WADFORD & CAFFERTY (No.3)

[2019] FCCA 3687

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADFORD & CAFFERTY (No.3) [2019] FCCA 3687

Catchwords:
FAMILY LAW – Parenting – child of proceedings aged 3 and a half – whether final or interim orders should be made – whether mother’s non-compliance with overnight time for child with father should necessitate the child to move to live with the father – if a parent should have sole parental responsibility.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(3), 61DA

Applicant: MR WADFORD

Respondent: MS CAFFERTY

File Number: BRC 11419 of 2016

Judgment of: Judge Spelleken

Hearing dates: 28, 29 and 30 October 2019

Date of Last Submission: 10 December 2019

Delivered at: Brisbane

Delivered on: 16 December 2019

REPRESENTATION

The Applicant appeared on his own behalf

Solicitors for the Respondent: Ms Galvin of Journey Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Taylor

Solicitors for the Independent Children’s Lawyer: Legal Aid Queensland

ORDERS UNTIL FURTHER ORDER

1. That all previous Parenting Plans and Orders be discharged.

2. That except as otherwise stated, the parties shall have equal shared parental responsibility for the major long term issues of the child X born … 2016 (“the child”).

3. That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree; and

   (c)They shall make a genuine effort to come to a joint decision.

4. That notwithstanding the provision of Order 3:

   (a)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

   (b)The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.

5. That from the date of these orders until further order the child live with the mother and spend time with the father as follows:

   (a)From the date of these Orders until 14 March 2020:

   (i)Each week from 8:30am Wednesday to 8.30am Thursday (commencing on Wednesday 18 December 2019); and

   (ii)Each Saturday from 9:30am to 5:00pm (commencing 14 December 2019).

   (b)From 11 March 2020 up to and including the weekend of 13 June 2020:

   (i)Each week from 8:30am Wednesday to 8.30am Thursday (commencing 11 March 2020);

   (ii)Each alternate weekend from 8:30am Saturday to 5.00pm Sunday (commencing Saturday 14 March 2020); and

   (iii)Each alternate Saturday from 9:30am to 5:00pm (commencing 21 March 2020); and

   (c)Thereafter from Wednesday 17 June 2020:

   (i)Each week from 8:30am Wednesday to 8.30am Thursday (commencing 17 June 2020);

   (ii)Each alternate weekend from 8:30am Saturday to 8:30am Monday (commencing 20 June 2020); and

   (iii)Each alternate Saturday from 9:30am to 5:00pm (commencing 27 June 2020).

6. That for the purposes of changeover in relation to the arrangements set out in order 5 herein:

   (a)On days that a changeover is to occur and on the same day the child is attending kindergarten, prep or school, the child is to be delivered to the kindergarten, prep or school in the morning, and collected by the other parent at the conclusion of the kindergarten, prep or school program for the day;

   (b)On days that a changeover is to occur and the child is not attending kindergarten, prep or school that day, collection is to occur at McDonalds at Suburb A;

   (c)Ms B will not be present at changeovers;

   (d)That in the event of either parent being more than fifteen (15) minutes late to a changeover, that parent will send a text message to the other parent ahead of the designated changeover time to advise them of their estimated time of arrival;

   (e)In the event the child is too unwell on a changeover day to attend kindergarten, prep or school then the parent in whose care the child has become too unwell to attend kindergarten, prep or school shall give the other parent notice that the child will not be attending kindergarten, prep or school on that day, no later than 8.30am on the day;

7. That notwithstanding the time for the child to spend with either parent pursuant to Order 5 hereof, the child shall spend time with the parents on special occasions as follows:

   (a)For the weekend of Father’s Day with the father from 8:30am Saturday to 8:30am the following Monday;

   (b)For the weekend of Mother’s Day with the mother from 8:30am Saturday to 8:30am the following Monday;

   (c)For the child’s birthday with the parent who does not have the child in their care from 1:30pm until 5:30pm if it falls on a day the child is not attending at kindergarten, prep or school and if she is attending then 3:30pm to 6:30pm that day;

   (d)For Christmas in 2019 from 9:30am to 3:30pm on 25 December 2019 with the father and at all other times with the mother

   (e)For any other special occasion or family event:

   (i)That in the event either party wishes to spend time with the child for a special occasion or family event, such as a wedding, birthday, special celebrations etc., the requesting parent will provide the other with no less than fourteen (14) days’ written notice of such event, including a proposal for makeup time to occur within fourteen (14) days of the cancellation. Any such request will not be unreasonably denied by a parent and a parent is not to make more than two (2) requests in 2020.

8. That the child communicate with the father by telephone or Skype for up to fifteen (15) minutes between 5.00pm and 5.30pm each Monday and Friday, unless the child is in the father’s care, with the telephone call to be initiated by the mother.

9. That the child communicate with the mother by telephone or Skype for up to fifteen (15) minutes between 5.00pm and 5.30pm each Wednesday and on Saturdays, unless the child is in the mother’s care, with the telephone call to be initiated by the father.

10. That during the time the child is with either parent, that the parent shall:

    (a)Encourage and not undermine the child’s relationship with the other party, and actively encourage the child to spend time with both parents; and

    (b)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

    (c)At all times speak of the other parent and their family respectfully;

    (d)Not denigrate or insult the other parent, their family or their parenting, in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent or family in the hearing or presence of the child;

    (e)Remove the child from any situation where such denigration occurs, at the earliest opportunity.

11. That the mother is to refer to the father as “Dad”, “Daddy” or some version of that name and not by his first name and is to do all acts and things necessary to ensure others in the household of the child refer to the father in the same.

Medical Care

1. That, save for emergencies for which Orders 13 and 14 below apply, the arrangements for the child’s medical care with general practitioners, health practitioners, health specialists and physicians, dentists, dieticians, occupational therapists and any other medical or allied health practitioner (“medical practitioners”) are as follows;

   (a)the mother is not to make or attend appointments regarding the child’s health or wellbeing with medical practitioners without the written agreement of the father;

   (b)the mother shall not prevent the father from attending such appointments;

   (c)the mother and father will do all such things and follow all such directions from the child’s medical practitioners to implement and administer treatments prescribed for the child;

2. That during an emergency, the mother is at liberty to consult immediately on any medical practitioner that is necessary for the child’s wellbeing, and is to inform the father as soon as practical, but no later than two (2) hours following the initial contact with a practitioner of the nature of the emergency, the location of the child, and any other relevant information concerning the emergency.

3. That, following an emergency and as soon as practical, but no later than twenty-four (24) hours following any medical practitioner consultation that the mother attends with the child, the mother is to provide a copy of these Orders to the medical practitioner.

Specific Issues

1. That, by this order, the following persons and organisations are authorised to provide to each of the mother and the father information and copies of all documents relating to the care, welfare and development of the child:

   (a)any day care centre, school or kindergarten that the child may attend;

   (b)all treating medical and allied health practitioners for the child; and

   (c)each party bear their own costs of obtaining such information or documentation.

2. That both parents authorise all the child’s medical or health practitioners to provide the other parent with information that they are lawfully able to provide about the child, at the sole expense of the requesting parent.

3. That the mother and father advise each other (if not already advised) of their current residential address, email address and mobile phone number that they are contactable on during the time that they spend with the child, and advise the other parent of any change within three (3) days of such change occurring but, in any event, prior to such time with the child.

4. That the mother and father advise each other of the names of any other individuals who reside in the same household as the child.

5. That, for the purposes of emergency contacts, the parents authorise, by this Order, for both parents and their respective nominees to be listed as an emergency contact and authorised person with any day care, kindergarten or school attended by the child.

6. That the parents continue to use the Our Children Website for communication regarding the child.

7. That for the purposes of any communication between the parties as to any variation of parenting arrangements and any other aspects of these orders such communication, unless otherwise stated:

   (a)is to be in writing;

   (b)may be made by SMS communication, email or via the Our Children Australia website;

   (c)must only be between the parents; and

   (d)must, as far as is reasonably practicable, be limited to factual information relevant to the child’s well-being only.

8. That both parents shall keep the other parent informed and updated as to the child’s day to day activities, food and sleeping habits, general health and wellbeing and other incidentals deemed necessary, with any such requests from either parent to not be unreasonably excessive in frequency.

9. That the mother is to provide, at the request of the father, copies of any diary notes she makes in relation to the child’s bowel movements and diet.

10. That until further order, each party, MR WADFORD born … 1978 and MS CAFFERTY born … 1980, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove the child X born … 2016 from the Commonwealth of Australia.

11. The Marshall of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court.

12. The Court requests that the Australian Federal Police place the names of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.  This order ceases to have effect two (2) years after the date on which it is made.

ORDERS

1. That the matter be listed for further hearing of no more than two (2) days commencing at 10.00am on 17 September 2020 in the Federal Circuit Court of Australia at Brisbane.

2. That this matter be listed for mention at 9.30am on 20 July 2020 in the Federal Circuit Court of Australia at Brisbane for the purposes of making trial directions including whether it is necessary to obtain any further reports including from any medical practitioner and/or family report writer.

IT IS NOTED that publication of this judgment under the pseudonym Wadford & Cafferty (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11419 of 2016

MR WADFORD

Applicant

And

MS CAFFERTY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the Court is asked to make one of the most difficult decisions it is asked to make in a children’s matter, namely whether X, who is now three-and-a-half, continues to reside with her mother with whom she has lived since her birth, or move her to her father’s home where she has never spent any overnight time.

2. The father is the applicant in this matter and he supports the Orders proposed by the Independent Children’s lawyer which essentially provide as follows:

   a)X live with him and he have sole parental responsibility for her health;

   b)X spend limited day time with her mother at D Centre for a period of 24 months;

   In the alternative, that X:

   c)Live with the mother;

   d)She spend increasing overnight time with the father;

   e)That the father have sole parental responsibility for X’s health;

   f)That if the mother does not comply with the Orders for time, a process be put in place to allow the father to come back to the court without the need to prove there has been a change in circumstances.

3. The mother’s proposal before last Wednesday was that:

   a)X continue to live with her;

   b)She share parental responsibility with the father;

   c)That X continue to spend day periods with the father and overnight time commence when X is in Grade 1.

4. After the trial and before hearing submissions from the Independent Children’s Lawyer, the mother and father, I indicated that I was considering rather than making final orders, making interim orders that would see X continue to live with her mother but spend increasing overnight time with her father with a further, and hopefully final hearing of the matter in September 2020. I had the sense that the Independent Children’s Lawyer and the father still preferred that I make the Orders they propose.  After I stood the matter down and asked Ms Galvin to take instructions from the mother regarding an interim Order, I was informed that she would agree to an interim Order and to introduce overnight time, but only one overnight per fortnight.

5. The Independent Children’s Lawyer in this matter, Ms Lilley, prepared a very detailed and considered chronology which was filed with her case outline on 21 October 2019.  That chronology spans 44 pages, and having read the material of the parties and after hearing from them and all the witnesses, I accept that it is an accurate reflection of not only agreed facts, but the mother and father’s version of disputed facts, and records from various health professionals.  I adopt Ms Lilley’s chronology, but will refer in these reasons to some of the more significant facts, and when referring, for example, to records from health professionals and recommendations from experts in the matter, including Ms E, and Dr F, I will quote directly from that chronology.

Background and Relevant Chronology

1. The father was born on … 1978, and the mother on … 1980.  They commenced a relationship in early 2014, but separated and reconciled on at least a couple of occasions.  They did live together however for a short period until … 2016 when the mother moved to reside with her parents.  X was born a couple of weeks later on … 2016. 

2. Sadly from the beginning, including while the mother was in hospital recovering after X’s birth, the mother and father disagreed about the time, duration and frequency of the father’s visits with X. 

3. The mother argued that the father was unpleasant, frustrated, angry and domineering during his visits to the hospital, visiting every day against her wishes and that the hospital staff were concerned about his behaviour.  The father denied he acted in this way.  In the period from 23 March 2016 to 24 April 2016, the father was visiting at the mother’s parents’ home.  Again, the mother accuses him of being demanding, insistent, rude, aggressive and inappropriate including for example, entering the maternal grandparents’ home without invitation. 

4. Whilst the father acknowledges that he attended every day to try and assist in any way he could and to bond with X, he denies he was in any way inappropriate and says that it was the mother who was not cooperative.  He did acknowledge under cross-examination from the Independent Children’s Lawyer’s Counsel Mr Taylor however that his desire to spend time with X, the mother’s decision as was her right to exclude him from the birth suite, his upset at the mother’s decision to separate and his frustration at not being able to see X when he wanted, could have been interpreted by the mother as domineering and intrusive although he denies that he ever aggressive.

5. It is the mother’s case that on 5 April 2016, she informed the father that their relationship was over, and that he then demanded she return presents his family had given to X. 

6. In early to mid-April 2016, the mother, after attending with the Brisbane Domestic Violence Team decided she would no longer be present during the father’s visits with X.  The mother continued counselling with G until 23 June 2016.

7. Between 12 June 2016 and 31 July 2016, the mother and father made arrangements to move X’s time with the father from the maternal grandparents’ home to a shopping centre, but in the presence of the maternal grandmother and for periods of between 30 to 40 minutes.

8. In August 2016, the arrangement changed to X having twice weekly visits with her father.  At one of those visits when X was five months old, the maternal grandmother describes the father becoming extremely aggressive when it was suggested, after it started raining, that X should be taken home, an allegation the father denies. 

9. On 13 September 2016, the father arranged a mediation with Ms H which was not successful, the mother argues, because the father refused to attend an anger management course as part of their agreement.

10. On 22 October 2016, the father says the mother asked him to stop insisting on spending time with X and hassling her and suggested they should both get on with their lives.  The mother’s version of this conversation was that she spoke privately with the father, asked him to stop abusing her and for his aggression and bullying to stop.

11. Eventually, it was agreed the father would spend time with X every second Saturday and Sunday on a regular basis.  Shortly thereafter, the mother says, to her surprise, given the agreement she understood had been reached, the father filed his initiating application and supporting material, asking the court for an order for equal shared parental responsibility and for regular daytime but no overnight time with X.  It is the father’s case that after serving this application, the mother suspended his time with X, and it was not reinstated until the first of Judge Cassidy’s orders were made on 7 December 2016.

1. In the mother’s response, she sought an order for sole parental responsibility and for X to spend time with the father each alternate weekend, for one hour at a contact centre.  In her notice of risk, she raised concerns about the father’s drug use, aggression, intimidation and bullying. 

2. On 7 December 2016 Judge Cassidy made these orders:

   a)X live with mother;

   b)She spend time with the father each Wednesday from 9.30am to 11.30am and each Saturday from 12.30pm to 2.30pm, supervised by either of the father’s parents or Ms J;

   c)From 7 January 2017, the time was to be unsupervised;

   d)Changeovers were to occur at the mother's home;

   e)The mother was to seek medical advice regarding the process of weaning X;

   f)The father was to submit to a drug test at the mother's request with the mother to pay for this;

   g)Ms E was appointed to prepare a family report with the father to meet the costs of same and the mother's contribution was reserved to trial;

   h)The mother and father were to join the “Our Children Australia” website and complete the Parenting Orders Program.

3. It was the mother’s case that X did not cope with the arrangement and it disturbed her routine, distressed her, that her sleep and behaviour deteriorated, she had skin problems, gastrointestinal problems, was unsettled, distressed and exhausted.  She said X began to refuse, or cry at changeovers and that there were many times when she didn’t attend because she was sick, or the father wasn’t at changeovers.

4. To some degree the father had a different view of the success of those arrangements.  Initially, he said that the visits went very well, X was happy and playful.  He did agree with the mother however that after the split visits commenced on 7 January 2017, X was sometimes unsettled.  The split visits were two four‑hour visits with the father each week, with a one-hour break in the middle to allow the mother to breastfeed.

5. The mother and father attended mediation on 13 January 2017, where they agreed the mother would provide the father with weekly updates regarding X, however, the father says that in the four‑month period after they reached that agreement, no updates were provided. 

6. The first of three family reports by Ms E is dated 1 February 2017, her recommendations were as follows:

   a)That the mother and father attend communication counselling with Dr K;

   b)A very graduated time schedule be ordered with overnight visits to begin when X was two;

   c)That the mother and father attend with Dr L to assist with any distress X was experiencing.

7. The matter was mentioned before Cassidy J on 15 February 2017, when she ordered a continuation of the 7 December 2017 orders until 26 May 2017.  It is the father’s case that from the date of that order until 26 May 2017, only two of the scheduled 26 visits occurred.  On six occasions, X did not attend because the mother claimed she was sick, on a further six occasions, the mother was away or unavailable, on nine occasions, she failed or refused to hand X to him, on one occasion the parties were involved in a Court event, and on two occasions, he was away overseas for work.

8. It is the mother’s case that during this period, X was more comfortable conducting changeovers outside her home, and that it could take anywhere between ten and 30 minutes to effect a changeover because X clung to her and refused to let go. 

9. The father completed the recommended parenting orders program on 22 March 2017, and the mother on 13 March 2017.  The mother also completed a PPP Parenting Program on 16 March 2017.

10. To deal with X’s distress in April 2017, the mother and father attended with Dr L, as recommended by Ms E.  On 18 May 2017, the father filed an amended application seeking additional interim orders, including overnight time when X turned two, that a medical certificate be provided if she was ill and unable to attend, that Dr K be appointed as a parenting coordinator, and that an Independent Children’s Lawyer be appointed. 

11. On 26 May 2017 when the matter came before Cassidy J she ordered that X’s time with the father occur on three occasions, namely Wednesday 31 May 2017, Saturday 3 June 2017 and Monday 5 June 2017, from 9.30am until 11.30am with changeovers to occur at D Centre and that D Centre provide a report of the changeovers.  She then adjourned the matter to the Monday immediately following the 5 June visit.

12. The visits did occur at D Centre, and were for two hours.  The notes indicate that X engaged well with the father.  This view is supported by the father in his affidavit material.  The mother, however, was not of that view, and said that after the visits X presented with stomach problems, did not sleep through the night, had inflamed cheeks, her nasal membranes were swollen with bloody mucous and that after the 5 June visit, she ate very little for the remainder of the day.

13. On 7 June 2017, the father told her Honour that he could not afford D Centre on an ongoing basis.  Her Honour then ordered that X spend time with him each Monday, Wednesday and Saturday, for two hours, with changeover at D Centre, but with the father to relist the matter if the time did not occur.  She again ordered that the mother provide a medical certificate if X was unwell, but she was to also provide makeup time.  She directed that the parents communicate via the My Children’s website, and adjourned the matter to 11 July when she indicated she would make further orders for time.

14. After the 14 visits that were to occur in accordance with her Honour’s orders between 7 June and 11 July 2017 her Honour ordered a further progression of X’s time with the father as follows:

    a)From 12 July 2017 to 9 August 2017, X was to spend time with father each Monday, Wednesday and Saturday from 9.30am to 12.30pm;

    b)From 12 August 2017 and thereafter the time was to be each Monday, Wednesday and Saturday from 9.30am to 1.30pm;

    c)X was to spend Father's Day with her father from 9.30am to 1.30pm;

    d)Changeovers were to occur at McDonalds Suburb A;

    e)Detailed orders were made regarding medical certificates that were to be provided if X was sick;

    f)The mother and father were to continue to use “Our Children Australia” website to communicate with each other regarding X;

    g)A further family report was to be funded by the court; and

    h)The matter was adjourned to 6 December 2017 for an interim hearing when her Honour indicated she would consider extending day visits to overnight time and orders for time on X’s birthday, Christmas and Mother’s Day.

15. In the period 11 July 2017 until 6 December 2017, the father’s case is that of the 56 ordered visits, 14 of those did not occur, and of those 14, the maternal grandmother obstructed changeover on seven occasions, X was not brought to changeover on four occasions, and the mother claimed X was sick on one occasion.  On another occasion, X was taken to an incorrect changeover location, and on one further occasion, the father was not able to collect X because of difficulties with his motor vehicle. 

16. In that four‑month period, when the time increased from three to four hours, the mother claims X returned home hungry, having unusually frequent and loose bowel motions in the afternoon, was extremely tired, unsettled and irritated, had a bloated stomach and severe constipation and was passing undigested food.

17. The father subpoenaed CCTV footage from McDonald’s restaurant of changeovers on 26 and 30 August, 2, 3 and 6 September 2017, which was played in Court and which will be referred to later in these reasons.  After the visits were moved from D Centre to McDonalds, by her Honour’s orders of 11 July 2017, initially the changeovers, although not always smooth, occurred without too much difficulty, however, the changeovers in the period referred to earlier when the maternal grandmother was involved either didn’t happen or were done with much difficulty. 

18. The mother filed an application in a case and affidavit on 13 September 2017, seeking an order that changeovers occur at C Day Care Centre.  They did occur there between 16 September and 22 September, although on 22 September 2017 they cancelled that arrangement because of a lack of funds. 

19. On 20 November 2017, Ms E’s second report ordered by Cassidy J on 6 December 2016, was released and recommended:

    a)X live with mother;

    b)Visits with the father be extended from 8.30am to 3.30pm, but reduced from three times per week to two times per week until 1 May 2018;

    c)After 1 May 2018, overnight time (one per fortnight) begin, but with the Wednesday time to continue and for X to spend one full day on the other weekend with her father;

    d)Changeover was to occur at D Centre at the beginning and at McDonalds at the end of time;

    e)The mother and father were to attend with Dr K;

    f)An Independent Children’s Lawyer was to be appointed;

    g)The mother and father were to complete a Circle of Security and POP course and the matter was to be reviewed in 12 months.

20. The next day the father filed an amended application, seeking interim orders essentially in keeping with Ms E’s recommendations including overnight time with changeovers to occur at D Centre.

21. On 6 December 2017, to summarise, her Honour ordered as follows:

    a)X spend time with the father:

    i)From Saturday 9 December 2017 until 1 May 2018, on each Wednesday and Saturday from 9.30am to 5.30pm (i.e. 5 months of two times eight hour visits per week);

    ii)From Wednesday 2 May 2018, on each Wednesday from 9.30am to 5.30pm, and on alternate Saturday (commencing 5 May 2018) from 9.30am to 5.30pm; and

    iii)From 12 May 2019, every other Saturday from 9.30am until 12.30pm on Sunday (i.e. overnight);

    iv)Every fourth weekend (commencing on the weekend of 19-20 May) X remain with the mother;

    v)On the her birthday on … 2018 from 9.30am to 1.30pm;

    vi)On Christmas Day 2017 from 1.00pm to 4.00pm and in 2018 from 12.00pm Christmas Eve to 12.00pm Christmas Day (overnight);

    vii)At Easter in 2018;

    b)The mother and father attend a Family Dispute Resolution Conference at Relationships Australia,

    c)They have equal shared parental responsibility for X;

    d)Various orders were made to address their communication;

    e)Orders were made in the event X was sick and when she was to spend time with the father;

    f)Changeover was to occur at McDonalds Suburb A, by any person other than Ms B, the maternal grandmother.

22. It is the father’s case that from the date of her Honour’s order until 4 September 2017, of the 73 visits that were scheduled to occur during that time, 20 did not occur because the mother said the child was sick, or otherwise not able to attend, three did not occur because the father was unavailable and that none of the overnight visits occurred because again the mother claimed X was too ill.

23. The mother’s case is that X, from very early on, was suffering from bowel issues.  She obtained a referral from the general practitioner and on 16 January 2018, attended with Dr M, a paediatrician, of BB Clinic.  The Independent Children’s Lawyer’s chronology summarises the relevant parts of the subpoenaed documents of that attendance, as follows. 

    Child attends on Dr M, paediatrician

    Paediatric assessment by Dr M, of “BB Clinic” Notes and letter to referring GP at Suburb N 7 Day Medical Practice Issues reported behavioural management challenges, significant separation anxiety, challenging home situation with court ordered shared care, intermittent constipation and irregular bowel habit, dependent sleep association” Management plan faeces testing S&N, trial of osmolax as needed to see if can help regulate bowel habit, food, sleep and behaviour diary, encourage consistent behavioural management approaches; parents to consider further psychological. X’s mother acknowledged the stress and anxiety caused by the difficult court proceedings as being a contributing factor to X’s presentation.  On examination X is a healthy almost 2 year old.  She was quite anxious and became upset at the prospect of being separated from her mother.  She appeared to show appropriate understanding of language for a child of her age.  She appears temperamentally anxious and living in the context of significant psychosocial stress as a consequence of parental separation and ongoing process of sorting out the legal aspects of this.  The most important thing from my perspective is to provide for X a safe, stable, consistent and secure environment that is reliable and predictable for.  In order to achieve this, her parents need to communicate effectively to ensure their parenting approaches are compatible especially if they co-parent.  While X presents with significant anxiety any further intervention will rely more on working with her parents rather than on X herself.

    (emphasis added)

24. There was a further appointment on 23 April 2018.  The notes from that attendance are as follows:

    Attendance on Dr O, paed1atric1an, "BB Clinic" Have been seeing Mr P. Having med1at1on coming up Friday, still breast feeding.  Having Wednesday and Saturday for 8 hours.  Has been coming home with bloating.  Waking up overnight on these occasions.  Ongoing high conflict and mistrust.  Circle of Security.  Sleep remains a concern.  Coming back thirsty.  On examination Well. Alert, Interactive Chest clear.  Treatment/Plan ongoing consistency/routines.  Ongoing psychological support.  Continued implementation of circle of security ideas.  Report in support of consistent routines.  See as required.

    (emphasis added)

25. On 11 June 2018, the mother approached the father to obtain his agreement for X to travel Country CC for four weeks but he would not give his consent. 

26. On 15 August 2018, the father discovered a listening device in the child’s comfort toy and took it to the police.  The listening device records 20 hours of audio, including time when X was with her father.  Part of that audio was played in Court and will be referred to later in these reasons.  It is the father’s case that the mother and maternal grandmother sewed the device into the toy, an allegation the mother and maternal grandmother deny.  It is also his case that the mother and grandmother can be heard making derogatory comments about him to X, and that they question X as to what occurs during visits.

27. On 31 August 2018, the father filed a further amended initiating application, seeking orders that:

    a)he have sole parental responsibility for all issues;

    b)that X live with him and spend time with the mother each alternate weekend after a moratorium;

    c)that changeover occur at McDonalds at Suburb A; and

    d)that a watch list order be put in place.

28. The mother responded to that amended application on 3 September 2018, seeking an order for equal shared parental responsibility and for overnight time and school holiday time with the father but not until after she completes Prep. 

29. On 4 September 2018, Vasta J discharged the order for overnight time, injuncted the parents from taking X to any medical practice other than the Suburb N Medical Practice, directed that they obtain a report from a GP at that practice, Dr Q, that the mother ensure all medical records are provided to Dr Q and that Ms E prepare an updated report.

30. The report prepared by Dr Q is dated 11 September 2018, and says this. 

    I am writing concerning this young girls’ medical history.  I have attended to her many times this year, usually on a Saturday.  On one occasion she had a fever associated with upper respiratory tract infection but the other visits she had been reported as unwell, diarrhea [sic], miserable, poor sleep.  Mum does all the talking for her usually […] I have had a look at her notes from other practices and she seems to have had the usual childhood infections but overall has enjoyed good health.  Between May 2018 and August 2018 she has been seen on 7 Saturday mornings with reported illnesses seeking a medical certificate.

    She has been referred to paediatric gastroenterologist Dr R but I suspect didn't attend as no investigations or reports from him.  She was also referred to Dr M (Paediatrician) with behavioural issues and we received two letters back both of which you have.  (Past illnesses) nil significant.

    (emphasis added)

31. In a letter dated 8 October 2018, the child’s paediatric gastroenterologist, Dr S, wrote to the Suburb N Medical Centre, and in summary, that letter said this:

    - Date of treatment plan

    - No major issues in infancy, Some issues with attachment but no other overt symptoms of cows milk protein allergy, Bowel habit regular.  Developed issues with introduction of solids and cows milk protein into diet, with green, mucousy stools.  Intermittent diarrhoea.  Weight gain was reasonable throughout.  No manifestations of allergy otherwise.  She developed gradual onset of constipation with significant withholding behaviour.  These have been issues with anal fissuring, perianal erythema.  Complaints of dyschezia, no obvious blood.  Green stools persist.  Intermittent bloating and distention.  Obvious withholding behaviour with significant posturing.  There is also disruption of the family environment, with separation of parents.  Reportedly there has been significant stress and anxiety around transition between households.  Otherwise relatively systematically well.  On examination today Bright and well perfused.  Abdomen is soft and non-tender.  Normal examination of lower limbs.  At this stage I recommend we treat her with an aggressive washout and maintenance therapy with a stool softener.  Depending on response we can look at further assessment.  I think she’d benefit from occupational therapy review as there appears to be a significant functional component to symptoms.  Otherwise I suggest restricting dairy in her diet as there appears to be a degree of cows milk protein intolerance.  If symptoms persist I would suggest bloods are performed including coeliac serology and have given her mother a request for same.

    (emphasis added)

32. The treatment plan referred to by Dr S was commenced on 9 November 2018 after the mother said she had an opportunity to attend with Ms T.

33. The subpoenaed documents from BB Clinic record the father attending at Dr M on 30 October 2018 when he discussed functional constipation and the importance of a regular routine in managing anxieties.

34. Ms E’s third report dated 20 November 2018 ordered by Judge Vasta recommended:

    a)Until 1 June 2019, X remain living with the mother and spend time with the father each Wednesday and Saturday from 9.30am to 5.30pm with changeover at Suburb A;

    b)From 1 June 2019, one overnight per fortnight until midday in addition to one day per week;

    c)From 1 September 2019 overnight time extend until 5 30pm the following day;

    d)A review in November 2019;

    e)She suggested very prescriptive orders as to what was to occur if X is sick, including that the mother was to take her to Suburb N Doctors and the father take X into his care from there and return her at 5 30pm;

    f)She also proposed that if the mother did not comply with the order for time, the court might consider changing the living arrangements for X and she set out how and when that may be implemented.

35. On 20 November 2018 the mother filed a further amended response setting out a more detailed graduated time schedule for X with her father. 

36. On 20 November 2018 I made orders, in summary, which provided as follows:

    a)X spend time with her father:

    i)each Wednesday and Saturday from 9.30 to 5.30;

    ii)On Christmas Day from 1.30pm to 5.30pm; and

    iii)On 27 December from 9.30am to 5.30pm;

    I also ordered the appointment of an independent children’s lawyer and made orders preventing X being taken overseas. 

1. It is the father’s case that from the making of those orders on 21 November 2018 until 18 March 2019 all but 13 of the scheduled visits occurred.  He acknowledges that of those 13 failed visits two were as a result of his work commitments, another seven as a result of his overseas travel and on two half days he agreed that X remained with the mother to enjoy family events. 

2. The father also acknowledged, under cross-examination from Ms Galvin, that there had been very few missed visits in the period from the end of 2018 until the hearing which commenced on 28 October 2019, although he does refer in an affidavit he was given leave to file at the trial, to some concerning comments X made to him about not liking herself.

3. A report was prepared by the child’s dietician, Ms U, on 14 March 2019, and notes made from subpoenaed records from Ms U by the independent children’s lawyer can be summarised as follows: 

   X attended with mother initially on 16/11/2018;

   Initial phone appointment with father on 04/12/2018 re dairy free diet trial,

   - review appointments with child thereafter (father by phone)

   - updating treatment plan 08/03/2019 per correspondence to referring GP Dr V dated 06/03/2019.

   Ms W Letter 06/03/2019 to Dr V·

   - Breakdown in (parents’) communication is limiting dairy challenge.  Mr Wadford and Ms Cafferty both agreed to this so plan is to stop challenging beyond first step of milk ladder for now e.g. can keep only Arrowroot/baked milk solids in the diet, so can have 3 months of normalising bowels and help with toilet training.  Plan to continue dairy free diet with exception of step one of milk ladder allowed.  Re-start step 2 on milk ladder end May 2019/3 months’ time then review in 4 months’ time 20/06/2019.  Education regarding ensuring adequate calcium, protein and fat in diet whilst primarily dairy free.  Review 4 months.  Dad booked for phone review on same day as mum to keep both parents informed of plan.

   (emphasis added)

4. On 18 March 2019 again I made orders in this matter which, in summary, provided as follows:

   a)That the injunction made on 4 September 2018 (against the parties taking the child to any GP than the Suburb N Medical Practice) continue;

   b)The mother and father attend jointly (father by Skype) at all further appointments for the child with her treating specialist practitioners;

   c)The Independent Children’s Lawyer provide a copy of the orders to medical practitioners,

   d)The mother and father provide authorities to medical practitioners to discuss X with the other parent and Independent Children’s Lawyer;

   e)In the event of a medical emergency, the parent with care of the child at that time notify the other and provide particulars;

   f)Any future medical referrals for X be actioned jointly;

   g)X’s time with the father as per the orders of 21 November 2018 continue;

   h)That without the consent of the other parent neither parent record the other or the other’s time with X;

   i)Both the mother and father be psychiatrically assessed by Dr F;

   j)I made a notation that each parent consider commencing X’s attendance at formal child care on a few days each fortnight but not on Wednesdays.

5. The mother in her affidavit filed 7 June 2019 says that since about April X has returned from her father’s home with symptoms resembling cold or flu, that she displays signs of distress and again in relation to her bowel movements, withholding behaviour. 

6. A further report from Dr S was produced in subpoenaed documents and is dated 17 June 2019, and again, I refer to the Independent Children’s Lawyer’s summary of that report which says this:

   - I have seen X once, after referral from GP Dr V, for constipation;

   - I thought the constipation was multifactorial, predominantly with functional component (some withholding behaviour thus referral to OT) and potentially an allergenic component (thus a trial of restriction of cow's milk protein),

   - No further communication with the patient or the parents but I note they have attended review with dietician and OT,

   - Blood tests to be performed if symptoms are ongoing but these have not been done,

   - I am not in a position to make a comment as to whether the treatment I prescribed has been properly and completely administered as I have seen the patient once and had no follow up.

7. The psychiatric assessment I ordered was prepared by Dr F, and is dated 25 July 2019.  Again, referring to the Independent Children’s Lawyer’s summary of the recommendations and comments in that report, which I have crosschecked to the report, I accept that his conclusions, notations and recommendations include as follows: 

   - longitudinal difficulties between parties and reports of the parties are noted,

   - note regarding the child's specialists, medical practitioners and other health practitioners around bowel issues, concerns the bowel issues may have been attributable to diet and the like, though it appears these issues more seen as a functional issue related to the child's anxiety,

   - The mother appears to have adopted a paranoid stance towards the father and his inability to appropriately parent the child, this appearing in context of dynamics between the parties and these concerns do not appear to be held with delusional intensity,

   - It appears the pregnancy and the postnatal period have been a very anxious time for the mother and it was possible the mother developed a perinatal anxiety disorder and the development of an Anxiety Disorder cannot be fully excluded,

   - Documentation/information suggests a somewhat obsessional approach to parenting in the mother suggestive of obsessive-compulsive personality traits. Mother's approach to toileting issues in the child as well as concerns about the child's welfare in the father's care that appear out of proportion to the behaviour and conduct of the father are explainable by the mother displaying obsessive-compulsive personality traits, as are her overemphasis on maintaining a routine,

   - These traits may have contributed to the anxious attachment style that appears present in the mother child relationship which may have contributed to the separation anxiety as well as potentially functional bowel issues (though I have no expertise in the assessment and treatment of children),

   - The mother's characterological anxiety/obsessive-compulsive personality traits may contribute to an overreliance on medical consultation with the child and could lend itself to an over investigation of physical symptoms m the child,

   - The mother's anxieties with respect to the child are likely to have impacted negatively on the child,

   - The child's GP would have an important containing role in addressing the mother's concerns and anxieties about the child's health,

   - 1f a change in residence is ordered the father would benefit from therapeutic engagement re the inherent challenges;

   - strongly recommend the mother obtain qualified mental health assistance to manage her anxieties re the child's time with the father as well as her somewhat anxious attachment style as well as inherent difficulties co-parenting;

   - Risk of harm to the child that either parent may struggle to protect the child from their own anxieties and fears about the welfare of the child with the other parent, and to protect the child from others m their family with respect to the same.

8. The Independent Children’s Lawyer filed an affidavit of Ms U, the child’s dietitian, which attaches a report dated 10 July 2019 which, in summary, says this:

   - Diagnosis of cow's milk protein cannot be confirmed because X continues to have variable bowel motions and requires a daily laxative therefore the OT and I agree not to proceed with the milk ladder (step by step process to introduce daily protein from baked state to fresh milk.  At X's age she should tolerate baked milk and as she grows older she will outgrow any dairy allergy.  Usually reintroduction of milk confirms allergy.  Mother feels once dairy free diet started X's bowel motions were more regular with nil straining which suggests allergy.  Father not as convinced),

   - recommended treatment to continue dairy free for now except for baked milk arrowroot biscuit to continue exposure to cow's milk protein, to work on toilet training and using safe laxative.  In conjunction with OT X to start calcium supplement on 27/06/2019;

   - Both parents provide they each adhere to the strict dairy free diet Ms Cafferty believes Mr Wadford is not doing this.  Mr Wadford reports the only dairy he is giving X is the baked milk arrowroot biscuit as advised.

9. The child’s occupational therapist, Ms T, attaches a report where Ms T says this:

   - Child referred by Dr S, treating gastroenterolog1st, with history: chronic constipation secondary to cow's milk protein intolerance, mother requesting behavioural support with to1let1ng,

   - Initial assessment 09/11/2018 and 11 sessions since, attending with mother. Father attended individually on 23/11/2018, and, since Court orders of 18/03/2019, father has attended via phone at all appointments;

   - Consistent parental approach from early 2019 = child now uses toilet to void bladder,

   - Child continues to show fluctuating bowel function and 'stool toilet refusal', a common behaviour I e up to 25% of children in age group do so,

   - Child's toilet training must take anxiety management into account, lack of routine, Inconsistency, forced compliance and over-emphasis may exacerbate X's avoidance of the toilet for bowel motions,

   - current medical management: daily stool softener per gastroenterologist advice.  Increasing dose dependant on stool type, dairy free diet per dietician advice,

   - ongoing behavioural toileting plan including exploration of emotions and self-calming, modelling,

   - X presents with hypervigilance and auditory sensitivity and is keenly aware of environmental sounds and listens to every detail in adult conversation.  Her tactile system is also sensitive;

   - X would benefit from unstructured play times within a variety of social contexts, alone, with carers and with similar age peers,

   - X will benefit from an ongoing calm, consistent approach with appropriately graded goals progressing her towards independence.  Monitoring [of] sensory processing and play skills also recommended.

10. In the father’s case, he relies on the following documents:

    a)Affidavits of himself filed 14 November 2016, 5 December 2016, 8 February 2017, 18 May 2017, 6 June 2017, 21 November 2017, 31 august 2018, 28 March 2019, 27 September 2019:

    b)Affidavit of Ms E filed 18 June 2019, which contains all three of the family reports prepared in this matter by Ms E;

    c)Affidavit of Ms U filed 23 July 2019;

    d)Affidavit of Dr F filed 31 July 2019;

    e)Affidavit of Ms T filed 18 September 2019; and

    f)Affidavit of his partner, Ms AA filed 27 September 2019.

11. In the mother’s case, she relies on the following documents:

    a)Her amended response filed 27 September 2019;

    b)Affidavit of herself filed 27 September 2019; and

    c)Affidavit of Mr Y filed 27 September 2019.

12. In the Independent Children’s Lawyer’s case, she relies on the following documents:

    a)Orders of Judge Cassidy dated 7 December 2016, 26 May 2017, 7 June 2017, 11 July 2017 (and as amended on 12 July 2017), 6 December 2017;

    b)Reasons of Judge Cassidy delivered on 11 July 2017;

    c)Orders of Judge Vasta dated 4 September 2018;

    d)My Orders dated 21 November 2018, 18 March 2019 and 16 October 2019;

    e)Orders of Judge Lapthorn dated 6 June 2019 listing this matter for a priority trial;

    f)Affidavit of Ms E filed 25 June 2019;

    g)Affidavit of Dr F filed 31 July 2019;

    h)Affidavit of Ms U filed 23 August 2019;

    i)Affidavit of Ms T filed 18 September 2019; and

    j)Various bundles of documents to be tendered including documents received under subpoena.

13. At trial I watched a video of changeovers at McDonald’s at the end of August and beginning of September 2017 and heard audio from the listening device referred to earlier.

14. In the father’s case, he was cross-examined as was his partner.

15. In the mother’s case, she was cross-examined as was her mother.

16. In the Independent Children’s Case, the following witnesses were required for cross-examination:

    a)Dr Z;

    b)Ms E;

    c)Dr F;

    d)Ms U, dietician;

    e)Ms T, occupational therapist.

17. The issues that I have identified as significant in determining the living arrangements for this little girl are as follows:

    a)Is X at risk of extended time with the father and is he able to meet her day-to-day needs including her health;

    b)Does the mother have the capacity and ability to support X’s relationship with the father;

    c)What will the impact on X by a move from her primary carer to the father and does the father have the capacity to meet the emotional challenges of X should she move to his care.

18. There are many important issues and factors that I have to take into account that are not in dispute or no longer in dispute.  They include as follows:

    a)There is a benefit to X of having a meaningful relationship with both parents;

    b)X has a close, attached and loving relationship with the mother and has a close relationship with the father;

    c)X has a close relationship with the maternal grandparents;

    d)X would benefit from a close relationship with the paternal family;

    e)X has some medical issues which require some ongoing intervention by health practitioners.

Is X at risk by extended time with the father

1. There seems to be no dispute even in the mother’s case, absent her concerns for the impact on X’s health that she would benefit from the introduction of some overnight time with her father.

2. Despite, it seems, that the mother persists with her concern that X would be at risk of neglect or an exacerbation of her health/toileting issues if she was to spend extended time with the father, I note that in the written submissions prepared on her behalf when referring to s.60CC(2)(b) of the Family Law Act 1975 (“the Act”), the need to protect the child from harm, there is no reference to the mother’s concerns other than a reference at paragraph 30 as to the father’s lack of commitment to X’s treatment plan by Dr S. Although those submissions do refer to the father’s acknowledgement under cross-examination when he said “I would say that I don’t feel as though the current treatment progress for X is being successful.”

3. Having said that I note that when I asked Ms Galvin to explain on behalf of the mother her particular concerns for the X’s health should I make an order for overnight time, her response was that her withholding behaviour would become worse and have an impact on her bowel function and the father would not comply with the treatment plan.

4. Much has been made by the mother of X’s health as a reason for her, particularly in 2017 and 2018 not spending time with the father and more recently as a reason for the mother’s reluctance to agree to X spending overnight time with her father.

5. The history of this matter as set out earlier in these reasons suggests that these health issues can be broken into two categories, or periods, of time.  It is not in dispute that many of the recorded 81 medical appointments for X occurred during the 2017/2018 period when the mother would attend at various medical practices in different locations to obtain a medical certificate that indicated X was too unwell to attend her ordered time with the father. When the father was critical of the mother in this regard, her response was that this was purely a matter of logistics.

6. It was her case that when X was not made available for time with her father it was because she was genuinely unwell and that the certificates she obtained were to support her concerns in that regard.  She does not accept that she used the certificates to interrupt X’s time with the father, but rather to ensure that she was well cared for and comfortable at home in her care.

7. X’s health during this period was also raised by the mother with various judicial officers to justify her failure to deliver X to her father.  As recorded in the history earlier, on 4 September 2018 although Judge Vasta discharged the order for overnight time, he also injuncted the parents from taking X to any other medical practice other than the Suburb N Medical Practice and directed that they obtain a report from Dr Q at that practice.  Whilst the mother argues that I should not place any significant weight on that report given her alleged comment to the mother that she was not X’s usual GP, I note as set out earlier in these reasons that Dr Q, amongst other comments in her report, said this:

   I have had a look at her notes from other practices and she seems to have had the usual childhood infections but overall has enjoyed good health.  Between May 2018 and August 2018 she has been on seven Saturday mornings with reported illnesses seeking a medical certificate.

   I pause here to note that changeovers for X’s time with her father were to occur on a Saturday morning when it seems from the report that this is generally when the mother presented X to the GP.

8. The notes go on to say:

   She has been referred to paediatric gastroenterologist Dr R but I suspect didn’t attend as there are no investigations or reports from him.  She was also referred to Dr M paediatrician with behavioural issues and we received two letters back, both of which you have recording past illnesses nil significant.

9. After his Honour discharged the orders for overnight time on 20 November 2018, for reasons I gave at the time, I did not reinstate the overnight time.  The father acknowledges that the mother generally complied with the orders for time after that date.  As mentioned earlier his evidence was that between the order of 20 November 2018 and 18 March 2019 all but 13 of the scheduled visits occurred, two of which were as a result of his work commitments, seven because he was overseas and on two half days he agreed that X could remain with the mother to enjoy family events.  He also acknowledges that during 2019 there has generally been compliance with the orders.

10. As mentioned earlier however Ms Galvin argued that the mother is concerned that if I make an order for overnight time and X does not do a bowel motion for that extended period, her bowel might be affected.  In those circumstances she was also concerned that X’s health might be compromised further because the father would not comply with what she referred to as the “treatment plan”.

11. The difficulty with Ms Galvin’s submission in my view however is threefold.  Firstly, there is no medical evidence to support the mother’s concerns, either that X is withholding when spending time with the father or that if she did so over an extended period, that this could manifest itself into a more serious health condition.  In that regard I have referred in the background to these reasons to passages from medical reports arranged by the Independent Children’s Lawyer including from two paediatricians.  The first is from a Dr M who saw X in January 2018.  I note it was only the mother who attended with X on that occasion and therefore the only information he had other than from the physical examination of X came from the mother.  There are references to intermittent constipation and irregular bowel habits however the report also says that X presented as a healthy, almost two year old who did have some issues in relation to anxiety.  There is particular reference for a need for X to have a safe, stable, consistent and secure environment that is reliable and predictable and that parenting approaches are compatible.  The focus of that report seemed to be the need for the parents to work together.

12. Further notes from Dr M were recorded on 23 April 2018.  At that time it seems that the mother informed the doctor that X was coming home with bloating, disturbed sleep and thirsty.  However the notes go on to say that on examination she was well, alert and interactive.

1. More recently in relation to her toileting issues are the references from Dr S, the first dated 8 October 2018.  The notes that, in my view, are relevant to concerns about X’s health by extended time with the father include:

   No major issues in infancy … Bowel habit regular … Intermittent diarrhoea … Weight gain was reasonable throughout. … Obvious withholding behaviour with significant posturing … Reportedly there has been significant stress and anxiety around transition between households.  Otherwise relatively systematically well.  On examination today Bright and well perfused.  Abdomen is soft and non-tender.  Normal examination of lower limbs … I think she’d benefit from occupational therapy review as there appears to be a significant functional component to symptoms. …

2. Ms T, the occupational therapist prepared a report and was cross-examined at length.  I have reviewed her evidence and there is nothing in that evidence which would suggest any concerns for X’s health or any interference in, or impact on, Ms T’s treatment of X by an order for overnight time, in fact she makes comment that it would be helpful if the mother and father attended appointments together with her and X.

3. In answer to questions from Mr Taylor with regard to X’s behavioural avoidance, she said this “

   Behavioural avoidance is a common behavioural manifestation for up to 25 per cent of children. … There are a number of children that display toilet avoidance – still toilet refusal.  X now is beyond 36 months, which is the statistic within that research is related to.  After three years of age the – after two or three, the frequency naturally declines to some extent with child development and children getting old enough to calm down and learn the skills they need.

4. Referring to X’s anxiety and her moving between households, she said:

   It’s a common thing that we see with children where they have to share time between two homes.  There are two different sets of approaches, and at three it’s complex to be able to sort of comprehend that, and so naturally the kids can easily pick up a bit of extra anxiety or just difference across the week.

5. Whilst acknowledging that therefore moving between households might cause X some anxiety, despite given the opportunity to do so, at no time did she indicate that she would be concerned about extending time.

6. When asked to explore the concept of functional behaviour avoidance, Ms T acknowledged that there had been a formal assessment of X in that regard and that both the mother and father had completed a questionnaire as part of that assessment.  It was her view that X presented in the normal range in that regard with only a slightly higher issue with sensory processing.  Again when exploring this issue, she did not raise a concern about the mother or father in that regard but suggested that X may benefit from some unstructured playtime and agreed that the idea of introducing kindergarten for her in 2020 would be of assistance.

7. When asked whether there was any evidence that either parent were not acting on her advice, she responded:

   I do believe that the parents are doing their best to implement the suggestions that I have made.

8. My impression of much of the evidence of Ms T, but also to some extent Dr S with regard to X’s toileting problems was that whilst a different environment such as the father’s household as opposed to the mother’s household where X has always resided, may present some challenges for X although that is probably putting what they said in this regard too high, they did not suggest in any way she should not have the opportunity of spending time at her father’s house overnight. 

9. In this regard it is also relevant to consider the comments Ms E made regarding making orders that allow the father’s home and that environment to become even more familiar to X by spending overnight time there.  When asked by Mr Taylor to describe the experiences that X would benefit from by having overnight time with her father, she said this:

   Well, I think it’s huge.  I mean, it’s – it – if the child can settle, and go to sleep, and – and know that she’s safe and comfortable, and that dad is there, and that she can relax enough to go to sleep, and then wake up and – yes, I think it all builds trust, familiarity, and really a sense of belonging – a little bit more of a sense of, “I actually belong here, too.  This is my home, as well.  I’ve got two homes.

   And would that assist in giving her a greater sense of place, if you will, within the father’s home?‑‑‑Yes.  I – I think that it will make her more – feel more comfortable, yes.

   Right.  It might reduce – sorry – again, my words – so normalise that spending time?‑‑‑Yes.  And I think that there’s more opportunity for her to plan things and say, “Tomorrow we’re going to do this,” so – so that it’s more of a sense that, “I’m not just here visiting someone who’s not a part of family.  I’m – I’m coming here because this is – this is where I live as well.”

10. I note also that Ms E acknowledged under cross-examination from Ms Galvin that X has genuine toileting issues.  Whilst I accept that Ms E is not a health professional, she has children of her own and has been preparing reports for this court for many years including for children of X’s age and no doubt with similar issues.  Having said that, I am not placing a lot of weight on her comments in this regard but it is relevant and appropriate to record her comments.  When asked by Ms Galvin whether X spending more time with her father particularly while the toileting issues persist, would be a problem for her, she said this:

    My recollection was that the mother said that when she goes for a day visit she might do a poo in the morning when she gets up before she goes to dad’s and then do a poo in the afternoon when she comes home. I didn’t actually think that was very unusual but I’m not a medical practitioner. I would have thought a child has more than two poos a day that’s a bit unusual so while there’s a lot of talk about her withholding I don’t know that there’s any sort of evidence of it.

11. In relation to extending the time to overnight and the impact of that on X’s toileting issues, she said this:

    I think it’s fairly normal and if she knows she’s starting to stay overnight at dad’s then possibly at first she might continue that pattern but she’s soon going to get into the habit of, “Okay, now I’m staying at dad’s tonight. I know I am and actually it’s that time of day and I might do a poo.” That will evolve. I don’t think that’s a reason to hold it up. I mean, it’s – this is just another one of the reasons that sort of keep coming up. This is not going to happen.

12. In relation to this issue it is also of assistance to refer to the evidence of Dr F.  At paragraph 61 of these reasons, I summarise the comments made by him in relation to the father, but particularly the mother including:

    - The mother appears to have adopted a paranoid stance towards the father and his inability to appropriately parent the child, this appearing in context of dynamics between the parties and these concerns do not appear to be held with delusional intensity,

    - Documentation/information suggests a somewhat obsessional approach to parenting in the mother suggestive of obsessive-compulsive personality traits. Mother's approach to toileting issues in the child as well as concerns about the child's welfare in the father's care that appear out of proportion to the behaviour and conduct of the father are explainable by the mother displaying obsessive-compulsive personality traits, as are her overemphasis on maintaining a routine,

    - These traits may have contributed to the anxious attachment style that appears present in the mother child relationship which may have contributed to the separation anxiety as well as potentially functional bowel issues (though I have no expertise in the assessment and treatment of children),

    - The mother's characterological anxiety/obsessive-compulsive personality traits may contribute to an overreliance on medical consultation with the child and could lend itself to an over investigation of physical symptoms m the child,

    - The mother's anxieties with respect to the child are likely to have impacted negatively on the child,

13. In answer to a question from the father, Dr F agreed that the mother’s personality traits could affect the mother’s ability to communicate effectively with the father regarding X’s toileting when he said this:

    if those traits were present one would expect someone to perhaps struggle with a perceived lack of control about what it happening to your child when not in her care and the focus could certainly, one could speculate, may be around diet and toileting and the like given the degree to which it appears to have been a focus for the mother whilst the child is in her care and medical attention and things.  So I guess it may mean that the mother seeks a lot of information or seeks to dictate what occurs whilst the child is in your care and one, I guess, could seek that that potentially could affect communication, especially if those needs are not seen to be met by a person with such a personality structure

    …

    the response by yourself might come across as hostile and not engaging appropriately around her concerns.

14. When asked whether the mother’s personality traits might contribute to X’s anxiety around toileting, whilst acknowledging that he was not an expert in the treatment or assessment of children, he agreed that it may contribute to X’s anxiety.

15. Ms Galvin for the mother asked Dr F to accept that if the mother’s concerns in relation to X’s health were genuine, whether this would make a difference to his view that the mother presented as “obsessive”, his answer was as follows:

    I think the genuineness of it and the seriousness of it are two very separate issues and the degree of anxiety one has about a genuine difficulty versus a serious difficulty, it would be an important consideration.

    …

    It doesn’t appear to me to be a very serious condition, i.e. it’s not going to affect her long-term, it’s not going to affect her long-term health.  She’s otherwise developing well.  There’s no associated failure to thrive and the like.  It seems, especially on reading … OT’s report, that she had some concerns that the focus on the stool and there was certainly associated anxiety with that and some strategies around that which would tend to counter the argument that one should be anxious about it that, in fact, one should try to be as relaxed as possible about it for the benefit of the child, but, again, that’s my reading of it and I have no particular expertise in the management of these kind of disorders in children.

16. When it was put to him that the mother’s anxiety may be heightened by the fact that her genuine concerns are not being heard by, for example the family report writer and the court, Dr F response was:

    I mean, I could see the mother might be frustrated that her version of the genuineness or seriousness of it isn’t accepted out of hand by others within the court process.  It doesn’t really account for the level of, let’s say, fastidiousness around record keeping and the demands on others that they follow that fastidiousness.  One could see if the mother had a view that, in fact, the medical practitioners have it wrong and there’s something very serious that’s being missed by medical practitioners that that could lead to a kind of escalation of that fastidiousness, but that’s a separate issue.

17. Secondly, in relation to the mother’s concerns, I note that it is the father’s evidence, and I accept his evidence, that X does have bowel motions on most of the occasions that she is in his care, and he does not experience the same withholding behaviour the mother describes.

18. Lastly, whilst the mother continually referred to a treatment plan, the only plan I am aware of is the three month plan recommended by Dr S, which if the child’s symptoms persisted was to involve X returning to him for further tests, including a blood test. Whilst the mother made that appointment, after speaking with a member of Dr S’s staff, who I believe may have been an administrative staff member, the mother cancelled the appointment. If there is a plan, we are now twelve months into the three month plan. It seems that any treatment plan involves the mother making decisions, I accept most likely with Ms T’s support, to give X Osmolax.  I also note the father’s evidence that when he has asked for information about diaries the mother keeps or other information about X’s health including dietary and bowel issues, the mother often does not respond, or responds in a way which is not helpful.

19. All of the evidence from the various health professionals indicate that the father has engaged with those health professionals in the treatment of any dietary and/or bowel issues X has presented with. I also note evidence given by Ms T at trial that in her view both parents have taken on board her advice regarding X’s bowel issues, and acted on that advice.

20. Taking into account all of those factors, I could not find that X’s health would be compromised if she spent overnight time with the father. In fact, there is some support, in my view, from Ms T and Ms E that by overnight time, the father’s environment will become more familiar to her, which may address some of her anxiety.

21. There is also no evidence from any expert or indeed from the mother, to suggest that the father is not capable of providing for X’s day-to-day care. The evidence from Ms E in particular, which was not really challenged, indicates that the father is more than capable of attending to X’s emotional needs, particularly when she transitions into spending overnight time with him.

The mother’s support of X’s relationship with the father and her ability to co-parent with the father

1. It is very much the case of the father and the Independent Children’s Lawyer, supported by Ms E, that the court should be very concerned despite more recent compliance by the mother with Orders for X’s time with the father, that she has not and will not support X’s relationship with the father to the extent necessary for X to have a meaningful relationship with him.

2. The father bases this concern, amongst other things, on the fact that he has not seen any real change in the mother’s attitude towards working with him or co-parenting with him.  He refers for example to the mother’s tone in email communication with him via the Our Children website.  He says that on multiple occasions in response to comments he makes on that website, she has accused him of lying and suggests when he provides information about X, or updates about her progress with him or time with him, that these are inaccurate.  When he asks for suggestions or input from the mother in relation to X’s health, care and development, sometimes she does not respond or responds negatively to those requests.

3. I accept that there is much support for the father’s concerns and those of the Independent Children’s Lawyer.  There are many other examples throughout the history of this matter when the mother has displayed a lack of support for X’s relationship with the father.

The Toy Incident

1. The most concerning example in my view in this regard is what I will refer to as “the toy incident”.  Under cross-examination, the mother conceded that at the beginning of the audio, she and the grandmother were preparing X for changeover, that the recording then is of a period when the toy is clearly in the father’s home and concludes when the toy is back in the mother’s home.

2. Those logistics convince me of the truth of the father’s case that he had no involvement in the planting of that audio device and to reject the mother and maternal grandmother’s case that they were not involved or at least not aware that the device had been placed in X’s toy.

3. My observations of the mother answering questions from Mr Taylor in relation to that audio device in my view also support the father’s case in this regard.  The mother gave me the impression that she may not have been completely truthful with the court in relation to her knowledge of and/or involvement in the use of the listening device.  Generally when answering questions, the mother was quite confident, articulate and, when necessary, detailed in response.  When questioned however about the device, she was less confident, did not make the same eye contact with Mr Taylor that she did in answering other questions, and gave me the impression that she was uncomfortable answering questions about the device.

4. I had the same sense when she was asked about whether she told X, as alleged by the father, not to pay any attention to Mr Wadford.  She acknowledged, after some questioning, that it was most likely her voice that could be heard making that comment.  But again, as I mentioned earlier, her answers to those questions were not confident, she did not maintain eye contact with Mr Taylor, and her response, at best, was confusing.

5. In my view much flows from those findings including that it is an example of the mother going to extreme lengths to gather evidence to support a finding that X is at risk in the father’s home.  It also however supports a finding that there was nothing recorded on that listening device which would suggest any concerns for X’s welfare while spending time with the father, at least during that contact period.

6. The other concern that I have in relation to the toy is the father’s case which I accept that he returned it to outside the mother or grandmother’s home after removing the listening device at the police station and informed the mother that he had returned the toy.  It seems however in the mother’s case that she and/or the maternal grandmother told X that the father had kept her toy which seems to have caused X some distress.

Video footage of changeovers

1. It is the father’s case that for some time before late 2018, there were significant difficulties at changeover, particularly when the grandmother was involved in those changeovers.

2. In this regard, the court had the benefit of viewing video footage of changeovers at McDonald’s on 30 August 2017 when the grandmother was seven minutes late for changeover and although changeover occurred, it was prolonged in my view unnecessarily for a full five minutes.  On 3 September 2017, which was Father’s Day, changeover did not occur, in fact it seems clear from the video footage that despite the grandmother and mother’s case that the grandmother was in attendance that day, this was not the case.  The video shows the father inside McDonald’s at 9.30am and no sign of the grandmother.  If the grandmother was there then she arrived much later than the scheduled 9.00am changeover.

3. On 6 September 2017 the video shows the grandmother arriving at 9.36am, attempts made at changeover for a full 19 minutes, the grandmother placing herself continually between X and the father who had tried to entice X to come to him by using a balloon.  The grandmother gave evidence that when X is seen approaching the father who had the balloon, she was trying to grab for the balloon rather than go to the father, which is inconsistent with what I saw in the video.  Eventually, and I accept out of frustration, the father picked X up and went to leave the McDonald’s, he did not as the mother explained in her affidavit, snatch X from the grandmother’s arms.  The father acknowledged when he was cross-examined in relation to this incident that in hindsight he acted impetuously on that occasion, however it is also clear that the father promptly gave X back to the grandmother.

4. It is also the mother’s case no doubt informed by the grandmother who conducted changeovers at that time, that the father acted aggressively towards her at changeovers.  Whilst I accept that there was no sound accompanying the video and it is difficult to ascertain the level of X‘s distress, I saw nothing on that video to suggest that the father in any way, at least physically, was aggressive toward the grandmother and indeed having him appear in my court now on many occasions I have never found him to act in that way, nor has Ms E or any health professional he has attended in relation to X’s health.  The video that I saw, particularly of the failed changeover on 6 September 2017, shows the father often sitting down away from the grandmother and X.  I also saw the grandmother constantly placing herself between X and the father and I do not accept from the video that I saw that X was trying to grab the balloon rather than approach her father, although I accept that the balloon would have been enticing for her and I also accept that it was appropriate for the father to use a balloon as a way of encouraging X to come to him.

1. In relation to the difficulties surrounding communication, whilst I accept that Ms E is more critical of the mother than the father in this regard she does refer at paragraph 145 to both parents blaming the other for problems in the co-parenting relationship:

   145.The parents have been using Our Children's Website as a communication tool, however, they both agree that this is ineffective. The report writer did not read all of the communication between them, however, they tend to blame one another for the problems.

2. Ms Galvin was also critical of Ms E’s report in that she argued Ms E made a recommendation to move X to her father in response to the letter of instruction from Ms Lilley.  If one looks at the Orders made by Judge Vasta however, order 7 invites Ms E to comment on the following:

   7.That an updated family be prepared with the Court to bear the costs of such report. The Court requests that Ms E prepare the report if at all possible, with the following matters to be specifically taken into consideration:

   a.    The parents communication;

   b.    The mother’s alleged recalcitrance in complying with Court orders;

   c.    The effect of overnight time on the child; and

   d.    The effect of a change of residence on the child.

3. Whilst I accept that it is the mother’s case that the court should look to the last 12 month of X’s time with her father and her compliance with the current orders for time, it is still relevant in my view to record in relation to this issue, the many cancelled visits which resulted from the mother’s attendance at various general practitioners to obtain medical certificates.  I have already referred to this in relation to X’s health and with reference to Dr Q’s report however it needs to be recorded and is not in dispute, that essentially in 2017/2018 years, the mother failed to comply with orders for time resulting in 56 missed or cancelled scheduled visits totalling 64 days including all ordered overnight time and that none of the overnight time that was ordered by the court prior to that order being discharged by Judge Vasta were complied with.  I have also already referred to the 81 occasions, most of which occurred in 2017/2018 when X was presented at GP practices to obtain medical certificates.

4. All of this evidence supports in my view the very real concern of Ms E, the father and the Independent Children’s Lawyer that the mother’s support of X’s relationship with the father and her ability to co-parent are seriously wanting.  I can also conclude that, as mentioned earlier, it was not until I stood the matter down and asked Ms Galvin to take instructions from her client about whether she would reconsider introducing overnight time for X immediately, that the mother gave those instructions it seemed only when it was clear I might be prepared to move X to live with her father.  Of itself this speaks volumes about the mother’s lack of insight and supports Ms E’s concern as to whether things will change for the mother in the future. 

5. In this regard I accept as submitted by Mr Taylor, Ms E gave this evidence under cross-examination:

   a)“That it is extremely unlikely that the orders for the child’s time with the father will go smoothly”;

   b)“that this family situation is “high drama” and the usual sort of arrangements won’t work”;

   c)“That the “mother needs to change her attitude” but given the likelihood she won’t “problems will arise and the mother will stop the visits” that what I expect”;

   d)“That there will be “lots of reasons the time won’t happen”;

   e)“Lots of reasons X can’t go to Dad and I expect this will continue, something will arise to derail the overnights”.

The father’s attitude to co-parenting and his ability to support X’s relationship with the mother

1. In stark contrast to the mother, the father in my view has always acted in a way that is completely in keeping with, not only supporting X’s relationship with the mother and attempting to co-parent, but in a way that has always been in X’s best interests.

2. During these proceedings he has struggled in my view to come to the conclusion, which he has, that X’s best interests would be met by living in his home as opposed to the mother’s and I also accept that he only came to that conclusion later in these proceedings.  I also accept Mr Taylor’s submissions that the manner in which the father has conducted his case again has been child-focused.  In that regard after his cross-examination of Ms E, I commented that it showed a great deal of insight on his part that the only question he put to her was what he might do to make the transition for X to overnight time with him, or indeed to live with him, as seamless as possible, rather than using that opportunity as he could have and as most parents do in his position, to castigate the mother.

3. I understand the mother’s case generally to be, that she found the father’s communication and behaviour towards her immediately after X’s birth as aggressive and intimidating and to some extent, that framed or influenced the arrangements that she was prepared to make for the father to spend time with X, along with the fact that in her view, the father was expecting too much of what she could offer in terms of X’s time with him, given her primary care of a very young baby and what X was capable of in terms of separating from her.

4. I accept Dr Z, the mother’s obstetrician’s notes record her view that the father was someone dominant and almost controlling during the parents’ relationship.  She stood by that comment when cross-examined but did indicate that her focus at all times was the patient being the mother and that the notes record the impression she formed of the father at that time.

5. I also accept that at or around the time of separation, X’s birth and possibly for some months thereafter, the father may have acted in a way which the mother found intimidating, however there is nothing in any of the family reports, or in any of the medical practitioners reports who other than Dr S have all had contact with the father and indeed in my view even in the mother’s material which would suggest that the father has acted aggressively, has been domineering or intimidating.

6. There are many examples in my view of the father’s support of X’s relationship with the mother, his insight and his attempts to co-parent with the mother, for example, against a background where the mother, at least in 2017 and 2018 put obstacles in the way of X’s time with him, he was prepared to agree when he knew he would get no makeup time to allow X to spend time with her mother to enjoy special occasions.

7. As mentioned before, he was prepared to acknowledge when questioned by Mr Taylor that his requests for time with X and his upset at the breakdown of the relationship and his response to that may have come across as him being too intense.  He was also prepared to acknowledge that he too could make some improvements to his communication with the mother.

8. I also accept that the father has availed himself of the opportunities to spend time with X including attending or being available to attend at 229 scheduled visits, 56 of which were occasions that the visit did not occur due to the mother.  In that long period the father has only missed nine scheduled visits due to work commitments and on each of those occasions he has offered to care for X on an alternate day but the mother has refused.  He has consistently attended at the court asking that either the mother comply with the orders for time or to increase time and his commitment to having a relationship with his daughter has not abated in any way.  I have also been impressed by the extent to which the father has continued to seek information and remain involved in X’s care where often those efforts have met with significant resistance by the mother including, which is in my view not child focused or of assistance to the medical practitioners, insisting that the father only attend medical appointments by telephone.

The impact on X of a change of living arrangements

1. Ms E has made it very clear and the Independent Children’s Lawyer and the father accept as of course does the mother, that it would be extremely disruptive and emotional difficult for X to transition from her mother’ care where she has lived since she was born to live with her father with whom she has not spent any overnight time since she was born.  I would also stress however that Ms E was also of the view and expressed this under cross-examination from Mr Taylor that she would only propose X move to live with the father if, to use her words, “only if the other plan doesn’t work”. 

2. I also note with a great deal of concern the proposal of the Independent Children’s Lawyer that once living with the father, the mother’s time with X should be limited to 24 months (12 months longer than Ms E proposed) of one visit per week as well as on special occasions at D Centre.  Thereafter for six months the time would increase to from after school, or 3.00pm on Friday to 5.00pm on Saturday in each alternate week as well as Mondays in the other week extending further after six months to two nights a fortnight and then after three years, some school holiday time. 

3. Whilst not critical of the Independent Children’s Lawyer at all, who has done a very good job in this matter, I find that proposal extreme and I would be very concerned, in fact extremely concerned, about its impact on X and question whether in fact it is necessary in the circumstances of this case.

4. In that regard, whilst I have very significant concerns about the mother’s past history of supporting X’s relationship with the father despite some improvement this year, I am concerned that the mother’s compliance with orders will continue, particularly once the time progresses from one night as she proposes, reluctantly I note, to two, three and more nights per fortnight.

5. I note however that X is spending time with her father currently and she has a very good relationship with her father and generally seems to be a very happy, contented little girl.  I also understand and accept in relation to this issue Ms E’s comments that the real issue in this matter moving forward is not whether X is developmentally able to adjust to spending increasing overnight time with her father but rather the mother’s ability to support that arrangement, particularly once she is no longer under the microscope of the court and/or with the Independent Children’s Lawyer monitoring compliance with the orders.

6. Before hearing submissions in this matter, I posed to Mr Taylor an alternate proposal, namely that rather than making an order that X be placed in her father’s care or that I make a final order with provision to bring the matter back on the father’s application, that I make an interim order with a hearing date in about September 2020.  That I continue the current arrangement for X to live with her mother but make very specific orders which provide for increasing overnight time for X with her father.

7. I accept having heard from Mr Taylor that he had some issues with that and gave the impression that it was still the Independent Children’s Lawyer’s position as it seems the father’s position, that I should move X now.  Whilst the mother agreed with me making an interim order she proposed only one overnight period per fortnight in that nine month period before a final order is made.

8. Mr Taylor rightly identified the three reasons why I might make an interim order one, to introduce overnight time for X with her father, two, to test how the father might handle that overnight time and thirdly, to test the mother’s commitment to supporting orders for overnight time.  I would add however a fourth reason for making an interim order that being, and in my view this is significant, in nine or so months’ time, X will be four and a half and had the benefit of overnight time with her father including hopefully more than one overnight at a time.  At the end of that nine month period the likely outcomes are these, firstly that the mother has complied with the orders for increasing overnight time.  In those circumstances I would have more confidence in the mother’s ability to support X’s relationship with her father and might be in a position to make an order for even more time including equal time once she starts school.  The other likely outcome of course is that there has been little, if any, compliance with orders for overnight time and/or no change in the mother’s attitude to X’s time with the father in which case no doubt I could be convinced that X should be moved to her father’s care.  In those circumstances however, as I indicated earlier she will be nine months older, had the benefit of more time including overnight time with her father and hopefully the impact on her of moving from her mother’s home to her father’s home, although still significant, might be less than it would be making that change now.

9. If I was to move X to her father’s care later in 2020, it would still be prior to her commencement in Prep which of course will be another significant change for her.

10. I have also taken into account of course the submission made by the father and Ms E’s opinion that the long term effect on X of not having a relationship with both parents could include a lack of resilience and an inability to form relationships in diverse situations, however there is no evidence in my view, to suggest that this is more likely to be in X’s future if I were to move her in nine months’ time as opposed to moving her to her father’s care now.  My focus in considering an interim order is very much the significant impact on X of a move, the long period that is suggested when X would spend hardly any time with her mother and how that impact might be mitigated by her spending overnight time with her father between now and then.

The legislative pathway

1. The Family Law Act 1975 (“the Act”) requires the Court to make final parenting orders that are in the best interests of the child, and sets out the legislative pathway the Court must follow to achieve this.

2. This pathway, guided by the objects and principles in s.60B, has its starting point with the Court’s consideration of the matters set out in s.60CC(2) and s.60CC(3) (the primary and additional considerations).

3. The Court must then consider parental responsibility. The law presumes that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility: s.61DA. However, this presumption is rebuttable, and might not be applied in the context of the Court’s findings of family violence or abuse: s.61DA(2).

4. If the presumption is rebutted, the Court is bound to frame orders in the best interests of the child, subject to the factual matrix of the case. If the presumption applies, the Court must determine whether it is in the child’s best interests and is reasonably practical (considering the factors set out in s.65DAA(5)) to: first, make an order for equal time; or, if that fails; second, make an order for substantial and significant time: s.65DAA and MRR v GR (2010) HCA 4).

5. I have identified above the issues that in my view are the most relevant and significant of the s.60CC factors. They include the need for X to have a meaningful relationship with both her parents, that I could not identify any risk of harm to X by spending overnight time with her father however, there is a risk to her emotional development in the long term if her mother does not support her relationship with her father.

6. In relation to s.60CC(3)(j) which requires me to consider any family violence, whilst the father acknowledged, as mentioned earlier, that he may have come across in the months after X’s birth as intense and that the mother attended at a domestic violence service, there is no evidence in my view to suggest that X has ever been exposed to family violence or would be exposed to family violence in the mother or father’s home.

7. Of course I must also take into account given that I am considering making an interim order, s.60CC(3)(l) that I should make an order that would least likely lead to the institution of further proceedings.  I am for all of the reasons set out above, of the view that it would be more in keeping with X’s best interests to make an interim order rather than a final order.  Whilst I note that this will involve possibly a further trial in September 2020, the alternate proposal of the Independent Children’s Lawyer was in effect to give the father the ability to bring a further application to the court within two years of the making of a final order without the need to satisfy either myself, or any other Judge, that there had been a change in circumstances.  Given the concerns about whether the mother will comply with orders for overnight time, it may be inevitable but hopefully not, that in some form of other, whether it is another final hearing or the father commencing another application, it seems that there will be further litigation in relation to X.

8. It may be that X will not need to be interviewed again by Ms E, that would very much depend on how the time proceeds over the next nine months or so.  That can be addressed at a mention of the matter prior to the trial when I would hear from, particularly Ms Lilley, in that regard.

9. Taking into account then those additional factors, I am of the view that it is in X’s best interests to make an interim that that she continue to live with her mother but to immediately start spending overnight time with her father with that overnight time to increase every three months.  That I will also list the matter for further hearing in September 2020

Parental responsibility

1. Section 61DA prescribes a presumption that it is in the best interests of X for orders to be made for her parents to have equal shared parental responsibility, unless there are reasonable grounds for me to believe that the mother or father has engaged in family violence, or abuse of X. I have already indicated that there is no evidence of family violence and certainly no evidence of abuse and therefore the presumption of equal shared parental responsibility is not rebutted.

2. The father and Independent Children’s Lawyer still press however for an order for him to have sole parental responsibility in relation to X’s health.  I must admit to still being somewhat confused about how the father’s concerns that the mother might use X’s health as a reason to not comply with the orders including, in particular, for overnight time, could be satisfied with an order for sole parental responsibility.  There is no suggestion for example that X attend at another specialist or that Ms T not continue her treatment of X or Ms U not continue to act as her dietician.  There is an order that she is to be taken to the Suburb N Medical Practice.  I do intend however making various orders that will allow for the father to attend at medical appointments rather than attending by telephone.

3. It also seems somewhat impracticable in my view to make an order for the father to have sole parental responsibility for health if she is continuing, as she will by my interim orders to live primarily with the mother.

4. Having said that of course, if in September 2020 X’s health and the issue of parental responsibility continue to be a problem and I make an order that places X in her father’s primary care, I accept that an order that gives him sole parental responsibility for health would also be in X’s best interests.

5. I turn then to the father’s application that X’s surname be hyphenated to include both his and the mother’s surnames.  I accept that there really wasn’t any evidence given at trial in relation to this issue however I understand the reasons the father argues for a change of name.  Certainly if there is to be a change of name that should happen prior to her commencing at Prep, so again I will revisit if necessary this issue in September 2020 while making a very strong suggestion to the mother that, at least at the moment, I think there is a lot in the submissions and arguments the father makes to support the court making that order.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Spelleken

Date:  16 December 2019