FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Takhar & Takhar (No 3) [2024] FedCFamC1F 84
File number: PAC 3386 of 2019 Judgment of: HARTNETT J Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – PARENTING – Where the parties have engaged in protracted litigation – Where the parties have a highly conflictual co-parenting relationship – Where the child made disclosures the mother physically abused him – Where the child made disclosures the mother’s partner sexually abused him – Where the mother makes allegations the father coached the child to make disclosures – Where the mother makes allegations the father and the paternal grandparents denigrate her to and in the presence of the child – No finding of unacceptable risk in the mother’s care – Finding of unacceptable risk in the father’s care - Sole parental responsibility – Child to remain living with mother
FAMILY LAW – COSTS – Where the Independent Children’s Lawyer sought a costs order against each of the parties – Where each of the parties have expended significant sums on their litigation – Costs order in a fixed sum
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 67Q, 69ZW, 91B, 97, 102PH, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Collins & Collins (1985) FLC 91-603
Isles & Nelissen (2022) 65 Fam LR 288
M & M (1988) 166 CLR 69
Mulvany & Lane (2009) FLC 93-404
Rigby & Olsen [2021] FedCFamC1A 46
R & C [1993] FamCA 62
Takhar & Takhar [2023] FedCFamC1F 330
Division: Division 1 First Instance Number of paragraphs: 267 Date of hearing: 30 May - 1 June 2023; 6 - 9 June 2023; 22 - 25 August 2023 & 14 December 2023 Place: Melbourne via videolink Counsel for the Applicant: Mr Ahmad Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Dr Barnett SC Solicitor for the Respondent: Gordon & Barry Pty Ltd Counsel for the Independent Children's Lawyer: Mrs Stolier Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
PAC 3386 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TAKHAR
Applicant
AND: MR TAKHAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders together with Order 7 of the Orders made on 19 September 2019 be discharged.
2.The mother have sole parental responsibility for the child X born 2017 (“the child”) and in exercising sole parental responsibility she shall:
(a)at least 28 days prior to the making of any major long term decision pertaining to the child, write to the father and except in the case of a medical emergency seek the view of the father in relation to the issue/decision to be made;
(b)the father shall provide his view and response in writing within seven (7) days of receipt of such notice; and
(c)the mother will give due regard to such matters raised by the father in making her decision.
3.The child live with the mother.
4.The child spend time with the father unless otherwise agreed in writing between the mother and father:
(a)during school terms on a fortnightly cycle as follows:
(i)in week one, being the week that commenced on Monday 19 February 2024, from the conclusion of school on Friday or if not a school day 3.00pm to the commencement of school on Monday or if not a school day 8.00am; and
(ii)in week two, from the conclusion of school on Wednesday or if not a school day 3.00pm to the commencement of school on Thursday or if not a school day 8.00am.
(b)during school holidays:
(i)in 2024 for five consecutive nights in the Term 1 and Term 2 holidays, to commence at 10.00am on the middle Saturday and conclude at 5.00pm on the following Thursday, with such time to be replicated in the Term 3 holidays in the event the mother does not travel with the child to South Australia in the Term 3 holidays. The mother is to provide the father with at least 28 days written notice of her intention to travel with the child to South Australia.
(ii)commencing in 2025 for one half of the Term 1 and Term 2 holidays, being the first half in each odd numbered year and the second half in each even numbered year, with such time to be replicated in the Term 3 holidays in the event the mother does not travel with the child to South Australia in the Term 3 holidays. The mother is to provide the father with at least 28 days written notice of her intention to travel with the child to South Australia.
(iii)during the 2024/2025 and 2025/2026 long summer holidays for two non‑consecutive weeks and a further three day period being at the father’s election and the father is to provide the mother with at least 60 days written notice of his election.
(iv)commencing in 2026/2027 for one half of the long summer holidays, being the first half in each odd numbered year and the second half in each even numbered year, save that the child is to be returned to the mother’s care 48 hours prior to the commencement of the school year.
5.For the purposes of these orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year or as posted on the child’s school’s website.
6.The mother is permitted to place the child in the presence and/or hearing of Mr F and in respect of Order 1 herein THE COURT NOTES THAT Order 7 of the Orders made 27 April 2023 is discharged.
7.The mother be restrained from permitting the child to address Mr F as ‘dadda’, ‘[…]’, ‘daddy’ or ‘dad’.
8.The child shall spend the following special occasions with each parent as agreed between them in writing, and in default of agreement, the child shall spend time with each of the mother and father as follows:
(a)with each parent during Christmas, as follows:
(i)in even numbered years: with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day, and with the mother from 3.00pm Christmas Day until 3.00pm Boxing Day; and
(ii)in odd numbered years: with the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day, and with the father from 3.00pm Christmas Day until 3.00pm Boxing Day.
(b)commencing 2025, for any part of the Easter period between Good Friday and Easter Monday as agreed in writing between each of the mother and the father;
(c)on the child’s birthday and the mother’s birthday:
(i)with the father in odd numbered years from 9.00am until 3.00pm and with the mother from 3.00pm to 9.00am on …; and
(ii)with the mother in even numbered years from 9.00am until 3.00pm and with the father from 9.00am to 3.00pm on ….
(d)if the father’s birthday falls on a day when the child is not ordinarily in his care, the child shall spend time with the father as follows:
(i)if the father’s birthday falls on a school day when the child is not in the father’s care, from the conclusion of school until 8.00pm; and
(ii)if the father’s birthday falls on a non-school day when the child is not in the father’s care, from 12.00pm to 8.00pm.
(e)in the event that Father’s Day falls on a Sunday where the child would ordinarily spend that Sunday with the mother, then the child shall spend that day with the father from 9.00am to Monday before school;
(f)in the event that Mother’s Day falls on a Sunday where the child would ordinarily spend that Sunday with the father, then the child shall spend that day with the mother from 9.00am to Monday before school; and
(g)on the special days of celebration at such times as agreed between the mother and father in writing.
9.All changeovers shall take place at the child’s school where possible and otherwise changeover shall occur at a Hungry Jacks which is in the middle of each of the mother and the father’s residences.
10.Each of the mother and the father are to ensure that no third party attends changeover or is within 100 meters of the child during the exchange.
11.Whilst the child is living with or spending time with each parent, that parent shall:
(a)notify the other parent via text message and/or telephone call as soon as practicable should the child suffer a medical emergency, injury or illness requiring urgent medical attention whilst in their care and notify the other parent of the name and address of the health care professional or service that provides treatment for the child; and
(b)advise the other parent of any medical appointments that they may make for the child (other than emergency treatment described in (a) above).
12.The parent with whom the child is living/spending time with shall take the child to any extracurricular activities or sporting activities in which the child is currently enrolled and any other activities as agreed to in writing between the mother and the father.
13.Each of the mother and the father shall advise the other of any change to their landline and/or mobile telephone numbers and/or email addresses within twenty four (24) hours of such change occurring and any change to their residential address no later than forty eight (48) hours prior to such change occurring.
14.Each of the mother and the father shall be restrained from:
(a)denigrating the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship in the presence and/ or hearing of the child;
(b)causing or allowing any third party to denigrate the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship in the presence and/ or hearing of the child and shall take immediate steps to remove the child from the physical presence of such third parties;
(c)exposing the child to violence including physical or verbal threats or intimidation, whether such violence, threats or intimidation is directed at the child, either parent, any member of either parent's household and/or any person with whom either parent may maintain a genuine domestic relationship;
(d)discussing these proceedings in the presence and/ or hearing of the child or permitting any third party to do so; and
(e)video recording with his/her mobile or any other recording device at changeover.
15.Each of the mother and father shall encourage and not undermine the child’s relationship with the other parent.
16.The mother and the father shall take steps to enrol the child in trauma informed therapy such as L Family Services (or similar) within seven (7) days of the making of these orders and facilitate his attendance at therapy for a period as agreed but not exceeding 12 months. The costs of same be borne equally by the mother and the father.
17.The mother and the father will abide by any reasonable recommendations made for the child by the appointed therapist.
18.Leave is granted for the mother to provide to the therapist the two reports of the Expert Dr G dated 15 August 2021 and 29 May 2023.
19.Each of the mother and the father are restrained from engaging any other therapist for the child or taking the child to any other psychologist other than as provided in Order 16 above.
20.Each of the mother and the father are at liberty to communicate with the child via any audio-visual communication mediums (including but not limited to telephone, FaceTime, Viber, WhatsApp, Skype or e-mail) whilst the child is living/spending time with the other parent, provided:
(a)such communications occur at 6.00pm every third night (or at any other agreed time);
(b)the other parent does not interfere with such communications or encroach on the child’s privacy during such communications;
(c)the non-resident parent at the time shall initiate the call to the other parent; and
(d)each parent shall use their best endeavours to facilitate such communication.
21.Each of the mother and the father shall be permitted to take the child interstate as agreed between the mother and father in writing, and in default of agreement, as subject to the following:
(a)the proposed interstate holidays must coincide with the child’s normal school holidays.
(b)in the event that either the mother or father takes the child on holidays to any destination outside of the Sydney Metropolitan areas but within New South Wales, then the travelling parent shall, no later than forty-eight (48 hours) prior to the commencement of the holiday, inform the non-travelling parent of such travel, including the location/s and date/s of such travel.
(c)in the event that either the mother or father takes the child on holidays to any destination outside of New South Wales, then the travelling parent shall, no later than 2 weeks prior to the commencement of any interstate holiday, furnish to the non-travelling parent:
(i)an accurate itinerary including the State/States that the travelling parent and the child will be travelling to, and the approximate dates on which the travelling parent and child will arrive and depart in each State; and
(ii)contact telephone numbers and addresses at which the travelling parent and child will be staying during such travel.
22.Leave is granted for a copy of these Orders to be provided to any school the child attends from time to time.
23.Each of the mother and the father make a partial payment of the Independent Children’s Lawyers costs fixed in the sum of $1,500 and there be a stay on such payment of 60 days.
24.The Independent Children’s Lawyer be discharged.
25.All extant applications be otherwise dismissed, and the matter removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Takhar & Takhar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
This matter came before the Court for trial with an extensive litigation history, with the matter having commenced on 18 July 2019 by the applicant mother (“the mother”) filing an application seeking orders in relation to the care of the child X born 2017 (“the child”). The respondent is the child’s father (“the father”). The child was aged six years at trial, is currently attending M School and is in good physical health.
There have been multiple interim parenting orders made throughout the course of this matter. On 27 April 2023, orders were made in circumstances where the father over-held the child from the mother’s care, and the mother filed an urgent Application in a Proceeding seeking the return of the child to her. The father over-held the child following the child allegedly making disclosures to the father that the mother’s fiancée Mr F touched the child’s penis, and that the mother physically assaulted the child.
For the reasons as particularised in Takhar & Takhar [2023] FedCFamC1F 330, interim orders were made on 27 April 2023, relevantly, that the child be returned to the mother’s care where he was to remain for a continuous period of seven days, and thereafter the then operative interim orders made on 19 September 2019 and 12 December 2022 in relation to the child’s residence, time spent, and communication with the parties continue. A further order made on 27 April 2023 was for the mother to be restrained from bringing the child into the presence or hearing of Mr F. That order has remained in place since that time. The anticipated wedding of the mother and Mr F had not occurred as a result of this order.
The trial commenced on 30 May 2023. Whilst initially estimated to be three days, and then seven in duration, it proceeded over a total of eleven days, being from 30 May - 1 June inclusive; 6 - 9 June inclusive; and 22 - 25 August 2023 inclusive. On 1 December 2023, the matter was re-opened for the purpose of the mother adducing further evidence.
The significant issues that remain for the Court to determine are, relevantly:
·Whether the parties should have equal shared parental responsibility for the child or whether one of the parties have sole parental responsibility for the child, and which parent;
·Whether the child should live with the mother and spend supervised or unsupervised time with the father, or live with the father and spend time with the mother; and
·Whether there should be a restraint on the mother bringing the child into contact with Mr F.
The funds the parties have expended on this litigation is extraordinary. Particularly in circumstances where each of the parties have borrowed significant funds from family members (the father from the paternal grandparents) and have relatively modest incomes. In the mother’s case, the maternal grandparents have refinanced a property to help meet the mother’s legal costs. At the conclusion of the trial, the mother had paid the sum of $393,128 in legal fees and had an approximate outstanding costs and disbursements liability of $203,528. The father’s costs of the entire proceedings were estimated to be $460,000. In total, the parties combined legal costs of the proceedings, which have lasted most of the child’s young life and commenced when the child was two years old, were approximately $1,056,656.
ORDERS SOUGHT
The parties helpfully provided the Court with a consolidated minute of proposed orders following the conclusion of the trial which outlined orders that were agreed by all parties (subject to the Court finding the child was not at unacceptable risk in the father’s care); orders that were agreed by the Independent Children’s Lawyer (“ICL”) and the father; and orders sought by each of the parties which remained in dispute. The minute is annexed to these reasons, and I rely upon it as descriptive of the orders as sought in the proceedings.
By way of summary, the orders sought by the parties in relation to the key issues in dispute are set out hereunder.
The mother sought orders framed in two alternatives: if the Court finds the child is at unacceptable risk in the father’s care, and if the Court finds the child is not at unacceptable risk in the father’s care. On both alternatives, the mother sought orders, relevantly, that she have sole parental responsibility and the child live with her.
If the Court finds the child is at unacceptable risk in the father’s care, the mother sought the child spend no time with the father. In the event the Court found the child was not at unacceptable risk in the father’s care, the mother sought orders, relevantly, that the child spend time with the father as follows: during the school term, each alternate weekend from Friday after school or 3.00 pm if not a school day, until 4.00 pm on Sunday; for three consecutive nights in Terms 1, 2 and 3 of each of the New South Wales school holiday periods; for two block periods of three consecutive nights in Term 4 of each of the New South Wales school holiday periods. The mother also sought orders that changeover, when not occurring at the child’s school, take place at Hungry Jack’s or McDonalds which is in between the parties’ residences; each parent be restrained from attending changeover with any other person; and each parent be restrained from recording any changeover.
The father and the ICL sought orders, relevantly, that the father have sole parental responsibility for the child; the child live with the father; and the child spend time with the mother each alternate weekend from the conclusion of school on Thursday until the commencement of school on Tuesday and half of each school term holidays. The father also sought the child spend time with the mother in the long summer school holidays for half of the holiday period.
The father sought further orders, relevantly, that the mother be restrained from bringing the child into contact with or into the presence and/or hearing of Mr F. The ICL sought orders, relevantly, that until the child is 12 years of age, the mother must not leave the child alone with Mr F and ensure that she is always within sight and hearing of the child when he is in the presence of Mr F.
MATERIAL RELIED UPON
The mother relied on the following documents:
(1)Amended Application for Final Orders filed 9 May 2023;
(2)Application in a Proceeding filed 22 May 2023;
(3)her affidavits filed 9 May 2023, 23 May 2023, 28 August 2023, 8 November 2023 and 17 November 2023;
(4)her Outline of Case filed 30 May 2023;
(5)affidavit of Mr F filed 9 May 2023;
(6)affidavit of Ms N filed 9 May 2023;
(7)affidavit of Ms O filed 9 May 2023;
(8)affidavit of Ms MM filed 9 May 2023;
(9)affidavit of Ms P filed 9 May 2023; and
(10)affidavit of Mr Q filed 9 May 2023.
The father relied on the following documents:
(1)his Outline of Case including a Minute of Order filed 29 May 2023;
(2)his affidavit filed 26 May 2023;
(3)affidavit of Mr R filed 26 May 2023;
(4)affidavit of Ms T filed 26 May 2023;
(5)affidavit of Mr S filed 26 May 2023;
(6)affidavit of Ms U filed 26 May 2023;
(7)affidavit of Mr V filed 26 May 2023;
(8)affidavit of Ms W filed 26 May 2023; and
(9)affidavit of Mr Y filed 26 May 2023.
The ICL relied upon their Outline of Case filed 29 May 2023.
All parties relied upon the Family Report of Dr G dated 6 August 2021, together with the Updated Family Report of Dr G dated 29 May 2023.
RELEVANT FACTUAL BACKGROUND
In 1981, the father was born in the United Kingdom. The father was 41 years old at the commencement of trial. The father resides in the paternal grandparents’ home in Suburb E and works full time as a professional.
In 1985, the mother was born in Australia. The mother was 38 years old at trial. The mother resides in rental accommodation in Suburb E and works full time as a professional.
In late 2012, the parties met.
In 2013, the parties married. At the time of marriage, the father resided with the paternal grandparents. The mother and father commenced cohabitation when they married, and the mother moved into the paternal grandparents’ residence in Suburb E.
In late 2016, the parties moved into a property owned by the paternal grandparents in Suburb C (“the Suburb C property”).
In 2017, the child was born, the mother ceased her employment and became his primary caregiver.
In early 2017, the mother and child travelled to Adelaide for a period of two weeks to visit the maternal family for a religious festival.
In mid and late 2017, the mother and the child travelled to Adelaide for a period of six weeks to visit the maternal family.
In late 2017, the mother returned to work in a part time capacity being three days a week, and the paternal grandparents assisted the parties with caring for the child. The father had continued to work full time in his employment as a professional following the birth of the child.
In late 2017, the parties were involved in a verbal altercation which escalated. The mother alleged the father yelled at her, slapped her across her face and pushed her into a shower screen whilst in the presence of the child. The father called NSW Police who attended the premises. The father was charged with assault and the Police applied for an Apprehended Domestic Violence Order (“ADVO”) against the father for the mother’s protection. The mother took the child and left the residence she shared with the father. She then temporarily resided with one of her friends.
In early 2018, the mother and the child resumed cohabitation with the father.
A short time later, the father raised with his general practitioner that he had anger management issues including that sometimes he could not control his temper and sought treatment in respect of those behaviours. In cross-examination the father stated that he could not recall attending upon a doctor for this purpose.
In early 2018, a Magistrate of the Suburb AA Local Court dismissed the father’s charge of assault and the application for an ADVO against him. The mother gave evidence at the hearing, which was proceeded with by Police prosecutors on her behalf, albeit the parties had reconciled prior to the hearing. The father claimed the Magistrate found that the mother was inconsistent in her evidence and fudged her evidence in an attempt to attack her credit in this proceeding. The Magistrate’s findings need to be put in context. The Magistrate was not satisfied that the evidence established the requisite standard of proof necessary for a criminal prosecution. In ex tempore reasons for judgement handed down, the Magistrate commented on the mother’s evidence that:[1]
… She focussed again today on the fact that she swore at him. That simply may be because she wanted it downplayed today the defendant's true actions so as to assist him…
…
I am left with therefore the juxtaposed account given via the DVEC interview and even more amplified in terms of that juxtaposition today. In her evidence today the complainant stated that she was emotional, she was angry, she was upset and mainly at being accused of not being a good mother and not being able to look after the son. On the one hand one might say it is easy to overlook those things and put them to one side because they are common features in any domestic violence case, but it is difficult to come to a view on a finding of fact beyond reasonable doubt that those were not matters under which she was labouring which might have caused her to fudge the information she was giving to the officer at the time.
This is not a criticism, a critique of the complainant's evidence but it is something which must be put into the mix to determine whether I can be satisfied that she is both an honest and an accurate witness in the account she has given. She accepted that she tried to get her son from her husband's arms, she accepted that she reached out for her son. She accepted that she told police that she was pushed and that he tried to slap her. It was put to her squarely in cross-examination, "Your husband didn't slap you?" Her response was, and this was the place and the time for her to be categorical and emphatic about what she was suggesting, "He probably tried to slap me." It was put to her that there was no contact and no connection between his left hand and her face.
Again, this was the opportunity for her to make it abundantly clear what it was that she was alleging took place and which has now caused the defendant to be a defendant in a charge involving common assault. Her response was, "I don't recall." She agreed that her husband had his left arm outstretched, she said "Maybe it was his arm which was outstretched when I confronted him. Maybe it was self-defence." I put that to one side. It is not for her to decide, that is for the tribunal of fact. Finally, she concluded by saying "I don't recall." She was asked whether his left arm was outstretched when she approached him to get the child and her response was "Yes, possibly."
[1] Extract of Decision of Magistrate Suburb AA Local Court dated early 2018, pp.4-5.
In early 2018, the mother and child travelled to Adelaide for a period of two weeks to visit the maternal family.
In late 2018, the father travelled to the United States of America with the paternal grandmother for a period of two weeks. That month, the mother and child travelled to Adelaide for a period of two and a half weeks to visit the maternal family.
In late 2018, the mother and child travelled to Adelaide for a period of one week to visit the maternal family.
In early 2019, the mother alleged there was an incident whereby after she arrived home from work, the father accused her of making the child sick. The father then allegedly slapped the mother, grabbed her by her arm and dragged her across the floor, then grabbed the mother by the throat and punched the mother in the face. The father denied the mother’s allegations that he physically assaulted her. The mother did not report the incident to any external authorities. At trial, photographs of the mother’s face taken by her dated early 2019 were tendered into evidence.
Some weeks later, the mother alleged she was getting ready to take the child to a sports lesson when she sought the father’s assistance to care for the child. The mother alleged the father began swearing at her, followed by the paternal grandfather and the paternal grandmother; that the father kicked the mother whilst she was sitting on the floor feeding the child; and that the paternal grandmother grabbed and pulled the mother’s hair. The father denied he was physically violent to the mother; that he heard the paternal grandparents say what the mother accused them of saying; and that he saw the paternal grandmother pull the mother’s hair.
On 7 June 2019, the parties separated on a final basis following an incident where the mother alleged the father verbally abused her, grabbed her by the throat and legs, and dragged her across the floor in the presence of the child. The mother alleged the paternal grandparents witnessed the incident and attempted to pull the father off the mother. The mother called NSW Police and an interim ADVO was issued against the father for the protection of the mother. The mother took the child and temporarily resided with a friend until she obtained rental accommodation for her and the child.
In mid-2019, the mother enrolled the child in childcare.
On 18 July 2019, the mother commenced proceedings in the Family Court of Australia (as it was then known, now the Federal Circuit and Family Court of Australia (Division 1)). Amongst the orders sought by the mother were orders that she be permitted to relocate the residence of the child to Adelaide, and that the father spend supervised time with the child in Adelaide and Sydney.
Between 3 August 2019 and 14 September 2019, the child spent supervised time with the father on ten occasions.
In late 2019, a Magistrate of the Suburb AA Local Court dismissed the Police’s application for an ADVO against the father arising from the incident on 7 June 2019.
On 19 September 2019, interim parenting orders were made, relevantly, that the child live with the mother; the child spend time with the father on Monday and Thursday between 7.00am and 5.00pm; on alternate Sundays from 9.00am to 12.00pm; and alternate weekends from 5.00pm on Saturday to 12.00pm on Sunday. In essence, the orders provided for the child to live with the mother and spend time with the father for five days or part thereof, and one night per fortnight. There were also additional orders in relation to the mother residing within 10 kilometres of Suburb E; the father paying $500 per week toward the mother’s rental accommodation; and orders in relation to changeover. The mother’s Application in a Proceeding seeking to relocate to Adelaide with the child was dismissed. At trial, the mother did not proceed with that Application.
In late 2019, the mother alleged she found a note from the father in the diary the parties used to communicate in relation to the child’s care which detailed that the father saw the mother and the child at a place of worship. The mother alleged she became concerned that the father was stalking her and the child. The father denied placing the note in the child’s diary.
In late 2019, the father took the child to a doctor and obtained a prescription of antibiotics for the child. The mother alleged she was not informed of the child’s doctor’s appointment and the appointment was not with the child’s regular general practitioner.
The next day, the father attended the child’s daycare and was advised by childcare staff that he was not permitted to enquire or attend the facility as the mother had provided the childcare with a copy of a historical ADVO.
A short time later, upon the return of the child to the mother after time spent with the father, the mother observed the child to exhibit signs of shortness of breath and wheezing. The mother sought medical treatment for the child.
In late 2019, the father obtained a referral for the child to attend upon a paediatrician who was not the child’s usual paediatrician in circumstances where the mother had made an appointment for the child to attend upon his regular paediatrician in early 2020.
On 5 December 2019, a Child Impact Report (also known as a Children and Parents Issues Assessment) was completed by Ms CC, Family Consultant. That Child Impact Report was tendered into evidence during the trial by counsel for the mother. Ms CC’s evaluation was that:[2]
[Ms Takhar] made serious allegations of family violence by [Mr Takhar]. If such allegations are found to have veracity, such violence is likely to impact on [Ms Takhar’s] ability to co-parent with [Mr Takhar] in a child-focused manner. If the Court finds that [Mr Takhar] has perpetrated violence, it may be beneficial if he attends a men’s behaviour change group. This may also assist if the Court finds that [Mr Takhar] is overly controlling in his interactions with [Ms Takhar] in regards to [X’s] care.
[X] appeared to have a positive relationship with each of his parents, allowing each parent to comfort him when he was distresses and appearing to have comfortable, positive interactions with each of his parents. Whether, or not, [Mr Takhar’s] ability to manage his anger impacts on his ability to provide care for [X] may be a matter for Court determination.
[2] Exhibit MT-12, paragraphs 50-51.
In early 2020, the mother alleged she found a further note from the father in the parties’ communication book detailing that the father saw the mother and the child at a place of worship. The father again denied he placed a note in the child’s journal.
In March 2020, the father sought through further litigation an increase in the child’s time spent with him.
In March 2020, the mother was informed by her real estate agent that the father had requested to inspect the mother’s rental accommodation.
In June 2020, the mother alleged that at a changeover of the child’s care, the paternal grandmother verbally abused her and further that she observed the paternal grandmother telling the child not to call the mother his mum, and that he did not have a mother.
On 18 June 2020, the father’s Application in a Proceeding filed 19 March 2020 was dismissed. At changeover of the child’s care that day, the mother alleged the father initially refused to effect changeover of the child’s care. The mother alleged following communication between the parties’ solicitors, the father eventually effected changeover.
In October 2020 and November 2020, changeover of the child’s care was a heated exchange. Recordings of changeover were tendered at trial and showed the father in attendance with the paternal grandparents and the mother in attendance with various friends. There were multiple people recording changeover on each occasion. As a result of the increasing acrimony at changeover, the parties agreed for changeovers to take place at Suburb BB Police Station.
On 23 November 2020, at changeover of the child’s care inside the Suburb BB Police Station, the mother needed the assistance of a Police officer to have the child returned to her care. The paternal grandmother was again recording the changeover and directed by Mr JJ to “stop recording immediately”.[3] The father was told to “stop drawing out the goodbyes”.
[3] Mother’s affidavit filed 9 May 2023, paragraph 157(n).
In early 2021, the mother made a report to Police in relation to the father and the paternal grandparents conduct at changeover.
In mid-2021, the mother and child travelled to Adelaide to visit the maternal family.
A short time later, a provisional ADVO was issued against the father for the mother’s protection due to the mother making a further report to Police about the conduct of the father at changeover.
In July 2021, the father met Ms O online.
On 6 August 2021, upon the child’s return to the mother’s care after time spent with the father, the mother alleged she found a note in the child’s backpack which said ‘WHEN THE ADVO IS DISMISSED, I WILL TEACH YOU A LESSON. I AM WATCHING YOU’.[4] The mother alleged the note was from the father and reported the incident to Police. The father denied the mother’s allegations and volunteered to participate in fingerprint and DNA testing. The father claimed to have been informed by Police that neither his fingerprints nor DNA were found on the note and the matter was closed.
[4] Mother’s affidavit filed 9 May 2023, paragraph 172.
On 15 August 2021, the Family Report of Dr G was released to the parties. Its contents are discussed below.
In late 2021, Ms O travelled from New Zealand to Australia and met the father in person for the first time. They married in late 2021.
In November 2021, the mother took the child to see a doctor after observing swelling and potential signs of infection in the child’s genital area. The child was diagnosed with a urinary infection. The mother alleged the father dismissed the child’s medical diagnosis and alleged the child’s penis was pinched whilst the child was in the mother’s care.
In early 2022, the child commenced school at M School.
In February 2022, the mother alleged the father took the child to a doctor without the mother’s consent.
In early 2022, the father and Ms O separated. It was the father’s position they separated after learning Ms O’s daughter from a previous relationship, who did not reside in Australia, was unable to be added to Ms O's Australian visa application.
In late 2022, the mother commenced a relationship with Mr F.
In November 2022, the mother alleged that after the child returned from time spent with the father, the child told the mother that he “has to speak to dadda’s friend on the computer” and “I need to tell dadda’s friends that I love dadda and that I want to live with him”; and that “mumma is mean to me”.[5] It was the mother’s position she understood the child was referring to his upcoming meeting with Dr G (who was in the process of providing an updated family report for the Court) which was then scheduled to take place in December 2022. That interview did not take place until February 2023.
[5] Mother’s affidavit filed 9 May 2023, paragraph 226.
In December 2022, the father alleged the child became upset, sad and afraid prior to returning to his mother’s care. The father also alleged that at a changeover of the child’s care where Mr F was present, the father observed the mother tell the child to call Mr F ‘dad’.
In December 2022, the child returned from time spent with the father and allegedly told the mother that he has to “tell dadda’s friend” that “mumma is mean to me and hits me”.[6] The mother again understood the child’s comments as referring to his upcoming meeting with Dr G.
[6] Mother’s affidavit filed 9 May 2023, paragraph 228.
In December 2022, the mother advised the father in an email that she was in a relationship with Mr F.
On 12 December 2022, interim parenting orders were made, relevantly, that extended the child’s time spent with the father to provide for a regime of four nights per fortnight during the school terms being: in week one from Thursday after school to Friday before school, and in week two, from Monday after school to Tuesday before school and Friday after school to 3.00pm on Sunday. The orders also made provision for the child to spend time with the father on the child’s birthday, on the Easter long weekend, for Christmas 2022, and during the New South Wales gazetted school holidays. The school holiday provision provided for four periods of five nights during the long summer school holidays; for one period of five nights from 13 to 18 April 2023; and one period of two nights from 24 to 26 April 2023 during the April holidays. Orders also included provision for interstate travel and changeover.
In early 2023, the mother, Mr F and the child travelled to Adelaide to visit the maternal family.
A short time later, the father was informed, via the parties’ solicitors, that the mother was engaged to Mr F. Following the father receiving this information, the child commenced to make the various disclosures as made or alleged, which form the basis of the father’s case of asserted risk to the child in the mother’s care. In particular, the disclosures made on the 16 February 2023 to Dr G.
In February 2023, the father observed the child to have a graze on his nose. The father asked the child if he fell at school and the child told the father “No, mum pushed me into the wall at home”.[7] The father asked the child “why did she do that?” to which the child responded, “mum said you’re bad and that you kicked us both out of the house and I said no, my dad would not have done that”.[8]
[7] Father’s affidavit filed 26 May 2023, paragraph 160.
[8] Father’s affidavit filed 26 May 2023, paragraph 160.
On 16 February 2023, the parties, and the child, and each of the paternal grandparents attended upon Dr G for the purposes of an Updated Family Report. The matter took on an entirely different complexity from that earlier dealt with by Dr G, who felt compelled to report to the Department of Communities and Justice (“DCJ”) disclosures made to her by the child. This matter is further elaborated on in the consideration of Dr G’s evidence below.
In February 2023, the father observed the child had bruising on his buttocks. The father asked the child what happened, and the child told the father “mum hit me on Friday night with a big wooden spoon after asking what I told [Dr G]”.[9] The father then took the child to Dr J, who was not the child’s regular general practitioner and Dr J said to the father “the bruises have begun to fade. If it happens again, bring him to me straight away so I can see if there is anything of concern”.[10]
[9] Father’s affidavit filed 26 May 2023, paragraph 162.
[10] Father’s affidavit filed 26 May 2023, paragraph 162.
In early 2023, the mother was informed by a parent at the child’s school that they observed the paternal grandmother drop the child off at school and that she recorded the child whilst he was crying. When the mother collected the child from school that day, the child told the mother “dadda said not to come to you because they don’t like you”.[11]
[11] Mother’s affidavit filed 9 May 2023, paragraph 223.
In early 2023, the child allegedly had the following conversation with the father. The child said “daddy, someone hurt my penis”. The father asked the child “who” and the child replied, “mum’s boyfriend [Mr F]”. The father also asked the child “how did he hurt you” and the child replied, “he put his hands in my underwear, touched and pulled my penis”. The father also asked when it happened and the child said “on Saturday”. The father asked the child if Mr F had touched him before and the child responded “yes, during the summer holidays and school time”. The father continued and asked the child why he had not told the father before and the child responded he “told mum, but she got angry with me and hit me with a big wooden spoon and locked me in my bedroom”.[12]
[12] Father’s affidavit filed 26 May 2023, paragraph 165.
The next day, the father took the child to Dr J. Following Dr J speaking to the child alone, Dr J told the father “the allegations [X] has made against his mother and her new partner are concerning and reportable”.[13] The father understood Dr J made a report to the DCJ. The father then dropped the child at school, where he was collected by the mother at the conclusion of the school day.
[13] Father’s affidavit filed 26 May 2023, paragraph 168.
On two mornings in early 2023, after the mother dropped the child off at school, the father visited the child’s school and spoke to the child.
Between 8 and 10 April 2023, the child was in the father’s care.
It is agreed that notwithstanding the abovementioned alleged disclosures the child made to the father in early 2023, the father continued to facilitate the child’s time with the mother in accordance with the operative interim orders. The father did not raise his concerns directly with the mother.
On 13 April 2023, the child went into the father’s care in accordance with the operative interim orders. It was at that time the father then overheld the child and did not facilitate the changeover of the child’s care back to the mother on 18 April 2023.
A short time later, the mother was notified by the DCJ that disclosures had been made by the child. The mother was not provided with information in relation to the disclosures made by the child to the DCJ. That same day, after the mother’s interview with DCJ, the mother’s solicitor received a letter from the father’s solicitor advising the father was not returning the child to the mother’s care and set out some of those disclosures as alleged.
Also at that time, Ms LL of the DCJ spoke to the child alone and the child made the following disclosures:[14]
[14] s 91B Response dated 18 May 2023, paragraph 5.
•Mum pushed me into the wall and I got a bruise.
•She hit me with big wooden spoon on my bottom and legs and arms. I had a bruise on my bottom somewhere.
•They hit me with [Mr F’s] belt or shoe when they can’t find the wooden spoon.
•[Mr F] sometimes slaps me on my legs, hands, and bottom. He punches me on those places too.
•His mother threatens him with a ‘big knife’ and says that she’s going to kill him.
•His mum calls him names such as “bastard, fucking idiot”.
•Bad things happen at mum’s house. The boyfriend [Mr F], he touched my penis 8-9 times during the holidays and he tries to put his finger in my bum hole and he shows bad photos of people naked. When I tell my mum she doesn’t protect me she just hits me with big wooden spoon and locks me in my room. I cry in the room with my toy […].
•He touched my penis and my bum hole during holidays and during school time. When I sometimes play Nintendo he tries to put his hand to my penis and he pulls and I got a bruise there. I don’t want to live there.
•[Mr F] touched my penis maybe 6-8 times. The last time it happened was during summer holidays (December - January) and school. He was touching me during December and January. I was playing truck game on Nintendo in my toy room at mum’s house. He then showed photos and tried to touch my bum hole. Then I tried to tell him to stop but he didn’t stop. Then I told my mum and she hit me with big wooden spoon and locked me in the room. Sometimes I was in toy room or Nintendo. He shows me the photos on his phone. He says to touch his penis and bum hole when he shows me the photos. When I told mum she didn’t protect me. When I told [Mr F] to stop he just kept on showing the photos to me. Then I tried to stop but he didn’t. I just said stop and closed the phone and then he got angry with me and I cried in my room with my [toy].
•Mum is busy on her phone and computer when this happens. When I tell my mum, she doesn’t stop him or protect me.
At the same time, the child also told Ms LL that “[Mr F] and mum are my enemies”.[15] When asked “What does that word (enemy) mean?” the child responded that “They are enemies to dad and me. Maybe my dad told me that word”.[16]
[15] Exhibit FT-2, p.125.
[16] Exhibit FT-2, p.125.
The next day, the mother signed an undertaking that she would not leave the child alone with Mr F.
On 20 April 2023, the mother filed an Application in a Proceeding and sought orders, relevantly, that the child be urgently returned to her care by way of a recovery order pursuant to s 67Q of the Family Law Act 1975 (“the Act”).
In early 2023, the NSW Police Child Abuse Squad interviewed the child. The mother and Mr F were also interviewed by the NSW Police and a provisional ADVO was issued against the mother and Mr F for the protection of the child.
The following day, an incident report completed by the child’s school indicated that the child had developed a ‘new behaviour’ of making disclosures to the school office:[17]
[X] has developed a new behaviour, he seems to come to the office a few times during recess and lunch to report on things that have happened to him at home [redacted] spoke to him, "[X] had come down to the office just after the play time recess bell had gone, he said to [redacted] and I that he had an emergency. [redacted] asked him "what type of emergency?' She asked him if he was hurt or felt sick. He then said he felt unwell with a stuffy nose and sore throat but there was no teacher on duty he could find. He kept repeating he had an emergency, so [redacted] asked him again if he was okay which is when he said, "My mum smacked me on my bottom and back, she puts me in a cold shower and then in a room and locks the door." he then said "I want to be with my dad, he is my safe person."
[17] Exhibit MT-18, p.9.
On 27 April 2023, orders were made, relevantly, that pursuant to s 69ZW of the Act, NSW Police provide a response to the Court; pursuant to s 91B of the Act, it was requested that the DCJ intervene in the proceedings; leave was granted to all parties to issue any necessary subpoenas in preparation for the trial; the ICL provide to Dr G copies of various documents filed by the parties in early 2023, together with a copy of any safety outcome produced by DCJ; the parents be restrained from inflicting corporal punishment upon the child, coaching or discussing the proceeding with the child, and engaging in any form of family violence toward the child or exposing the child to family violence; the mother be restrained, until further order, from bringing the child into the presence and/or hearing of Mr F and further restrained from discussing the DCJ and NSW Police investigations with the child; the child forthwith be returned to the mother’s care that afternoon and thereafter the child remain living with the mother for a continuous period of seven days; thereafter the child’s time with the father to continue in accordance with the operative interim orders made on 19 September 2019 and 12 December 2022; all extant interim applications be dismissed; and the costs of the parties reserved. The reasons for the making of such orders are as set out in Takhar & Takhar [2023] FedCFamC1F 330 and not further dealt with here.
The father immediately filed a Notice of Appeal and Application in a Proceeding, seeking orders, relevantly, that the orders made on 27 April 2023 be stayed in their operation. The father then discontinued his appeal after receiving notification the appeal would not be heard prior to the final hearing of the matter.
In early 2023, the child made disclosures that the mother physically abused him. As detailed in an incident report from the child’s school, the child approached a teacher at recess time and said the following:[18]
[X] stated that he wanted to let us know that his mum hit him on the bottom and back with a wooden spoon. And his mum's girlfriend hit him on the back and bottom with a wooden spoon at her house too. Everyone was hitting him with the wooden spoon and belts. He was playing a game and they just started hitting him. He stated that his mum puts chilli in his mouth. He stated that mum made him have a cold shower and she locked him in his room and sometimes she does not give him dinner. He tried to show left though (sic) where there might be a bruise. He showed his back, no bruising was evident to [redacted]. [redacted] said that it was brave to come and speak with us and that if there is anything else worrying him that he can come down to speak to use, (sic) because our job is to keep him safe. He asked to go and play in the playground.
[18] Exhibit MT-18, p.3.
On the same day, the child also approached a teacher at his school and asked the teacher to call the Police. The child’s teacher asked the child why the Police needed to be called, and the child told the teacher “Because police can catch my mum. Police catch bad people; they can catch my mum”.[19] The child was further asked if he was feeling okay and if there was anything else he needed to tell the teacher. The child said “no” and said he was going to play with his friends.[20] When the child was collected from school by the mother that day, a teacher observed the child leaving the school holding the mother’s hand and talking to her.
[19] Exhibit MT-18, p.2.
[20] Exhibit MT-18, p.2.
In mid-2023, the mother spoke to the child’s school and a teacher at the child’s school told the mother that they had “noticed a new behaviour in [the child], he is running to the office to disclose information re home circumstances”.[21]
[21] Exhibit MT-18, p.5.
In mid-2023, the mother unilaterally took the child to an appointment with Ms DD, child psychologist.
In mid-2023, the father observed the child to have a bruise on his knee. The father conceded under cross examination the bruise was “miniscule”.[22] The father asked the child about the bruise and the child allegedly told the father “mum hit me with a big wooden spoon”, “mum was angry about what I said to Mani”, “mum then slapped my legs, I was crying and tried to run to my room. Mum grabbed my left arm and shook it back and forth. She called me bad things…fucking idiot, bastard and dog”, and “on Tuesday mum slapped my face and legs”.[23]
[22] Transcript 9 June 2023, p.58 line 17.
[23] Father’s affidavit filed 26 May 2023, paragraphs 187-189.
The father did not reflect on what the child had told him nor on the size of the bruise. The father’s next action was to contact the DCJ in order to report the matter. He did not immediately receive a return call. The father then proceeded, on the same day, to take the child to a doctor at HH Health Centre for examination.
The next day, the father contacted the Police and arranged for the child to be interviewed. The Police attended the father’s home and spoke to the child alone. The father received a return call from the DCJ and was advised that the DCJ would continue to speak to the child as part of their investigations. On the same day and thereafter, the father returned the child to the care of the mother.
In mid-2023, the mother was arrested and taken to Suburb BB Police Station. The mother was charged arising from the child’s allegations that the mother had hit him. As part of a subsequent bail condition, the mother was prohibited from seeing the child. The father collected the child from school that day and the child thereafter remained in the father’s care until some days later.
In mid-2023, the child had an appointment with Ms DD which did not proceed due to the above arrest. The mother asked the father to take the child to his appointment with Ms DD. The father refused the mother’s request.
In mid-2023, the ADVO against the mother for the protection of the child was dismissed in the Suburb AA Local Court.
Two days later, the Court received a response from the DCJ to the s 91B of the Act order made on 27 April 2023, which detailed:[24]
[Ms LL] has continued to visit [X] at school and at the home of his mother [Ms Takhar] and interviewed him alone. Information that [Ms LL] obtained and her observation of [X] during these interviews indicates that the disclosure he made about sexual and physical abuse by his mother and the mother’s partner is not reliable. [X] repeated the allegations as if he learnt them by heart but was unable to give reasonable further details to corroborate the story. The disclosure by [X] when considered within the configuration of the mother’s home indicates that the story he told is nor (sic) plausible. It is noted that there continues to be allegations made against the mother when [X] goes to his father’s home for scheduled family time.
[24] s 91B Response dated 18 May 2023, paragraph 14.
The response from the DCJ further detailed that in mid-2023, a risk assessment of the household of the mother had been completed and the outcome was moderate risk, noting the following:[25]
•The main issues of concern appear to be the dispute between [Mr and Ms Takhar] and the allegations that are being made in relation to [Ms Takhar] and her partner [Mr F].
•With respect to the allegations of [Mr F] sexually abusing [X], the Police have taken out a no-contact AVO protecting [X] from [Mr F] and [Ms Takhar] asked him to leave the family home as soon as this occurred.
•With respect to the allegations that [Ms Takhar] uses physical discipline toward [X], this has also been assessed. DCJ did not find any evidence that [Ms Takhar] has used excessive discipline in the assessment completed.
•Although NSW Police have applied for a no-contact AVO where [Ms Takhar] is the defendant, DCJ have sighted the photograph of the bruise on [X’s] leg and do not believe this was caused by an implement but more from everyday play for a child of [X’s] age.
•[Ms Takhar] has got a referral to a psychologist for [X] and wishes for him to have ongoing access to therapeutic services.
•DCJ believes this is a family where there will be continued reports of concerns made against each parent so long as the matter is before the Court.
(emphasis added)
[25] s 91B Response dated 18 May 2023, paragraph 15.
On 30 May 2023, the trial commenced. On 1 June 2023, orders were made, relevantly, adjourning the matter part heard to 6 June 2023; for the child to remain living with the mother; and for leave to be granted to the mother to issue a subpoena to FF Psychology (seeking the father’s records).
On 8 June 2023, orders were made, relevantly, that the entirety of the evidence given by Mr F be suppressed pursuant to s 102PH of the Act, not be capable of dissemination beyond those categories of persons mentioned in s 97(2)(c) of the Act and further extending to the interpreter Ms KK; and that there be leave to the father to file and short serve a subpoena to Western Australia Police.
On 9 June 2023, orders were made adjourning the trial part-heard to 22 August 2023. The further orders made appear in the paragraphs below.
Interim parenting orders were made for the child to live with the mother and spend increasing periods of time with the father, commencing the following Sunday for a period of six hours and in the absence of the paternal grandparents; then on the following Sunday for a period of six hours in the presence of the paternal grandparents upon provision by them of an undertaking filed with the Court prior to such time; then the following weekend from the conclusion of school on Friday to Sunday afternoon; then the following weekend from the conclusion of school on Friday until Sunday evening; then the following weekend from the conclusion on school on Friday until Saturday evening; then a fortnight later, from Thursday morning until Saturday afternoon; and thereafter during the school term each second week from the conclusion of school on Friday until Sunday evening.
Further orders were made by consent, relevantly, that the mother be permitted to travel to Adelaide with the child; changeover, when not taking place at the child’s school, take place at Hungry Jacks Suburb GG; the mother and father ensure no third party attends changeover or is within 100 meters of the child during the exchange; without admission by the mother, the mother ensure that Mr F does not interact, contact or be in the presence or hearing of the child or spend time with the child whilst the child is in her care; each party to notify the other parent in the event of any medical issues and to notify the ICL of any non-emergency medical appointments; the child’s general practitioner to be a doctor at HH Health Centre; the parent with whom the child is living/spending time with to take the child to any extracurricular activities or sporting activities and any other activities as agreed in writing between the parties; each parent be restrained from: denigrating the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship with in the presence or hearing of the child; from causing or allowing any third party to denigrate the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship with in the presence or hearing of the child and take immediate steps to remove the child from the physical presence of such third parties; and exposing the child to violence including physical or verbal threats or intimidation, whether such violence, threats or intimidation is directed at the child, either parent, any member of either parent’s household and/or any person with whom either parent may maintain a genuine domestic relationship with; and discussing these current proceedings in the presence or hearing of the child or permitting any third party to do so. Further orders provided that the parties encourage and not undermine each child’s relationship with the other party; and for the parties to advise the other of any change to their landline and/or mobile telephone numbers and/or email addresses within twenty four (24) hours of such change occurring and any change to their residential address no later than forty eight (48) hours prior to such change occurring.
In mid-2023, the mother received a letter from DCJ which detailed:[26]
This letter is to advise you that the Department of Communities and Justice (DCJ) will be closing the matter for your child, [X]. DCJ have completed the assessment for [X] and determined that he is not at risk of significant harm in your care.
[26] Exhibit MT-14, paragraph 1.
In mid-2023, the mother and Mr F were notified that the Police were not laying any formal charges against Mr F and that Police were willing to remove the ADVO condition which prevented Mr F from approaching the child or contacting the child in any way.
On 25 August 2023 the trial concluded, and interim orders were made that day, relevantly, that the child live with the mother and spend time with the father, during school terms, from the conclusion of school on Friday until 6.00pm on Sunday – being two nights a fortnight, and during the third term NSW school holidays for a period of five consecutive nights, and on Father’s Day.
In late 2023, the Police withdrew the charges against the mother of common assault and contravention of an ADVO.
In late 2023, the provisional ADVO against Mr F for the protection of the child was withdrawn by Police.
On 8 November 2023, the mother filed an Application in a Proceeding to adduce further evidence. The application was resolved by consent where all parties agreed it was appropriate for the mother to be granted leave to adduce further evidence.
In late 2023, the provisional ADVO against the mother for the protection of the child was withdrawn by Police.
On 1 December 2023, orders were made in Chambers, by consent, that the matter be reopened for the purposes of admitting into evidence the mother’s affidavits filed 8 November 2023 and 17 November 2023. Further consent orders also made, that until further order, the child spend overnight time with the father for five consecutive nights in December, Christmas Eve, and two periods of five consecutive nights in January 2024 and the father’s time with the child pursuant to the Orders of 25 August 2023 to recommence on 9 February 2024.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities.[27] The Court is not required to undertake a microscopic analysis in relation to the evidence which has been presented, and findings of fact will not be made in relation to every single disputed piece of evidence, of which there are many in this matter.[28] Relevant evidence has been considered and evaluated to make a determination that the Court finds is in the child’s best interests.
[27] Evidence Act 1995 (Cth) s 140.
[28] Rigby & Olsen [2021] FedCFamC1A 46.
The parties allegations against each other are voluminous in nature. It is not necessary to particularise every allegation made.
The mother
I found the mother to be a reliable witness. She answered questions directly, perhaps excessively literally, and made concessions where appropriate. She presented as stoic.
The ICL submitted the mother’s evidence presented as guarded and at times, non-responsive. I disagree with the submission of the ICL save on occasion the mother was necessarily careful in the giving of her evidence, in the context of the criminal charges faced by her and her partner, which may have appeared guarded.
The father
The father, I find, was not a reliable witness. His evidence at times was inconsistent and on occasion, not truthful. The father gave evidence that his mother’s phone which contained recordings of videos of historic changeover, was shattered, dropped and destroyed, and thereafter inconsistently claimed that the mother had given the phone to a cousin or a friend. The father also chose not to, and ultimately had to admit that which he had earlier denied that on late 2017, he called triple 0 alleging the mother had assaulted the child by giving him a hot bath.
The father, under cross-examination, was asked about the approximately six sessions of couples counselling the parties had attended as arranged through his employer. Neither party could remember the name of the service provider. The father accepted that he had been previously asked by the mother, via her solicitors, to provide such details which would have been available to him from enquiries made by him of his employer, and he had failed to do so. The father continued to not recall the name of the service provider and claimed that he made enquiries of his employer prior to re-examination and such details were not able to be provided to him at that time. I conclude that the father could have obtained such information in the many months before trial but chose not to do so.
The ICL submitted the father impressed as a direct witness however had a fixed view of what was said to him by the child. In my view, the father was not a direct witness at times and was intent on making out a case that the mother posed a risk of physical harm to the child and Mr F posed an unacceptable risk of harm to the child. He took anything the child alleged, adverse to the mother and/or Mr F, as proof of the occurrence of that allegation. He further denied that he or any member of his family coached the child to make false allegations against the mother and Mr F and/or excessively denigrated the mother in circumstances where I find it is most probable that the father and the paternal grandparents did.
Mr F
Mr F gave evidence at trial and was assisted by an interpreter. He was granted a certificate pursuant to s 128 of the Evidence Act, where there were extant criminal investigations against him because of the child’s disclosures of alleged sexual abuse.
Mr F is the fiancée of the mother. He is employed as a transport worker and does not have a criminal record.
It was Mr F’s evidence that he did not sexually abuse the child and that he felt “shocked, upset and ill” that there were allegations he inappropriately touched the child.[29] It was also Mr F’s evidence that he was never alone with the child during times the child was in the mother’s care at her home.
[29] Affidavit of Mr F filed 9 May 2023, paragraph 3.
From 27 April 2023, and continuing to and throughout the trial, and by order continuing thereafter, Mr F has not been with the mother when she has had the primary care of the child. He supported the mother in her decision to give the undertaking she did (before the trial commenced) to exclude him from the child’s life, and her later consent to orders in similar terms.
It was Mr F’s evidence he had a loving relationship with the child, with the child being warm and comfortable in his presence and the two engaging in conversation and play. Mr F had been earlier involved in the child’s daily routine and assisted the mother getting the child ready for bed, and taking the child to sports and activities such as sport and performing arts.
The child called Mr F “dadda” or by another affectionate name and it was Mr F’s position he did not ask the child to address him in a particular way and allowed the child to choose how he wanted to address him.[30] I note the evidence of Dr G that this adoption of such a name was “ a boundary issue” and nothing more, but that the child had a very strong father-figure in his life to whom he had a very strong attachment. In my view, in these circumstances, the child should cease to refer to Mr F in this manner and the mother should direct the child to so cease.
[30] Affidavit of Mr F filed 9 May 2023, paragraph 23.
Mr F gave evidence that the child made disclosures to him after returning to the mother’s care following time spent with the father. The disclosures included the child telling Mr F: that he was told by the father “your mumma is a […] (bitch)”; “your mumma is a [dog’s tail]”; and “your [mother] is a [buffalo]”;[31] “Dad makes me repeat the bad words and that I should not listen to mumma”;[32] and that the father told the child to say “bad” words about the mother.[33] Mr F gave further evidence the child told him “tell your teacher that your mumma is bad…your mumma is mean…[Mr F] hits you”.[34]
[31] Affidavit of Mr F filed 9 May 2023, paragraph 37.
[32] Affidavit of Mr F filed 9 May 2023, paragraph 38.
[33] Affidavit of Mr F filed 9 May 2023, paragraph 39.
[34] Affidavit of Mr F filed 9 May 2023, paragraph 39.
It was Mr F’s evidence that he had never seen the mother hit the child, and that he observed the mother and child to have a close and loving relationship. Mr F gave as examples that he observed the mother to: comfort the child and tend to the child’s needs before her own; provide encouragement to the child; acknowledge the child’s feelings; take the child to activities; ensure the child uses his medical aid as required; and apply cream to the child’s eczema rashes.
Mr F gave his evidence in a straightforward manner, and I accept the evidence of Mr F.
Ms O
Ms O is the husband’s wife from whom he is separated. She filed an affidavit and gave evidence at trial in support of the mother.
Ms O was an honest witness and made appropriate concessions when giving evidence at trial. For example, Ms O was forthcoming in her evidence that she only agreed to move from New Zealand to Australia and marry the father on condition that the father sponsor her daughter to live with them. When it transpired that her daughter was unable to obtain a visa to live in Australia, Ms O decided to separate from the father. Ms O gave further evidence that the father’s family violence against her was an additional factor which contributed to her decision to separate from the father.
Whilst Ms O and the father were in a relationship, Ms O lived with the father, the paternal grandparents and the child, in the paternal grandparents’ home. During this time, she helped care for the child and was involved in his daily routine and usual day to day care.
Ms O gave evidence that the father and the paternal grandparents questioned the child about his time with the mother. She claimed that they denigrated the mother to the child and coached the child to make false allegations that the mother hit him. Ms O’s evidence was that she observed the following:
(1)The paternal grandmother and the father asking the child, “what is that bitch teaching you?”, “what did that bitch say”; “is this what the female bastard [sic]”; and saying to the child “do not listen to that prostitute.” [35] Ms O understood the references to ‘bitch’, ‘female bastard’ and ‘prostitute’ were references to the mother.
(2)The paternal grandmother telling the child in her language “you don’t have a mum, you only have a dad” and “[Ms Takhar] is a thief.” [36]
(3)The father and paternal grandparents getting “[the child] to repeat sentences saying things like “I do not want to live with [Ms Takhar]/mumma” or “I want to live with dadda”, with either the father or a paternal grandparent recording the child whilst he was repeating the sentences as requested.[37]
(4)The father telling the child “[Ms Takhar] does not love you and if she did she would not have left me” and “you should tell your teachers at school that your mum hits you and that you want to live with your dad”.[38]
(5)The father and the paternal grandparents asking the child “[the mother] hits you, doesn’t she?”.[39]
(6)The father and the paternal grandparents telling the child “When [Ms Takhar] hits or abuses you, you need to call the Police and tell them that your mum hit you and tell them that you want to live with Dad.”[40]
[35] Affidavit of Ms O filed 9 May 2023, paragraph 89.
[36] Affidavit of Ms O filed 9 May 2023, paragraph 90.
[37] Affidavit of Ms O filed 9 May 2023, paragraph 75.
[38] Affidavit of Ms O filed 9 May 2023, paragraphs 77-78.
[39] Affidavit of Ms O filed 9 May 2023, paragraph 76.
[40] Affidavit of Ms O filed 9 May 2023, paragraph 77.
Ms O gave further evidence which went to the father’s conduct toward the child. She claimed the following occurred when she was in the household of the father and his parents:
•When the father became upset towards the child, the father dragged the child by his arm and shouted and (sic) [Ms O] […] words to the effect of “can’t you look after [the child]”.[41]
•The father put the child to bed late on school nights.
•The father and paternal grandmother at times denied the child had asthma and refused to give the child his asthma puffer.
•On one occasion, when the child was upset upon returning to the father’s care, the father and paternal grandfather yelled at the child. The child commenced to cry and went into a bathroom and locked himself inside.
[41] Affidavit of Ms O filed 9 May 2023, paragraph 26.
I accept Ms O’s evidence.
In particular, I prefer the evidence of Ms O to that of Mr V, which is set out hereafter.
Ms N
Ms N is the mother’s sister. Ms N lives in Adelaide and had spent time with the child when the child and the mother visited Adelaide, and when she visited the mother and the child in Sydney. She was a truthful witness.
Ms N visited the mother and child in April 2023, and she remained in Sydney until at least May 2023. She spent time with the child from April 2023 to May 2023 while the child was in the mother’s care and observed the child, to seek comfort from the mother including saying: he wanted to “hold mumma’s hand”; “I want mumma to feed me”; “I want to give mumma a hug first”.[42] The child also expressed that he missed Mr F and asked where Mr F was.
[42] Affidavit of Ms N filed 9 May 2023, paragraph 18.
It was Ms N’s evidence that she spent time with the child in the absence of the mother and that during that time the child spoke to Ms N and said “dadda and [grandma] ([Mr Takhar’s] mother) told me to say bad things”; “[grandma] told me to tell that mumma hit me”; and “dadda said mumma is going to kick me out of the house”.[43] Further, the child told her “dadda made me say bad things which aren’t true, like [Mr F] touched my penis and mumma hit me”.[44]
[43] Affidavit of Ms N filed 9 May 2023, paragraph 20.
[44] Affidavit of Ms N filed 9 May 2023, paragraph 22.
I accept the evidence of Ms N.
Ms P
Ms P is the maternal grandmother of the child. She resides in South Australia, some distance from Adelaide.
I found Ms P to be an impressive witness. She limited her evidence to those facts about which she had personal knowledge and was not intent on criticising the father beyond detailing those matters as raised by her daughter as difficulties within her marriage, and her direct interactions with the father. The mother had told her that the father was controlling of her during the parties’ relationship; the paternal grandparents interfered with the parties’ relationship; the father restricted her travel to South Australia; and the paternal grandparents filmed her during changeover of the child’s care.
It was Ms P’s evidence that the mother does not speak negatively about the father in the presence of the child. Ms P also did not particularly criticise the father.
I accept Ms P’s evidence.
Ms W
Ms W is the paternal aunt of the child. Ms W resides in New South Wales, several hours’ drive from Sydney.
It was Ms W’s evidence that prior to COVID-19, she saw the father, the child and the paternal grandparents approximately four times per year. Post COVID-19, she sees the child and the paternal family approximately three times per year.
Ms W’s evidence largely supported the evidence of the father that the father has a close relationship with the child; the father loves and cares for the child; the child shows affection toward the father; and that the child has expressed to her that he did not want to go to the mother’s care.
Ms W also attended changeover of the child’s care on two occasions in October 2020, together with the father and the paternal grandparents. Ms W’s evidence in relation to changeover of the child’s care on 4 October 2023 was critical of the mother, Ms MM and Ms MM’s husband and brother.
I accept Ms W’s evidence but give little weight to her view of the mother’s behaviour during the historical changeovers in 2020. The mother was placed in a very difficult position as is discussed further below.
Mr V
Mr V is married to Ms W and is the brother-in-law of the father. His affidavit evidence also supported the father’s position.
It was Mr V’s evidence that the child has a close relationship with the father, the paternal grandparents, and Mr V’s children. It was Mr V’s evidence that while he resides in Town NN, New South Wales he visits the father and the child in Sydney a few times each year. From his observations of the father during such visits, Mr V “can confidently say” that he has not heard the father speak ill of the mother or Ms O, nor encourage the child to speak negatively of the mother or coach the child in any way.[45] These observations I note were infrequent and limited, and not of assistance.
[45] Affidavit of Mr V filed 26 May 2023, paragraph 38.
A large portion of Mr V’s affidavit evidence related to the father’s relationship with Ms O notwithstanding on Mr V’s own evidence he “did not have much of a relationship with [Ms O], nor did I really know her.”[46] It was Mr V’s evidence that Ms O said to him “I only married [Mr Takhar] so I could get my daughter out here, if they aren't going to sponsor her then I may as well go back to New Zealand. If I can’t have my daughter, then it’s only fair that [Mr Takhar] does not get [X].”[47]. Mr V further detailed that he was “surprised to learn that [Ms O’s] relationship with [Mr Takhar] had soured to a point where it was beyond repair or reconciliation.”[48]
[46] Affidavit of Mr V filed 26 May 2023, paragraph 25.
[47] Affidavit of Mr V filed 26 May 2023, paragraph 21.
[48] Affidavit of Mr V filed 26 May 2023, paragraphs 23.
I place little weight on Mr V’s evidence and where it differed from that of Ms O, I prefer the evidence of Ms O.
Mr Y
Mr Y is a friend of the father who lives close to the paternal grandparents’ (and the father’s) residence. Mr Y claimed to have observed interactions between the child and the father and the paternal grandparents.
Mr Y’s evidence supported the position of the father, that the father is a loving and caring father to the child and that they enjoy a close relationship.
Mr Y gave evidence that he and his wife “as retired [educators] with many years” experience working with children believe the child “will benefit in continuing and completing his primary education at his current school, as stability, friendships and support is very important for [X's] mental health and development.”[49]
[49] Affidavit of Mr Y filed 26 May 2023, paragraph 12.
It was Mr Y’s evidence that on 12 October 2020, the father requested Mr Y accompany the paternal grandparents and the child to changeover of the child’s care at McDonald’s. Mr Y observed the child and opined that the child “did not want to approach his mother as a child would normally do.”[50]
[50] Affidavit of Mr Y filed 26 May 2023, paragraph 13e.
Mr Y was not engaged by the parties in any capacity to provide an expert opinion or report in relation to the child.
I accept that Mr Y has observed on occasion the father to be a loving and caring father to the child but otherwise place no weight on his evidence.
The paternal grandparents
Both paternal grandparents gave evidence at trial, with the assistance of an interpreter. Their evidence is considered together as their evidence is largely similar in substance, and supportive of the father.
It was the evidence of both paternal grandparents that they had never seen the father physically assault, or psychologically; emotionally; or verbally, abuse the mother, save for one incident in mid-2019, where the paternal grandfather gave evidence that the mother swore at the father and the father swore back at the mother. The paternal grandparents also denied that they ever witnessed the father committing family violence toward Ms O.
Neither of the paternal grandparents demonstrated any insight into how their conduct may have exacerbated tension between the parties, nor how such tension may have impacted the child. Both paternal grandparents for a time attended with the father to facilitate changeover of the child’s care to the mother, and recorded, on their mobile phones, the child, the mother and her support persons who attended changeover. The grandparent’s behaviour at those changeovers was entirely reprehensible and showed no regard for the welfare of the child.
On multiple occasions the child returned from each of the parent’s care to be questioned about the time he spent with the other parent and in some cases, his body photographed to document any bruises and scratches. There is no trust between the parents. On the evidence, the mother has some basis for being wary of the father. It is the mother who exhibits far greater insight into the child’s needs and the need for restraint when being a responsible parent.
The conduct of each of the parents, their friends, and the paternal grandparents at changeover of the child’s care, as shown in the October/November 2020 videos that were tendered at trial, was disturbing. Those videos, taken during changeover at a McDonald’s, showed multiple people in attendance at changeover with their phones held up, and at times, clearly in the child’s face. This conduct was quite extraordinary. It also involved some limited denigration by the mother of the father, in circumstances where she was clearly charged in a hostile environment. Those episodes do not lead me to conclude, in any measure, that the father or the ICL can mount a case that there is denigration of the father in the mother’s household which represents a risk to the child.
Shortly prior to being called to give evidence at trial, Dr G also had the benefit of viewing these videos which had been provided to her by the parties. At trial, Dr G gave evidence that watching the abovementioned videos of changeover left her feeling ‘hollow and shaken’ and that she could not imagine what it would have been like for the child to be caught in the middle of his parents. For Dr G, the videos demonstrated an immaturity of the parties.
The videos of changeover generally depicted the child as crying and becoming extremely distressed. There was no clean handover from the father’s care to the care of the mother. The father often held on to the child and the mother had to find an opportunity, in a fraught environment as created by all persons attending, to secure the possession of the child and then attempt to either comfort him or quickly remove him from the area. The paternal grandparents aggressive filming of the mother, the child and the handover was appalling and rendered the mother vulnerable. The father encouraged that behaviour and showed no concern as to its adverse impact upon the child.
In 2019, the Court made orders to regulate changeovers to promote the child’s best interests. Those orders remained in place at trial and further orders shall be made to continue this regulation of change-over.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This has been considered above and shall not be repeated here.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family
The history of ADVO’s have been set out above in these reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this case it would not be preferable to make such an order. The orders made by the Court will be necessary to promote the best interests of the child regardless of whether such orders lead to further litigation between the parties.
CONCLUSION
The evidence supports the making of orders that the mother have sole parental responsibility for the child and that the child live predominantly with her. The child will spend substantial and significant time with the father, which shall increase during the school holidays once the child becomes older and more mature. The risk which is presented to the child in the father’s household can be ameliorated by his spending greater periods of time in his mother’s care.
The evidence also supports the removal of the restraint against the mother’s partner being brought into contact with the child. There is not an unacceptable risk to the child in being in the presence of Mr F. The mother was at trial, and at the re-opening of the evidence in December 2023, still hoping to marry Mr F but she had made, and was continuing to make, the child her priority.
Whilst the father sought orders in respect of Easter, religious celebrations and special occasion time there was little or no evidence to support the specific orders as sought in closing and they were, in their form, not agreed to by the mother. In these circumstances, the Court shall make orders providing for such times to occur as agreed between the parties. The father sought also to restrain the mother in respect of her geographical residence but again there was little evidence presented to the Court and this matter was not particularly pursued at trial. In any event, in my view there is no proper basis for such an order to be made. The mother should not have her liberty constrained in that way on the facts of this case. She has not pursued a relocation application to South Australia, where she has considerable family support. She has taken up a rental premises close to the father’s home, as required of her by the orders made on 19 September 2019, and as assisted by the father, also pursuant to those orders. These were interim orders made by the Court a number of years ago. The jurisdictional power to make Order 7, as made by the Court at that time, is not readily apparent. The Order is not expressed as a spousal maintenance order and nor is it a child support departure order. It is a payment made to a real estate agent for the benefit of the mother and to ensure that the child lived in close proximity to the father. There is no need for the continuation of these orders on the facts as set out in these reasons. The mother may well choose to move her place of accommodation and reside in another area, but that is an unknown at the present time, as is any benefit that move may present for the mother and the child. The existence of a restraint upon the mother such that she must reside with the child in a vicinity of 10 kilometres from Suburb E is not necessary to promote the child’s best interests on the evidence, and indeed such an order would continue the hostilities between the parties and may lead to further litigation. The making of the order in respect of changeover which is not at the child’s school, being a middle point between the parties respective residences, is also one addressed to reduce the conflict between the parties (which benefits the child) and enables the mother some freedom of movement without penalty.
The parties sought orders in closing in respect of passports and international travel. No evidence as to any immediate need or desire to leave the country that required a consideration of overseas travel for the child was before the Court. The parties did not agree on these orders as sought. In the absence of probative evidence before the Court it is not possible for the Court to make any orders, even perhaps if generic in nature. The parties in this litigation will require, and argue about, very specific orders. I would urge them to attempt to reach a consensus when the time arrives.
Finally, orders shall be made to allow the mother and child to enjoy the company of the maternal family during school holidays being in Term 3. The father lives with the paternal grandparents and they have had and will continue to have the opportunity to care for the child and engage extensively with him. The maternal grandparents live in a different State. The mother’s relationship with them is close and loving and the father conceded in evidence that he did seek, during cohabitation, to restrict the mother and the child’s travel to visit the maternal family in South Australia. He was not child focussed in doing so. The maternal family have much to offer the child. The child has a loving relationship with them. The father works full time and has usual leave which he can spend with the child during other school holidays. It is in the child’s best interests for the child and the mother to be able to spend time with, and be supported by, the maternal family in South Australia each year. Such connection with the maternal family will provide further stability to the child and his relationship with the mother.
COSTS
Legal Principles
Section 117(1) of the Act sets out the general rule that each party shall bear their own costs. However, the Court being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court's discretion. In considering what (if any) order for costs it should make, the Court shall have regard to the matters in s 117(2A) of the Act which are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Although the Court must have regard to all of the matters in s 117 of the Act, each matters particular relevance will depend upon the particular circumstances of each case. The Court is not required to consider these matters in any particular order, and no matter takes precedence over another. It is also not necessary for there to be more than one relevant consideration for the purposes of deciding that an order is justified.
In Collins & Collins (1985) FLC 91-603 at page 79,877, the Full Court of the Family Court of Australia (Evatt CJ, Pawley & Barblett JJ), as it was then, said:
In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant. Those factors…. are not to be read in a restrictive way, however, the discretion remaining is a broad one: Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).
ICL’s application for costs at conclusion of the trial
At the conclusion of the trial, the ICL made an oral application for the parties to pay the costs of the ICL’s fees, being $17,415.17 each. Where neither party had deposed to their financial circumstances such that I was able to properly consider the making of a costs order in accordance with s 117(2) of the Act, the parties were directed to provide the Court with a submission or sworn material as to their financial circumstances. The mother filed an affidavit of evidence, the father put no material before the Court.
The mother is a professional and in employment. Her gross income is $3,506.75 per fortnight, being approximately $91,175 per year. The mother receives further funds in addition to her salary, being Family Tax Benefit A and B in the sum of $195 per fortnight (approximately $5,070 annually), child support from the father for the care of the child in the sum of $308 per fortnight (approximately $8,008 annually), and the benefit of the father contributing $1,000 per fortnight to her rent (approximately $26,000 annually).
The father is employed as a professional. He earns approximately $81,500 per year. The father borrows funds from his parents to contribute $500 a week for the mother’s rent. It is not entirely clear what the father does with his money.
The mother has minimal assets, being minimal funds at bank and her motor vehicle. The mother also has superannuation. The mother has liabilities comprising of a personal loan, credit card, and motor vehicle loan which Mr F pays for her benefit.
Neither party is in receipt of assistance by way of legal aid. This litigation has been funded by the parties’ income and each of the parties obtaining financial assistance from their respective parents. There was no prospect of settlement of the matter.
Where the parents have each incurred significant legal fees throughout this protracted litigation, and given their personal circumstances, in particular the wife’s which are known, I am satisfied that they would each suffer financial hardship if they are required to meet the total costs of the ICL as sought.
I am satisfied that in the exercise of my discretion there should be a costs order for each of the parties to pay the ICL’s costs in part, in the sum of $1,500 each.
Costs reserved on 27 April 2023
On 27 April 2023, being the hearing of mother’s Application in a Proceeding filed 20 April 2023, an order was made reserving the costs of the parties.
I observe none of the parties filed Costs Notices immediately prior to the hearing on 27 April 2023 in accordance with r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). As such, the Court was not provided with particulars of the parties’ actual costs incurred arising from the Application in a Proceeding filed 20 April 2023. No submissions were made as to this matter at trial.
In the exercise of my discretion and in the circumstances of the interim hearing, no order shall be made in respect of the reserving of those costs.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 23 February 2024
Annexure “A’
PARTIES’ CONSOLIDATED MINUTE OF PROPOSED FINAL ORDERS
AGREED BY THE FATHER AND THE ICL:
1.That the Father Mr Takhar shall have Sole parental responsibility for the child X date of birth 2017 and in exercising Sole Parental responsibility he shall
(a)At least 28 days prior to the making of any major long term decision pertaining to the child write to the mother and except in the case of a medical emergency seek the views of the mother in relation to the issue/decision to be made.
(b)The mother shall provide her view and response in writing within seven (7) days of receipt of such notice.
(c)The father will give due regard to such matters raised by the mother in making a decision in X best interest.
2.That the child X shall live with the Father other than when he spends time with the Mother as set out in these orders.
During School Terms
3.That the child shall spend time with the mother as agreed between the parties in writing, and in default of agreement, each alternate week from the conclusion of school on Thursday until the commencement of school on Tuesday with the mother is to collect the child from and deliver the child to his school in order to give effect to this order.
During School Holidays
4.For the purposes of these Orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year or as posted on the children's school's website.
5.That Order 2 shall be suspended during school holidays and the Child shall spend time with each parent as agreed between the parties in writing, and in default of agreement, as follows:
(a)For the short NSW school holidays, as follows:
(i)For odd numbered years: The first half with the mother and the second half with the father.
(ii)For even numbered years: The first half with the father and the second half with the mother.
(b)During the long summer NSW school holidays: the first half with the father and the second half with the mother.
(c)That for the purposes of calculating the school holiday period, and unless otherwise agreed in writing between the parties:
(i)School holidays commence from the conclusion of school on the last day of the school term and conclude at the commencement of school on the first day of the school term.
(ii)Changeover half-way through a school holiday period shall occur at 6:00pm on the day that is the middle day of the first day and last day.
(iii)In the event there are two (2) middle days, changeover shall occur at 6:00pm on the first of the two (2) middle days.
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
Special Occasions
6.That the Child shall spend the following special occasions with each parent as agreed between the parties in writing, and in default of agreement, the Child shall spend time with each parent as follows:
(a)With each parent during Christmas, as follows:
(i)In even numbered years: With the father from 3:00pm Christmas Eve until 3:00pm Christmas Day, and the mother from 3.00pm Christmas Day until 3.00pm Boxing Day.
(ii)In odd numbered years: With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day, and the Father from 3:00pm Christmas Day until 3:00pm Boxing Day.
AGREED BY THE FATHER AND THE ICL:
(b)With each parent during the Easter period, irrespective of whether the Easter long weekend falls during school holidays or not, as follows:
(i)For odd numbered years: With the father from the conclusion of school on the Thursday before Good Friday until before school on the Tuesday after easter Monday.
(ii)For even numbered years: With the mother from the conclusion of school on the Thursday before Good Friday until before school on the Tuesday after easter Monday.
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
(c)On the child's birthday and the mothers birthday
(i)With the father in odd numbered years from 9am until 3pm and the mother from 3pm to 9am on ….
(ii)With the mother in even numbered years from 9.am until 3pm and with the father from 3pm to 9am on ….
(d)If the father's birthday falls on a day when the Child is not ordinarily in his care, the Child shall spend time with the father as follows:
(i)If the father's birthday falls on a school day when the Child is not in the father's care, from the conclusion of school until 8:00pm.
(ii)If the father's birthday falls on a non-school day when the Child is not in the father's care, from 12.00pm to 8:00pm.
(e)In the event that Father's Day falls on a Sunday where the Child would ordinarily spend that Sunday with the mother, then the Child shall spend that day with the father from 9 am to Monday before school.
(f)In the event that Mother's Day falls on a Sunday where the Child would ordinarily spend that Sunday with the father, then the Child shall spend that day with the mother from 9am to Monday before school.
AGREED BY THE FATHER AND THE ICL:
(g)If either of the special days of religious celebrations falls on a day when the Child is not ordinarily in the mother's care, the Child shall spend time with the mother in even years as follows:
(i)If celebrations falls on a school day: from after school to before school the next morning.
(ii)If celebrations falls on a non-school day: from 9:00am until 3:00pm.
Changeover
7.In order to give effect to the above orders all changeovers shall take place at the Child's schools where this is possible, otherwise changeover shall occur at:
(a)Hungry Jacks Suburb GG.
PROPOSED BY THE MOTHER (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK)
(b)A Hungry Jacks/McDonalds which is in the middle of the parties’ two residences.
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
8.The mother and the father are to ensure that no third-party attends changeover or is within 100 meters of the child during the exchange
PROPOSED BY THE ICL:
Other
Orders 3 to 6 are subject to the following:
9.Until X is 12 years of age the mother must not leave X alone with Mr F and ensure that she is always is within sight and hearing of X when he is in the presence of Mr F whilst the Child is in her care.
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
10.That whilst the Child is living with or spending time with each parent, that parent shall:
(a)Notify the other parent via text message and/or telephone call as soon as practicable should the child suffer a medical emergency, injury or illness requiring urgent medical attention whilst in their care, and notify the other parent of the name and address of the health care professional or service that provides treatment for the child;
(b)Advise the other parent of any medical appointments that they may make for the child.(other than emergency treatment described in order 8.1 above)
AGREED BY THE FATHER AND THE ICL
(c)The child's General practitioner shall be a Doctor located at the health centre closest to the father's place of residence.
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE IF THE COURT DOES NOT FIND UNACCEPTABLE RISK)
11.The parent with whom the Child is living/spending time with shall take the Child to any extra-curricular activities or sporting activities the child is currently enrolled in and any other activities as agreed to in writing between the parties.
12.That the parties shall advise the other of any change to their landline and/or mobile telephone numbers and/or email addresses within twenty-four (24) hours of such change occurring and any change to their residential address no later than forty-eight (48) hours prior to such change occurring.
13.That each parent shall be restrained from:
(a)Denigrating the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship with in the presence or hearing of the child.
(b)from causing or allowing any third party to denigrate the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship within the presence or hearing of the child and shall take immediate steps to remove the child from the physical presence of such third parties.
(c)Exposing the child to violence including physical or verbal threats or intimidation, whether such violence, threats or intimidation is directed at the child, either parent, any member of either parent's household and/or any person with whom either parent may maintain a genuine domestic relationship with.
(d)Discussing these current proceedings in the presence or hearing of the child or permitting any third party to do so.
(e)Both parties be and are hereby restrained from video recording with his/her mobile or any other recording device at changeover.
14.That the parties shall encourage and not undermine the child's relationship with the other party.
15.That the mother and the father shall take steps to enrol X in trauma informed therapy such as L Family Services (or similar) within seven (7) days of the making of these orders and facilitate his attendance to therapy as long as it is recommended by the therapist.
16.The parents will both abide by any recommendations made for X by the appointed therapist.
17.That leave is granted for
AGREED BY THE FATHER AND THE ICL:
(a)the father
PROPOSED BY THE MOTHER (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
(b)the mother
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
to provide to the therapist the two reports of the Expert Dr G dated 15/8/21 and 29/5/23.
18.The parties are each restrained from engaging any other therapist for the child or taking to the child to any other psychologist other than as provided in order 15 above.
19.That each parent shall be at liberty to communicate with the Child via any audio-visual communication mediums (including but not limited to telephone, FaceTime, Viber, WhatsApp, Skype or e-mail) whilst the Child is living/spending time with the other parent, provided:
(a)Such communications at 6.00pm very third night (or at any other agreed time).
(b)The other parent does not interfere with such communication or encroach on the child's privacy during such communications.
PROPOSED BY THE FATHER:
(c)The non-resident parent at the particular time shall initiate the call to the other party.
(d)Each parent shall use their best endeavours to facilitate such communication.
AGREED BY THE FATHER AND THE ICL:
20.That the parties shall be restrained from relocating with the child outside a 60km radius of the present place of residence without the written consent of the other party or without Court Orders.
AGREED BY ALL PARTIES (IN THE MOTHER’S CASE, IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
21.That each party shall each be permitted to take the child interstate as agreed between the parties in writing, and in default of agreement, as subject to the following:
(a)The proposed interstate holidays must coincide with the child's normal school holidays.
(b)In the event that the parties take the child on holidays to any destination outside of the Sydney Metropolitan areas but within New South Wales, then the travelling party shall, no later than forty-eight (48 hours) prior to the commencement of the holiday, inform the non-travelling parent of such travel, including the location/s and date/s of such travel.
(c)In the event that parties take the child on holidays to any destination outside of New South Wales, then the parties shall, no later than 2 weeks prior to the commencement of any interstate holiday, furnish to the non-travelling parent:
(i)An accurate itinerary including the state/states that the travelling parent and the child will be travelling to, and the approximate dates on which the travelling parents and children will arrive and depart in each state.
(ii)Contact telephone numbers and addresses at which the travelling parent and child will be staying during such travel.
ADDITIONAL ORDERS PROPOSED BY THE FATHER:
Previous Orders
1.The Orders made on 19 September 2019 and subsequent parenting orders be and are hereby discharged.
Injunction
2.That the Mother is restrained from bringing the child into contact with, into the presence of and/or hearing of Mr F born in 1987.
Passport and International Travel
3.Notwithstanding anything else in these Orders, each party be entitled to travel overseas with X upon provision to the other party of:
(a)At least 56 days written notice of their intention to travel;
(b)Full copy of itinerary evidencing outbound and return flights and accommodation, including name of the airline/s and flight number/s and departure and return dates and times.
(c)Copies of flight tickets and any booking identification numbers for flights and hotels;
(d)Full copy of the X's contact details - a landline or mobile telephone number and contact addresses at which X will be in each country;
(e)Copy of travel insurance for X;
On the condition that:
(f)Any international travel will occur after X's 7th birthday;
(g)either the Mother or Father must accompany X;
(h)that such travel is for no longer than a period of 21 days, unless otherwise agreed between the parties;
(i)that each parent will not travel overseas with X more than once every two years;
(j)Make up time will be provided to the non-travelling parent if any international travel impacts Christmas, Easter or X's birthday;
(k)Make up time will be provided to the non-travelling parent, such as but not limited to more time in the next set of holidays.
4.Within 14 days of X's 7th birthday, the parties shall do all acts and things and sign all documents necessary to obtain an Australian and British passport for X and upon it ever becoming expired, within 14 days of that expiry, the parties shall do all acts and things and sign all documents necessary to obtain a passport.
5.X's Australian passport and any British passport shall be held in the Father's possession.
6.To give effect to Order 6, the Father shall provide to the Mother the child's passport within 7 days from her requesting the said passport and after X returns to Australia, the Mother shall forthwith return the passport to the Father.
ORDERS PROPOSED BY MOTHER (IF THE COURT FINDS UNACCEPTABLE RISK):
Parental Responsibility
1.The Mother have sole parental responsibility for X born 2017.
Live With
2.X live with the Mother.
Spend Time With
3.X spend no time with the Father.
Passport and International Travel
4.The Mother, Ms Takhar, may apply for a passport for X born 2017 without first obtaining the consent of the Father, Mr Takhar including the Mother having the unfettered right to travel outside the Commonwealth of Australia with X.
Other Orders
5.School:
(a)Leave be granted for a copy of these Orders to be proved to any school X attends from time to time.
ORDERS PROPOSED BY MOTHER (IF THE COURT DOES NOT FIND UNACCEPTABLE RISK):
Parental Responsibility
1.The Mother have sole parental responsibility for X born 2017.
Live With
2.X live with the Mother.
Spend Time With
3.X spend time with the Father as follows:
(a)During school term, each alternate weekend from after school Friday or 3.00 pm if not a school day until Sunday 4.00 pm.
(b)For Terms 1, 2 and 3 of each of the New South Wales School Holiday periods for 3 consecutive nights with time to commence from Monday 9.00 am (being the first Monday of the school holidays) to the following Thursday 9.00 am.
(c)For Term 4 of each of the New South Wales School Holiday periods for two block periods of 3 consecutive nights each block period being:
(i)With the first block period to commence from Monday 9.00 am (being the third Monday of the school holidays) to the following Thursday 9.00 am.
(ii)With the second block period to commence from Monday 9.00 am (being the fifth Monday of the school holidays to the following Thursday 9.00 am.
Changeover
4.The parent who is due to commence time with X shall pick him up from school if time commences from there otherwise from a Hungry Jacks/McDonalds which is in the middle of the parties' two residences.
5.Each parent be and are hereby restrained from attending changeover with any other person.
6.Both parties be and are hereby restrained from video recording with his/her mobile or any other recording device at changeover.
Passport and International Travel
7.The Mother, Ms Takhar, may apply for a passport for X born 2017 without first obtaining the consent of the Father, Mr Takhar and that she be permitted to travel outside the Commonwealth of Australia with X for no longer than 6 weeks upon giving reasonable notice to the father and agreeing to provide make up time for any time lost as a consequence.
Other Orders
8.School:
(a)Leave be granted for a copy of these Orders to be proved to any school X attends from time to time.
- AGLC
- Takhar & Takhar (No 3) [2024] FedCFamC1F 84
- Case
- [2024] FedCFamC1F 84
- Decision Date
CaseChat Overview and Summary
The court found that while there was no unacceptable risk in the mother’s care, there was an unacceptable risk in the father’s care. The child disclosed instances of physical abuse by the mother and sexual abuse by her partner. The court found the mother to be a reliable witness, while the father's evidence was inconsistent and at times untruthful. Despite the allegations against the mother, the court concluded that there was no unacceptable risk to the child in her care, and the mother had made the child her priority. The court determined that sole parental responsibility should be awarded to the mother, with the child residing primarily with her. The court ordered that the child spend substantial and significant time with the father, with the frequency of his time increasing during school holidays as the child matures.
The court made detailed orders regarding the child's time with each parent, special occasions, changeovers, communication between parents, and restrictions on denigration and exposure to violence. The court also mandated trauma-informed therapy for the child and restrained the parents from engaging any other therapist without agreement. The court ordered each parent to make a partial payment of the Independent Children’s Lawyer's costs in a fixed sum of $1,500, with a 60-day stay on payment. All other applications were dismissed, and the matter was removed from the list.
Orders
Orders of the court
PAC 3386 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS TAKHAR
Applicant
AND:
MR TAKHAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1. All previous parenting orders together with Order 7 of the Orders made on 19 September 2019 be discharged.
2. The mother have sole parental responsibility for the child X born 2017 (“the child”) and in exercising sole parental responsibility she shall:
(a) at least 28 days prior to the making of any major long term decision pertaining to the child, write to the father and except in the case of a medical emergency seek the view of the father in relation to the issue/decision to be made;
(b) the father shall provide his view and response in writing within seven (7) days of receipt of such notice; and
(c) the mother will give due regard to such matters raised by the father in making her decision.
3. The child live with the mother.
4. The child spend time with the father unless otherwise agreed in writing between the mother and father:
(a) during school terms on a fortnightly cycle as follows:
(i) in week one, being the week that commenced on Monday 19 February 2024, from the conclusion of school on Friday or if not a school day 3.00pm to the commencement of school on Monday or if not a school day 8.00am; and
(ii) in week two, from the conclusion of school on Wednesday or if not a school day 3.00pm to the commencement of school on Thursday or if not a school day 8.00am.
(b) during school holidays:
(i) in 2024 for five consecutive nights in the Term 1 and Term 2 holidays, to commence at 10.00am on the middle Saturday and conclude at 5.00pm on the following Thursday, with such time to be replicated in the Term 3 holidays in the event the mother does not travel with the child to South Australia in the Term 3 holidays. The mother is to provide the father with at least 28 days written notice of her intention to travel with the child to South Australia.
(ii) commencing in 2025 for one half of the Term 1 and Term 2 holidays, being the first half in each odd numbered year and the second half in each even numbered year, with such time to be replicated in the Term 3 holidays in the event the mother does not travel with the child to South Australia in the Term 3 holidays. The mother is to provide the father with at least 28 days written notice of her intention to travel with the child to South Australia.
(iii) during the 2024/2025 and 2025/2026 long summer holidays for two non‑consecutive weeks and a further three day period being at the father’s election and the father is to provide the mother with at least 60 days written notice of his election.
(iv) commencing in 2026/2027 for one half of the long summer holidays, being the first half in each odd numbered year and the second half in each even numbered year, save that the child is to be returned to the mother’s care 48 hours prior to the commencement of the school year.
5. For the purposes of these orders, school holidays shall be the holiday dates published by the New South Wales Department of Education and Training for the relevant period in each year or as posted on the child’s school’s website.
6. The mother is permitted to place the child in the presence and/or hearing of Mr F and in respect of Order 1 herein THE COURT NOTES THAT Order 7 of the Orders made 27 April 2023 is discharged.
7. The mother be restrained from permitting the child to address Mr F as ‘dadda’, ‘[…]’, ‘daddy’ or ‘dad’.
8. The child shall spend the following special occasions with each parent as agreed between them in writing, and in default of agreement, the child shall spend time with each of the mother and father as follows:
(a) with each parent during Christmas, as follows:
(i) in even numbered years: with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day, and with the mother from 3.00pm Christmas Day until 3.00pm Boxing Day; and
(ii) in odd numbered years: with the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day, and with the father from 3.00pm Christmas Day until 3.00pm Boxing Day.
(b) commencing 2025, for any part of the Easter period between Good Friday and Easter Monday as agreed in writing between each of the mother and the father;
(c) on the child’s birthday and the mother’s birthday:
(i) with the father in odd numbered years from 9.00am until 3.00pm and with the mother from 3.00pm to 9.00am on …; and
(ii) with the mother in even numbered years from 9.00am until 3.00pm and with the father from 9.00am to 3.00pm on ….
(d) if the father’s birthday falls on a day when the child is not ordinarily in his care, the child shall spend time with the father as follows:
(i) if the father’s birthday falls on a school day when the child is not in the father’s care, from the conclusion of school until 8.00pm; and
(ii) if the father’s birthday falls on a non-school day when the child is not in the father’s care, from 12.00pm to 8.00pm.
(e) in the event that Father’s Day falls on a Sunday where the child would ordinarily spend that Sunday with the mother, then the child shall spend that day with the father from 9.00am to Monday before school;
(f) in the event that Mother’s Day falls on a Sunday where the child would ordinarily spend that Sunday with the father, then the child shall spend that day with the mother from 9.00am to Monday before school; and
(g) on the special days of celebration at such times as agreed between the mother and father in writing.
9. All changeovers shall take place at the child’s school where possible and otherwise changeover shall occur at a Hungry Jacks which is in the middle of each of the mother and the father’s residences.
10. Each of the mother and the father are to ensure that no third party attends changeover or is within 100 meters of the child during the exchange.
11. Whilst the child is living with or spending time with each parent, that parent shall:
(a) notify the other parent via text message and/or telephone call as soon as practicable should the child suffer a medical emergency, injury or illness requiring urgent medical attention whilst in their care and notify the other parent of the name and address of the health care professional or service that provides treatment for the child; and
(b) advise the other parent of any medical appointments that they may make for the child (other than emergency treatment described in (a) above).
12. The parent with whom the child is living/spending time with shall take the child to any extracurricular activities or sporting activities in which the child is currently enrolled and any other activities as agreed to in writing between the mother and the father.
13. Each of the mother and the father shall advise the other of any change to their landline and/or mobile telephone numbers and/or email addresses within twenty four (24) hours of such change occurring and any change to their residential address no later than forty eight (48) hours prior to such change occurring.
14. Each of the mother and the father shall be restrained from:
(a) denigrating the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship in the presence and/ or hearing of the child;
(b) causing or allowing any third party to denigrate the other parent, members of their family, and/or any other person with whom the other parent may maintain a genuine domestic relationship in the presence and/ or hearing of the child and shall take immediate steps to remove the child from the physical presence of such third parties;
(c) exposing the child to violence including physical or verbal threats or intimidation, whether such violence, threats or intimidation is directed at the child, either parent, any member of either parent's household and/or any person with whom either parent may maintain a genuine domestic relationship;
(d) discussing these proceedings in the presence and/ or hearing of the child or permitting any third party to do so; and
(e) video recording with his/her mobile or any other recording device at changeover.
15. Each of the mother and father shall encourage and not undermine the child’s relationship with the other parent.
16. The mother and the father shall take steps to enrol the child in trauma informed therapy such as L Family Services (or similar) within seven (7) days of the making of these orders and facilitate his attendance at therapy for a period as agreed but not exceeding 12 months. The costs of same be borne equally by the mother and the father.
17. The mother and the father will abide by any reasonable recommendations made for the child by the appointed therapist.
18. Leave is granted for the mother to provide to the therapist the two reports of the Expert Dr G dated 15 August 2021 and 29 May 2023.
19. Each of the mother and the father are restrained from engaging any other therapist for the child or taking the child to any other psychologist other than as provided in Order 16 above.
20. Each of the mother and the father are at liberty to communicate with the child via any audio-visual communication mediums (including but not limited to telephone, FaceTime, Viber, WhatsApp, Skype or e-mail) whilst the child is living/spending time with the other parent, provided:
(a) such communications occur at 6.00pm every third night (or at any other agreed time);
(b) the other parent does not interfere with such communications or encroach on the child’s privacy during such communications;
(c) the non-resident parent at the time shall initiate the call to the other parent; and
(d) each parent shall use their best endeavours to facilitate such communication.
21. Each of the mother and the father shall be permitted to take the child interstate as agreed between the mother and father in writing, and in default of agreement, as subject to the following:
(a) the proposed interstate holidays must coincide with the child’s normal school holidays.
(b) in the event that either the mother or father takes the child on holidays to any destination outside of the Sydney Metropolitan areas but within New South Wales, then the travelling parent shall, no later than forty-eight (48 hours) prior to the commencement of the holiday, inform the non-travelling parent of such travel, including the location/s and date/s of such travel.
(c) in the event that either the mother or father takes the child on holidays to any destination outside of New South Wales, then the travelling parent shall, no later than 2 weeks prior to the commencement of any interstate holiday, furnish to the non-travelling parent:
(i) an accurate itinerary including the State/States that the travelling parent and the child will be travelling to, and the approximate dates on which the travelling parent and child will arrive and depart in each State; and
(ii) contact telephone numbers and addresses at which the travelling parent and child will be staying during such travel.
22. Leave is granted for a copy of these Orders to be provided to any school the child attends from time to time.
23. Each of the mother and the father make a partial payment of the Independent Children’s Lawyers costs fixed in the sum of $1,500 and there be a stay on such payment of 60 days.
24. The Independent Children’s Lawyer be discharged.
25. All extant applications be otherwise dismissed, and the matter removed from the list.
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.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.