Valmar and Whatley

[2018] FCCA 1096

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALMAR & WHATLEY [2018] FCCA 1096

Catchwords:
FAMILY LAW – Equal shared parental responsibility – allegations of family violence – father’s mental health – where unacceptable risk to the child – parental responsibility – mother to have sole parental responsibility in relation to health and education subject to consultation – overnight time.

Legislation:

Family Law Act 1975 (Cth), ss.60B(1)(b), 60CC

Cases cited:

M v M (1988) 166 CLR 69

Applicant: MR VALMAR

Respondent: MS WHATLEY

File Number: MLC 12208 of 2016

Judgment of: Judge McNab

Hearing dates: 26 to 28 February 2018

Date of Last Submission: 9 March 2018

Delivered at: Melbourne

Delivered on: 4 May 2018

REPRESENTATION

The Applicant In person

Counsel for the Respondent: Mr Geddes QC and Ms Renwick

Solicitors for the Respondent: Marshalls & Dent

Counsel for the Independent Children's Lawyer: Ms Goldthorp

Solicitors for the Independent Children's Lawyer: Danielle Webb Lawyers

ORDERS

1. All previous parenting Orders including the Order for the appointment of the Independent Children's Lawyer be discharged.

2. The Father and Mother have equal shared parental responsibility for the child, X born (omitted) 2013 ("X") save that the Mother have sole parental responsibility in relation to the child's health and education on the conditions that:

   (a)the Mother consult with the Father with regard to any such health or education issue;

   (b)the Mother and the Father make a genuine effort to come to a joint decision about any such health or educational issue; and

   (c)if no agreement is reached between the parents then the Mother shall make a final decision and advise the Father in writing of the decision within seven days thereof.

3. X live with the Mother.

4. X spend time with and communicate with the Father as follows:

   (a)by Skype each Wednesday between the hours of 6.00pm-6:30 pm;

   (b)each alternate weekend from after kindergarten/school or 4.00pm Friday until 5.00pm Sunday commencing 11 May 2018;

   (c)each alternate Thursday from after school/kindergarten or 4.00pm until 9.00am or the commencement of school or kindergarten Friday commencing 17 May 2018;

   (d)from after school or 4.00pm until 7.00pm each Tuesday;

   (e)from 5.00pm the evening before Father's Day until 5.00pm Father's Day;

   (f)for (event omitted) at times to be agreed and failing agreement from l0.00am to 5.00pm;

   (g)from 10.00 am to 5.00 pm on Easter Sunday in each odd numbered years;

   (h)from 2.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years;

   (i)from 2.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years;

   (j)on other special days including the child’s birthday as agreed;

   (k)upon the child commencing school in 2020 for additional time during the school holiday periods as agreed between the parties subject to the advice of X's treating paediatrician; and

   (l)as otherwise agreed.

5. The Father's time with X be suspended as follows:

   (a)for the weekend of Mother's Day from 5.00pm the day before Mother's Day;

   from 10.00 am to 5.00 pm on Easter Sunday in each even numbered years;

   (c)

   (d)from 2.00pm Christmas Day to 2.00pm Boxing Day in even numbered years;

   (e)from 2.00pm Christmas Eve to 2.00pm Christmas Day in odd numbered years; and

   (f)as agreed on special days including X's birthday.

6. That changeover take place at X's kindergarten or school on days he is otherwise attending kindergarten or school and otherwise at (omitted) in (omitted) or such other location as agreed to in writing.

7. The Father:

   (a)continue to attend upon Dr D, psychiatrist or in the event Dr D is unable to treat the Father, then such other psychiatrist as the Father is referred to by his General Medical Practitioner;

   (b)undertake such treatment including any medication regime as recommended by his treating psychiatrist; and

   (c)provide to the Mother, at her expense, on or before 31 June each year, commencing 2019, an updated medical report prepared by the Father’s treating psychiatrist, as to his current mental state, every 12 months such report to address the Father's attendance for treatment and compliance with same. The Mother be authorised to provide Dr D (or such other psychiatrist as appointed for the Father) with a copy of the Psychiatric assessment of Dr E dated 11 December 2017.

8. The Father continue to attend upon Ms S, psychotherapist, for counselling and treatment at such intervals as directed by Ms S, with treatment to include developing strategies to address issues such as appropriate emotional boundaries between Father and child and co-dependence, with such treatment to continue for a minimum of three months from the date of these orders.

9. The Father provide an authority to Dr D or such other psychiatrist upon which the Father attends and Ms S which authorises the mother to contact them no more than every 4 months to confirm the Father's attendance upon them and compliance with their prescribed treatment.

10. The Mother be permitted to provide a copy of the Dr E's amended assessment dated 11 December 2017 and the Family Report of Dr J dated 29 January 2018 to Ms S.

11. The Father and Mother do all acts and things to utilise a parenting app such as “Our Family Wizard” for the purposes of communicating in relation to X.

12. The Father and Mother ensure that the other parent is notified as soon as practicable by telephone in the event the child is subject to a medical emergency.

13. The Father and Mother do all things required to ensure that both parents are able to receive all correspondence and notices from medical and other treating practitioners of the child and any school or kindergarten the child attends and be permitted to attend any event at such school or kindergarten which parents would ordinarily attend.

14. The parties keep each other advised of their residential address and telephone numbers and notify the other parent within 48 hours of any change.

15. The Father and Mother be restrained from denigrating the other parent to or in the presence of the child or allow or encourage any other person to do so.

16. The Father and Mother be restrained from discussing these proceedings or arrangements for time with the child.

17. On or before 30 September 2019 the parties attend a mediation at Relationships Australia to discuss the appropriateness of increasing the Father's time with X during the school holiday periods upon his commencement at school in 2020. Prior to attending at such mediation, the parties will obtain advice from X's treating paediatrician as to X's capacity to cope with extended overnight time with the Father during school holiday periods.

18. The Mother retain the child’s passport(s) and ensure that the child has a current passport at all times, with the father to do all such acts and things and sign all necessary documents as may be required, at the expense of the Mother, to renew the child’s passport within seven days of receiving a written request from the Mother to do so.

19. Each parent may be permitted to travel out of the Commonwealth of Australia for the purpose of vacation to be spent by the child, with the parent intending to travel to ensure that travel occurs during their time with the child, or as may otherwise be agreed between the parties in writing, with no less than 30 days prior notice to the intended date of departure given to the other parent and provide:

    (a)The itinerary including date of departure and return, flight details, the name, address and telephone/fax number and accommodation details and if available, room number for all hotels at which the child will be staying;

    (b)Details of telephone numbers at which the child may be contacted during his overseas vacation.

20. The child named X born (omitted) 2013 should only be referred to by the name, X.

21. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12208 of 2016

MR VALMAR

Applicant

And

MS WHATLEY

Respondent

REASONS FOR JUDGMENT

1. This proceeding concerns an application for final orders in relation to shared parental responsibility of the child, X, born (omitted) 2013 (“the child”). The Father, Mr Valmar, is 47 years old (born (omitted) 1971) (“the Father”) and the Mother, Ms Whatley, is 52 years old (born (omitted) 1965) (“the Mother”). The initiating application made by the Father was originally filed 14 December 2016.

Background facts

1. Chronologies setting out the background facts have been prepared by each of the parties. The following chronology represents a fusion between the three separate chronologies prepared. I have omitted reference to matters that I did not consider relevant:

   a)On 12 March 2009 the Father attended upon Dr C and was diagnosed with Bipolar Disorder Type II (the Father disputes this diagnosis).

   b)The Father attended upon Dr S who recorded that he has been “…depressed in the last 2-3 months. Cried several times a day for no reason, feels miserable, has sleep problems (chronic) … and has a history of Bipolar Disorder and previously when ‘high’ does things like speed.”

   c)On 12 June 2012 the Father attended upon Dr S about his mental health issues and stated he was reluctant to seek treatment for his Bipolar disorder.

   d)In (omitted) 2013 the parties met.

   e)In (omitted) 2013 the Mother became pregnant with the child.

   f)In (omitted) 2013 the parties commenced cohabitation when the Father moved into the Mother’s residence in (omitted) (there is a dispute in the outlines of each party as to when cohabitation commenced. The father says cohabitation commenced in (omitted) 2013 in rented accommodation in (omitted) – this is not material to any decision I have to make).

   g)On (omitted) 2013, the child was born. He was born 8 weeks premature. He presently attends 4-year-old kindergarten at (omitted).

   h)In (omitted) 2016 the Father was referred by Dr R, psychiatrist to Dr T. The Father sought a ‘psychiatric review and to go back on medications.’

   i)On 21 April 2016 the Father attended upon Dr T. The Mother asserted that the Father was prescribed mediation by Dr T and the Father did not take it.

   j)On 1 October 2016 the parties separated.

   k)On 2 October 2016 Victoria Police applied for a Family Violence Intervention Order on behalf of the Mother and child against the Father.

   l)On 11 October 2016 an Interim Family Violence Intervention Order was made against the Father, listing the Mother and child as the Affected Family Members.

   m)On 14 December 2016 the Father initiated these proceedings seeking parenting and property orders.

   n)On 17 December 2106 the Father commenced spending supervised time with the child, twice a week for two hours.

   o)In approximately January or February 2017, the child was diagnosed with Autism Spectrum Disorder (“Autism”) and developmental delay by child psychologist, Ms C. Dr H, the child’s paediatrician, confirmed the diagnosis of Autism.

   p)On 22 February 2017 interim orders were made for, inter alia, the child to spend supervised time with the Father for four hours each Thursday and two and half hours each Saturday. The Mother paid the cost of the supervision.

   q)On 7 March 2017 a Final Intervention Order was made, without admissions, for a period of four years (until 2021), listing the Mother and the child as Affected Family Members and the Father as the Respondent.

   r)On 31 May 2017 Dr J released the first Family Report.

   s)On 19 June 2017 the Father’s current medication was recorded as Epilim and Lexam.

   t)On 22 June 2017 interim orders were made by consent for, inter alia, the Father to continue to attend upon his current treating medical practitioners.

   u)On 24 July 2017 interim orders were made for, inter alia, the child to spend unsupervised time with the Father from 10:00am to 4:00pm each Thursday and Saturday. The unsupervised time on Saturdays commenced 29 July 2017. The unsupervised time on Thursdays commenced 24 August 2017.

   v)

   From approximately October 2017 until December 2017, following agreement between the parties, the child spent

   
   

   7 periods of unsupervised time with the Father.

   w)In December 2017, the child spent overnight time with the father from: 1-3 December, 8-9 December, 15-16 December, 22-33 December by agreement between the parties. The mother stopped this overnight time.

   x)On 14 December 2017 the parties attended Family Dispute Resolution with Victoria Legal Aid. The parties did not reach a resolution.

   y)On 15 January 2018 Dr E’s report was provided to the parties, diagnosing the Father with Bipolar Type II Disorder.

   z)On 29 January 2018 Dr J released the second Family Report.

   aa)From 26 to 28 February the Court heard the Final Hearing for this matter.

   bb)On 27 February 2018 Dr E released an updated report which includes an additional diagnosis for the Father of Complex Posttraumatic Stress Disorder of Childhood.

Orders sought by the Father

1. The Father’s proposal for final orders, extracted and summarised from his amended initiating application filed 16 February 2018 and written submissions filed 5 March 2018, is that the child:

   a)Live with his Mother.

   b)Spend time with his Father 4 night per fortnight from 28 February 2018 and 6 nights per fortnight from 1 June 2018, with the second spend time arrangement continuing once the child commences school.

   c)Spend the first week of school holidays with the Father in 2018, alternating each year to the second week of the school holidays.

   d)Spend Christmas Eve and Christmas Day with the Father in 2018, alternating these days with the Mother each year.

   e)Spend Boxing Day with the Father in 2019, alternating this day with the Mother each year.

   f)Spend from 26 December until 2 January; 9 January until 16 January and 23 January until 30 January with the Father (or until the day before school resumes, whichever is earlier).

   g)Spend time with both parents, if this is not already scheduled, when it is the child’s birthday.

   h)Spend some additional time with the Mother or Father if it is their birthday and the child is not scheduled to see them otherwise.

   i)Spend a day with the Mother if it is Mother’s Day and a day with the Father if it is Father’s Day.

   j)Call the other parent via phone, Facetime, Skype or Viber each Saturday between 5:30pm and 6:00pm.

2. Additional proposed conditions were that:

   a)Changeover be effected at school or kindergarten on school days. If it is not a school day then the child is to be collected from the other parent’s residence, unless agreed otherwise.

   b)The child’s name be removed from the airport watch list and there can be overseas and domestic travel.

   c)The child’s Australian passport be held by the Father. The Father provide the Mother with the child’s passport 14 days prior to international travel and the Mother return it within 7 days of returning to Australia.

   d)Each parent facilitates the giving of seven days’ notice of domestic travel plans. If a parent wishes to take the child overseas, they provide the other parent notice of their itinerary, flights (departure, arrival and carrier), a copy of the tickets, particulars of accommodation and contact numbers within 60 days of departure date.

   e)Neither parent can make any decision in relation to medical treatment without prior written agreement of the other parent.

   f)Each parent inform the other of names of relevant medical professionals who consult with the child and authorise the other to receive information from these healthcare providers.

   g)Each parent receive all school material relating to the child, and be able to attend all the child’s school and extracurricular events. This includes keeping the other parent informed of future events and activities.

   h)Both parents be required to sign all documentation in relation to educational enrolment. Where schooling information is provided online, ensure each parents has access to all information on this platform.

   i)Notify the other parent as soon as reasonably practical of any medical issue requiring treatment while the child is in the care of the parent, including contact details for medical professionals.

   j)Each parent advise the other parent of any changes of personal contact details within 7 days.

   k)Both parents use email or an app to communicate regarding the care of the child in a respectful manner.

   l)If the parents fail to agree on the school the child will attend by 31 May the year prior to commencement, then they have liberty to apply to the Court on that issue.

   m)Either parent be at liberty to provide a copy of the Final Orders to the child’s educational or health care professionals.

   n)Both parents ensure that child remain to be known as X.

   o)The child undergoes a second assessment for Autism, conducted by The (omitted) Clinic and completed by 30 June 2018. Both parents must attend and it will be at their joint expense.

   p)Any spend time arrangements stand unless there is mutual agreement to alter the schedule. If there is an agreement to swap time, the swap be for an equivalent period of time, unless otherwise agreed to in writing.

   q)If a significant change of circumstances occurs then both parents have liberty to apply to the Court for further orders.

Orders sought by the Mother

1. The Mother’s response to proposal for final orders, filed 9 March 2018, incorporates most of the orders proposed in the Independent Children’s Lawyer’s written submissions filed 28 February 2018 and are that:

   a)All previous parenting orders, including the appointment of the Independent Children’s Lawyer, be discharged.

   b)The Mother and Father have equal shared parental responsibility for the child, save that the Mother have sole responsibility in relation to the child’s health and education, on the condition that;

   i)

   the Mother consults with the Father on any above issue; if they cannot make a joint decision then the Mother can make the final decision and inform the Father in writing within

   
   

   7 days thereof.

   c)The child live with the Mother.

   d)For the first three months from making Final Orders, the child spend two days per fortnight with the Father, unless agreed otherwise.

   e)After this three month period, for a further three month period, the child spend three days per fortnight with the Father, unless agreed otherwise.

   f)After this three month period, the child spend four days per fortnight with the Father, unless agreed otherwise.

   g)The child spend time with the Mother on Mother’s Day and the Father on Father’s Day.

   h)The child spend time with both parents on the child’s birthday.

   i)The child spend time with the Mother on the Mother’s birthday and the Father on the Father’s birthday.

   j)The child spend time with the Father for (event omitted).

   k)The child spend Easter Sunday with each parent on alternating years.

   l)The child spend Christmas Eve until Christmas Day 2018 with the Mother and Boxing Day 2019 with the Father, alternating this arrangement each year.

   m)Changeover take place at kindergarten or school. If it is not a school day then changeover take place at (omitted) in (omitted) unless agreed otherwise.

   n)Each parent use the “Our Family Wizard” app for communicating regarding the child.

   o)Each parent notify the other as soon as practicable in the event of a medical emergency in relation to the child.

   p)Ensure each parent can receive correspondence from medical professionals and educational institutions which the child attends and be permitted to attend any school event.

   q)The Father be at liberty to attend the child’s kindergarten to discuss progress.

   r)Each parent be at liberty to provide the Final Orders at any healthcare provider or educational institution which the child attends.

1. Additional orders sought included that:

   a)The Father obtain a referral and engage a psychiatrist, providing these details to the Mother.

   b)The Mother be at liberty to provide the report of Dr E made 11 December 2017 to any mental health professional that the Father attends upon.

   c)The Father comply with any treatment prescribed and provides the Mother with an updated medical report on his treatment each year.

   d)The Father continue to be treated by Ms S, psychotherapist, for a minimum of 6 months.

   e)The Father authorise the Mother to contact Ms S and his treating psychiatrist and confirm the Father’s continued attendance of treatment.

   f)The Mother be authorised to provide a copy of Dr E’s report dated 11 December 2017 or Dr J’s report dated 29 January 2018 to Ms S.

   g)The Mother retain the child’s passport/s and the Father assist in renewing the passport/s when necessary.

   h)Each parent may travel internationally with the child, during their allocated spend time, with 30 days written notice in advance of  itinerary details, including contact numbers.

   i)Each parent advise the other parent of any changes of personal contact details within 48 hours.

   j)Each parent be restrained from denigrating the other, or encouraging others to do so, in the presence of the child. Each parent also be restrained from discussing proceedings or time arrangements with the child.

Mother’s alternative proposal put on the basis that overnight time may be ordered

1. Included in the Mother’s closing submissions in reply, filed 9 March 2018, were alternative proposed orders sought in the event that the Court found against the Mother’s application for the child to spend day times only with the Father. They were identical, except that they made differing provisions for spend time, which are as follows:

   a)For the first three months from making Final Orders, the child spend two days, including one overnight stay, per fortnight with the Father, unless agreed otherwise.

   b)After this three month period, for a further three month period, the child spend three days, including two overnight stays, per fortnight with the Father, unless agreed otherwise.

   c)After this 3 month period, the child spend four days, including three overnight stays, per fortnight with the Father, unless agreed otherwise.

Orders proposal submitted by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer proposed final orders extracted and summarised from the written submissions filed 28 February 2018 are that:

   a)All previous parenting orders, including the appointment of the Independent Children’s Lawyer, be discharged.

   b)The Mother and Father have equal shared parental responsibility for the child, save that the Mother have sole responsibility in relation to the child’s health and education, on the condition that:

   i)The Mother consults with the Father on any above issue; if they cannot make a joint decision then the Mother can make the final decision and inform the Father in writing within seven days thereof.

   c)The child live with the Mother.

   d)The child communicate and spend time with the Father as follows:

   i)by Skype on Wednesday each week for half an hour;

   ii)each alternate weekend;

   iii)each alternate Thursday from 4:00pm until Friday at 9:00am;

   iv)from 4:00pm until 7:00pm each Tuesday;

   v)on Father’s Day (with the child to be with the Mother on Mother’s Day);

   vi)on (event omitted);

   vii)on Christmas Eve and Christmas day in even numbered years;

   viii)from Christmas Day until boxing Day in odd numbered years;

   ix)on other days including the child’s birthday as agreed;

   x)for additional time during school holidays periods once the child commences school, as agreed between the parents and subject to the child’s paediatrician; and

   xi)as otherwise agreed.

   e)Changeover take place at the child’s kindergarten, school or (omitted) in Port Melbourne, unless agreed otherwise.

   f)The Father attend Dr D psychiatrist, engage with treatment as required and provide a medical report detailing his attendance and treatment to the Mother each year.

   g)The Father continue to be treated by Ms S, psychotherapist, for a minimum of three months.

   h)The Father authorise the Mother to contact Ms S and his treating psychiatrist and confirm the Father’s continued attendance of treatment.

   i)The Mother be authorised to provide a copy of Dr E’s report dated 11 December 2017 or Dr J’s report dated 29 January 2018 to Ms S.

   j)Each parent use an app such as “Our Family Wizard” for communicating in relation to the child.

   k)Each parent notify the other as soon as practicable in the event of a medical emergency in relation to the child.

   l)Ensure each parent can receive correspondence from medical professionals and educational institutions which the child attends and be permitted to attend any school event.

   m)Each parent advise the other parent of any changes of personal contact details within 48 hours.

   n)Each parent be restrained from denigrating the other, or encouraging others to do so, in the presence of the child. Each parent also be restrained from discussing proceedings or time arrangements with the child.

   o)On or before 30 September 2019, the parties attend mediation at Relationships Australia to discuss the appropriateness of increasing the Father’s time with the child during the school holidays. Prior to this the child’s paediatrician must be consulted regarding the child’s capacity to cope with extended overnight time with the Father.

Issues and summary of findings

1. The issues raised by this proceeding are:

   a)whether the parents, Mr Valmar and Ms Whatley, should have joint parental responsibility of X, or whether the Mother should have sole parental responsibility for decisions in respect of health and education;

   b)how much time, including overnight time, the Father is to spend with the child;

   c)what orders should be made in relation to the Father seeing a psychiatrist for ongoing assessment; and

   d)whether orders can be made which make provision for ongoing spend time arrangements without the need for the parties to return to court.

2. Extensive evidence was relied upon by the parties to the proceeding, and in giving evidence the Mother and Father relied upon every affidavit that they had filed – rather than each relying on a single trial affidavit. Most of the affidavits were referred to in the hearing of the proceeding either in chief or through cross examination.

3. Ultimately I have considered that the proposals made by the Independent Children's Lawyer in written submissions dated 28 February 2018 (subject to minor modification) as those most appropriately dealing with the best interests of X and which are most likely to provide the parties with a set of arrangements which will not inevitably lead them to making further court applications regarding X.

4. The proposal provides the Father and Mother have equal shared parental responsibility of X, save that the Mother have sole parental responsibility in relation to the child's health and education on the conditions that:

   a)the Mother consult with the Father with regard to any such health or educational issue;

   b)the Mother and the Father make a genuine effort to come to a joint decision about any such health or educational issue; and

   c)if no agreement is reached between the parents and the Mother, the Mother shall make the final decision and advise the Father in writing of the decision within seven days thereof.

5. The Father’s submission in relation to this proposal was that the Mother and Father should have equal shared parental responsibility for the child, save that the Mother retain sole parental responsibility in relation to any medical treatment arising in relation to the child's health as it related to Autism.

6. In my view, given the level of conflict between the Mother and Father, the mechanism for consultation in relation to matters of health and education are necessary. This recognises that at some point, a decision has to be made in relation to these matters and that the Mother is well placed to make that decision following the process of consultation. The proposal represents a practical workable solution to the difficulties thrown up by the tensions between the parents. There is no evidence to support a finding that the Mother will not make decisions in relation to health or education that are not in the best interests of X. Similarly there is no evidence that the Father would not make decisions that are in the best interests of the child in relation to those matters. However, where the scope for disagreement on these matters is wide, the court is concerned that the child will continue to be involved in conflicts regarding these decisions unless an arrangement of the kind crafted and proposed by the Independent Children's Lawyer is implemented. In the absence of the arrangements proposed by the Independent Children’s Lawyer, the parties could continue to argue about details of medical treatment and matters involving education on an indefinite basis. The Mother as primary carer is best placed to make the final decision on these matters.

7. In relation to the time spent between X and the Father, in my view the evidence does not support a finding that the Father should not spend overnight time or should spend only very limited overnight time with the child in the manner proposed by the Mother in her preferred proposed orders. To her credit, the Mother has put an alternative proposal which did allow some limited overnight time with the Father which increases over a period of time. In my view the proposal made by the Independent Children's Lawyer, with minor modification, provides for the child to spend meaningful time with his Father. This proposal also acknowledges the tensions that have existed between the parents and the need to minimise the risk of potential harm to the child that may arise from failing to address mental health issues. The Mother also recognised that the Court may make orders for some overnight time and she stated that she is prepared to accept this.[1]

   [1] see Transcript page 201.

Background

1. The background of these parties and their relationship has been narrated by them in their lengthy affidavits, as well as to medical practitioners and the family consultant Dr J.

2. I will not traverse each and every allegation and counter allegation made in the affidavits or include every detail of the background. I will do so only to the extent necessary to deal with the central issues identified by the parties at trial. If each area of controversy which is raised in the affidavit material was dealt with, any judgment would be the length of a novel and is unlikely of assistance to any person, including the parties.

3. The parties met online and commenced a relationship in (omitted) 2013 and commenced cohabiting in (omitted) 2013. By (omitted) 2013 the Mother was pregnant (at age 48) with X. He was born in (omitted) 2013. At the time X was born, the Father was aged 42. In a psychiatric report prepared by Dr E regarding the parties, he assayed the affidavit material and the histories provided to Dr A and Dr J and met with the Mother and Father. At page 7 of his report, Dr E states in relation to the formation of the relationship:

   They met online and in unusual circumstances, involving Ms Whatley’s husband’s wish to have a threesome. Mr Valmar acknowledged that he’d had sexual relationships with couples previously but eventually it was his relationship with Ms Whatley which was their mutual focus, according to him, Ms Whatley expressing dissatisfaction with Mr Valmar (her former husband) who acknowledged his serial infidelities.

   Mr Valmar acknowledged that he had random, anonymous sex with women, denied that these occurred as alleged by Ms Whatley during the marriage, or that he’d often have sex with two different women on the same night and sex with flight attendants as well as his wife’s hairdresser and masseuse.

4. I have not included this detail of the history of these parties gratuitously, rather I refer to it as I regard it as being significant. It shows that both parties could have been described at the time when their relationship commenced, as risk-takers. I also regard it as significant that the qualities that may allow a person to meet a couple he doesn’t know online for the purposes of sex are some of the qualities in the Father that are now subject to somewhat intense criticism by the Mother. The tension that arises between these parents may be because the qualities that make a person an excellent candidate for sex with strangers may not readily transfer to parenting skills, particularly as a parent with a child with some health and developmental issues. The reality is that the Mother has chosen to have a relationship and then a child with the Father and the qualities that may have attracted her to him in the first instance are now part of the reasons raised against his spending overnight time with the child. That said, I do not accept that because the Father was available for random anonymous sex that this makes him unsuitable to be a parent.

The Father’s mental health

1. In the Mother’s affidavit of 21 February 2017 at [9] the Mother stated:

   [9]Mr Valmar and I had an intense and difficult relationship. Mr Valmar suffers from poor mental health. He has been diagnosed as having a Bipolar Disorder. Mr Valmar has been suicidal, most recently at the time of separation. I do not know if he has been suicidal since then.

   [10]Mr Valmar’s ill mental health had a detrimental impact on our relationship and on his relationship with X. His behaviour deteriorated over time.

2. In his affidavit of 21 April 2017, the Father denied suffering from poor mental health or that he was suicidal. He referred to a copy of a report from Dr B dated 15 December 2016 which recorded that that psychologist had first seen the Father on 6 July 2016 and had eight subsequent consultations. The report notes that at the first of those consultations, the Father informed her that he had been diagnosed with Bipolar Disorder by a psychiatrist eight years ago and the psychiatrist had recommended ceasing medication after significant adverse side-effects were reported. The report further notes that in the eight years he had not been on medication, had studied, run a business, worked in (employment omitted) and had had intimate relationships. The psychologist noted that she had not witnessed or heard him mention any behaviour consistent with excessive mood swings. Dr B had not observed or been made aware of any suicidal ideation and attempts on his own life.

3. In his affidavit of 21 April 2017, the Father also made allegations in relation to the Mother’s mental health and asserted that she had a problem with alcohol.

4. On 28 February 2017, the Court made consent orders amongst others that the parties attend upon Dr A for the preparation of a psychiatric report. The orders (by Order 16) authorised Dr A to obtain information and documentation from a range of medical practitioners, including psychologists and psychiatrists upon whom the Father had attended in the past, for the purpose of preparing a report. Dr A stated in relation to the Father’s formal psychiatric history (at page 9 of his report dated 22 May 2017):

   Mr Valmar attended therapy in his late 20s and early 30s to manage traumatic nightmares. He learnt (dreamt) that he had wanted his father to rescue him from his uncle’s physical abuse. His father was unavailable and instead devoted himself to care for others as a (occupation omitted). He had not experienced nightmares for three years. He further denied a history suggestive of PTSD.

   Mr Valmar was referred to a psychiatrist, Dr C, in 2008 in response to periods of depression. His GP prescribed antidepressant medication. Dr M diagnosed Bipolar Disorder Type II, based on a history of mood changes, but on systematic questioning there doesn’t appear to have been a history of identified manic or hypomanic states. “He has a long history of sleep difficulties, but associated with trauma rather than manic drive”. Dr M didn’t prescribe new mood stabilising medication.

5. At [46] of Dr A’s report he stated:

   Mr Valmar is a 46 old man. He was raised in (country omitted). He did not form a relationship with his mostly absent father. He was subject to physical (abuse) mostly from an uncle and sexual abuse from a neighbour. He was later afflicted with intrusive traumatic nightmares relating to the childhood abuse that slowly resolved with trauma therapy in his adulthood.

6. At [11] he gave the opinion in relation to the previous diagnosis of Bipolar Disorder Type II in 2008 by Dr M:

   Mr Valmar has a limited formal psychiatric history. Whilst he has purportedly been diagnosed with bipolar disorder type II in 2008 by psychiatrist, there appears to be a lack of objective clinical evidence that he has ever experienced hypomanic or manic states. I concur with Dr D (a psychiatrist consulted by the Father) that he does not currently meet the criteria for Bipolar Disorder Type II and probably has never met (that) criteria. His mental state was unremarkable in this assessment and not indicative of a current mental condition. It is difficult to be certain whether or not Mr Valmar has an anger problem. He presented as a rather placid and calmly mannered man, with Ms Whatley advising that he was prone to episodic anger and may need psychological management if proven to be accurate.

7. At [12] Dr A made the following comment on recommendation in relation to time being spent between the Father and X:

   Mr Valmar and X are likely to be strongly attached. Whilst there remains some uncertainty regarding Mr Valmar’s anger and issues, I gained the impression that he is a devoted and caring father who was sensitive to X’s needs. I anticipate the family report will indicate likewise an unsupervised contact can be considered to commence. Ms Whatley may benefit from further supportive counselling if she remains anxious when X has contact with Mr Valmar.

8. Following the receipt of the report from Dr A, the Court made orders for the parties to attend upon Dr E for the purposes of psychiatric assessment. The Court made this order on the basis that it was persuaded that Dr A had not had access to all the relevant documentation going to the Father’s formal psychiatric history when he expressed his opinion in his report.

9. Dr E conducted a careful review of the affidavit material and subpoenaed material. At page 6 of his report he notes the following in relation to Mr Valmar’s family background and history:

   Mr Valmar has an older brother and was born and raised in (country omitted), his parents and extended family coming to Australia in (omitted) when he was aged six as refugees. He described himself as (nationality omitted) ethnicity. His father was a (occupation omitted) and his parents divorced when he was very young. Initially his father took him but his mother eventually made his father hand him back to her at gunpoint. His mother operated a business. He was loved and cared for by his mother and grandmother who raised him. His father never returned and was evidently a POW for 12 years and was not released until 1988, eventually moving to the (country omitted) where he died some 10 years ago.

   When young, Mr Valmar was the subject to considerable abuse by his uncles and neighbours who babysat him, and was sexually abused by a neighbour who touched him in (country omitted) when he was around six, confirmed as described to Dr A that he yearned for protection from his absent father and acknowledged he engaged in therapies in his 20s and 30s with a number of psychologists in respect to beatings and traumatic memories of childhood abuse. Dr A goes on to record that Mr Valmar denied many the allegations were made by the Mother as pointing to the effects of a traumatic childhood.

1. At page 5 of his report, Dr E notes Mr Valmar was critical of a report of Dr T of 6 May 2006 wherein Mr Valmar was described as presenting with severe mood swings:

   [The Father has] a long history of low moods and also highs for to 2 to 3 weeks which have been causing issues in his work and he was forced to retire and live off his investments on a property in (omitted).

2. Dr E stated:

   He adamantly denied the summation consistent with other denials of very detailed information provided by Ms Whatley, and I was left with some concerns about his memory and/or wish to create a more sanitised version of himself in some respects, noting as well he was quite forthcoming in regards to other personal matters, and did not deny his history of early childhood abuse.

3. Dr E commented in relation to the report of Dr T (at page 5):

   Whilst this report is brief, it is likely that much of what is contained within it is in contrast to Mr Valmar’s false assertion, specifically his mood swings and traumatic childhood, are accurate with some possibility that he may also exhibit borderline dependent personality traits. He further acknowledged his requirement for psychological support during the latter periods of Ms Whatley’s pregnancy with X and the postnatal period, given that X was very unwell at the time, was premature and his high level of anxiety in relation to the possibility of X might well have died during that time, attended Ms S, psychotherapist at that point number of months following the separation.

4. Dr E provided the diagnosis that Mr Valmar is subject to Bipolar Type II Disorder and complex Post-Traumatic Stress Disorder of childhood. It is also important to note that Dr E shared the same view of each of the medical practitioners who were consulted as part of this aspect of the proceeding in relation to the presentation of the Applicant that:

   There were no unusual notions or ideas, evidence of thought disorder or delete delusional beliefs. There were depressed and anxious themes and features of traumatisation, variable mood states previously described but no evidence of elevated or depressed mood at the time of the assessment.

5. At [13] on page 17 of his report, Dr E expressed the following opinion in relation to bipolar disorder and the Father:

   [13]With respect to Mr Valmar, he has well documented psychiatric illness in my opinion. Between 5% and 15% of individuals with Bipolar Type II disorder have multiple (four more) mood episodes (hyper manic or major depressive), and although the majority of individuals with Bipolar Type II Disorder return to a fully functional level between episodes, approx. 15% continue to display mood lability, interpersonal and occupational difficulties ( as is the case with Mr Valmar).

   [14]He was reviewed in the context of the current proceedings by Dr D and Dr A. Psychiatric opinion depends on the information provided by the patient as well the information from other sources. Dr D was provided with little information from other sources. His report is not a greater length than that of Dr T (which Mr Valmar was critical due to its brevity) and arrives at the diagnosis that he does not “appear” to meet the criteria for bipolar disorder or other any other axis I disorder, which is clearly not consistent with the subpoenaed material provided. Dr A, an experienced forensic psychiatrist, was provided as I understand it with subpoenaed material but did not provide an addendum report in regard those matters and hence the assessment with myself.

   [15]Having reviewed all the material and having assessed both parties extensively, Mr Valmar does have a psychiatric illness in the form of Bipolar Type II Disorder and would be my strong recommendation that he continues, given his variable mood states, to have regular reviews and/or treatment with a mood stabiliser and with a psychiatrist, despite his assertions and wishes to the contrary.

The Court’s conclusion in relation to the Father’s mental health

1. In my view that was a clear and cogent opinion based on the information that had been provided by a very experienced psychiatrist. I acknowledge that the Father has presented well at each of the medical examinations attended for this proceeding and indeed he presented well before the Court, at the final hearing and each of the appearances that that occurred in the course of the proceeding. However, given the Mother’s anxiety and the clear evidence that the Father suffers from Bipolar Type II Disorder, in my view it is manifestly in the best interests of X for the recommendations of Dr E to be implemented in the orders of the Court. Dr E was not opposed to the ongoing assessment of the Father to be conducted by Dr D and in my view the orders proposed by the Independent Children’s Lawyer in relation to ongoing assessment are appropriate.

2. I also accept that it is appropriate the Father have counselling with Ms S, or a counsellor or psychologist nominated by Ms S, for counselling and treatment for the purpose of establishing appropriate emotional boundaries between the Father and the child. Dr E expressed an opinion that treatment of that kind would be appropriate. He identified the Father’s difficulty in distinguishing his emotions and his son’s emotions (Transcript page 160) and the importance of the Father receiving treatment so that he appreciates that an inability to independently manage his own emotions is, as Dr E said, “…not acceptable, it’s maladaptive and it needs to be a focus of treatment and monitoring time spent”.

3. The Father may cavil with the view expressed by Dr E and the acceptance of that view by the Court. This is particularly the case when two psychiatrists who examined him expressed the view that he was not suffering from mental health issues – particularly Bipolar Disorder. The difficulty was that those doctors did not have the benefit of all the subpoenaed medical records. The cautious approach suggested by Dr E is an appropriate one given that the Father will be spending time caring for his son who is vulnerable because of his age and his own medical conditions. I have had regard to the medical opinions of Dr A and Dr D; I was required to because they were referred to by Dr E, but for the reasons above accept and prefer the opinion of Dr E.

Time spent

1. In his 29 January 2018 report, Dr J at [39] noted that X has a strong positive and reciprocal connection with both his parents. He also noted that in the time that had passed since his original family report of 31 May 2017, the child had a greater opportunity to consolidate his relationship with his Father. Notwithstanding the continuing development of the relationship between the Father and the child, Dr J was of the view that there were six the salient points to consider in relation to the amount of time that the child spends with each of the parents and the configuration of that time. Those factors were:

   a)it is imperative that X is physically and mentally safe in both households;

   b)it is important he has an opportunity to have a meaningful relationship with both parents, not simply a matter of hours each week;

   c)X’s age and development stage is clearly a factor which will impact on his capacity to transition regularly between both households;

   d)X is a child with diagnosed with Autism, meaning a more cautious approach than for the typical for a four-year-old is prudent;

   e)some of the challenges in the current parenting relationship mean that there may be issues in terms of continuity of care;

   f)the geographical distance between the parents homes will become relevant as the child commences school; and

   g)X’s past care history and familiarity with each parent is a consideration ([48] Dr J report 29 January 2018).

2. Dr J was of the view that given X’s age and autistic characteristics, he would be better served by having a principal place of residence from which he can pivot to his other parent. At [50] he expressed the view that:

   In absolute terms, X seems to cope well with spending a night a week with Mr Valmar. At his age, and given all the relevant variables in place here, this appears roughly appropriate. I do not think this time should necessarily extend beyond the on one or two nights a week, which could be overwhelming, confusing and ultimately destabilising for him. At best, I would think a maximum of four nights each fortnight would be the optimal balance for this child. I would, however, encourage some other provision of time, perhaps during the day or on an afternoon, for this boy to see his Father. Moreover, weekly Skype/fashion FaceTime communications is entirely appropriate in this case.

3. The Mother’s proposal seeks to have the Father spend only daytimes with the child and that arrangement be subject to a mediation in 2019.

4. The Father seeks that orders be made with him having six days per fortnight overnight time, although in the course of cross-examination he stated that he would accept five nights per fortnight.

5. In his report of 29 January 2018 at [41]–[47], Dr J identified the Mother’s concerns regarding the behaviours of the Father including:

   a)the Father’s lack of capacity to set emotional boundaries and self-regulate;

   b)the Father is coaching the child in an effort to align the child to him;

   c)the Father’s sleepwalking; and

   d)the Father’s psychological state.

6. In my view, concerns about the Father’s psychological state and the risk that he cannot separate himself emotionally from his child are addressed by the orders proposed by the Independent Children’s Lawyer and discussed above.

7. Dr J urged cautious approach to the spend time arrangements given that X has been diagnosed with Autism.

8. I do not accept that X spending equal time between the two households is currently in X’s best interests for the reasons identified by Dr J at [49] of his report. However, I do not accept that the child spending overnight time with the Father would expose the child to an unacceptable risk of harm. The Father has no record which indicates that he is a dangerous or irresponsible driver. There has been an instance where he restrained X with his foot but there is no suggestion that he harmed the boy, nor is there any suggestion that he has repeated that behaviour, or that he returned the child from his care suffering from any injury.

9. In terms of his mental health, he has not been the subject of police attention or come to the attention of health authorities because of his behaviours. The Father sought medical assistance at times in his life when he has been under emotional challenge. He does not abuse drugs or alcohol and has not caused any physical harm to the child.

10. The Mother challenged the findings of Dr J on the basis that it was put that he had failed to adequately assess the risks of psychological harm to the child whilst in the in the Father’s care.

11. The Mother referred the Court to it a decision of the High Court in

    
    M v M

    (1988) 166 CLR 69. Sections 60B(1)(b) and 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) required the Court to protect children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence. In M v M the High Court made the following observations in relation to “unacceptable risk”:[2]

    [24]In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

    [25]Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), “a real possibility” (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an “unacceptable risk” (In Re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

    [2] (1998) 166 CLR 69 at pp.77 – 78, [24]-[25].

12. The notice of risk filed in the case makes the following allegations in relation to child abuse:

    a)In June 2016, the Father was changing the child’s nappy. The child would not lie still and the Father pinned him to the ground using his foot. The Father refused to release the child.

    b)September 2016, the Mother left the child in the Father’s care when she went to move the (omitted) vehicle. When she got into the car and started reverse, she saw the child running down the path towards the driveway on his own. The Mother stopped the car and retrieved the child. When she brought the child inside the Father said words the effect of “I thought you had him”.

13. Under that part of the notice of risk, where the question posed is whether it is alleged that the child to whom the proceedings relate is at risk of being abused by a party to proceedings or any other person who is relevant to these proceedings, the ‘yes’ boxes were ticked and the following comment made:

    a)When the child was five months old, the Father told the Mother he was going to get bandages to tie the child’s hands down.

    b)The Father is currently living in shared accommodation. The Mother does not know who else is living in the home.

    c)The Father suffers from poor mental health.

14. Under the question as to whether there had been family violence the Mother responded yes and gave the following details:

    a)During the relationship the Father shouted at the Mother in front of the child when the parties disagreed. He often picked up the child and threatened to leave and take the child with him.

    b)On 1 October 2016 the Father shouted and screamed at the Mother when the child was in the room. The Mother took the child and left the home. She advised the Father that she was going to the police station with the child and invited him to meet her. The parties arranged to meet at their cleaner’s house to enable the Mother to receive the child’s clothing.

    c)The Father reported the Mother as a missing person on 1 October 2016 and sent her 26 text messages. He also tried calling 50 times and left several voicemail messages.

    d)On 2 October 2016 the Father sent the Mother 18 text messages and called her 10 times and left several voicemail messages.

    e)On 3 October 2016 the Father sent the Mother 50 text messages, called her 19 times and left several voicemail messages.

    f)On 4 October 2016 the Father sent the Mother 21 text messages and left voicemail messages on her phone. The Father was served with an application for an intervention order on this date.

    g)After separation the Father threatened to pawn the Mother’s jewellery.

15. Under allegations related to risk the Mother stated:

    1.The Father suffers from poor mental health as follows:

    a)he has previously been suicidal;

    b)he has been diagnosed as Bipolar but does not take medication; and

    c)he has suffered from depression.

16. In relation to the allegations of child abuse, the allegation in relation to the Father placing his foot on the child when he was changing the boy’s nappy has been dealt with above. That event may have occurred, it is not acceptable behaviour, however, there is no allegation that it occurred subsequently or that the child was injured. In my view the allegation in relation to the child running down the path of the driveway on his own does not constitute child abuse.

17. As to risk, the Father’s accommodation is settled. There is no suggestion that the Father is chaotic in relation to his living arrangements (indeed one comment about the Father is that he was overly fastidious on his arrangements in the pantry when living with the Mother). The Father denies that he told the Mother he was going to get bandages to tie the child’s hands down and that allegation was not raised in the course of the hearing.

18. In regards to mental health issues, in my view the orders of the Court in relation to ongoing monitoring and treatment address any risk of harm arising from mental health.

19. In relation to the conduct of the Father immediately at the time of the breakdown of the relationship, which involved sending a large number of text and voice messages to the Mother over a short period of time; this occurred at what was a tumultuous time for both the Mother and the Father. The breakdown of the relationship was unexpected by the Father. The Father consented to an intervention order being made in circumstances where the Mother acknowledge that certain particulars of the grounds of intervention order had not been made out. I note also that the intervention order was made in circumstances where the Father was acting without legal advice.

20. No breach of the intervention order has been raised as an issue in this proceeding and there has been no recurrence of the Father sending numerous text messages. The commencement of the relationship between the parties was intense and the breakdown of it was similarly intense. Behaviours exhibited at the time immediately upon the breakup of the relationship were characterised by the Mother as being indicative of an unacceptable risk of harm to the child, if the child spent overnight time with the Father. Risk of such harm was not identified by any of the medical health professionals who have given evidence in this case and I do not accept that Dr J did not appreciate the need to consider unacceptable risk when expressing his opinions. The risks to the child arising from the Father’s mental health are addressed by the safeguards put in place, by the Father having regular consultations with the psychiatrist and therapy at regarding appropriate role modelling.

21. As to the Mother’s concerns about the Father sleepwalking, these arise from X spending some overnight time in late 2017. While she has remained concerned about sleepwalking, there had been no instances of that occurring, to her knowledge, on the nights that X has spent with his Father. The venue where the overnight time would take place was not an issue addressed at trial. I agree with the submission of the Independent Children’s Lawyer that the implementation of the orders in relation to continued monitoring and treatment provide adequate safeguards that minimise the risk to the child.

Section 60CC(3)

1. Additional considerations under section 60CC(3) of the Act 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 view

1. The child is very young and not able to express a view. Clearly the child enjoys spending time, including overnight time, with the Father. At Transcript page 200, the Mother said in relation to the child spending overnight time, that X is very happy to spend overnight time and was very happy to see the Father.

(b) The nature of the relationship of the child with: (i) each of the parents; and (ii) other persons including any grandparent or other relative of the child

1. The child has a close relationship with both parents.

(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; (ii) to spend time with the child; and (iii) to communicate with the child

1. Both parents have sought to participate in making decisions about major long-term issues and to spend time and communicate with the child. However, the breakdown in the relationship between the parents and the different parenting styles has interfered with the ability of both parents to spend time with the child.

(ca) the extent to which each of the child’s parents has fulfilled the parents’ obligation to maintain the child

1. There is no suggestion that either parent has failed to maintain the child. The Mother is in the position of being financially well resourced, particularly compared to the Father, and it can be expected that she will be the main financial support of 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

1. The proposals relate to the amount of time which the Father will spend with the child and whether that time is overnight time or not. The child’s circumstances are not significantly changed by the proposals.

(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 relationships and direct contact with both parents on a regular basis

1. Dr J identified the distance between the parents’ homes ((omitted) and (omitted)) and suggests that there may be practical issues arising from that, particularly as the child commences school. The Father is renting; any such difficulties can be alleviated if he moves closer to the Mother’s residence, if he is able to afford that.

(f) The capacity of: (i) each of the child’s parents; (ii) any other person including any grandparent or other relative of the child; (iii) to provide for the needs of the child including emotional and intellectual needs

1. Both parents have issues in relation to their capacity to provide for the needs of the child. The Mother is a highly anxious. Particular examples of anxiety which struck the Court were in relation to the operation of interim orders of 28th February 2017, which stated that the Father could take the child within a 10 kilometre radius of (omitted) with the supervisor during time spent. The Mother opposed the Father taking the child on a trip to the zoo with the supervisor because the zoo went beyond the 10 km radius. The Mother also objected to the Father taking the child to the (omitted) with the supervisor for the same reason. The Mother also required regular updates throughout the day when that child was subject to professional supervision as to where the child was. It is hoped that once this litigation has concluded, that the Mother can address her anxiety so as to be better able to allow the child to have a meaningful relationship with his Father. If the Mother continues to adopt this approach to co-parenting, I see further litigation as inevitable. I also regard the Father’s wearing of “men’s rights” t-shirts to changeovers as a reaction to the Mother’s behaviour and it appears that he does this to provoke a response and create further anxiety and embarrassment for the Mother. Both sets of behaviour, whilst lawful, are clearly not in the child’s best interests; they encourage mutual aggravation amongst the adults and will plainly cause distress to the child if such behaviour continues.

2. The Father’s mental health issues are addressed above.

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

1. The parents are from different cultural backgrounds and there is no evidence to indicate that either parent does not see it is important that the child experience of both the Father and Mother’s cultures.

(h) The child is an aboriginal child or a Torres Strait Islander child […]

1. Not applicable.

(i) The attitude of the child and to that responsibilities of parenthood, demonstrated by each of the child’s parents

1. Each of the parents is plainly devoted to X and loves him deeply. Unfortunately the ongoing disagreements between them mean that the Court is of the view that the Mother should have the final decision in relation to matters of health and education.

(j) Any family violence including the child or member of the child’s family

1. This has been discussed above in relation to consideration of whether is a real possibility of risk to the child.

(k) Any family violence order of that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) make the order was contested by a person

1. There is a current intervention order and this has been discussed above.

(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

1. Dr J had no confidence that this matter would not inevitably be the subject of further proceedings given the attitude of the parents towards one another. The Court has borne this in mind in seeking orders for the ongoing monitoring of the Father’s health and the orders in relation to joint parental responsibility.

(m) Any other fact or circumstance that the Court thinks relevant

1. The Mother sought orders that she be permitted to apply for a passport and that both parties be permitted to travel overseas with the child. This was not challenged in evidence. I consider it important that the child have the opportunity to travel internationally and experience other cultures with both parents. Accordingly, I so order.

2. Further, the Father sought an order for the child’s surname to remain as X. This also was unchallenged in evidence by either party under cross examination. Therefore it is not controversial that I also make that order and consider it in the best interests of the child that his surname remains unchanged.

Conclusion

1. For the reasons set out above at [65], I have real concerns about the Mother’s capacity to work cooperatively with the Father in the operation of orders. If she fails to properly consult in relation to decision reaching in relation to health and education, the Father will raise complaint and the matter may well return to Court.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  4 May 2018