre has failed. The father agreed that the parties had tried some family therapy with Mr G. The father agreed that the mother had continued to have phone calls with the child on a Monday and Wednesday evening. The father stated that sometimes the child and the mother talk fine on the phone.
The father stated it was in the child’s long term interest to spend time with the mother.
It was put to the father that nothing has really worked to date in terms of the child spending time with the mother, and the father responded,
MS McMAHON: Yes, and so nothing really has worked, has it, to date?
[MR SYKES]:Well, you can’t treat the kid as bad as you treated him for years and then expect it all just to go away in five minutes. [Ms U], the [C Contact Centre] supervisor, made it quite clear he needs more counselling and then she thought she could move forward with it. Now, she’s stopped him from going to counselling altogether, so we’re back to square one.
The father was questioned as to whether the child should have further counselling or therapy to enable time to recommence with the mother and the father responded, inter alia, that if the child was given the opportunity it would probably improve.
The father agreed that the mother had turned up for every meeting at L Contact Services and C Contact Centre, and she had turned up for all of the sessions with Mr G.
The father stated that the child was still seeing Ms O fortnightly until sometime in 2021 when such counselling stopped.
The father stated that he had taken the child to visit the mother at a Location V on 24 December 2020 and the child spoke to the mother for about five to ten minutes and then he asked to leave. The father stated he did his best to keep the child at the visit.
The father was cross-examined by the ICL’s counsel.
The father stated that he did not believe that he had exhausted everything that he could possibly do to facilitate a relationship between the child and the mother, and that he would keep trying, and that, “I will have to come up with something.”
The father stated that he can only try to have the child spend time with the mother and stated that he could not force the child to spend time with the mother.
As to the comment in Mr G’s report of 23 September 2021 that the father continues to assert that it is not safe for the child to spend time with the mother, the father stated that he still does not think it is safe for the child to spend time with the mother and that he thinks the mother needs a supervisor or someone there. In this context, he stated that the fact that the mother has already admitted that she was not on her medication anymore does not give him much faith in believing that anything has changed. The father clarified that he does not care about trying to have the child spend time with the mother if there was a supervisor there.
The father stated that the child “definitely” does trust him and usually accepts his views on things.
The father agreed that previous proposed supervision conducted by L Contact Services and C Contact Centre had not worked.
The father agreed that previously he had texted messages to the mother asking her to come to the park to spend time with the child without giving significant notice.
The father stated that it will be an ideal situation if the child could go between both homes and spend time with each parent.
Evidence of the paternal grandmother
The paternal grandmother’s affidavit was filed 19 July 2021. The Court does not propose to set out the entirety of her affidavit or her oral evidence.
The paternal grandmother is aged 72 years. She is retired and previously employed as an admin officer. She has resided with the child and the father since January 2021. She assists the father in the care of the child.
The paternal grandmother was told by the child at the school concert in June 2021, which the mother had attended, that he did not want to see the mother. The child did not go and greet the mother on that occasion.
In oral evidence, the paternal grandmother stated that the mother was sometimes very good as a mother to the child. In this context she referred to the mother attending certain extracurricular activities of the child.
Initially, she stated that she did not know if the child was unsafe with the mother. A short time later she stated that she did not believe the child was safe with the mother and explained the mother has done some things that she feels is worrying to the child. She stated that the mother had screamed and yelled at the child and told the child that she hated him which was on the child’s first birthday when the mother had come home from work and was in a foul mood. She stated that initially there needed to be supervised time between the child and the mother. She stated that she has a very good relationship with the child.
As to her relationship with the mother, she stated that the mother can be very intimidating and be very nasty. She stated that she has not spoken to the mother since the parties’ separation.
Evidence of Mr H, forensic psychologist
Mr H’s affidavit was filed 10 March 2022.
Mr H’s treatment summary report relating to the mother was dated 9 March 2022.
The psychologist stated that he had met with the mother between 14 August 2019 and 7 March 2022 for a total of about 26 sessions.
The psychologist stated that he had been asked by the referring GP to assist the mother with managing symptoms of a mental health condition in the context of “an emotionally abusive relationship”. He stated, inter alia:
4(b)…Based on [Dr W’s] referral and [Ms Sykes]’ account of her symptoms, it is my opinion that she met criteria for [mental health conditions] commenced treatment. [Ms Sykes] described significant distress in the reported emotionally abusive behaviours by her then-partner, resulting in low mood, sleep disturbance, lethargy, hypervigilance when at home, amotivation, nervousness, hopelessness, and feelings of worthlessness. She acknowledged very infrequent passive suicidal ideation (i.e., once to twice a year), but this did not appear to be a predominant symptom and she reported that she was able to effectively manage these through thought challenging. She denied a prior history of any mental health concerns, and the above symptoms appeared to emerge in the context of the reported emotional abuse by her partner rather than being longstanding mental health difficulties. [Ms Sykes]’ symptoms have largely persisted through the time that she has engaged in treatment with me due to her facing additional situational stressors, including the process of leaving her ex-partner, her father’s ill heath, the death of her father, Family Court proceedings, and limited contact with her son. I have utilised a combination of [mental health therapies] with [Ms Sykes], with a focus on thought challenging to address her negative self-talk, behavioural activation, relaxation, mindfulness, and problem-solving. [Ms Sykes] has presented as engaged during treatment sessions and has implemented suggested strategies between appointments. This has been effective in managing some of her symptoms, but others have remained difficult to control throughout her time in treatment (e.g., sleep disturbance). I recently reduced the duration of her sessions from 60 minutes to 30 minutes as the focus has shifted from treatment to maintenance (i.e., monitoring her mental health and implementation of adaptive coping skills).
…
4(d)…She has reported that she has had more frequent phone contact with her son, but she has found these phone calls to be distressing due to her son’s presentation and her difficulty engaging him in conversation. Despite these challenges, she has persisted and remained solution-focused in her coping.
…
4(e)…In addition to ongoing treatment with me, I have encouraged [Ms Sykes] to continue to consult with her general practitioner regarding her use of psychotropic medication to manage her mood. She is not currently taking any psychotropic medication and reported that at present she is able to manage her symptoms with cognitive and behavioural strategies alone. She stated that she is willing to return to taking psychotropic medication in the future if she experiences a significant deterioration in her mental health. I have also supported [Ms Sykes]’ recent engagement with Psychologist [Ms Y] at [P Counsellors]. I am aware that she has attended two sessions with [Ms Y] and the focus has been on developing strategies for reconnecting with her son and managing any difficult behaviours that he may exhibit in the event that the parenting arrangements are amended so that he resides with her.
…
4(f)…As the primary source of [Ms Sykes]’ psychological distress at present is her limited contact with her son, I believe that her emotional and psychological wellbeing would be improved if the parenting arrangements allow for greater and more prolonged access to her son. In the absence of this currently, it is recommended that she remain in treatment with me and continue to implement adaptive coping strategies to manage her psychological distress.
The psychologist was asked in the referring letter what would be the impact on the mother should the child now live with her and he stated:
4(g)…It is my opinion that this would remove the primary source of [Ms Sykes]’ psychological distress, leading to an improvement in her mental wellbeing and alleviation of her symptoms. It is likely that having her son reside with her will create a new source of stress for [Ms Sykes] given the rupture in their relationship, so it is recommended that she continue to engage in treatment with me and [Ms Y] for a period of time to monitor how she adjusts. [Ms Sykes] has expressed a motivation to continue with both forms of intervention.
As to the mother’s prognosis, he stated:
4(h)…It is my opinion that [Ms Sykes]’ symptoms of mental ill health are not lifelong or chronic. I believe that they emerged in the context of a reported emotionally abusive behaviour by her expartner and have since been maintained through the addition of other situational stressors as her life circumstances have changed (e.g., leaving her ex-partner, limited contact with her son). She presents with a number of protective factors (e.g., adaptive coping skills, positive support network, psychological mindedness), which I believe have buffered her from her symptoms having a significant impairment on her daily functioning. It is my opinion that her prognosis is sound, but I do not expect her symptoms to abate entirely until the sources of her distress are resolved (e.g., lack of contact with her son, Family Court proceedings).
Mr H gave oral evidence.
The psychologist stated that the mother had discussed her diary entries from about 2014 to 2015 with him.
He stated that he was not aware that the mother had written that she wanted the father dead. He stated that this lack of awareness did not change his diagnosis of the mother.
He stated that the mother had been quite distressed when talking about some of her interactions with the child.
He stated, if the child was in the mother’s household, and the child’s behaviour was very challenging, he was becoming very angry, and threatening to run away and the like, that that could increase the mother’s symptomatology. He stated that in these circumstances the mother’s existing symptomatology could remain if this was a new stressor that she was faced with.
He was questioned by the Court as to the continuance of the mother’s symptomatology referred to in paragraph 4(b) of his report. He stated that the mother’s hypervigilance had shifted because she was no longer in the family home; her sleep disturbance continued and pharmacological and psychological strategies had not helped and was the most prevailing symptom; her low mood had persisted; her nervousness could increase or decrease depending on what was happening in her life at the time. He stated that the mother’s feelings of worthlessness can be triggered in certain situations but that she was much better at challenging those.
He stated that his last consultation with the mother on 7 March 2022 the mother was not taking her medication. He stated that his last consultation the mother had stated she was coping well without it.
He stated that the psychologist from P Counsellors, Ms Y, could assist the mother in reconnecting with the child if there was an order for the child to live with the mother.
The Court accepts Mr H’s evidence subject to any view of the Court to the contrary, whether express or implied, as expressed below under the section 60CC considerations.
Child Dispute Conference held on 9 December 2020
The Court does not propose to set out the Child Dispute Conference (“CDC”) Memorandum in full.
The mother told the family consultant that she knew the child did not like it when she shouted at the father, but she did not want the child to think “a woman should just take it.”
The father told the family consultant that he may have caused the mother and the child to feel unsafe when he shouted at the mother, which he said was in defence or in response to the mother’s behaviour.
Each of the parents reported that communication with the other parent is difficult at the moment.
Reports of Mr G
The Court refers to the family therapy reports of Mr G dated 6 May 2021 and 23 September 2021 relating to the reportable family therapy.
Mr G had stated, inter alia, that the child’s views about the mother had remained unchanged. He stated that the child was clearly disappointed when discussing the possibility of the family therapy including the child and the mother being present together. The child had advised that he did not enjoy the telephone calls with the mother. He rejected the suggestion of a video call.
He stated that the child continues to live with the father and spend no time with the mother. He stated that the father continues to assert that it is not safe for the child spent time with the mother and that the child does not want to spend time with her, or have any contact with her at all, and that the father cannot and will not force the child to spend time with the mother. He stated that the child continues to trust the father and accept the father’s views still. He stated that the child’s beliefs about the mother are being strengthened by the current arrangements in the current process. He stated that the child has learned what he needs to do to thwart any process aimed at facilitating communication between himself and the mother. He stated that it would appear extremely unlikely that family therapy will be beneficial unless the father is actively supportive of the child having ongoing relationship with the mother including spending time with her.
Single Expert Report
The Single Expert Report was prepared by family consultant Ms Z and is dated 23 February 2021. The Single Expert Report writer interviewed the family. An observation session was conducted with the father, paternal grandmother and the child. An observation session was not held with the child and mother.
The mother told the Single Expert Report writer that towards the end of the relationship she struggled to maintain a relationship with the child as the father appeared to be attempting to marginalise her from the child’s life. Following separation the child remained in the care of the father.
X ceased spending time with the mother on 21 October 2020. The father said this was because; “she grabbed hold of his bike and tried to stop him from leaving.” The father characterised this as the mother assaulting X. The mother said that she was trying to speak to X about what he would be wearing for a school activity the following day and she said when he went to leave, “I stopped him by grabbing his wrist on the bike to stop him from leaving. He had his hand on the handlebar, he brushed me off, I went ‘okay’.”
Both parents blamed the other for the regular supervised time not proceeding.
Both parents described the phone calls which occurred between the mother and X as very brief and without any depth.
The mother reported her key supports in Australia are friends, an aunty, and cousins. She said she also finds her psychologist to be a good source of support.
The mother described her parenting approach as, “firm but trying to make it fun and trying to educate him. I wanted to open his mind to the arts and culture, it is not all cars, trucks, and bikes. I wanted to take him to the museum and the theatre, for musical education.”
The mother said she found it incredibly difficult to parent X and to implement boundaries in the last couple of years prior to separation.
The mother proposed an equal time arrangement. When asked how she would manage the current dynamic of poor communication and cooperation in an equal time arrangement, the mother said, “I am hoping we will get the counselling. I appreciate it needs to be staged. I don’t think if you said it should happen straight away it would be good for him. That is why I thought supervised time would be best, as a stepping stone. I see it as a staged approach.”
When asked to describe his parenting approach with X, the father said, “He is a good kid, he knows what he can and can’t do, you don’t need to say anything to him. The worst you say is ‘hurry up and finish your dinner’. He gets up in the morning and does his chores and plays until breakfast. His room is neat and tidy.”
Regarding X’s time with his mother, the father repeatedly said that he had supported X spending time with his mother, saying, “That is up to him, I don’t stop him, he can spend as much time as he wants with her” but X did not wish to spend time with his mother.
When asked about X’s relationship with his mother, the father repeatedly stated to the writer that X was “scared”, “terrified” and “frightened” of the mother both during the relationship and post separation. The father told the writer, “the day after she left, X begged me to change the locks so she couldn’t get in. Even at night-time he will go around and check all the doors and windows are locked or he won’t sleep.”
When asked what the benefits to X of a relationship with his mother were, the father said, “I don’t know, don’t you think kids should have a relationship with their mum? I honestly can’t see any benefits of him having a relationship with her, but I think he should. I don’t want him to think he missed out on something when he is older. If he wants to go, I would let him go, but he has to want to do that, not because he has to. Maybe in the future if she would just get some help, that could happen.”
The father was asked by the writer how he would comply with any orders which may be made for X to spend time with his mother, including unsupervised and/or overnight time and the father said:
46.…“she will have to try to force him to stay there and then I am seriously worried about him self-harming. He is on the verge of a nervous breakdown with everything that is going on. I will make him go if I have to, but it is going to be a drama I can tell you. If he has to stay there, he is going to lose it. That is his greatest concern having to stay there. If it wasn’t for that, things would be much easier. He is so scared that she is going to make him stay there. That would honestly I think be the biggest thing. If he knew he did not have to stay there and he was not going to be forced to stay there, I think he would be much more relaxed with the whole situation but because she says he has to go and stay there and do this or that. He knows he is fully aware of what will happen. She may be nice at first but eventually the real [Ms Sykes] is going to come out.”
Both parents reported there is currently minimal communication between them and the communication which does occur is via email. The mother said, “I don’t want to be anywhere near Mr Sykes. Which isn’t good for co-parenting.”
Both parents provided very similar descriptions of the alleged family violence, albeit alleging that the other parent was the primary perpetrator. Specifically, both parents alleged high level verbal abuse and denigration of them by the other party on a daily basis.
When asked if they retaliated to the verbal abuse perpetrated by the other parent, the father said, “yes, of course, basically just defending myself. Whatever she would say, depending on what I was getting accused of or yelled about at the time.” The mother said, “I tried not to start it but occasionally I would verbally fight back, because I didn’t want to give X the impression that you just gave in, especially to his Dad. There might have been occasions when I started it. I had to get out. It was not going to get any better.”
Both said that the behaviour occurred in front of X.
The mother agreed that she wrote down various things about her wanting to harm the father but said she did this as she was advised to do by her counsellor, she would never have acted on it and she never intended for the father to read her diary.
The Single Expert Report writer stated that the allegations of family violence are difficult to assess as there is no current independent material available relating to family violence. In the absence of collateral material, it is assessed that the relational dynamic between the parents was dysfunctional and characterised by high conflict, with one or both parents being persistently verbally abusive towards the other parent with the conflict escalating on occasion, but with neither parent being injured.
The mother agrees that she found it difficult to retain a close and connected relationship with X prior to her separating from the father. She attributed this to the father actively seeking to undermine her relationship with X.
The mother said in the end she avoided confrontation which meant to some extent she physically withdrew, giving the example that she would leave the father and X sitting downstairs while she would sit upstairs. She reflected this further damaged her relationship with X.
The mother commented, “I was getting more frustrated because I could see X was being withdrawn from me so I tried to pressure him to come with me or do what I wanted and I got frustrated and that is the reason I left, it was no place to raise a child.”
The mother said as a result of the alleged dynamic in the household she experienced substantial frustration which led to her having inappropriate responses at times which, “led to a few confrontations with X which I am not proud of. I would get frustrated with him and I would probably end up shouting because I didn’t know how to deal with it in myself. I should have stepped away, calmed down and come back to it.”
The mother said this was what had occurred on the occasion the father alleges she dragged X by the hair. She said she had planned to take X to see her father who she knew was dying. She said the father then arranged something more desirable for X and did not support him leaving with the mother. She said “X said, ‘I am not going’ and the father said ‘I am not forcing him to go’ so I tried to drag him, it was around the shoulders. I know his shoe came off, he got in the car, he climbed out. In hindsight it was not the right thing, but I just didn’t want to go and tell Dad he wasn’t coming again. It was quite clear he didn’t want to go. I knew Dad was dying and wanted him to spend some time with him.” The mother denies ever having dragged X by the hair as alleged by the father.
The mother said she could not recall using belittling words such as those alleged by the father, saying, “I don’t like my son using the term stupid and I don’t like him calling other people stupid. I agree I was verbally abusive to Mr Sykes but I don’t believe I was verbally abusive to X.”
The mother denied she had ever locked X in his room, saying, “I would never lock him in his room. I might say go and sit in your room and think about how you spoke to me. There was never a lock on his room. It was for five minutes and it wasn’t every week or every day.”
The mother conceded that her behaviour would have frightened X, saying, “having a grown person shouting at you is not a pleasant experience and that is why I would try to apologise afterwards.”
The mother said she had completed parenting courses such as Triple P and “the angry parent”. She said she had learned, “Not be so argumentative or angry. I don’t think I am anymore. My situation is a lot calmer. I am a lot more relaxed. We need to find strategies that work best for us. I need to think about, what does X need.” The mother also said, “I am beginning to realise I was so tense the whole time because of the whole situation with Mr Sykes and I should have left sooner, or I should have sought medical treatment sooner. I am on some product now that takes the edge off, but I didn’t want to do that because he (the father) would use it against me, but I would have been a better parent if I left sooner and had the help.”
The Single Expert Report writer stated that it was her opinion that:
90.…the mother’s past actions towards [X] were not ideal and will have caused him emotional harm at times. It is also the writer’s opinion, however, that the mother’s behaviour would not warrant [X] rejecting her to the current extent he has and it was certainly not to the extent that the mother should be excluded from [X]’s life. Whilst every caution should be taken to ensure [X] is not subject to emotional harm in the mother’s care in the future, it is noted the mother has taken every possible step to increase the safety for [X] in her care. Notably, the mother presents as having insight into her past behaviour and has accessed support and guidance to modify her behaviour. Given this it is the writer’s view that [X] would benefit from the opportunity to spend unsupervised time with his mother.
The mother was asked about the diary entries attached to the father’s affidavit. The mother said she had been encouraged by a therapist to write down how she was feeling. The mother acknowledged the diary entries reflect suicidal thoughts and stated, “I did occasionally feel suicidal. It is very selective what he has shown. Like it says, ‘I want to kill myself, but I won’t’. I did write, ‘yes I do wish you were dead based on the way you are behaving right now’. He was selective in the sentiments he took. You get bad days and you think the only way out is to kill yourself but I would not do that because I want to be X’s Mum. I haven’t had those thoughts since I left.”
The mother presented at interview with the Single Expert Report writer with a coherent and well-ordered narrative. She did not present with an exaggerated sense of self-importance or sense of entitlement and she did not seek to control the interview. The mother accepted responsibility for behaving poorly in the past and recognised the impact of her behaviour on X thus displaying empathy for him. The mother’s emotions were well regulated throughout the interview and there were no indications that the mother was acutely mentally unwell.
The Single Expert Report writer stated that in the absence of any other qualified opinion, it would appear that the evidence supports the mother’s mental health issue is situational in nature. This does not pose a direct risk to X but it may impact on the mother’s parenting style with X and her ability to cope with any challenging circumstances which may arise. Given this, it is important that the mother remain connected with her current therapist for support and to further develop her coping strategies. It will also be important that the mother gains expertise from a service (such as P Counsellors) as to how to most appropriately manage the challenging dynamic when she is the rejected parent.
The child was interviewed by the Single Expert Report writer.
When asked how he felt about not seeing his Mum, X said, “I don’t really want to see her, just because she never treated me like a real son and I’ll kill myself if she locks me in a room and I am scared she’ll take me away from my Dad.”
X commented, “she would always make me be in my room. I never wanted to be with her. I want to be with Dad.”
When asked if there was anything else that made him think his Mum did not treat him “like a real son” X said, “I always wanted my Dad to read me a story but she’d get upset if he did it. She gets upset about things like that.” X commented, “I would be in bed and not get to sleep because all I could hear was my Mum screaming at my Dad.”
X was given the opportunity to speak about any other worries he had with his mother and he said he did not have any. He then went on to say, “I never wanted to be in a room with her. It’s scary because I didn’t know what she will do. I do not want to be in a room with her. Normally you are getting screamed at. You are always in trouble.”
X said his Dad, “really does not like her (the mother) and they have never actually got along.” He said His Dad “wants me to stay with him. He knows I will get in trouble and he doesn’t want me to be like that.”
When asked whether his Dad thought he should spend time with his Mum, X said, “I don’t think so because he wants me to feel safe.”
Not applicable.
3(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is possible that the Court’s proposed orders, as discussed above under the meaningful relationship primary consideration, may lead to the institution of further proceedings in relation to the child, as compared to the father’s proposed orders.
Again, it is likely that the child will experience emotional trauma coming into the mother’s primary care however the Court is satisfied that the mother will be able to adequately parent and manage this issue for the child, including possible oppositional and other challenging behaviours by the child.
3(m) Any other fact or circumstance that the Court thinks is relevant
It is appropriate at this point to comment upon the reports of various psychologists and a counsellor.
As to the reports of Mr G, psychologist, dated 6 May 2021 and 23 September 2021, the Court accepts the evidence of this psychologist. Mr G was engaged by the parties pursuant to Court Orders relating to family therapy. He was independent of the parties and the child. He interviewed the parties and the child. His two reports were detailed and well-reasoned. Although he was not cross-examined, the Court views the contents of his reports as credible and persuasive. They were consistent with the views of the Single Expert Report writer.
As to the reports of Ms O, family and relationship counsellor, dated 18 May 2021 and 18 July 2021, the Court attaches no significant weight to her opinions, inter alia, that the child has experienced extensive emotional trauma from his interactions with the mother, that the mother has created a climate of fear and threat for the child, and that if the child was forced to spend time with the mother it would cause the child significant damage to his emotional, intellectual and psychological development and he would digress in his cognitive and behavioural development. The Court is of this view because this counsellor accepted uncritically the child’s statements to her relating to the mother, which statements are, in significant respects, at odds with this Court’s findings (for example, the Court does not accept the child’s statements to the counsellor that the mother had belittled the child in an ongoing manner nor that she had tried to take him off his bike “repeatedly in the past”), and the counsellor’s opinions do not deal with the Court’s findings relating to the child’s alignment and enmeshed relationship with the father. The Court accepts the mother’s evidence that she had two consultations alone with Ms O and observes that there is no reference by Ms O to these consultations.
The short one page report of Mr M, a treating psychologist for the child, dated 16 November 2020, was annexed to the father’s trial affidavit. His history was obtained from both the child and the father in the absence of the mother. Mr M was not cross-examined. Mr M does not deal with the Court’s findings relating to the child’s alignment and enmeshed relationship with the father. The Court attaches no significant weight to his report.
As to the recent report of clinical psychologist Ms AC dated 5 August 2022, the Court attaches no significant weight to this psychologist’s recommendations relating to the child continuing counselling with a therapist and that any efforts at reunification between the child and the mother occur gradually and through a therapeutic process. This psychologist was unable to conduct any significant interview or assessment of the child by reason of the child’s unwillingness to engage in therapy and enter the counselling rooms. And it is apparent from her report that she obtained a limited and one-sided history from the father, with the mother not being interviewed by Ms AC. Ms AC does not deal with the Court’s findings relating to the child’s alignment and enmeshed relationship with the father.
The Court attaches no significant weight to the evidence of the supervisory contact services reports regarding therapy and other matters (for example, the C Contact Centre reports from 7 June 2021 and the AD Contact Centre supervisory report of 14 May 2022) noting that such evidence does not deal with the Court’s findings relating to the child’s alignment and enmeshed relationship with the father.
Further, in relation to the above reports of Ms O, Ms AC, Mr M and the supervisors’ reports, the Court refers to its discussions above under the primary considerations.
In respect to possible counselling for the child in the event that the Court orders that the child now live with the mother, the Court accepts the evidence of the Single Expert Report writer that if the child was to attend counselling on coming into the mother’s care:
[MS Z]:He’s likely to use that as a vehicle to report negatively about the mother and – as opposed to giving him that time to settle into the relationship, have a realistic understanding of what his relationship is actually like with his mother – those sorts of things. So while I would suggest counselling in the longer term, in the immediate term I would suggest the mother access counselling support as to how to manage it. If there is an acute incident – for example, self-harm – then, yes, he would need some intervention. But otherwise, my suggestion would be to leave it for two to four weeks, preferably four weeks, if – if the mother felt that that was appropriate, and that the mother make some decisions about whether she felt he needed it or not.
The mother and ICL’s proposed orders in this context, relating to the mother arranging counselling for the child, should be amended to afford the mother a discretion to arrange counselling consistent with the above evidence of the Single Expert Report writer.
Parental responsibility
The mother seeks an order for sole parental responsibility for the child. The father, for his part, seeks an order for sole parental responsibility for the child.
Should the Court make its proposed orders as discussed above under the meaningful relationship primary consideration, then the mother will assume primary care for the child. The parties have no co-parenting relationship in relation to the child. They have no significant ability to communicate, consistently and reliably, with each other in relation to parenting issues. The Court would infer that these parties do not trust each other in relation to the child.
The Court appreciates that the father probably, on balance, provided a greater share of care of the child, compared to the mother, during the parties’ relationship. And the Court appreciates that since separation the father has been the child’s primary carer, and that the child has not spent significant face to face time with the mother.
Should the Court make an order that the father has sole parental responsibility for the child, there is a significant risk that there will be a strengthening of the child’s present aligned and enmeshed relationship with the father because the father will have the sole right to make major decisions affecting the child to the exclusion of the mother. Should such risk come to pass, this would militate against the timely re-establishment of the child’s former meaningful relationship with the mother.
It will be in the best interests of the child that the mother have sole parental responsibility for him.
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the child to make the following final parenting Orders:
1.The applicant mother have sole parental responsibility for the child, X, born in 2013 (hereafter “X”).
2.X shall live with the mother.
3.To facilitate Order 2:
(a)The Senior Court Child Expert at Court Children Services at the City B registry of this Court at Level 2, Commonwealth Law Courts Building, CITY B, NSW shall endeavour to explain these Orders to X before introducing the mother to X;
(b)The Senior Court Child Expert shall endeavour to assist X in leaving the above registry with the mother;
(c)The father is not to return to Level 2 of the City B registry following the pronouncement of these Orders today.
4.X shall not commence to spend time with the respondent father until the expiration of eight weeks from the date that X begins to live with the mother.
5.After the expiration of the eight week period referred to in Order 4 above, X shall spend supervised time with the father for a period of eight weeks and such time shall be supervised by a supervisor to be agreed by the parties in writing and failing agreement by C Contact Centre, as follows:
(a)Each Wednesday from after school to 5.30pm; and
(b)Each Saturday from 10.00am to 1.00pm.
6.The paternal grandmother shall be permitted to attend the child’s above supervised visits with the father but only after the father has spent three supervised visits with the child.
7.At the conclusion of Order 5, X shall spend unsupervised time with the father as follows for 12 weeks:
(a)Each alternate Wednesday from after school to 6.30pm; and
(b)Every alternate weekend from Saturday from 10.00am to Sunday 3.00pm.
8.At the conclusion of Order 7, X shall spend time with the father as follows for 12 weeks:
(a)Each alternate Wednesday from after school to 7.00pm; and
(b)Each alternate week from Friday after school to Sunday 3.00pm.
9.At the conclusion of Order 8, X shall spend time with the father as follows:
(a)Each alternate Wednesday from after school to before school on Thursday; and
(b)Each alternate week from Friday after school to Monday morning before school.
10.The costs incidental of the father spending time with X pursuant to Order 5 above be borne by the father.
11.The mother, at her sole discretion, may arrange counselling for X to assist with the change of residence and his mental health. The costs incidental to the treatment of X shall be borne by the mother. The mother shall be permitted to provide a copy of the Family Report and the Court’s Reasons for Judgment to any such counsellor for X.
12.The father shall ensure X is taken to his counselling session in the event that the scheduled visit is on a day that X is in his care.
13.During the Term 3 2023 school holidays, unless otherwise agreed in writing, X shall spend four days Monday 10.00am–3.00pm to Thursday 10.00am–3.00pm with the father during the second week of the holiday.
14.From 2024 and every even year thereafter, X shall spend the second half of the Term 1, 2 and 3 school holidays with the father.
15.From 2025 and every odd year thereafter, X shall spend the first half of the Term 1, 2 and 3 school holidays with the father.
16.During the 2023/2024 Summer/Christmas holiday, X shall spend the alternate fortnight with each parent, commencing the first two weeks of the holidays with the mother, then the following two weeks with the father, continuing until the commencement of the 2024 school term.
17.During the Christmas school holiday periods from 2024 and thereafter, each of the parties shall spend time with X for one half of all Christmas school holiday periods as agreed by the parties in writing and failing agreement:
(a)With the mother for the first half of the Christmas school holiday periods in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and
(b)With the father for the second half of the Christmas school holiday periods in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter.
18.Notwithstanding any care arrangements set out in these Orders to the contrary, X shall spend time with the parties as follows and that any provision for time in these Orders that is inconsistent with this paragraph be suspended so as to facilitate time under this Order:
(a)In all even numbered years:
(i)With the father from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii)With the mother from 12 noon Christmas Day to 12 noon Boxing Day;
(iii)With the mother from the conclusion of school Good Friday until 12 noon Easter Sunday;
(iv)With the father from 12 noon Easter Sunday until the commencement of school on the Tuesday following the Easter Monday (or 10.00am in the event of a non-school day);
(b)In all odd numbered years:
(i)With the mother from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii)With the father from 12 noon Christmas Day to 12 noon Boxing Day;
(iii)With the father from the conclusion of school Good Friday until 12 noon Easter Sunday provided the child has begun to spend unsupervised time with the father pursuant to the above Orders;
(iv)With the mother from 12 noon Easter Sunday until the commencement of school on the Tuesday following the Easter Monday (or 10.00am in the event of a non-school Tuesday);
(c)On Father’s Day, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 9.00am to 7.00pm on Father’s Day;
(d)On Mother’s Day, if X is with the father, X shall spend time with the applicant mother from 9.00am to 7.00pm on Mother’s Day;
(e)On the mother’s birthday, if X is with the father, X shall spend time with the mother from 3.00pm to 7.00pm in the event of a school day and 9.00am to 7.00pm in the event of a non-school day on the mother’s birthday;
(f)On the father’s birthday, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 3.00pm to 7.00pm in the event of a school day and 9.00am to 7.00pm in the event of a non-school day on the father’s birthday;
(g)On X’s birthday, if X is with the father, X shall spend time with the mother from 3.00pm to 7.00pm in the event of a school day and 9.00am to 2.00pm in the event of a non-school day on X’s birthday;
(h)On X’s birthday, provided the child has begun to spend unsupervised time with the father pursuant to the above Orders, if X is with the mother, X shall spend time with the father from 3.00pm to 7.00pm in the event of a school day and 9.00am to 2.00pm in the event of a non-school day on X’s birthday.
Changeovers
19.In order to facilitate time between each of the parties and X in accordance with these Orders, the mother shall be responsible for collecting X from school/the father’s residence (as applicable) at the commencement of her time with X and the father shall be responsible for collecting X from school/the mother’s residence (as applicable) at the commencement of his time with X.
Interstate Travel
20.In the event either parent takes X on an interstate holiday, the parent with whom X is holidaying shall notify the other of the location where X will be accommodated together with any contact details and travel schedule (if relevant) in writing at least one week prior to the holiday in the event the holiday is outside the state of New South Wales (but within Australia).
International Travel
21.The parties shall sign all applications and other forms and do all things necessary to ensure X has a current British and Australian passport with the costs of such application to be born equally between the parties.
22.The mother shall retain the passports of X and provide to the father one week before any planned travel overseas with X during the school holidays. The passports will be returned to the mother at the conclusion of the overseas travel.
23.Either parent is permitted to take X out of the Commonwealth of Australia and travel with X provided that:
(a)The travelling parent gives the non-travelling parent not less than four weeks written notice of their intention to travel overseas with X, including the primary destination;
(b)Subject to the preceding sub-paragraph, the travelling parent provides written confirmation to the non-travelling parent that any travel overseas shall be limited to countries which:
(i)Are parties to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trading; or
(ii)A country that is not a party to the Hague Convention and where no current travel warning advising against non-essential travel to that country has been issued by the Department of Foreign Affairs and Trading and the non-travelling party gives written consent for X to travel in that country;
(iii)At least 14 days prior to departure, the travelling parent provides to the non-travelling parent:
A.Copies of return tickets for X;
B.A detailed itinerary including addresses and telephone numbers for the accommodation in which X will be staying;
C.A list of all the countries X will be visiting (including transit destinations).
24.Subject to the above Orders, for the purposes of Order 20 and Order 23, X’s travel with each of the parents shall occur during the times X spends with each of the parents pursuant to these Orders unless otherwise agreed by the parties in writing.
Extra-curricular activities and schooling
25.Each of the parties are at liberty to enrol X in any extra-curricular activities including extracurricular activities which accord to X’s wishes from time to time.
26.In the event X’s extra-curricular activity in which a parent wishes to or has enrolled X in pursuant to the above Order falls during X’s time with the other parent, the parties must consult one another regarding X’s enrolment in the said extra-curricular activity and X’s enrolment in the extra-curricular activity must be mutually agreed between the parties.
27.In the event X’s enrolment in an extra-curricular activity pursuant to Order 25 is agreed between the parties, each of the parties shall ensure that X attends the extracurricular activity when X is in their care pursuant to these Orders.
28.Subject to Order 38 below, each of the parties is at liberty to attend X’s extracurricular activities including but not limited to practices, games, matches, rehearsals, auditions, shows, concerts recitals and/or assemblies even if not during their allocated time with X.
29.The mother is at liberty to attend all school, sporting and music events that X attends or participates in even if not during her allocated time with X.
30.Subject to Order 38 below, the father is at liberty to attend all school, sporting and music events that X attends or participates in even if not during his allocated time with X.
31.Subject to Order 38 below, each of the parties are authorised to liaise directly with X’s schools and sporting bodies to obtain all notices, information, newsletters, school reports, school photographs, invitations and will attend parent/teacher interviews or other activities to which parents are invited.
Communication & Exchange of Information
32.Subject to Order 39 below, each of the parties and X shall communicate with each other by telephone or FaceTime at any reasonable time and if not agreed between the parties in writing then between 6.00pm and 6.30pm twice a week when X is not in that party’s care.
33.X’s smart watch shall remain at the father’s residence and communication pursuant to Order 32 shall be via the mother’s telephone when X is in her care.
34.The parties shall communicate with each other by way of parenting app “Divitto” save for in the event of an emergency situation, where the parties shall communicate with each other by any means to cause the other parent to be contacted as soon as reasonably practicable.
35.The parties shall keep each other informed of:
(a)Any serious medical problems or illnesses suffered by X while in the other’s care;
(b)Any medication that has been prescribed for X;
(c)Any medical emergency pertaining to X; and
(d)Any other matter relevant to X’s welfare.
36.Each party shall advise the other of any change of telephone number, including mobile telephone number and email address, within 72 hours of such change occurring.
37.Each party shall advise the other of any intended change of residential address 28 days prior to such change occurring.
Injunctions
38.Until the father commences spending unsupervised time with X pursuant to Order 7 he shall be restrained from attending X’s school or any extra-curricular activities that he participates in.
39.Until the father commences spending unsupervised time with X pursuant to Order 7 he shall be restrained from communicating with X, whether directly or indirectly, through any medium.
40.The father shall forthwith return X to the mother if for any reason X attends the father’s residence (or other place where the father is situated) at a time when he should be in the care of the mother pursuant to these Orders or at school.
41.The parties shall encourage and not undermine X’s relationship with the other party.
42.Each party be restrained by injunction from denigrating the other parent or that parent’s spouse, friends or relatives in the presence or hearing of X.
43.Each party be restrained by injunction from discussing the current proceedings, disagreements over parenting arrangements or other issues with X or in the presence or hearing of X.
44.Each party be restrained by injunction from using X as a “conduit” for passing messages or information to one another concerning any parenting arrangements or proposed changes thereto.
I certify that the preceding three hundred and fifty-three (353) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 24 March 2023
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