Valentino and Anor and Valentino

[2018] FCCA 2439

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALENTINO & ANOR & VALENTINO [2018] FCCA 2439

Catchwords:
FAMILY LAW – Parenting – complex family history – extent of the choice to be given to a 15 year old child about who she was to live with – weight to be given to a child’s views.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Bondelmonte v Bondelmonte [2017] HCA 8

MRR v GR [2010] HCA 4

First Applicant: MR VALENTINO

Second Applicant: MS VALENTINO

Respondent: MS A VALENTINO

File Number: WOC 205 of 2015

Judgment of: Judge Altobelli

Hearing date: 13 July 2018

Date of Last Submission: 13 July 2018

Delivered at: Sydney

Delivered on: 20 September 2018

REPRESENTATION

Counsel for the Applicants: Mr Cook

Solicitors for the Applicants: Antionette Campbell Legal

Counsel for the Respondent:	Mr Finch
Counsel for the Independent Children's Lawyer:	Ms Neville
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Wollongong Family Law

ORDERS

1. That all previous Orders in relation to the Child [X] (born 2003) be discharged.

2. That the Mother and the Father have equal shared parental responsibility for all matters involving the long term care, welfare and development of the Child [X] (born 2003).

3. That the Mother, Father and Paternal Grandmother each have sole responsibility for making decisions about the day to day care, welfare and development of [X] during those periods that [X] is living with them or spending time with them.

Live with arrangements:-

1. That [X] live with the Mother, Father or Paternal Grandmother in accordance with her wishes.

2. That for the purpose of Order 4, [X] is deemed to be living with a party if she resides with that party for a continuous period of not less than four (4) weeks and in the event that [X] is residing with a party with whom she has not lived with for a continuous period of four (4) weeks or more, [X] is deemed to still be living with the party with whom she last resided with for a continuous period of four (4) weeks or more.

Spend time with arrangements:-

1. That [X] spend time with the Mother, Father and Paternal Grandmother in accordance with her wishes.

2. That in the event that [X] expresses to the party with whom she is living that she wishes to spend time with another party, the party with whom she is living is to inform the party with whom [X] wishes to spend time with as soon as practicable and the parties are to do all acts and things reasonably necessary to facilitate this time occurring in accordance with [X]’s wishes.

3. That in the event that [X] is living with the Father or the Paternal Grandmother, [X] is to spend time with her siblings [Y] and [Z] in accordance with her wishes:-

   (a)At the Mother’s home; and/or

   (b)During those periods that the Father is spending time with [Y] and [Z] pursuant to these Orders; and/or

   (c)As may otherwise be agreed between the parties;

   and each party is to do all acts and things necessary to encourage and facilitate such sibling contact occurring in accordance with [X]’s wishes.

Changeover:-

1. That for the purpose of [X] spending time with a party that she is not living with, changeover will occur as agreed between the party with whom [X] is living and the party with whom [X] wishes to spend time.

Communication:-

1. That [X] communicate with the Mother, Father and Paternal Grandmother in accordance with her wishes.

2. That in the event that [X] expresses to the party with whom she is living that she wishes to communicate with another party, the party with whom she is living is to inform the party with whom [X] wishes to communicate with as soon as practicable and the parties are to do all acts and things reasonably necessary to facilitate this communication in accordance with [X]’s wishes.

3. That the parties are to do all acts and things necessary to encourage and facilitate regular telephone contact and/or video calls between the children during any period that [X] is living in a different household to [Y] and [Z] and, to that end, the party with whom [X] is living is to use their best endeavours to encourage [X] to telephone and/or initiate video calls with [Y] and [Z] not less than once each week as agreed between the parties but failing agreement, each Monday between 6:00pm – 7:00pm, and the Mother will use her best endeavours to make [Y] and [Z] available to speak with [X] or, in the event that they are not available, the Mother will assist [Y] and [Z] to telephone and/or initiate a video call with [X] at the earliest opportunity thereafter.

Schooling:-

1. That in the event that [X] chooses to live with the Paternal Grandmother pursuant to Order 4, [X] is to remain enrolled at School 1 High School and there are to be no further changes to [X]’s high school enrolment during the period that [X] lives with the Paternal Grandmother.

2. That in the event that [X] chooses to live with the Father and it is not reasonably practicable for [X] to remain enrolled at School 1 High School, the Father is permitted to enrol [X] at School 2 High School and there are to be no further changes to [X]’s high school enrolment during the period that [X] lives with the Father.

3. That in the event that [X] chooses to live with the Mother, the Mother is permitted to enrol [X] at School 2 High School and there are to be no further changes to [X]’s high school enrolment during the period that [X] lives with the Mother.

4. That notwithstanding Order 2, each party is permitted to liaise directly with [X]’s school principal or teachers to obtain any information about [X]’s progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to each party directly from the school regardless of which party [X] is living with at the time and these Orders will be sufficient authority to authorise the release of such information to each of the parties.

Medical treatment:-

1. That the party with whom [X] is living will keep the other parties informed as soon as is reasonably practicable of:-

   (a)Any significant medical problems, illness or injury suffered by [X] while in their care;

   (b)Full particulars of any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by [X] while in their care;

   (c)Any medication that has been prescribed for [X] while in their respective care;

   (d)Any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist that [X] is due to attend; and

   (e)Any occasion that [X] is due to be hospitalised while in their care.

2. That the party in whose care [X] is at the time will inform the other parties immediately in the event of an emergency involving [X] including, but not limited to, [X] suffering a serious illness or injury or the hospitalisation of [X].

3. That the party in whose care [X] is at the time will inform the other parties as soon as reasonably practicable in the event that they observe and/or are informed of any act or thoughts of thoughts of self-harm and/or suicidal ideation by [X] and that party is to advise the other parties as to the steps taken to support [X] including, but not limited to, the planned engagement of [X] with her current treating therapist, psychologist or counsellor and/or any specialised mental health services (such as the Child and Adolescent Mental Health Service).

4. That notwithstanding Order 2, each party is permitted to liaise directly with any doctor, hospital or other medical or mental health practitioners treating [X] to obtain information about the physical and/or mental health of [X] and the progress of any treatment [X] may be receiving regardless of which party [X] is living with at the time and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each party.

5. That notwithstanding Order 2 and on a without admissions basis, pursuant to section 68B of the Family Law Act 1975 each party is restrained by injunction from requesting or permitting [X] to undergo any invasive medical examination or testing, including but not limited to the following:-

   (a)DNA parentage testing;

   (b)An examination for the purpose of assessing whether or not that child has been sexually active;

   (c)An examination for the purpose of assessing whether or not that child has been the victim of sexual abuse or assault;

   unless assessed as being be medically necessary by [X]’s treating medical practitioner in writing or unless requested by the Department of Family and Community Services or NSW Police in writing.

Therapeutic Engagement:-

1. That in the event that [X] lives with the Paternal Grandmother, the Paternal Grandmother is to do all acts and things necessary to facilitate [X]’s continued therapeutic engagement with Headspace Town A on a regular basis and not less than once every six (6) months until such time as recommended by Headspace and follow and implement the recommendations of this service including, but not limited to, following through with any referrals for [X] to engage with any other appropriate mental health or support services (such as the Child and Adolescent Mental Health Service attached to Town A Hospital).

2. That the Paternal Grandmother be solely responsible for bearing any costs associated with [X]’s therapeutic engagement pursuant to Order 22.

3. That subject to Notation D and the ability of Headspace Town A to facilitate such engagement, in the event that [X] lives with the Paternal Grandmother the parties are to do all acts and things necessary to make arrangements for the Mother to attend upon Headspace Town A and meet with:-

   ·Ms N;

   ·A colleague of Ms N’s who is familiar with the nature of [X]’s therapeutic engagement with Headspace Town A; and/or

   ·The designated Family Worker at Headspace Town A

   (as advised to the parties by Headspace Town A and on dates and times suitable to Headspace Town A) for the purpose of:-

   (a)Advising the Mother of the nature of the service offered by Headspace Town A and their therapeutic engagement with [X];

   (b)Assisting to inform Headspace Town A’s understanding of the nature and dynamics of the relationship between the Mother and [X];

   (c)Enabling the feeding back to the Mother by Headspace Town A of any information that [X] authorises being shared with the Mother with a view to improving the Mother’s understanding of [X]’s views and wishes in relation to communicating with and/or spending time with the Mother;

   (d)Enabling the feeding back to [X] of any information provided by the Mother that Headspace Town A feel may assist in improving communication between [X] and the Mother;

   (e)Acting as a conduit for the Mother to provide letters, cards, photos, videos or other electronic media to [X] not less than once every six (6) months as a means of providing [X] with updates and information about the Mother and maternal family to be made available to [X] by Headspace Town A for [X] to view and/or respond to in accordance with her wishes during the privacy of [X]’s appointments with Ms N pursuant to Order 22; and

   (f)Providing any other assistance and support consistent with [X]’s best interests as assessed by Headspace Town A.

4. That the Mother will be solely responsible for the costs associated with any engagement with Headspace Town A by her pursuant to Orders 24.

5. That subject to Notation D, in the event that Headspace Town A is not able to facilitate the Mother’s engagement with their service as provided for in Order 24 and/or in the event that [X] chooses to live with either the Father or the Mother from the date of Final Orders, the parties are to do all acts and things necessary to arrange for [X] and the Mother to engage with a child and family therapist, psychologist or counsellor agreed between the parties but failing agreement, through CatholicCare in Town A (in the event that [X] is living with the Paternal Grandmother) or through CatholicCare in Town B (in the event that [X] is living with the Father or the Mother), with a view to:-

   (a)Exploring the relationship between [X] and the Mother and, where possible, assisting in the repairing of that relationship;

   (b)Improving communication and understanding between [X] and the Mother; and

   (c)Discussing [X]’s views and wishes in relation to communicating with, spending time with and/or living with the Mother.

6. That for the purpose of Order 26 and subject to Notations D and G, within twenty-eight (28) days of Headspace Town A advising in writing that they are unable to facilitate the Mother’s engagement with their service as provided for in Order 24 and/or [X] chooses to live with either the Father or the Mother from the date of Final Orders, the Mother and the party with whom [X] is living are to make contact with CatholicCare in Town A or CatholicCare in Town B or the agreed upon therapist or psychologist as appropriate and:-

   (a)Arrange appointments as soon as reasonably practicable for initial intake assessments for [X] and the Mother;

   (b)Thereafter attend any appointments at any reasonable time and location nominated by CatholicCare or the agreed upon therapist or psychologist and complete all necessary assessments;

   (c)If assessed as suitable, the Mother and [X] are to enrol in and undertake any appropriate counselling, family therapy, course or program nominated by CatholicCare or the agreed upon therapist or psychologist as soon as is reasonably practicable;

   (d)The party with whom [X] is living is to do all acts and things necessary to provide any necessary consent or authorisation for [X]’s attendance and/or participation in any such appropriate counselling, family therapy, course or program;

   (e)The Mother is to attend and/or participate in any counselling session, course or program recommended and/or directed by CatholicCare or the agreed upon therapist or psychologist until such time as otherwise recommended by CatholicCare or the agreed upon therapist or psychologist;

   (f)In the event that CatholicCare or the agreed upon therapist or psychologist recommends or directs the attendance and/or participation of [X] at a particular intake assessment, counselling session, course or program, the party with whom [X] is living with or spending time with that day must do all acts and things necessary to facilitate [X]’s attendance and/or participation until such time as otherwise recommended by CatholicCare or the agreed upon therapist or psychologist; and

   (g)In the event that CatholicCare or the agreed upon therapist or psychologist recommends or directs the attendance and/or participation of the Father and/or the Paternal Grandmother at a particular intake assessment, counselling session, course or program, the Father and/or the Paternal Grandmother must do all acts and things necessary to comply.

7. That the parties will be equally responsible for the costs associated with any family therapy, counselling, course or program undertaken by the Mother and [X] pursuant to Orders 26 and 27.

8. That in the event that [X] lives with the Mother or the Father, that parent is to do all acts and things necessary to facilitate the completion of [X]’s engagement with Headspace Town A (including, but not limited to, facilitating [X]’s attendance at one or two sessions ‘closing off’ therapy sessions with her counsellor, Ms N) within four (4) months of the making of these Orders and thereafter that parent is to do all acts and things necessary to facilitate [X]’s engagement with an alternate appropriate psychological, counselling or therapeutic service as recommended by Headspace Town A or Ms K on a regular basis until such time as recommended by that service and implement the recommendations of this service including, but not limited to, following through with any referrals for [X] to engage with any other appropriate mental health or support services.

9. That the parent with whom [X] is living at the time will be solely responsible for bearing any costs associated with [X]’s therapeutic engagement pursuant to Order 29.

10. That the Mother’s treating psychologist, Ms K, be authorised to communicate with any therapist or psychologist engaged with [X] pursuant to these Orders.

11. That leave be granted for the parties to make copies of Dr K’s Single Expert Reports dated 20 July 2016 and 18 May 2018, together with a copy of these Orders, available to CatholicCare or other agreed upon therapist or psychologist engaged with [X] and the Mother pursuant to Orders 26 – 27 and 29.

Restraints:-

1. That pursuant to section 68B of the Family Law Act 1975 and on a without admissions basis, the Mother is restrained by injunction from sharing a bed with [X] during those periods that [X] is living with or spending overnight time with the Mother.

2. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:-

   (a)Consuming or being affected by alcohol to the point of intoxication in the presence of any of [X], during any periods that they are spending time with [X] or in the period twelve (12) hours prior to [X] coming into their care;

   (b)Taking, consuming or being in any way affected by illicit drugs or substances in the presence of [X], during any periods that they are spending time with [X] or in the period twelve (12) hours prior to [X] coming into their care;

   (c)Bringing [X] into contact with any person that they know or suspect to be under the influence of illicit drugs or substances during those periods that [X] is in their respective care; or

   (d)Taking or permitting [X] to be taken to or remain at any location or venue where the party knows or suspects that illicit drugs and paraphernalia will be present during those periods that [X] is in their respective care.

3. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:-

   (a)Shouting at [X], making a video-recording of [X]’s aberrant behaviour or directing or encouraging [X] to make a video-recording of her sisters’ aberrant behaviour;

   (b)Physically disciplining or threatening to physically discipline [X] in any way or from allowing any other person to physically discipline or threaten to physically discipline [X] in any way during those periods that [X] is in respective care; or

   (c)Exposing [X] to excessive conflict or violent behaviour (including physical and verbal abuse) during those periods that [X] is in their respective care.

4. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party and their agents or nominees be restrained by injunction from:-

   (a)Making any negative, critical, belittling or derogatory comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of another party) to or in the presence or hearing range of [X] or via written correspondence or on social media which may be viewed or accessed by [X]; or

   (b)Doing or saying anything to and/or within the presence or hearing range of [X] which might reasonably cause, contribute to or encourage [X] to be fearful of any other party or to feel unsafe in the company or care of any other party

   and each party will each use their best endeavours to ensure that no other person does so.

5. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from discussing or questioning [X] about any of the following:-

   (a)Any document filed by any party or produced on subpoena in the these proceedings;

   (b)The contents of Dr K’s Single Expert Reports dated 20 July 2016 and 18 May 2018;

   (c)The previous JIRT/Child Abuse Squad investigations;

   (d)Any other allegations of historical child sexual abuse relating to any of the children or parties; and

   (e)Any allegations or findings of risk of/actual physical, psychological or emotional harm or abuse by a party made in or arising from these proceedings;

   except in a therapeutic context as recommended by the party and/or [X]’s treating psychologist, counsellor or therapist.

NOTATIONS:

(A)It is noted that [X] has expressed a wish to continue to live with the Paternal Grandmother.

(B)It is noted that Dr K predicts that if [X] is given security about her ability to choose her living arrangements it is likely that, upon finalisation of these proceedings, [X] will choose to reconnect with the Mother on her own terms which would, in Dr K’s assessment, benefit [X] developmentally, relationally and emotionally to do so.

(C)For the purpose of Order 8, in the event that [X] does not wish to spend time with the Mother and [Y] and [Z] are not spending any/regular time with the Father and/or Paternal Grandmother, the parties and their extended families are encouraged to explore alternative options to facilitate sibling contact including, but not limited to, arrangements being made for the children to spend time together as a sibling group in the company of a non-party at a suitable venue (e.g. the maternal aunt taking the children to the movies or the children visiting the home of the maternal grandparents together during school holiday periods).

(D)It is noted that [X]’s engagement with any psychological, counselling or therapeutic service (whether for the purpose of individual therapy or family therapy) pursuant to these Orders will be subject to [X] providing the necessary consent for the same to that service provider and, as at the date of Final Orders, [X] has expressed that she does not agree to engaging in any form of therapeutic intervention with Ms K.

(E)As at the date of Final Orders, [X] has expressed that she is open to some form of engagement by the Mother with Headspace Town A as provided for by Order 24 provided that it is something that Headspace Town A are able to facilitate.

(F)For the purpose of Order 24, the Mother is encouraged to attend upon Ms K prior to any engagement with Headspace Town A with a view to receiving intensive coaching and advice from Ms K as to how to most effectively communicate with and inform Headspace Town A about her relationship with [X] without being overcome by distress, grief or anger.

(G)As at the date of Final Orders, it is [X]’s preference that any therapeutic engagement involving herself and the Mother pursuant to Orders 26 and 27 take place in the form of individual sessions between [X] and the treating child and family therapist or psychologist and between the Mother and the treating child and family therapist or psychologist with the provision by [X] and the Mother of all necessary consents for the sharing of relevant information by that treating therapist or psychologist with the other and it is noted that, at this stage, [X] is unlikely to consent to or participate in any other form of family therapy with the Mother. Despite this, it is hoped that if, in due course, the treating family therapist recommends that [X] and the Mother participate in joint sessions, [X]’s position in relation to attending joint family therapy sessions with the Mother may change and [X] will provide the necessary consent for this to occur.

IT IS NOTED that publication of this judgment under the pseudonym Valentino & Anor & Valentino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 205 of 2015

MR VALENTINO

First Applicant

MS VALENTINO

Second Applicant

And

MS A VALENTINO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a very difficult case about [X], born 2003, who is 15 years old. [X] is at the centre of a very intense conflict between her Mother, Father, and Paternal Grandmother about where she should live, and how much time she should spend with the other significant people in her life.

2. In many ways, this case centres around [X]’s choice. The Independent Children’s Lawyer, the Father, and Paternal Grandmother, would like [X] to be able to choose where she lives, as between the Mother, Father and paternal Grandmother. By contrast, the Mother wants to limit [X]’s choice to between the Mother and the Father. In some respects this decision is about whether [X] should be permitted to make a decision, even if it might be a bad decision for her.

Background

1. This family has had a very difficult time. It is not necessary to go into great detail. Where the detail is necessary, it will be set out in these Reasons for Judgment. Each of the parents are hurt, and/or are hurting. There was much emotion in this case. The very long history of conflict and dysfunction probably made this inevitable. 

2. The Court will seek to tread lightly in these Reasons for Judgment. If the Mother, Father or Paternal Grandmother expected to read in this Judgment trenchant criticism of the others, they should stop reading now. This is a family in emotional pain. The decision will be hard enough for them to accept as it is. It is the stated aim of this Court not to add to their emotional turmoil.

3. The Paternal Grandmother is 67 years old, the Paternal Grandfather 68 years old, the Mother 44 years of old, and Father 43 years old. The Independent Children’s Lawyer prepared an extensive chronology which is reproduced as the First Schedule to these Reasons. As it turned out, many of the details set out therein were unnecessary to the issues that ultimately needed to be decided. However, it provides the detailed context which will assist the reader to understand what the children, and all the adults in this case, have experienced.

4. [X] has two siblings, [Y], born 2008, nearly 10 years old, and [Z], born 2011, now seven years old.

5. On the first day of the Hearing all parties entered into Consent Orders relating to [Y] and [Z]. The Consent Orders made 11 July 2018 are reproduced in the Second Schedule to these Reasons. In short, [Y] and [Z], who had been living with the Father and Paternal Grandmother, were to live with the Mother, who would have sole parental responsibility in relation to them, but spend time with their Father as set out in the Order. There are extensive provisions for counselling, and restrictions on parental conduct.

6. For a period of six months, the Father was to spend time with the children, but not in the presence of either of the Paternal Grandparents and, indeed, the latter were restrained from coming into contact with the children, or communicating with them. That restriction, however, did not persist after six months.

7. There are further background facts which need to be referred to. Both parents have a history of drug and alcohol issues. The parental relationship was turbulent. The Mother experienced periods of mental ill health. The Father experienced periods of physical ill health. It seems as if the parents were involved in drug cultivation, and the Father ultimately spent time in jail relating to this. The children made disclosures of alleged sexual abuse perpetrated by their Mother. The Paternal Grandparents became increasingly involved in the Children’s lives, because of the dysfunction of the parental household.

8. There was probably violence in the relationship between the parents. The Police were not infrequent visitors to the home. There was at least one ADVO in place protecting the Mother. 

9. The separation appears to have occurred in 2014 or 2015 (nothing turns on this). The children initially lived with the Mother. Both parents re-partnered after separation, for various periods of time. The Father did spend time with the children, more often than not at the home of the Paternal Grandparents. The Father and Paternal Grandparents assert that concerns started to arise about the Mother’s capacity to care for the Children and, indeed, that the Mother had physically abused them, particularly [X]. The Department of Family and Community Services became involved with the family.

10. In January 2015 the Father retained the children, and indeed they remained there until October 2015. The Mother, and, shortly after, the children, commenced to consult psychologists and counsellors, whose records were available to the Court, and, indeed, to Dr K, the Expert appointed by the Court.

11. Such was the Court’s concern about this family that on 11 May 2015, the Court made an Order under section 91B of the Family Law Act 1975 (Cth) requesting the Secretary of the Department of Family and Community Services to intervene. An Order was made for the Mother to spend time with the children at a supervised contact centre.

12. The allegations of child sexual abuse resulted in the involvement of the Joint Investigative Response Team. The Mother did not commence spending time with the children until September 2015, when a place became available at the supervised contact centre. Some evidence emerged in October 2015 to the effect that the Paternal Grandmother had coached the children into making disclosures of child sexual abuse. 

13. Dr K prepared the first of two Single Joint Expert Reports on 20 July 2016 which recommended that the children live with their Father and Paternal Grandmother, engage in therapeutic interventions, and spend time with their Mother in the general presence of an agreed family member.

14. In October 2016 the Father was sentenced in the District Court for a period of incarceration relating to a charge of cultivation of cannabis. He was only released shortly before the Final Hearing of this case.  At that time, the Paternal Grandmother assumed the sole care of the children. On 30 January 2017, and by consent, Orders were made for her to have sole parental responsibility, and the children were to live with her. Orders were made for the Mother’s time to continue, but outside the strict parameters of a supervised contact centre.

15. In early 2017, the Paternal Grandmother, who had hitherto been living in the far Region 1 suburbs of Sydney, moved to a regional town much further of Sydney. Indeed, the Mother, Father and [X] continued to live in that regional town which is about two hours’ drive from Sydney. There were further allegations of child sexual abuse. This resulted in further Police and departmental involvement.

16. At the beginning of 2018, [X] commenced Year 9 in a High School in the regional town in which she, the Paternal Grandmother, lived. In May 2018 a further Order under s.91B of the Act was made. Dr K’s second Report was released to the parties. The matter was listed for a Final Hearing commencing 11 July 2018.

The Competing Proposals

1. The Minute of Orders sought by the Independent Children’s Lawyer, Father and Paternal Grandmother is reproduced in the Third Schedule to these Reasons. It relates only to [X] and provides for the Mother and Father to have equal shared parental responsibility for all matters involving the long term care, welfare and development of [X]. The Mother, Father and Paternal Grandmother each were to have sole responsibility for making decisions about the day to day care, welfare and development of [X].

2. [X] was to live with the Mother, Father, or Paternal Grandmother in accordance with her wishes. The Orders provide that [X] is deemed to be living with a party if she lives with that party for a continuous period of not less than four weeks. [X] was to spend time with her Mother, Father and Paternal Grandmother in accordance with her wishes. Her wishes were to be respected by whichever adult she is living with at the time, and this person was to do all things reasonably necessary to facilitate [X]’s time in accordance with her wishes.

3. Moreover, and given that [Y] and [Z] live with her Mother, the Orders provide that if [X] is living with her Father, or Paternal Grandmother, then she is to spend time with her siblings in accordance with her wishes, at the Mother’s home, and/or during those periods that the Father is spending time with [Y] and [Z] pursuant to the Orders relating to them, or as otherwise agreed between the parties.

4. The Orders contained detailed provisions about changeover, communication, schooling, medical treatment, therapeutic engagement, together with a range of restraints and notations. In short, the proposal by the Independent Children’s Lawyer, Father and Paternal Grandmother purports to empower [X] to make the decision herself, and contain provisions which require the other parties to facilitate the decision that she makes. It was submitted that this proposal was the one that was most consistent with the recommendations made by Dr K.

5. The Mother’s proposal also provided for the Mother and Father to have equal shared parental responsibility relating to long term care, welfare and development of [X]. Recognising the somewhat problematic relationship between the parents, the Orders also provide about decision‑making and consultation. [X] was to live with her Mother and Father (but not the Paternal Grandmother) in accordance with her wishes. Likewise, she could spend time with her Mother and Father in accordance with her wishes. [X]’s time with the Paternal Grandmother was confined to alternate Sundays between 9:00am and 5:00pm. 

6. Both parents were required to respect, and facilitate [X]’s wishes about spending time with another parent. The Orders contain similar provisions to the other proposal, about [X] spending time with her siblings. The Mother’s proposal also contains detailed provisions about changeover, communication, schooling, medical treatment, therapeutic engagement, and restraints as well as a number of notations. The minute of order proposed by the Mother is reproduced in the fourth schedule to these Reasons.

7. The major difference between the proposals, therefore, was whether [X] would be permitted to choose as to whether she lived with one of her parents only, or one of her parents and her Paternal Grandmother.

8. The Mother’s case, shortly stated, was that [X] should not be allowed to make a choice that was clearly not in her best interests. The Mother’s case was intractably opposed to [X] being given the choice to choose to live with her Paternal Grandmother. The Mother’s case was, in effect, that the Paternal Grandmother’s conduct and behaviour in this matter was so pernicious, and that she had so suborned [X]’s will, that it was plainly not in her best interests to be able to choose to live in such a toxic, corrosive environment.

9. The contrasting case, however, really focused on the independent, professional evidence, that warned in the strongest possible terms of the importance of allowing [X] to make a choice, and to respect the same.

The evidence

1. In the Father’s case, he relied on the following documents:

   a)Amended Initiating Application of Mr Valentino, filed 6 July 2018;

   b)Affidavit of Mr Valentino filed 6 July 2018;

   c)Affidavit of Ms D filed 6 July 2018;

   d)Affidavit of Ms B filed 6 July 2018;

   e)Affidavit of Mr Valentino filed 6 July 2018; and

   f)Case Outline document, filed 9 July 2018.

2. In the Paternal Grandmother’s case, she relied on the following documents:

   a)Amended Initiating Application of Ms Valentino, filed 28 June 2018; and

   b)Affidavit of Ms Valentino filed 28 June 2018.

3. In the Mother’s case, she relied on the following documents:

   a)Further Amended Response of Ms A Valentino, filed 5 June 2018;

   b)Affidavit of Ms A Valentino filed 19 April 2018;

   c)Affidavit of Ms A Valentino filed 12 February 2018;

   d)Affidavit of Ms Y filed 24 March 2018;

   e)Affidavit of Mr B filed 8 March 2018;

   f)Affidavit of Ms J filed 30 December 2017;

   g)Notice to Admit Facts served upon Ms Valentino filed 8 February 2018;

   h)Notice to Admit Facts served upon Mr Valentino filed 8 February 2018;

   i)Notices Disputing Facts of Mr Valentino filed 14 March 2018;

   j)Notice Disputing Facts of Ms Valentino filed 22 February 2018; and

   k)Notice of Risk filed by Ms A Valentino on 12 February 2018.

4. The following materials were tendered as evidence:

   a)Family Report of Dr K dated 20 July 2016;

   b)Updated Family Report of Dr K dated 18 May 2018;

   c)Respondent Mother’s tender bundle of 13 July 2018, which included the Child Dispute Conference Memorandum of 13 July 2015, academic articles, Facebook status of [X], email correspondence dated 19 May 2017, transcript of Court proceedings on 1 May 2018, and a summary of shopping expenses as per documents produced in answer to subpoena on Credit Union;

   d)Documents produced in answer to subpoena on Early Learning Centre;

   e)Documents produced in answer to subpoena on the Department of Family and Community Services, including the Joint Investigation Response Teams file;

   f)Documents produced in answer to subpoena on the Department of Justice;

   g)Documents produced in answer to subpoena on Ms K (Psychologist);

   h)Documents produced in answer to subpoena on Ms A (Psychologist);

   i)Documents produced in answer to subpoena on New South Wales Department of Education (School 3 Public School and School 2 High School);

   j)Documents produced in answer to subpoena on New South Wales Police Child Abuse Squad Suburb 1;

   k)Documents produced in answer to subpoena on Catholic Care;

   l)Documents produced in answer to subpoena on Counselling & Psychotherapy (Ms W);

   m)Documents produced in answer to subpoena on the Bank 1;

   n)Documents produced in answer to subpoena on Psychological Services;

   o)Documents produced in answer to subpoena on Headspace Town A;

   p)Documents produced in answer to subpoena on Hospital;

   q)Documents produced in answer to subpoena on New South Wales Police.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

1. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

3. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (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;

   (m)  any other fact or circumstance that the court thinks is relevant.

The case law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

The Expert evidence

1. This is a case where Expert evidence is particularly significant. Such are the challenges confronting [X], her siblings, her parents, and the Paternal Grandmother that mere reliance on the lay evidence is fraught with risk for all of them. Ultimately, however, Dr K did not decide this case; the Court did. Nonetheless, and as will be seen below, the Court has placed significant weight on his evidence.

2. Dr K provided two Reports to the Court. His first Report dated 20 July 2016 was released to the parties on 1 August 2016. His second Report dated 18 May 2018, was released to the parties on 21 May 2018. Dr K’s Report covered all issues in dispute involving this family, but as the Final Hearing narrowed to focus solely on [X], so too the Court’s examination of his Reports, and his subsequent evidence, will focus on the issues that it needs to decide.

3. Counsel for the Independent Children’s Lawyer, Ms Neville, quite correctly pointed out in submissions about the longitudinal benefits of having two Reports from Dr K. Thus, it is possible to trace the views that [X] expresses over a period of two years, as well as to observe the differences in the opinion of Dr K about what weight should be given to those views.

4. In his first Report [X]’s views come up in a number of different contexts. Firstly, Dr K spoke with Ms A, a Psychologist in private practice, and [X]’s school counsellor. At paragraph 169 of his Report, Dr K records Ms A’s observation that [X] had been consistent and strong in terms of not wanting to have anything to do with her Mother. At paragraph 175 she described her as a very resilient girl, in her first year of high school. At paragraphs 176 to 180 Dr K records the following:-

   [176] [X] would sometimes feel… would say… that she hates her life. Ms A feels that this is likely a reflection of the complexities of dealing with the mother, and with dad and nan.

   [177] In many ways, [X] presents as a typical teenager. Under the circumstances, she presents as quite well-adjusted. She does not present with signs of being at risk of mental illness.

   [178] Ms A has been working on helping [X] to stop believing that she was the parent of the younger two children, and dad and nan had been working on that too.

   [179] I asked whether these “parental” responses in [X] were only about wanting more discipline of the children when they wronged [X], or about more broad parental roles. Ms A said that it was very much the latter. [X] as they were walking down the road would be grabbing the younger children’s hands. [X] would be correcting their behaviour.

   [180] Ms A’s impression was that [X] had been left with a big responsibility, to care for the younger two children, during the children’s earlier life.

5. Ms A went on to explain to Dr K that [X] appeared to love her Father, but got annoyed at him, particularly about his poor choices (at paragraph 182).

6. At the time [X] was being nurtured and looked after by her paternal Grandmother, and Father.  Ms A was of the view that [X] had been trying to adjust to being a kid.

7. At paragraph 548 Dr K writes:-

   [X] expressed a general positive disposition towards the father and negative towards the mother. She did not enter into discussion of violence between the parents, but did describe the mother as having been violent to herself, in terms of yelling and putting her outside, and on a few occasions pulling her outside by her hair.

8. Elsewhere in his Report, and even in the next paragraph, for example, Dr K forms the view that the children witnessed significant parental conflict and bidirectional parental violence, including some events where the Father was overwhelming physically violent to the Mother. This puts in context [X]’s comments at paragraph 548 about violence.

9. There were allegations made against the Mother that she had sexually abused the children. At paragraphs 599 to 603, Dr K discusses this, noting, for example, the absence of reference to this in [X]’s narrative:-

   [599] When I interviewed [X], the issue of sexual intrusion by the mother or risk of the same to herself or the younger girls did not appear to be on her mind or to be part of her narrative at all.

   [600] Similarly, when I interviewed the younger two girls, they did not raise the issue of fear of physical or sexual intrusion by the mother, or fear of the mother, beyond a concern about being taken away by the mother or of the parents fighting.

   [601] Ms A confirmed at telephone interview that the children appeared to be adapting well at school and had not been making disclosures in the school setting, and that the father and the paternal grandmother had been focussed in therapy mostly on day to day parenting matters, not preoccupied by the “sexual abuse” issues.

   [602] The younger two children spoke happily of their supervised times with the mother, in front of the father and the paternal grandmother.

   [603] So, in terms of the present circumstance, the paternal grandmother and the father do not appear to be “coaching” the children to make allegations of abuse, or otherwise perpetuating such views in the children, or engendering in the children a globally negative or averse picture of the mother as dangerous or abusive.

10. Dr K’s view at paragraph 603 that there had not been coaching of the children by the Paternal Grandmother is noticeable.

11. Dr K was, of course, asked to report in relation to views expressed by the children. Paragraph 633 to 644 bear reproduction in full:-

    [633] I told each child that the parents and the court would decide how much time the children would spend with dad and how much with mum. The child didn’t have to decide, but the court are interested in what she thinks and how she feels. Each child appeared to understand this. I asked each child whether she is glad that she doesn’t have to choose, or whether she would prefer it if she could make the decision.

    [634] I also asked each child whether if she had a magic wand, she would get the parents back together, or keep them in separate homes.

    [635] [X] told me that she was mostly glad to attend, so as to have her say. But, she didn’t like missing out on school, and worried about getting behind.

    [636] [X] mostly wanted to have her say, and would prefer it if she could decide. But, she would have some worries about getting the decision wrong, if it was hers to make. [X] said, “I want to choose who I want to live with… and be happy with”.

    [637] Given the choice, [X] would live with dad, and not have to see mum. She doesn’t want to go to see mum each fortnight because “I just remember all those bad times”. She wants to be able to see the maternal grandmother and “Aunty Ms O”. She might see mum again in future, but she would want to decide herself, about that.

    [638] [Y] described herself as “excited” to speak about the matters before the court. She would prefer to decide, rather than being relieved that the adults decide.

    [639] Given a magic wand, [Y] would keep the parents separate, rather then reunite the family, because “they kept fighting”. Given a choice about living arrangements, [Y] would keep things as they are now. She would live “mostly with dad”, and would see mum sometimes. Given a choice between seeing mum at mum’s house, or at “the special place”, she would continue to see mum at “the special place”. [Y] did not elaborate about this latter decision, beyond the fact that she likes seeing mum at the contact centre.

    [640] When asked about her wishes, [Z] described her current circumstances rather than expressing a clear wish, and I decided that pressing further was unlikely to draw a valid response. She described her living with dad as “good”, and that she also enjoys seeing the mother at the contact centre.

    [641] Given a magic wand, [Z] would keep the parents separate because “daddy and mummy are not friends… mummy put hot coffee on dad’s back”.

    [642] Overall, I feel that the court’s appraisal of the serious issues of parenting capacity and risk in this case should be given greater weight than the children’s wishes.

    [643] My impression is that the children’s preference to remain living with the father and the paternal grandmother arises mostly from their current experience of relative security, reliable adult provision, and a prosocial and happy day to day life, in comparison with their past experience of insecurity, unreliable adult provision, and disharmony during the parental relationship and the period living with the mother alone. In this regard, the children’s wishes should be respected.

    [644] [Y] and [Z] expressed a clear wish to continue to spend time with their mother. My impression is that this wish arises from their past and more recent experience of positive engagement with their mother and of maternal love and attention, and should be respected so much as risk can be managed, as should [Y]’s expressed wish to continue connection with maternal extended family including her older half-brother.

12. As early as 2016, [X] was clearly preferring to make the decision herself, albeit worried about getting the decision wrong. It is important to note that, in the first report, Dr K was clearly of the view that the most important issue for the Court was determining the issue of parenting capacity and risk, rather than upholding the views expressed by the children.

13. In Dr K’s second Report [X]’s views are dealt with extensively. At paragraph 77 to 86 he records:-

    [77] I met with [X] first, for a total of one hour and forty minutes.

    [78] When I came out to the waiting room to greet the family, [X] appeared comfortably engaged with other family members. She came into the interview room cooperatively, and engaged constructively in the interview.

    [79] I asked [X] an initial open-ended question, asking her to tell me a little about herself, and how she is travelling now. I was encouraged that her initial responses were ordinary and (in a developmentally appropriate way) focussed upon herself and her own adolescent life.

    [80] [X] told me that she had a job at (employer omitted), which she obtained at  the start of this year. Sheis at “a great school… School 1 High School”, which is “five minutes’ walk” away. She likes her new home in Town A. She has great friends.

    [81] [X] said to me with her own initiative, before I had asked about her wishes, “I wouldn’t change anything now”.

    [82] I felt that this comment demonstrated some insecurity about change and uncertainty in her life, having just dealt with the adult tussle over the move to Town A and change of schools and also being aware of the current court proceedings. But, my impression was that this comment also reflected [X]’s positive experience of and valuing of her current life circumstances.

    [83] I asked [X] what she wants to be or do, when she “grows up”. [X] said, “I want to be a (occupation omitted)”. She had this plan “since Year 7… I like (hobby)… I do (hobby) with Ms D … dad’s sister’s daughter”.

    [84] I observe that [X] at age 14 is engaged in a process of differentiation of self, obtaining some work and associated beginnings of financial independence, and starting to think about her own young adult life, and how she intends to shape that life. In that regard, she has positive, creative, prosocial and (I feel) achievable goals.

    [85] This differentiation is a developmentally appropriate process, and can allow for ongoing connection with family whilst being protective against an absolute incorporation or re-enactment of the more problematic domains of family functioning, and protective against despair or hopelessness associated with these domains.

    [86] I observe that [X] is being encouraged and facilitated in her differentiation of self by her connection with her older (23 year old) cousin Ms D, with whom [X] has shared connection over the years, and close residences since [X] came to live with the paternal grandmother in Town C from Town D during 2016.

1. Dr K’s reference to [X] engaging in a process of differentiation of self, a developmentally appropriate process, was a significant issue both in cross-examination and submissions. It almost seemed a priority theme of Dr K’s evidence.

2. Dr K explored [X]’s perception of her new life in a regional town, geographically more distant from where she had lived before with her Mother, and even with her Father. At paragraphs 87 to 93 he writes:-

   [87] I asked [X] about her new living arrangements. [X] spoke of the paternal extended family in the plural, and with warm and positive tone, and a sense of belonging. [X] said, “We’re all  in different houses now… Nan, Pop, and me and [Y] and [Z] are in one house, then myAunty and her husband are in another house, then Ms D and her fiancé Mr A and Ms D’s brother Mr D (he’s 21) live in another house… Ms D and Mr A have [A]… he’s almost one… [smile]… and Ms D’s fiance’s mum… she lives just two minutes around the corner”.

   [88] Compared with when they were all living in Town C , [X] said, “it’s the same family, just different houses”.

   [89] [X] said of her own new home, “I’ve got a bigger room now, with my own en suite, and a walk in robe”.

   [90] I challenged [X] with the comment that adolescents sometimes spend a lot of time in their room, and adults can be concerned about that and want to get them out. I asked about this issue, for her and for Nan and Pop.

   [91] [X] gave a positive and differentiated response, appearing to hold the confidence and security to cause and to consider her own preferences and practices. [X] said, “I like being in my room… but I like coming outside my room too”. Outside her room. [X] enjoys (hobbies) (just for fun), on her own and with her sisters, and “(hobbies)… with [Y] and [Z]”.

   [92] I asked [X] how she had been within herself, in terms of mood.

   [93] Once again, I was encouraged that [X]’s initial response and in fact her focus was on domains of adolescent developmental function and tasks, not on the adult partisan matters, though she did move to discuss the impact of the latter also.

3. Dr K was clearly encouraged by what [X] told him at paragraphs 94 to 95 about wanting to go to school. At paragraph 96 he was encouraged by [X]’s experience of a balance of differentiation, and background adult support and boundaries. When [X] was given the opportunity about comparing her present life with that of the life she used to have she said at paragraph 98:-

   [X] said, “pretty shit, really… home life was stressful… with the mum and dad stuff… and at school, I was bullied… I had a good first term in Year 7, then after that I was bullied, and picked on… I didn’t want to go”.

4. At paragraph 110 [X] identified current support in the form of her counsellor, Ms R, a Psychologist from Headspace.

5. Dr K became more explicit about exploring [X]’s views at paragraphs 112 to 120:-

   [112] I took this opportunity to ask about [X]’s wishes. I Put to [X] that the parents and the court would decide how much time the children would spend with Nan, Dad and Mum. The child didn’t have to decide, but the court are interested in what she thinks and how she feels. [X] appeared to understand this.

   [113] I asked [X] whether she is glad that she doesn’t have to choose, or whether she would prefer it if she could make the decision. [X] felt strongly that she would like to decide. At initial interview two years ago, [X] had also taken such a stance, but with a little more caution, and worry about getting it wrong. She now presented as more assured in seeking her own agency.

   [114] I also asked [X] whether if she had a magic wand, she would get the parents back together, or keep them in separate homes. [X] said, “No… there was way too much arguing… none of us were happy”.

   [115] If she was able to choose, [X] would live “with Dad and Nan, in Town A … and with [Y] and [Z]”, and “I don’t wanna see mum”. I asked whether, if [X] could decide, [Y] and [Z] would see mum. [X] said, “yes”, on the basis that they like going to see mum.

   [116] I asked [X] who she felt should be able to make decisions involving her life, such as her schooling and where she lives…. Dad, or Nan, or both. [X] felt “both”, because “they’re both as good as each other… sometimes Dad way’s better, sometimes Nan’s way’s better”.

   [117] An example of where Nan’s way was better was that prior to Dad going into gaol, “Dad wanted to live at Town D with his girlfriend, and Nan wanted him to lie at Town C , with Pop”. [X] told me that Dad and Nan used to have a lot of arguments about that, but that Dad would just stay at Town D, and Nan would have to come out there. When Dad went to Gaol, they had been able to move back to Town C.

   [118] I asked where [X] felt would have been better to live. She said, “we would have been better off living at Town C… [smile, warm tone] because of the paddocks… and the animals”. I commented to [X] that I recalled from the initial interviews, the children saying that they felt connection with that place, from holidays when they were young. She concurred. [X] added, “and the other family members… Ms D, and Mr D, and Ms B, and Mr M, and Mr A, and Pop”.

   [119] [X] reiterated the value that she places in having these broader connections, particularly with her cousin Ms D but also with the maternal aunt Ms B and the other relatives listed. [X]’s narrative suggests that these connections are positive, prosocial, and constructive elements of and facilitators of [X]’s differentiation into a positive older adolescent and young adult life.

   [120] In addition, I observe a vulnerability to problematic partisan intensity in all of [X]’s main adult carers (Nan, Dad and Mum), and my impression is that this broader extended family provides a valued and developmentally beneficial dilution of the same, and modulation of the potential developmental harm associated with the same.

6. It is interesting that [X] continued to feel strongly that she should make the decision. She was clearly able to articulate the benefits, and supports, available to her where she is with her Paternal Grandmother. Moreover, Dr K was explicit in addressing the issue of “problematic partisan intensity in all of [X]’s main adult carers”, and he noted his impression that the broader extended family that she experiences where she is now provides a “developmentally beneficial dilution of the same, and modulation of the potential developmental harm associated with the same.”

7. This is an important point. The Mother’s case was run, in effect, on the basis that the Paternal Grandmother had alienated [X] against her. But what Dr K suggests is that all of the significant adults in [X]’s life were seeking to influence her views, not just the Paternal Grandmother. The broader extended family seemed to dilute the effect of this influence.

8. In relation to her Father, Dr K records at paragraphs 128 to 132:-

   [128] I asked [X] about her current connection with the father, and her wishes with regard to living arrangements and time with the father, when the father “gets out” in 2018.

   [129] [X] smiled and spoke of dad with a warm tone and body posture, and with similar sense of valued connectivity that she had spoken of him at initial interview.

   [130] [X] said, “He comes out every weekend… Nan picks him up Friday, and he goes home Sunday… he’s in gaol 3 and a half hours away”. Some things had “gone back to how they used to be” on weekends, since the father had been coming home. An example was “we watch ‘Funniest Home Videos’, on Saturday nights… [warm smile] we always used to do that”.

   [131] I asked [X] about Dad’s plans and her plans, after 2018. [X] said, “he wants us to move back to Town D, but… he was still deciding… [[X] appeared a little anxious] Nan says he probably won’t go down to Town D”.

   [132] I asked [X] whether she would want to move back to Town D. [X] said, “No… that would mean new school, and new friends… and also, I’d have to leave Nan, and Pop, and Ms D, and Aunty Ms B”.

9. As it turns out, [X]’s Father did, in fact, move where she thought he would, and that distance did not seem problematic for her. Dr K asked about [X]’s relationship with her Mother at paragraphs 143 to 144. It clearly is a distant one. At paragraphs 152 to 155 there is important evidence which is inconsistent with the Mother’s case about alienation. Dr K records:-

   [152] I asked whether [X] had some positive memories of mum, and connections with mum. [X] said, “yes… there was good times with mum… it was mostly at the end of their relationship, it was bad… mum was out of it… she didn’t care… she was using drugs… also, mum was an arse to dad… dad was so nice to her, but she didn’t care”.

   [153] I asked for an example of a positive memory of mum. [X] said, “it was while dad was still (occupation omitted)… it was my birthday, and she planned everything for us… she had all the food ready”.

   [154] [X] elaborated about the difficult time “at the end of their relationship”, saying “mum changed… she was out of it… she was screaming… she wouldn’t come out of her bedroom… she’d always be in there… she wouldn’t go shopping”.

   [155] I asked about the maternal extended family. [X] said, with positive disposition, “we’ve seen mum’s mum and dad… in the school holidays… we went there for a week… to the Region 2”, and “Aunty I’s at Town B. We’ve been up with Nan and Pop to their house”.

10. Whilst the question of [X]’s views are clearly important in this case, that is not to say that the Court is not interested in issues of the parenting capacity of the Father, Mother, and Paternal Grandmother. In relation to the Paternal Grandmother Dr K records at 308 to 313:-

    [308] [X]’s narrative above suggests that in terms of her day to day experience of the paternal grandmother and life within the household of the paternal grandmother, [X]’s needs are being met, including her need for nurturing, guidance and autonomy, and her need for facilitation of therapy.

    [309] [X] presented an experience of the paternal grandmother as genuinely mindful of [X] and [X]’s needs, as genuine in her kind and concerned intentions towards [X], and as a person who listens to [X], and is helpful, and has been encouraging and facilitating of [X]’s midadolescent differentiation.

    [310] I think it likely that the paternal grandmother has been all of those things. I believe that one can observe in [Y]’s and [Z]’s narratives also these positive aspects of the paternal grandmother.

    [311] Whilst overall [X] appears to be on a reasonable developmental trajectory, and is not caught in some of the vicious relational/ behavioural cycles with the paternal grandparents as are [Y] and [Z], I do carry concern about how the areas of incapacity outlined above have impacted on, are impacting on and will in future impact upon [X].

    [312] I am concerned that [X] appears to be inhibited whilst in the care of the paternal grandmother from acknowledging any valuing of or enjoying of connection with the mother. I carry some hope that the same may improve after final court orders, when there is no longer the experience of any such enjoying of connection being used by the Mum as ammunition against Nan.

    [313] I observe that one strength of Nan is that she does give the children space to form valued connections with other persons and family members, so long as the same are not viewed as a threat. [X] appears to be gaining from her broader connections with cousin Ms D, the paternal Aunt Ms B, from her therapist and from friends and teachers. My impression gained from meeting Ms B at initial interviews, and hearing of Ms D from [X] and other sources, is that they are positive and prosocial adult connections for [X].

11. It is interesting to see how Dr K differentiates between what he describes as “the vicious relational/behavioural cycles with the paternal Grandparents” in relation to [Y] and [Z], but not necessarily to the same intensity about [X]. That is by no means to say that all is well with [X] in the Paternal Grandmother’s household. Dr K carried some hope about an improvement of this after the finalisation of this litigation.

12. The question of the Mother’s parenting capacity was not as great an issue, given that all parents consented to an Order that the younger children live with the Mother.

13. The sexual abuse allegations against the Mother, and [X]’s perspective of the same, are discussed by Dr K at paragraphs 405 to 407:-

    [405] [X] raised the issue of the mother’s sexual intrusion upon herself and her sisters in the context of explaining why she does not see or talk to the mother.

    [406] [X] described the mother having put her fingers inside [X]’s vagina, at night. This had occurred only after the parental separation and only when the mother was “out of it… on pot… she wouldn’t be herself” [paragraphs 144 to 151, above]

    [407] I cannot discount the possibility that this is a truthful disclosure based upon episodic memory in [X]. But, I am cautious to accept the same for the following reasons, though I stress that none of these reasons in and of themselves preclude the possibility that abuse may have occured:

    [407.1] this disclosure appeared to occur when a therapist turned to [X] and asked whether she had been abused, when the paternal grandmother had just outlined how [Y] and [Z] had been abused.

    [407.2] The mother said to me at interview that when the “three psychologists” had confirmed abuse of [Y] and [Z], each time, “[X] said ‘no,no,no’”, suggesting that [X] has been asked repeatedly about this issue.

    [407.3] [X]’s decision to contact police about the same occurred after an argument with the mother over [X]’s preference to assist her cousin to move, over attend time with the mother, and (it appears) on the same day that the paternal grandmother concedes that [X] rang the mother in distress about whether the father was actually her biological father.

    [407.4] and during a period that the paternal grandmother was actively advocating with all of the children’s counsellors for CS and JIRT notifications in the context of the mother’s application for “custody”, and where [X] has personal reasons for wanting to stay living in Town A with the paternal grandmother, and fears change in that regard

    [407.5] The context is also of the paternal grandmother holding a belief that [X] may well have been sexually abused dating back to when she told the family consultant the same in 2015, and noting that the referral to headspace counselling makes reference to sexual abuse.

    [407.6] I note that [X] appears to be making a minimalist disclosure that protects the mother from negative intention, stating that the abuse occurred when the mother was “out of it” and “not herself”.

14. Clearly Dr K had some reservations about the allegation. The litigation was certainly conducted, at the Final Hearing, on the basis that the Court would need to be very, very cautious about placing too much weight on the allegations. Ultimately Dr K concluded at paragraph 416 that his overall impression is that the risk of there having been past sexual abuse of the children by the Mother is low, and that risk of future abuse by the Mother is even lower. In effect, Dr K is seeking to reassure the family, and indeed the Court, that the risk of harm in the Mother’s household is minimal. But this, the Court notes, takes the spotlight back to the question of [X]’s views, and elevates their importance.

15. At paragraph 445 Dr K states:-

    Considering [X]’s age and developmental stage, and the fact that her views regarding her primary place of residence appear to be based appropriately upon her own current adolescent life goals, in my view, [X]’s desire to remain living in Town A living with the paternal grandmother currently, and to have choice about whether and the extent to which she might live with the father upon his release and about the extent of any time spent with the mother, should be given weight.

16. His recommendations in relation to [X] is found at paragraph 455:-

    The child [X] live with either the mother, the father or the paternal grandmother, in accordance with her wishes, and spend time with the others in accordance with her wishes. The court through the ICL and/or through [X]’s therapist communicate to [X] any finding about risks to [X] in maternal care, and inform her of the court’s opinion [if the court does share such an opinion with myself] that it would be developmentally beneficial for [X] to recommence some regular time with the mother, even if [X] does not choose to live with the mother. [X] discuss her wishes with regard to live with/ time spent with her therapist from time to time, and she and this therapist inform the father and the paternal grandmother of these wishes. Ideally, [X] should be encouraged to make such decisions thoughtfully and in advance, then stick to them, rather than to be reactive or “last-minute” in the making and expression of such decisions.

17. Dr K was extensively cross-examined at the Hearing. The following points emerged during the cross-examination of Dr K by Ms Neville, Counsel for the Independent Children’s Lawyer. The first area was in respect of the therapy proposed in the Independent Children’s Lawyer’s orders, on the assumption that [X] lives with the Paternal Grandmother. It should be noted, however, that even on the Mother’s proposal [X] would receive some therapeutic support.

18. What was particularly interesting, and useful to the Court, about the cross‑examination of Dr K on this issue was to gain a better understanding of his perspective on both the Mother, and the Paternal Grandmother. He acknowledged that any form of therapy would not be easy. He was of the view that therapy with the aim of reunifying the Mother and [X] would be highly problematic. Rather, he suggested therapy which provided to [X] space to consider her options.

19. Dr K was concerned both about premature therapeutic intervention, and rushed intervention. Nonetheless, he acknowledged the huge “difference” between no connection, and some connection. Whilst he acknowledged that the Mother might not see the difference between the two, it was very important from [X]’s perspective.

20. Dr K was asked to assume that the Court ordered [X] to live with her Mother. He emphasised the importance of the Mother engaging with Ms K, her counsellor, by way of coaching and advice about how to assist [X] with the transition. He thought that it was possible that [X] might experience a measure of disassociation, trying to survive a big readjustment in their brain. Dr K said: “It’s like a soldier in the battlefield.” There is no doubt that, in context, Dr K was referring to what it might be like for [X] to be ordered back into her Mother’s care. The emphasis, therefore, was on trying to support the Mother in how to respond to [X], in the first instance.

21. Dr K was taken to paragraph 437 of his Report which states as follows:-

    [X] is settled in the care of paternal grandmother and the father, and is engaging with adolescent differentiation, in that context. In my view, removing her from that context against her will, would create distress and grief in her. The mother would be ill-equipped to assist [X] to deal with that distress and grief.

22. He was asked to explain what he meant by the Mother being ill equipped to assist [X]. He explained that even if the Mother were capably assisted by someone like Ms K, he was still cautious about her ability “to pull off what would be required if [X] enacts either aggressive negativity or a sort of ambivalent shifting emotional state as part of that process to move into maternal care.” Dr K was asked to describe the distress and grief that [X] might experience in this scenario. Dr K described it in these terms:-

    Well, within herself, there’s a stirring up – pragmatically, she’s going to be experiencing grief about her current hopeful state because currently she’s making a bit of a life for herself there in Town A. She’s taking on a positive stance about that. So there will be an anger and loss about her – her sense of losing what she’s putting together now. There will also be grief at the loss of what she’s valuing about the paternal extended family, including her cousin and her aunt and her grandma and those people. That will also trigger a connection with the multiple losses she has had in her life associated with all of the caregivers.

    And that can show in a number of ways. That can show really overtly with a lot of aggression and anger and running away and being brought back.  It can show in verbal aggression to Mum or – or a, sort of, partisan challenge to Mum. At the other extreme, she may actually on the surface smile and engage very constructively at home, but inside herself there will be a reactivity to anything partisan put to her by Mum, such as any denigration of the Grandmother or – or minimising of any negative experience of the Mother that [X] has had, for example, during the period in the lead up to separation and – and the immediate post separation period.

    And [X] could either keep all that inside or, more likely, at some stage have an outburst where [X] suddenly, to use as the vernacular, loses the plot and storms off because of a sense that Mum doesn’t get her experience. (Transcript, Wednesday 11 July 2018, page 15 line 36 to page 16 line 7.)

1. That notwithstanding Order 2 and on a without admissions basis, pursuant to section 68B of the Family Law Act 1975 each party is restrained by injunction from requesting or permitting [X] to undergo any invasive medical examination or testing, including but not limited to the following:-

   DNA parentage testing;

   An examination for the purpose of assessing whether or not that child has been sexually active;

   An examination for the purpose of assessing whether or not that child has been the victim of sexual abuse or assault;

   unless assessed as being be medically necessary by [X]’s treating medical practitioner in writing or unless requested by the Department of Family and Community Services or NSW Police in writing.

Therapeutic Engagement:-

1. That in the event that [X] lives with the paternal grandmother, the paternal grandmother is to do all acts and things necessary to facilitate [X]’s continued therapeutic engagement with Headspace Town A on a regular basis and not less than once every six (6) months until such time as recommended by Headspace and follow and implement the recommendations of this service including, but not limited to, following through with any referrals for [X] to engage with any other appropriate mental health or support services (such as the Child and Adolescent Mental Health Service attached to Town A Hospital).

2. That the paternal grandmother be solely responsible for bearing any costs associated with [X]’s therapeutic engagement pursuant to Order 22.

3. That subject to Notation D and the ability of Headspace Town A to facilitate such engagement, in the event that [X] lives with the paternal grandmother the parties are to do all acts and things necessary to make arrangements for the mother to attend upon Headspace Town A and meet with:-

   ·    Ms N;

   ·    A colleague of Ms N’s who is familiar with the nature of [X]’s therapeutic engagement with Headspace Town A; and/or

   ·    The designated Family Worker at Headspace Town A

   (as advised to the parties by Headspace Town A and on dates and times suitable to Headspace Town A) for the purpose of:-

   Advising the mother of the nature of the service offered by Headspace Town and their therapeutic engagement with [X];

   Assisting to inform Headspace Town A’s understanding of the nature and dynamics of the relationship between the mother and [X];

   Enabling the feeding back to the mother by Headspace Town A of any information that [X] authorises being shared with the mother with a view to improving the mother’s understanding of [X]’s views and wishes in relation to communicating with and/or spending time with the mother;

   Enabling the feeding back to [X] of any information provided by the mother that Headspace Town A feel may assist in improving communication between [X] and the mother;

   Acting as a conduit for the mother to provide letters, cards, photos, videos or other electronic media to [X] not less than once every six (6) months as a means of providing [X] with updates and information about the mother and maternal family to be made available to [X] by Headspace Town A for [X] to view and/or respond to in accordance with her wishes during the privacy of [X]’s appointments with Ms N pursuant to Order 22; and

   Providing any other assistance and support consistent with [X]’s best interests as assessed by Headspace Town A.

4. That the mother will be solely responsible for the costs associated with any engagement with Headspace Town A by her pursuant to Orders 24.

5. That subject to Notation D, in the event that Headspace Town A is not able to facilitate the mother’s engagement with their service as provided for in Order 24 and/or in the event that [X] chooses to live with either the father or the mother from the date of Final Orders, the parties are to do all acts and things necessary to arrange for [X] and the mother to engage with a child and family therapist, psychologist or counsellor agreed between the parties but failing agreement, through CatholicCare in Town A (in the event that [X] is living with the paternal grandmother) or through CatholicCare in Town B (in the event that [X] is living with the father or the mother), with a view to:-

   Exploring the relationship between [X] and the mother and, where possible, assisting in the repairing of that relationship;

   Improving communication and understanding between [X] and the mother; and

   Discussing [X]’s views and wishes in relation to communicating with, spending time with and/or living with the mother.

6. That for the purpose of Order 26 and subject to Notations D and G, within twenty-eight (28) days of Headspace Town A advising in writing that they are unable to facilitate the mother’s engagement with their service as provided for in Order 24 and/or [X] chooses to live with either the father or the mother from the date of Final Orders, the mother and the party with whom [X] is living are to make contact with CatholicCare in Town A or CatholicCare in Town B or the agreed upon therapist or psychologist as appropriate and:-

   Arrange appointments as soon as reasonably practicable for initial intake assessments for [X] and the mother;

   Thereafter attend any appointments at any reasonable time and location nominated by CatholicCare or the agreed upon therapist or psychologist and complete all necessary assessments;

   If assessed as suitable, the mother and [X] are to enrol in and undertake any appropriate counselling, family therapy, course or program nominated by CatholicCare or the agreed upon therapist or psychologist as soon as is reasonably practicable;

   The party with whom [X] is living is to do all acts and things necessary to provide any necessary consent or authorisation for [X]’s attendance and/or participation in any such appropriate counselling, family therapy, course or program;

   The mother is to attend and/or participate in any counselling session, course or program recommended and/or directed by CatholicCare or the agreed upon therapist or psychologist until such time as otherwise recommended by CatholicCare or the agreed upon therapist or psychologist;

   In the event that CatholicCare or the agreed upon therapist or psychologist recommends or directs the attendance and/or participation of [X] at a particular intake assessment, counselling session, course or program, the party with whom [X] is living with or spending time with that day must do all acts and things necessary to facilitate [X]’s attendance and/or participation until such time as otherwise recommended by CatholicCare or the agreed upon therapist or psychologist; and

   In the event that CatholicCare or the agreed upon therapist or psychologist recommends or directs the attendance and/or participation of the father and/or the paternal grandmother at a particular intake assessment, counselling session, course or program, the father and/or the paternal grandmother must do all acts and things necessary to comply.

7. That the parties will be equally responsible for the costs associated with any family therapy, counselling, course or program undertaken by the mother and [X] pursuant to Orders 26 and 27.

8. That in the event that [X] lives with the mother or the father, that parent is to do all acts and things necessary to facilitate the completion of [X]’s engagement with Headspace Town A (including, but not limited to, facilitating [X]’s attendance at one or two sessions ‘closing off’ therapy sessions with her counsellor, Ms N) within four (4) months of the making of these Orders and thereafter that parent is to do all acts and things necessary to facilitate [X]’s engagement with an alternate appropriate psychological, counselling or therapeutic service as recommended by Headspace Town A or Ms K on a regular basis until such time as recommended by that service and implement the recommendations of this service including, but not limited to, following through with any referrals for [X] to engage with any other appropriate mental health or support services.

9. That the parent with whom [X] is living at the time will be solely responsible for bearing any costs associated with [X]’s therapeutic engagement pursuant to Order 29.

10. That the mother’s treating psychologist, Ms K, be authorised to communicate with any therapist or psychologist engaged with [X] pursuant to these Orders.

11. That leave be granted for the parties to make copies of Dr K’s Single Expert Reports dated 20 July 2016 and 18 May 2018, together with a copy of these Orders, available to CatholicCare or other agreed upon therapist or psychologist engaged with [X] and the mother pursuant to Orders 26 – 27 and 29.

Restraints:-

1. That pursuant to section 68B of the Family Law Act 1975 and on a without admissions basis, the mother is restrained by injunction from sharing a bed with [X] during those periods that [X] is living with or spending overnight time with the mother.

2. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:-

   Consuming or being affected by alcohol to the point of intoxication in the presence of any of [X], during any periods that they are spending time with [X] or in the period twelve (12) hours prior to [X] coming into their care;

   Taking, consuming or being in any way affected by illicit drugs or substances in the presence of [X], during any periods that they are spending time with [X] or in the period twelve (12) hours prior to [X] coming into their care;

   Bringing [X] into contact with any person that they know or suspect to be under the influence of illicit drugs or substances during those periods that [X] is in their respective care; or

   Taking or permitting [X] to be taken to or remain at any location or venue where the party knows or suspects that illicit drugs and paraphernalia will be present during those periods that [X] is in their respective care.

3. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:-

   Shouting at [X], making a video-recording of [X]’s aberrant behaviour or directing or encouraging [X] to make a video-recording of her sisters’ aberrant behaviour;

   Physically disciplining or threatening to physically discipline [X] in any way or from allowing any other person to physically discipline or threaten to physically discipline [X] in any way during those periods that [X] is in respective care; or

   Exposing [X] to excessive conflict or violent behaviour (including physical and verbal abuse) during those periods that [X] is in their respective care.

4. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party and their agents or nominees be restrained by injunction from:-

   Making any negative, critical, belittling or derogatory comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of another party) to or in the presence or hearing range of [X] or via written correspondence or on social media which may be viewed or accessed by [X]; or

   Doing or saying anything to and/or within the presence or hearing range of [X] which might reasonably cause, contribute to or encourage [X] to be fearful of any other party or to feel unsafe in the company or care of any other party

   and each party will each use their best endeavours to ensure that no other person does so.

5. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from discussing or questioning [X] about any of the following:-

   Any document filed by any party or produced on subpoena in the these proceedings;

   The contents of Dr K’s Single Expert Reports dated 20 July 2016 and 18 May 2018;

   The previous JIRT/Child Abuse Squad investigations;

   Any other allegations of historical child sexual abuse relating to any of the children or parties; and

   Any allegations or findings of risk of/actual physical, psychological or emotional harm or abuse by a party made in or arising from these proceedings;

   except in a therapeutic context as recommended by the party and/or [X]’s treating psychologist, counsellor or therapist.

NOTATIONS:

H.     It is noted that [X] has expressed a wish to continue to live with the paternal grandmother.

1. It is noted that Dr K predicts that if [X] is given security about her ability to choose her living arrangements it is likely that, upon finalisation of these proceedings, [X] will choose to reconnect with the mother on her own terms which would, in Dr K’s assessment, benefit [X] developmentally, relationally and emotionally to do so.

J.   For the purpose of Order 8, in the event that [X] does not wish to spend time with the mother and [Y] and [Z] are not spending any/regular time with the father and/or paternal grandmother, the parties and their extended families are encouraged to explore alternative options to facilitate sibling contact including, but not limited to, arrangements being made for the children to spend time together as a sibling group in the company of a non-party at a suitable venue (e.g. the maternal aunt taking the children to the movies or the children visiting the home of the maternal grandparents together during school holiday periods).

K.    It is noted that [X]’s engagement with any psychological, counselling or therapeutic service (whether for the purpose of individual therapy or family therapy) pursuant to these Orders will be subject to [X] providing the necessary consent for the same to that service provider and, as at the date of Final Orders, [X] has expressed that she does not agree to engaging in any form of therapeutic intervention with Ms K.

L.   As at the date of Final Orders, [X] has expressed that she is open to some form of engagement by the mother with Headspace Town A as provided for by Order 24 provided that it is something that Headspace Town A are able to facilitate.

M.   For the purpose of Order 24, the mother is encouraged to attend upon Ms K prior to any engagement with Headspace Town A with a view to receiving intensive coaching and advice from Ms K as to how to most effectively communicate with and inform Headspace Town A about her relationship with [X] without being overcome by distress, grief or anger.

N.    As at the date of Final Orders it is [X]’s preference that any therapeutic engagement involving herself and the mother pursuant to Orders 26 and 27 take place in the form of individual sessions between [X] and the treating child and family therapist or psychologist and between the mother and the treating child and family therapist or psychologist with the provision by [X] and the mother of all necessary consents for the sharing of relevant information by that treating therapist or psychologist with the other and it is noted that, at this stage, [X] is unlikely to consent to or participate in any other form of family therapy with the mother. Despite this, it is hoped that if, in due course, the treating family therapist recommends that [X] and the mother participate in joint sessions, [X]’s position in relation to attending joint family therapy sessions with the mother may change and [X] will provide the necessary consent for this to occur.

Schedule Four

Minute of Orders sought by the Mother

FAMILY LAW ACT 1975

MINUTE OF ORDER

(pertaining to [X] only)

RESPONDENT MOTHER

IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA  File No:  (P) WOC 205/2015

BETWEEN:    MR VALENTINO  (First Applicant)

AND:               MS VALENTINO  (Second Applicant)

AND:               MS A VALENTINO  (Respondent)

AND:               INDEPENDENT CHILDREN'S LAWYER

[

UPON APPLICATION TO THE COURT IT IS ORDERED:

Parental responsibility:-

1. That the mother and father, have equal shared parental responsibility for all matters involving the long term care, welfare and development of the child [X] (born 2003).

2. That except in the event of an emergency, before making any decisions about major long term issues in relation to [X], the parent with whom [X] is living with at the time will consult with the other parties as follows:-

   87.1Advise the other parent in writing not less than twenty-one (21) days in advance of any decision on major long term issues in relation to [X] proposed to be made by the parent with whom [X] is living;

   87.2Provide the other parent with all relevant information relating to the major long term issue which is in that parent’s possession;

   87.3Provide any necessary authorities to enable the other parties to obtain any additional information from any relevant health or educational institution;

   87.4Consider any response from the other parties before making a decision; and

   87.5Inform the other parties of any decision made as soon as reasonably practicable and no later than seven (7) days after the making of the decision.

3. That the mother and father each have sole responsibility for making decisions about the day to day care, welfare and development of [X] during those periods that [X] is living with them or spending time with them.

Live with arrangements:-

1. That [X] live with the mother and father in accordance with her wishes.

Spend time with arrangements:-

1. That [X] spend time with the mother and father in accordance with her wishes.

2. That unless otherwise agreed, that [X] spend time with the paternal grandmother alternate Sundays commencing from the first Sunday after the date of these Orders from 9am – 5pm.

3. That in the event that [X] expresses to a parent with whom she is living that she wishes to spend time with another parent, the parent with whom she is living is to inform the parent with whom [X] wishes to spend time with as soon as practicable and the parents are to do all acts and things reasonably necessary to facilitate this time occurring in accordance with [X]’s wishes.

4. That in the event that [X] is living with the father [X] is to spend time with [Y] and [Z] in accordance with her wishes:-

   93.1At the mother’s home; and/or

   93.2During those periods that the father is spending time with [Y] and [Z] pursuant to these Orders; and/or

   93.3As may otherwise be agreed between the parents;

   and each parent is to do all acts and things necessary to encourage and facilitate such sibling contact occurring in accordance with [X]’s wishes.

Changeover:-

1. That for the purpose of [X] spending time with a party that unless otherwise agreed between the parties the changeover point shall be McDonald’s restaurant in Town H.

Communication:-

1. That [X] communicate with the mother, father and paternal grandmother in accordance with her wishes.

2. That in the event that [X] expresses to the parent with whom she is living that she wishes to communicate with another party, the parent with whom she is living is to inform the party with whom [X] wishes to communicate with as soon as practicable and the parties are to do all acts and things reasonably necessary to facilitate this communication in accordance with [X]’s wishes.

3. That the parents are to do all acts and things necessary to encourage and facilitate regular telephone contact and/or video calls between the children during any period that [X] is living in a different household to [Y] and [Z] and, to that end, the party with whom [X] is living is to use their best endeavours to encourage [X] to telephone and/or initiate video calls with [Y] and [Z] not less than once each week as agreed between the parties but failing agreement, each Monday between 6:00pm – 7:00pm, and the mother will use her best endeavours to make [Y] and [Z] available to speak with [X] or, in the event that they are not available, the mother will assist [Y] and [Z] to telephone and/or initiate a video call with [X] at the earliest opportunity thereafter.

Schooling:-

1. That in the event that [X] chooses to live with the father the father shall enrol [X] at School 2 High School and there are to be no further changes to [X]’s high school enrolment during the period that [X] lives with the father.

2. That in the event that [X] chooses to live with the mother, the mother is permitted to enrol [X] at School 2 High School and there are to be no further changes to [X]’s high school enrolment during the period that [X] lives with the mother.

1. That the mother and the father are each permitted to liaise directly with [X]’s school principal or teachers to obtain any information about [X]’s progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to each party directly from the school regardless of which party [X] is living with at the time and these Orders will be sufficient authority to authorise the release of such information to each of the parties.

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Medical treatment:-

1. That the parent with whom [X] is living will keep the other parties informed as soon as is reasonably practicable of:-

   101.1Any significant medical problems, illness or injury suffered by [X] while in their care;

   101.2Full particulars of any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by [X] while in their care;

   101.3Any medication that has been prescribed for [X] while in their respective care;

   101.4Any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist that [X] is due to attend; and

   101.5Any occasion that [X] is due to be hospitalised while in their care.

2. That the party in whose care [X] is at the time will inform the other parties immediately in the event of an emergency involving [X] including, but not limited to, [X] suffering a serious illness or injury or the hospitalisation of [X].

3. That the mother and father are permitted to liaise directly with any doctor, hospital or other medical practitioners treating [X] to obtain information about the physical and/or mental health of [X] and the progress of any treatment [X] may be receiving regardless of which parent [X] is living with at the time and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each parent.

4. That on a without admissions basis, pursuant to section 68B of the Family Law Act 1975 each party is restrained by injunction from requesting or permitting any of the children to undergo any invasive medical examination or testing, including but not limited to the following:-

   104.1DNA parentage testing;

   104.2An examination for the purpose of assessing whether or not that child has been sexually active;

   104.3An examination for the purpose of assessing whether or not that child has been the victim of sexual abuse or assault;

   unless assessed as being be medically necessary by the child’s treating medical practitioner in writing or unless requested by the Department of Family and Community Services or NSW Police in writing.

Therapeutic Engagement:-

1. That the parent with whom [X] is living is to do all acts and things necessary to facilitate [X] engaging with an appropriate psychological, counselling or therapeutic service on a regular basis until such time as recommended by that service and implement the recommendations of this service including, but not limited to, following through with any referrals for [X] to engage with any other appropriate mental health or support services.

2. That the parent with whom [X] is living at the time will be solely responsible for bearing any costs associated with [X]’s therapeutic engagement.

3. That the mother and father do all acts and things necessary to arrange for [X] and the mother to attend family therapy or counselling with a child and family therapist, psychologist or counsellor as agreed between the parties but failing agreement, a therapist recommended by Ms K, with a view to:-

   107.1Exploring the relationship between [X] and the mother and, where possible, assisting in the repairing of that relationship;

   107.2Improving communication and understanding between [X] and the mother; and

   107.3Discussing [X]’s views and wishes in relation to communicating with and/or spending time with the mother.

4. That the mother and father will be equally responsible for the costs associated with any family therapy, counselling, course or program undertaken by the mother and [X].

5. That leave be granted for the parties to make copies of Dr K’s Single Expert Reports dated 20 July 2016 and 18 May 2018, together with a copy of these Orders, available to the therapist or psychologist engaged with [X] and the mother.

6. That leave be granted for copies of the Single Expert Reports dated 20 July 2016 and 18 May 2018, together with a copy of these Orders, to be made available to any other counsellor, therapist, psychologist or psychiatrist treating any of the parties or the children at present or in the future.

7. That the parties give permission for treating therapists to communicate with each other on relevant issues related to therapeutic treatment.

Restraints:-

1. That pursuant to s68B of the Family Law Act 1975 that the paternal grandmother not permit [X] to live with her.

2. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:-

   113.1Consuming or being affected by alcohol to the point of intoxication in the presence of any of the children, during any periods that they are spending time with any of the children or in the period twelve (12) hours prior to any of the children coming into their care;

   113.2Taking, consuming or being in any way affected by illicit drugs or substances in the presence of any of the children, during any periods that they are spending time with any of the children or in the period twelve (12) hours prior to any of the children coming into their care;

   113.3Bringing any of the children into contact with any person that they know or suspect to be under the influence of illicit drugs or substances during those periods that each of the children are in their respective care; or

   113.4Taking or permitting any of the children to be taken to or remain at any location or venue where the party knows or suspects that illicit drugs and paraphernalia will be present during those periods that each of the children are in their respective care.

3. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from:-

   114.1Shouting at any of the children, making a video-recording of the children’s aberrant behaviour or directing or encouraging any of the children to make a video-recording of each other’s aberrant behaviour;

   114.2Physically disciplining or threatening to physically discipline the children in any way or from allowing any other person to physically discipline or threaten to physically discipline the children in any way during those periods that the children are in respective care; or

   114.3Exposing any of the children to excessive conflict or violent behaviour (including physical and verbal abuse) during those periods that any of the children are in their respective care.

4. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party and their agents or nominees be restrained by injunction from:-

   115.1Making any negative, critical, belittling or derogatory comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of another party) to or in the presence or hearing range of the children or via written correspondence or on social media which may be viewed or accessed by the children; or

   115.2Doing or saying anything to and/or within the presence or hearing range of any of the children which might reasonably cause, contribute to or encourage either of the children to be fearful of any other party or to feel unsafe in the company or care of any other party

   and each party will each use their best endeavours to ensure that no other person does so.

5. That pursuant to s68B of the Family Law Act 1975 and on a without admissions basis, each party is restrained by injunction from discussing or questioning the children about any of the following:-

   (i)Any document filed by any party or produced on subpoena in the these proceedings;

   (ii)The contents of Dr K’s Single Expert Reports dated 20 July 2016 and 18 May 2018;

   (iii)The previous JIRT/Child Abuse Squad investigations;

   (iv)Any other allegations of historical child sexual abuse relating to any of the children or parties; and

   (v)Any allegations or findings of risk of/actual physical, psychological or emotional harm or abuse by a party made in or arising from these proceedings;

   except in a therapeutic context as recommended by the party and/or the child’s treating psychologist, counsellor or therapist.

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Miscellaneous:-

1. That the father pay to the mother his one-third share of Dr K’s total costs for preparation and appearance at final hearing, being $1,106, and is to pay this amount to the mother within 30 days.

2. That the paternal grandmother pay to the mother her one-third share of Dr K’s total costs for preparation and appearance at final hearing, being $1,106 and is to pay this amount to the mother within 30 days.

NOTATIONS:

O.    It is noted that Dr K recommends that the children continue to stay connected with the extended maternal family and spend time with their extended maternal family members (including, but not limited to the maternal aunt and the maternal grandparents) not less than once every six (6) months and the parties are encouraged to use their best endeavours to facilitate this occurring.

P.   It is noted that the mother paid $3,320 at first instance to Legal Aid Wollongong for Dr K’s preparation and appearance at final hearing on the basis that the parties would share the costs equally.

Q.    It is noted that the mother will encourage [X] to spend time with the extended paternal family.