Williams and Hatheway

FAMILY COURT OF AUSTRALIA

WILLIAMS & HATHEWAY

[2019] FamCA 218

FAMILY LAW – CHILDREN – Parenting – Where the mother alleged the father to have sexually interfered with or groomed the child – Where there is no evidence before the court to support that claim – Where the parents have poor communication and a fraught co-parenting relationship – Where the single expert encouraged the Court to make interim orders pending further therapeutic intervention for the parents – Where the matter was part-heard – Order for sole parental responsibility for the mother – Order for the father to have time with the child – Order for both parents to seek therapeutic intervention.

APPLICANT:

Mr Williams

RESPONDENT:

Ms Hatheway

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

7523

2013

DATE DELIVERED:

11 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

20, 21, 22 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Apelbaum

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED PENDING FURTHER ORDER
Parental responsibility

That the mother have sole parental responsibility for the child, Z born … 2013 (“Z”).
That as soon as practicable, and where possible at least 21 days before making a decision, the mother notify the father of any proposed decision concerning Z’s education, including but not limited to any proposed decision which relates to:
(a)A change in the school which Z is attending;
(b)The secondary school in which she intends to enrol Z;
(c)Any serious disciplinary issue or behavioural issue concerning Z;
(d)Any concern expressed by Z’s school from time to time about a learning difficulty or special need on Z’ part.
That as soon as practicable, and where possible at least 21 days before making a decision, the mother notify the father of any proposed decision concerning Z’s health, including but not limited to any proposed decision which relates to:
(a)Any referral for Z to consult a specialist medical practitioner;
(b)Any referral for Z to consult an allied health professional;
(c)Any operation or surgical procedure for Z;
(d)Any change in Z’s usual general practitioner.
That the father shall be responsible for the daily care, welfare and development of Z when Z is spending time with the father.
That the mother shall be responsible for the daily care, welfare and development of Z when Z is living with the mother.
That Z live with the mother when not spending time with the father pursuant to these Orders.
That from the commencement of these Orders until the end of school term 4 in 2020, Z spend time with the father as follows:
(a)Each Wednesday, from after school (or 3:00pm during school holidays) until 6:30pm with Z being returned to Organisation A at Suburb B (“Organisation A”);
(b)Each alternate Sunday from 9:00am until 7:00pm (or such time as can be facilitated for changeovers by Organisation A);
(c)Until the father has completed 3 therapy sessions with Mr C pursuant to Order 30 herein, or six months from the date of these Orders whichever occurs later, on one Sunday each month, not being the Sunday referred to in Orders 7(b) or 8 from 3:00pm until 5:00pm, at Sydney Children’s Contact Service with such time to occur as “supported time” with that Service. In the event that there is any dispute about the Sunday on which contact is to occur in accordance with this Order, then the Independent Children’s Lawyer shall nominate the date in conjunction with Sydney Children’s Contact Service and as convenient to that service;
(d)At the expiration of six months from the date of these Orders, provided that Mr C has advised the mother and the Independent Children’s Lawyer in writing that the father has attended three therapy sessions, contact shall occur in accordance with Orders 7(a) and (b).

Special occasions

That if Z is not spending time with the mother on the weekend which includes Mother’s Day, the time with the father on that weekend only shall be suspended.
That if Z is not spending time with the father on the weekend which includes Father’s Day in 2019 or 2020, then provided that the father can arrange for Organisation A or a private supervision service to conduct changeover Z spend time with the father from 9:00am until 7:00pm on that day.
That if Z is not spending time with the father on Z’s birthday, then provided that the father can arrange for Organisation A or a private supervision service to conduct changeover, Z spend time with the father for a period of 4 hours commencing at 1:00pm and ending at 5:00pm.
That in 2019 and 2020 provided that the father can arrange for Organisation A or a private supervision service to conduct changeover Z spend time with the father on Christmas Day (or in the alternative, on Christmas Eve) for a period of 4 hours commencing at 1:00pm and ending at 5:00pm.

Change of care

That change of care shall take place where a venue for change of care is not specified, as follows:
(a)If Z is being returned to or collected from school, change of care shall take place at Z’ school;
(b)If change of care is taking place on a day or at a time when Z is not attending school, change of care shall take place at Organisation A in Suburb B;
(c)If Organisation A at Suburb B is not available, changeover shall take place under the supervision of a private supervision service, the cost of which shall be borne by the parents in equal shares.
That each parent comply with all directions and requirements of Organisation A in Suburb B for use of their service for changeover.

School

That for the purposes of these Orders a reference to Z’s school shall mean and include any school in which Z is enrolled from time to time.
That nothing in these Orders is intended to prevent Z from being in contact with the father on any occasion when the father is attending a school event or function or otherwise attending at the school.
That if Z is involved in or participating in any activity or event at the school which parents are invited to attend, the parent who had care of Z on the morning of the activity (“the caring parent”) is at liberty to attend the activity or event and the other parent (“the non-caring parent”) is hereby restrained from attending unless:
(a)The caring parent will not be attending the activity or event in which case the non-caring parent may attend;
(b)The parents agree in writing not less than 7 days prior to the activity or event that both the caring parent and the non-caring parent will attend the activity or event;
(c)If agreement is reached that both parents will attend the activity or event then the father is hereby restrained from approaching the mother or being within 10 metres of the mother at all times.
That as soon as practicable but not less than 14 days prior to the activity or event in which Z is involved or participating at the school, the caring parent shall notify the non-caring parent whether or not the caring parent will be attending the activity or event.
That these Orders do not prevent either parent from attending a parent/teacher interview at the school and both parents shall be entitled to attend separate parent/teacher interviews.
That the father and the mother are both authorised to receive from Z’s school the following:
(a)Copies of all emails, newsletters and other correspondence usually sent to parents of students attending the school;
(b)Any correspondence from the school specifically pertaining to Z, including copies of certificates or awards;
(c)Copies of Z’s school report issued from time to time;
(d)School photograph order forms.

Extra-curricular activities and social events

That if Z is participating in any extra-curricular activity, such as weekend sport, the parent who has care of Z at the time of the activity (“the caring parent”) is responsible for ensuring Z attends the activity and the other parent (“the non-caring parent”) is hereby restrained from attending such activity.
That if Z receives an invitation to a social event or function, and that social event or function occurs at a time when Z will be in the care of the other parent, the parent who has care of Z at the time when the invitation is received shall forthwith send the invitation to the parent who will have care of Z at the time of the event or function and that parent shall be responsible for responding to the invitation on Z’s behalf.
That the father and the mother will use their best endeavours to ensure that Z attends social events and functions to which he is invited, in particular social events and functions involving Z’ friends and extended family.
That if the parent who will have care of Z at the time of the social event or function is unable or unwilling to take Z to the social event or function, then that parent shall notify the other parent who shall have the option of taking Z to and collecting Z from the social event or function, or in the case of a social event or function to which a parent has been invited, accompanying Z to the social event or function.

Exchange of Information

That except in the case of emergency, the father and the mother shall communicate with each other about issues concerning Z by email.
That in the case of an emergency concerning Z, the father and the mother shall communicate with each other by text message.
That in the event of any medical or other emergency concerning Z, the parent who has care of Z shall notify the other parent of the nature of the emergency, and if the emergency requires hospitalisation, the name of the hospital where Z will be treated, as soon as practicable and in any event within 30 minutes of the emergency occurring.
That if the emergency concerning Z requires medical treatment or hospitalisation, and at the time of the emergency Z is in the father’s care, the mother shall be at liberty to attend the medical practitioner or hospital to authorise any medical treatment and upon the mother’s arrival, the father shall depart if requested by the mother.
That the father and the mother shall keep each other informed at all times of their residential address and contact details, including email address and telephone number for text messages.
That the father and the mother shall notify each other of:
(a)Any proposed change to their residential address not less than 28 days before the move to the new address takes place;
(b)Any change to their email address or telephone number for text messages within 48 hours of the change taking place; noting that this Order does not entitle the mother to change Z’s place of residence so as to make it significantly more difficult for the child to spend time with the father.

Therapy

That the father shall engage in therapy with Mr C, psychologist, to address the concerns about the father identified by Dr D in the Single Expert Reports herein and:
(a)The father shall attend therapy sessions at the frequency directed by Mr C;
(b)The father shall comply with all reasonable directions made by Mr C in relation to work to be done by the father between sessions;
(c)The father shall comply with all recommendations made by Mr C , including attending any courses or programs;
(d)If Mr C requests that Z attend a joint session with the father, the father arrange this session on a day when Z would otherwise be in his care and facilitate Z’ attendance at the session.
That after the father has attended therapy with Mr C for a period of 6 months, the father shall arrange for Mr C to provide a letter confirming whether the father has been attending therapy at the frequency determined by Mr C and whether Mr C recommends that therapy continue, and the father shall provide this letter to the mother and to the Independent Children’s Lawyer.
That within 14 days of these Orders, the mother shall engage in therapy with a Child & Family Psychologist agreed between the mother and the Independent Children’s Lawyer to address the issues about the mother identified by Dr D in the Single Expert Reports herein and:
(a)The mother shall attend therapy sessions at the frequency directed by the psychologist;
(b)The mother shall comply with all reasonable directions made by the psychologist in relation to work to be done by the mother between sessions;
(c)The mother shall comply with all reasonable recommendations of the psychologist, including attending any courses or programs;
(d)If the psychologist requests that Z attend a joint session with the mother, the mother facilitate Z’s attendance at the session.
That each of the mother and the father shall each be responsible for payment of the costs of the therapy with his or her own psychologist, including for any joint session with Z.
That each party shall be liable for the cost of any report prepared by his or her therapist pursuant to these Orders.
That the father shall authorise Mr C to liaise with the mother’s psychologist and the Independent Children’s Lawyer in relation to the therapy being provided to the father within 14 days.
That the mother shall authorise her psychologist to liaise with Mr C and the Independent Children’s Lawyer in relation to the therapy being provided to the mother within 14 days.
That the Independent Children’s Lawyer shall have leave to provide Mr C and the mother’s psychologist with copies of the following documents:
(a)The Single Expert Reports prepared by Dr D;
(b)The Reasons for Judgment;
(c)These Orders.

Restraints

That each parent is hereby restrained from denigrating the other parent or speaking in a derogatory or insulting way about the other parent in Z’s presence or hearing.
That each parent shall use their best endeavours to ensure that no third party denigrates the other parent or speaks in a derogatory or insulting way about the other parent in Z’s presence or hearing, and if such conduct continues to occur the parent shall immediately remove Z to a place where he cannot hear the conversation.
That each parent is hereby restrained from discussing the issues in these proceedings and any other aspect of these proceedings with Z.
That each parent is hereby restrained from showing Z any document prepared during these proceedings and is further restrained from allowing Z to view such documents.

Appointment of Independent Children’s Lawyer

That the appointment of the Independent Children’s Lawyer shall be extended to 31 January 2021.

Birth Certificate

That each parent forthwith do all acts necessary for the child’s name on his birth certificate to be “Z Williams Hatheway” and for the name of the father to be included on the birth certificate as Z’s father.
That the father pay the costs associated with the alterations to Z’s birth certificate.

Procedural Orders

That this matter be adjourned, part heard, before the Honourable Justice Rees.
That pursuant to s 62G of the Family Law Act 1975 (Cth) a Family Report be prepared by a Family Consultant nominated by the Manager of Child Dispute Services in relation to these arrangements.
That there be a review of these arrangements in 2020 by a Family Consultant, such report to be prepared so as to be available by 15 October 2020 if possible.
That for the purpose of this review each party shall arrange for a report to be prepared by his or her treating therapist, not later than 4pm on 1 September 2020, detailing the following matters:
(a)Whether each of the parties has been attending therapy at the frequency determined by the therapist;
(b)Whether each of the parties has complied with all directions made by the therapist for work between sessions;
(c)Whether each of the parties has complied with all recommendations made by the therapist;
(d)Whether, in the therapist’s view, each party has satisfactorily addressed the concerns raised by Dr D in her Single Expert Reports;
(e)Whether the therapist considers the party they are treating should continue to engage in therapy and if so, the anticipated period of further therapy.
That each party shall arrange for a copy of his or her therapist’s report to be provided to the other party and the Independent Children’s Lawyer who shall provide copies to the Family Consultant.
That the reports of the therapists may be tendered in the final hearing.
That the matter be listed for hearing for two days commencing on 2 November 2020.
That each party file and serve any affidavit on which he or she seeks to rely not later than 4pm on 1 September 2020, noting that each party will be permitted to file one affidavit only by him or herself and by each witness and no further affidavits shall be filed without the leave of the Court first obtained.
That liberty be granted to the Independent Children’s Lawyer to relist the matter by arrangement with the Associate to the Honourable Justice Rees in the event of any procedural matter requiring further orders or any difficulty in making arrangements for supervision of changeovers.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Costs of the Independent Children’s Lawyer

That within 6 months of the date of these Orders, the mother pay to the Legal Aid Commission of NSW the sum of $6,836 on account of the costs of the Independent Children’s Lawyer.
That the father, within seven days of the date of these orders, submit an application to waive fees to the Legal Aid Commission of NSW. In the event that the application is unsuccessful, then the father shall, within 28 days of being so notified, file and serve a Financial Statement and any written submissions he wishes to make in relation to the issue of the costs of the Independent Children’s Lawyer and the Independent Children’s Lawyer’s application for costs will be determined in chambers.

IT IS ORDERED BY CONSENT AND WITHOUT ADMISSIONS

That the father shall not enter the mother’s property at G Street, Suburb E.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams & Hatheway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7523 of 2013

Mr Williams

Applicant

And

Ms Hatheway

Respondent

REASONS FOR JUDGMENT

Mr Williams (“the father”) and Ms Hatheway (“the mother”) are the parents of Z who was born in 2013 and is now six years old.
He’s parents met in about mid-September 2011. The relationship had its ups and downs. There were periods of separation, some during the pregnancy. The mother sought, but did not get, an Apprehended Domestic Violence Order (“AVO”). They lived together only briefly in the mother’s home from 18 December 2012, just before Z was born. After Z was born, they argued over aspects of his care including nappy changing and care and breast and bottle feeding, the father asserting that the mother was in need of assistance and the mother asserting that he was inappropriate and intrusive. The father criticised, and corrected, the mother’s breast feeding technique.

The parents separated on 18 February 2013, when Z was a baby of about four weeks of age. The father left the home.
Since that time, Z has lived with his mother and had very limited time with his father.
On 10 March 2013, at the mother’s home, there was an altercation when the mother complained that the father had arrived late to see Z. The mother alleged that the father left and then sent a text message saying that he did not want to be listed on Z’s birth certificate as his father. The father did not, in fact, sign Z’s birth certificate until mid-2018 and has still not been registered as his father.
The father deposed that he sent the mother a text message after separation suggesting that she seek professional help so that an arrangement could be made for him to spend time with Z. He received a telephone call from the police advising him not to contact the mother except through lawyers. The father instructed lawyers in April 2013. No contact could be negotiated. Mediation was attempted.
Family law proceedings in relation to Z commenced in the Federal Circuit Court in December 2013.
On the first return day of the parenting proceedings in March 2014, Consent Orders were made for Z to spend time with the father for two hours each Sunday, professionally supervised.
Those orders were varied by agreement in August 2014 when Z’s time with his father was extended to unsupervised time on Tuesday mornings for three hours and on Sundays, initially for three and a half hours and then extending to eight hours.
On 20 November 2015, the father sent the mother an email stating that he intended to “withdraw my case”. He wrote:
After Tuesday 15 December 2015 I will discontinue all visits with Z.
In the meantime it would be best for Z if out [sic] arrangement is phased out.
Also in the event of high temperature (≥28C) the visit should be cancelled.
I suggest a schedule such as this one –
Sunday 22nd November:      8-4pm
Tuesday 24th November:     cancelled
Sunday 29^th November:       8-12pm
Tuesday 1^st December:        cancelled
Sunday 6^th December:         8-12pm
Tuesday 8^th December:        cancelled
Sunday 15^th December:       8-12pm. After this point there will be no more visits, and no further contact will be maintained.
Your input regarding the schedule is welcome, but after 15th December 2015, I expect to have no further correspondence with you or Z.
It would appear from the subsequent correspondence between the parents on 21 and 22 November 2015 that the father did not intend to stop his contact with Z but to gain some concession from the mother which his lawyer had not been able to achieve. The mother, on 24 November 2015 emailed the father expressing her sadness and suggesting he speak to the Independent Children’s Lawyer (“ICL”) and keep his relationship with Z going.
Notwithstanding his communication, the father arrived to collect Z on 24 November. When the mother queried his attendance, the father told her that his email was a proposal only and that she should have responded. In cross- examination, the father did not appear to comprehend that his behaviour on that occasion was exceptional, and distressing to the mother, or objectively unreasonable.
The father continued to spend time with Z.
The parents maintained a running disagreement about whether the father, who travelled to see Z by public transport, could leave his musical instrument in the mother’s house while he took Z out for their scheduled visit. That disagreement appears to have been conducted in front of Z.
The father and Z continued to spend time together.
On 26 August 2015, a Family Report was prepared. That report provides an analysis of the family at that time. It sets out the various concerns expressed by each of the parents and recounts the reporter’s observations of Z at that time.
The Family Consultant conducted interviews with the family in June 2015 at which time Z was about two and half years old. At that time Z was spending time with his father on Tuesdays between 8am and 11am and on Sundays between 8am and 4pm. The mother’s proposal for Z to spend time with his father was that the current arrangement should continue with a view to the time gradually increasing in the future. The Family Consultant noted that the mother said that she wished to promote Z’s time with his father but also wanted to ensure that Z was being well looked after. The mother had previously expressed concerns to the Family Consultant that the father did not ensure that Z drank sufficient fluids or went to the toilet.
The father told the Family Consultant that he doubted the mother’s sincerity in wanting to promote Z’s relationship with him and said that he believed the mother was deliberately obstructive and subtly discouraging of Z spending time with him.
In relation to Z’s relationship with his father the Family Consultant observed:
[The mother] brought [Z] to the waiting area to greet [the father]. [Z] seemed pleased and excited to see his father and ran to him. He seemed happy to be picked up and cuddled by [the father]. [Z] seemed a little confused when [the mother] stayed in the waiting area while he was taken into the room where the observation was to be held with his father. He was responsive to his parents’ reassurances and seemed comfortable being carried by [the father] …
[Z] seemed quiet relaxed when he came into the (now familiar) room with his father. [Z] chatted about Mummy in the waiting room and mentioned Mummy a few times as [the father] tried to engage him in play. [Z] showed interest in the play but did not stay with an activity very long. At one stage he went to the door, still talking about Mummy in the waiting room. He eventually responded to [the father’s] attempts to distract him. He did not seem distressed. [Z] seemed happy to play and chat with his father. He seemed more settled and the atmosphere was quiet and relaxed.
The Family Consultant commented on the extent to which the father’s work schedule impinged upon his availability for Z to spend increasing time with his father but recommended that when Z started pre-school it may be possible for him to spend overnight with his father. She stated:
When this starts, consideration can be given for this arrangement to occur fortnightly rather than weekly, which will allow [Z] to spend alternate weekends with his mother.
The Family Consultant recommended that changeovers not take place between the parents at their homes and that the father attend a parenting course for young children, such as Triple P and that he also consider engaging with a service such as Tresillian to help him with his routines with Z.
On 16 February 2016, the mother observed Z to be behaving in a manner that she immediately believed to be indicative of his having been sexually abused or groomed for abuse. She unilaterally stopped contact between Z and the father and filed an Application seeking to suspend the operation of contact orders and a Notice of Risk. The father filed an Application – Contravention.
On 25 June 2016, orders were made for the father to have supervised time with Z, initially with a supervision agency and, when they became available, with Organisation A. Thus supervision reports have been available in relation to the father’s interaction with Z covering nearly three years.
The father requested paternity testing. In cross-examination he did not concede that this would have been both insulting to the mother and distressing for her. He said that he had no concrete proof that he was Z’s father although he believed he was.
A further report was prepared by Dr D, a child and family psychiatrist, in March 2017. The father told Dr D that the request for paternity testing was in retaliation for the mother having involved the police at the time of separation. At that time, Dr D recommended that Z’s time with his father no longer be supervised although the changeovers should continue to be facilitated.
However, until June 2018, Z’s time with his father was professionally supervised. After June 2018, handovers were facilitated by a contact centre and some sessions of contact were observed and reports prepared.
Unsupervised day time contact between Z and his father commenced by virtue of Orders made on 25 June 2018. In October 2018, Z’s time with his father increased so that by the commencement of the hearing he was spending time with his father each Sunday for a period up to three and three quarter hours.

THE HEARING

The father relied on an affidavit sworn by him.
The mother relied on an affidavit sworn by her.
An ICL had been appointed for the child.
Dr D, a child and family psychiatrist, prepared a report as a single expert in March 2017 and updated that report for the purpose of the hearing.
The father sought orders for equal shared parental responsibility and time with Z on each Wednesday from after school until Thursday, from Saturday to Monday morning in the first week of each two week cycle and, in the second week from Sunday until Monday morning, together with half of all school holiday periods and special occasions.
The mother sought an order that she have sole parental responsibility for Z and that he spend time with his father during day time only on alternate Sundays and Wednesdays with an overnight visit each month from Saturday until Sunday. In relation to school holidays, the mother sought a graduating program starting with three consecutive nights in each holiday period for two years, extending to five nights for a further two years and then, after four years, to half of the school holidays.
In the alternate, if the Court found that the father posed an unacceptable risk to Z, the mother sought indefinite, professionally supervised contact.
The mother’s case, as set out in the Case Outline Document filed on her behalf was:
The Mother asserts that the child has either been sexually abused by or has/is being groomed by the Father.
The Mother does not support the Father having unsupervised time with the child.
The father denied any suggestion of inappropriate behaviour with or towards Z.
The mother’s allegation that the father had either sexually abused Z or was grooming Z for future sexual abuse was central to the issue of whether Z’s time with the father should, in future be supervised.
In the event that it were determined that there was no unacceptable risk of abuse, then it remained necessary to determine how the contact between Z and the father should progress and whether, as Dr D ultimately recommended, there should be a further consideration given to the progress of the parents’ therapy before overnight time commenced.
Dr D’s report and her oral evidence went to both of those issues.

THE EVIDENCE OF DR D

Report dated 10 March 2017

Dr D, a child and family psychiatrist in private practice, prepared a report at the request of the Court. She interviewed the family on 24 and 25 January 2017.
Dr D observed an enthusiastic and exuberant meeting between Z and his father.
Dr D interviewed Z, who was then four years old. In relation to a conversation about daddy being “scary” Z responded “no, never ever, …” Dr D reported:
Asked if he would like to visit Daddy’s house, he replied “yes” without hesitation. He was aware Dad lived with Grandma and Grandpa and he would like to see them.
To a query if dad was “nice or cranky?” he declared “nice, funny, very, very funny”.
In relation to her interview with and assessment of the mother, Dr D stated that the mother seemed to become tearful when discussing her thoughts about “grooming” and was obviously anxious when asked what she would do if orders were made for Z to have unsupervised time with his father. The mother told Dr D that she believed Z should be supervised and acknowledged that she had contravened orders when, in February 2016, she had stopped Z spending time with his father.
The mother told Dr D that the father “was relentless in his want to abuse, has to be exactly his way or highway”.
Dr D reported:
Discussing her thoughts about [the father] “grooming” [Z], [the mother] stated he was “doing things to [Z], pose (them) … as being enjoyable, special (to) make it easy for him to sexually abuse [Z]”. She added “a minor part” was promising [Z] presents.
Dr D reported:
Describing events which have concerned her, [the mother] reported in 2015 [Z] had returned about four times “spaced out” from being with [the father]. He was said to have ‘a very red anus’ and his clothes had been changed without any explanation from [the father] why the first set of clothes were wet. [Z] had been uncomfortable, not itchy, and had no noticeable “tears, bleeds, worms” around his anus.
She did not take him to the GP about his bottom and had wondered if [the father] had been wiping him too roughly. She said she was worried and noticed [the father] spending a lot of time strapping [Z] into his car seat – “it looked like he was fondling around [Z’s] genitals”.
[The mother] mentioned [the father] had “once put his fingers up, poking [Z’s] bottom” at a handover. In 2014 he had been teaching [Z] “the rude version of pop goes the weasel” and, in front of [Z], he allegedly gestured ‘pop to his bum’ while telling her about the song.
The last occasion [the mother] observed [Z] with a “red anus” was two days before he began touching himself, in February 2016. She reported she had become “suspicious” while reading to [Z] in bed and he started to repeatedly trace his fingers up the inside of his legs over his crotch to his abdomen.
Thinking these actions were “adult like” she asked [Z] what he was doing and he explained it was a “trick” taught by his father. She denied [the father’s] version of what he had taught [Z], saying he had only shown her how he was teaching [Z] about crossing his arms.
[The mother] declared it was inappropriate for [the father] to be stroking up the inside of [Z’s] legs into his private parts. The “whole thing was strange, so controlled, extraordinary to see a three year old do” and, when [Z] referred to it as a ‘trick’ Daddy showed him, she became more alarmed.
Dr D asked the mother if Z had exhibited any other behaviour which caused her concerns about sexual abuse and the mother stated:
…after contact recommenced, [Z] three times asked her if he was having a sleep at Dad’s, which made her wonder if he did not want to sleep there. She reported, when [Z] had his day sleep, [the father] use [sic] to get into the cot with him.
Dr D noted that the mother said:
During the second episode of [Z] running his finger up his leg to his abdomen, about two weeks after the first, [Z] held his penis with one hand. [The mother] reported no one has spoken to [Z] about her concerns. She stated she thought [Z] would be safe from sexual abuse when he was about twelve years old.
In relation to her conversation with the father Dr D noted that the father’s position was that he would like time with Z all day on Sunday as well as Tuesday mornings between 9:30am and 12:30 pm which suited the father’s work schedule.
In relation to the father’s asking for a paternity test in relation to Z Dr D reported:
He explained he had asked for a paternity test “to be difficult”, although the paternity question had crossed his mind because [the mother] had private conversations with men and did not include him while she was with her friends. He denied checking her messages but, if she got one and he took her the iPhone, he would see who it was from ... [The father] volunteered his request for a paternity test was ‘a minor retaliation’ because [the mother] had contacted police and twice sought AVOs, although she had continued to contact him and send photographs during the pregnancy.
Dr D reported:
Describing himself, [the father] stated he has learnt he cannot always reason with people. He thought he was “somewhat loquacious, like to talk about my own thing, bit self-absorbed, all about me, goes on for too long” (and he does not ask about the other person). He stated he was concerned about his health … He enjoyed his music and set long term goals.
He reported he will “respond to frustration with frustration”, but this was decreasing as he had been “becoming more thoughtful”. While he did not think he was aggressive, he was ‘often angry’ and uses exercises to help himself self-regulate. He added he “might be aggressive (by) talking too much”, if he does not feel listened to by his parents.
In relation to the mother’s description of Z’s “tracing” Dr D recorded:
[The father] was adamant he traced up the outside of [Z’s] body from foot to finger, while teaching [Z] left and right sides of the body, and then showed him crossing across his body. He said when he showed [the mother], she had commented it looked “camp”. He reiterated he did not trace up the inside of [Z’s] legs to his groin.
Demonstrating the movements he had attempted to teach [Z], [the father] stood with feet apart. He had bent to run his hands up each leg, across his trunk around the pelvic area and ended up with his widely stretched arms above his head (in an X shape).
In relation to his November 2015 proposal to withdraw from spending time with Z Dr D reported:
[The father] said he was “not fully serious”. He described being unable to talk to [the mother], really hurt [Z] had to bring his toys out of the house to show him and nothing seemed to be changing. He had wanted to see how [the mother] would react to his proposal and still seemed surprised she had immediately accepted it.
In her summary Dr D stated, in relation to Z:
[Z] presented as a bright, active four year old with good language development and age appropriate self-regulation. He was clearly attached to both of his parents: his mother provides him with security (he would not be afraid if she was around), while he enjoyed his father’s humour and interested in him (Dad was “very, very funny”).
[Z’s] developmental strengths reflect the positive care he has been given by [the mother]. Despite the variable and, currently, minimal amount of time he has with [the father], [Z] has been able to maintain a good connection to him.
However, [Z’s] parents have been unable to provide him with an experience of amicable co-parenting. They have both attempted to control how the other has engaged with Z and he has been exposed to overt conflict between them.
In relation to the mother’s express concerns about Z presenting with redness around his anus Dr D stated:
There has been focus on [Z’s] toileting throughout his life (possibly since he had an anal “tear” before (his parent’s separation). His diagnosis aged four months with ‘cow’s milk protein intolerance, gastroesophageal reflux disease, sleep disturbance… probably compounded issues about his care between his parents, leading to disputes about where and when to change his nappy, how much cream to use, where the potty should be placed.
There is a significant background history. On 19 March 2014 [the mother] stated in a referral information to [H Group] that ‘[Z] can get upset when nappy is changed anywhere other than home or another familiar home’. At this time he had not seen his father since he was four weeks old.
Not surprisingly, [Z] later had intermittently wanted his mother to assist him with toileting in his father’s home. On 15 November 2014 she indicated to [J Childcare] [Z] developed a “nappy rash easily, especially after a poo”. In January 2015, [the mother] sent an email to [the father] stating [Z’s] ‘bum has been getting a bit irritated and he’s been trying to scratch it’. She reported [Z] had an inflamed anus on 2 occasions at the end of 2015 after he spent time with his father.
In January and February 2016 [the mother] has twice observed [Z] with a “very red anus”. He had been noted at day-care to not want his bottom wiped by staff and had several episodes of daytime enuresis while with his mother and at day-care. [Z] was only just three at that time and his behaviour was not unusual for his age.
His mother’s prescriptive behaviour about how to toilet [Z], combined with her anxiety about abuse and the disputes whether a supervisor or his father should assist him while he was on the toilet, have resulted in [Z’s] avoidance of toileting during his time with his father.

In relation to the mother Dr D noted that she presented as a committed parent:
… who has been anxiously attentive to [Z]. She has a markedly significant adverse developmental history, which could be considered a “conflicts trauma history”… She experienced an absent father, emotionally abusive and neglectful parenting by her mother before her mother’s death when she was nine, her stepfather’s suicide, and absent neglectful guardian during her adolescence and, when aged nineteen, the trauma of finding her most significant caring adult dead.
Dr D commented:
Other historical events which could have increased [the mother’s] apprehension about [Z] was his unexpected pregnancy when she was forty… he was an unsettled baby and she felt unsupported when she went to Tresillian and [Z’s] early illnesses (lactose intolerance, atopic skin, asthma,) which required regular medical attention.
[The mother] stated in the strongest terms her fears about [the father], reporting he was “isolated”, “relentless”, “obsessive”, “stress sensitive” and unpredictable, which she anxiously interpreted as making him a potential cause of lethal harm to her and [Z]. While the presence of significant anxiety typically causes an overestimation of danger, it is important to note subjective perception and not lethality validity determines trauma for an individual.
Dr D examined the records produced by the NSW Police noting that the records related to multiple complaints about the father in 2014 which the police regarded as trivial and that the mother said although she wanted an AVO against the father she held “no fears” about him. Dr D noted the police believed that the father had committed no offences. The records examined by Dr D indicated contact with the police on 26 August 2014 and 7 September 2014. Dr D stated:
There were no further contacts with the police until 21 February 2016 when [the mother] described “concerns for her son’s welfare and her own safety…believes that her ex-partner is sexually abusing her son.”
She was said to fear when “he finds out about her report to [DFCS] he will kill her” The police stated there was no history of assault and [the mother] provided no “logical answer” why she feared being killed’. They evaluated there were “nil” concerns.
When interviewed by a detective, [the mother] had indicated she thought [Z] having an “extremely red” anus meant his father had “interfered or penetrated [Z]”. She had not discussed this with her GP, who [Z] saw “at least once a week, sometimes twice”. She had not wanted [Z] interviewed because he “could be led”.
Generally in relation to the mother Dr D stated:
[The mother’s] relationship with [the father] had been brief and never developed into a healthy, mature one. It seemed to have repeated or, at the least, reactivated her feelings from her early experiences of being undermined and unsupported, neither receiving loving attention nor understanding of her as an individual.
She has been left with unresolved attachment issues. Did she become over vigilant, experiencing his actions as abusive because she had developed a cognitive bias that his misattuned unempathetic behaviours were similar to her childhood traumatising, abandoning and unpredictable caregivers?
[The mother] does not meet criteria for a psychiatric diagnosis. However, she is an anxious parent with obsessional traits and unresolved issues about loss in relationships. These issues have been compounded by [the mother] having to share [Z].
She has conflicted wishes about wanting [Z] to have a father and the risk of having a relationship (which brings loss/neglect/abuse/disappointment). She is isolated, with her emotional supports at a distance/of note is her preference to use an emergency telephone service in a crisis rather than develop an ongoing therapeutic relationship.
It would be wise for [the mother] to engage in long term psychotherapy, to have a safe relationship in which to reflect and learn about positive relationships.
In relation to her assessment of the father Dr D stated that the father:
...presented as being single minded in his expectations but rather unaware of social nuances in interpersonal relationships, including understanding boundaries. He seemed to take his idea of what was ‘reasonable’ as the standard measure and to fixate on his goal of achieving security by buying his own home at the expense of being flexible about spending time with [Z].
Perhaps [the father’s] sense of insecurity and awareness of his lack of friendships are the result of him having to become prematurely self-sufficient because of early childhood parental failings to meet his needs. His description of his childhood symptoms is suggestive of a child with psychosomatic manifestations of anxiety. His has remained sensitive about not being listened to.
[The father] was frank about some of his immature behaviour, describing how he “picked on” [the mother], with tit for tat retaliatory reactions, at the time he was due to sign [Z’s] birth certificate and when he asked for a paternity test. He was insightful he has responded to “frustration with frustration’ (but believed such behaviour has reduced as he becomes ‘more thoughtful’) and can be angry (but not aggressive). He’s style of humour is probably not always enjoyed by others.
[The father] did not modify his behaviour to minimise [the mother’s] distress, which would have acknowledged her anxiety. It is open to speculation whether this was thoughtless provocation from a lack of awareness and sensitivity to her or motivated by a more malicious attitude. [The mother] experienced him as provocative and attacking, while he considered she misconstrued and was too quick to perceive his communications and actions as abusive.
Dr D ultimately stated:
Does [Z] need to spend supervised time with his father? Supervision would clearly alleviate [the mother’s] anxiety [Z] is not safe with [the father].
However, I have not ascertained there is evidence of sexual abuse or a pattern of grooming by [the father]. The concerns raised can be better understood by consideration of the couple dynamics, [Z’s] adaptation to their conflict, the sensitivity of his atopic skin (causing the observed red bottom) and the parents’ individual psychological issues.
To protect [Z] and [the father] from the possibility of future allegations, it would be ideal if [the father] had another responsible adult present during his time with [Z], rather than formal, constraining, supervision…
Provided the Court finds [the father] does not present an unacceptable risk to [Z] and [the mother], I recommend in 2017 [the father] spend time with him in [Z’s] local community once a week for six hours. Handovers to occur through the current contact centre.
Dr D recommended:
In the future, block, fortnightly time with his father from Thursdays/Friday to Monday would be a desirable goal, with pick up and return to his school. However this would require [the father] to make significant changes to his current pattern of work.

Report dated 13 March 2019

Dr D next saw the family on 19 February 2019. In relation to current concerns Dr D noted the mother’s concerns as follows:
·“The idea [the father] is giving him (that) we can all be in the same place together”.
·“Excessive buying of gifts” by [the father], who takes [Z] to shopping centres.
·[The father] drove [Z] around [Suburb E] (although their time together is in [Suburb B]) and [Z] said he showed him where various people live. As [the father] has been to the local shops, [the mother] was concerned they could run into each other.
·“[Z] spending much more time alone with his Dad”. She continued to “feel he is at risk of harm from [the father] … always at the back of (her) mind … sexually grooming and abuse … do fear that”. She believed [the father] was “emotionally abusive, controlling, coercive”.
The father’s concerns were described to Dr D (relevantly) as being: “After about three years spending time with his father in a contact centre, Z was now wondering why they are there.” The father also told Dr D:
“What’s the effect (of the current circumstances) on his view of me? He might see me as powerless … I/we can’t make decisions” about what they can do together.
Dr D once again interviewed Z and observed him with both of his parents.
When interviewed with his mother Z told Dr D he had no worries, problems or upsets about anything in his family. Z and his mother drew a family tree and Z told Dr D that he had never been to his father’s house. Z referred to how his parents “don’t get along, they argue”. Dr D asked who argued the most and Z said “Mummy”.
Dr D observed a comfortable interaction between Z and his father. In the course of the time they spent together Dr D reported “He told dad he wanted a sleepover ‘at your place’ and [the father] responded ‘oh good. I will get it ready for you’.”
Dr D spoke to Z’s school principal who told her that the staff had no concerns about Z who was described as delightful.
Dr D saw Z alone. She stated:
[Z] was very aware his time schedule with his father was four hours in [Suburb B] and two hours in the contact centre. Asked if he wanted more time with dad or to keep it as it was, he immediately responded six hours in [Suburb B] and three hours at the centre.
He then volunteered he wanted to go to Dad’s unit, to “check it out”. To a query if Dad said he could go there, he said he was “not too sure. I’ll have to ask him”.
When Dr D asked Z if he could change one thing in his family Z would have “my Mum and Dad getting along with each other”.
Asked to describe who he placed in three houses, Z placed in his house, three friends and mum and dad; next door he wanted his father.
Asked to describe four emoticons which he nominated as “shocked”, “happy”, “angry”, and “sad”, Z did not ascribe any of those emotions to his father.
In relation to her assessment of the mother Dr D stated:
[The mother] presented as a somewhat anxious forty-six year old who was overly controlled and talked in a monotone. She became more anxious while talking about [Z’s] father and her fears for the future. She was verbose, providing many details.

Dr D observed that the mother kept a diary of conversations with Z and supervisors and communications with the father.
Dr D stated:
When seen alone, after a genogram was constructed with [Z’s] assistance, [the mother] reported she was consistent in telling [Z] “the separation story” (about her and [the father’s] separation). She indicated he had not seen any arguing between his parents for a long time and she did not talk to him about [the father].
However, [Z] has invited [the father] to their house and “wants this”, despite her informing him they cannot get along and would not be visiting each other. He has asked what happened when they are together and she told him they “sometimes argue … not very nice”.
The mother expressed concerns to Dr D that Z would try to get her and the father together. She said “He would want us to talk to each other and that’s a problem.” Dr D stated:
She opined it was “misleading [Z]” to give him the idea his parents can be together as this was “just not the case”. She mentioned in the past [the father] encouraged [Z] to invite him into her house.
Dr D stated:
[The mother] clearly verbalised her fears [Z] remained at risk of harm from [the father], which caused her concern about them spending more time alone together. She acknowledged most of the [Organisation A] supervisors’ reports were positive but added there were recent incidents when [the father] did not deal with [Z] “becoming emotional”.
In response to Dr D’s query of the mother about grooming, Dr D noted:
To a query, [the mother] said she believed [the father] was grooming [Z] when she wondered why [the father] bought him so much. She added she knew some fathers did this and three were “other explanations”.
She mentioned when she talked to a psychologist about this behaviour (during their eleven sessions since the last assessment), the counsellor spoke about [Z] being older and people whom [Z] could talk to were around. However, [the mother] knew “kids often don’t say anything” and that [Z] cannot tell her: in the past, he said things to her and she was not believed when she reported it.
The mother complained to Dr D that the father was constantly disrupting her time with Z by sending her emails “up to a few a week” and that although “on the surface, [the emails] look appropriate”, the mother detected a worrying subtext.
Asked by Dr D whether she had any other concerns about the father’s parenting the mother responded:
…his personality and opined he focused on what was best for him, not [Z], as he is “narcissistic”. She stated over the last nine months he made three email requests to change his time with [Z] so he was able to work on Sundays.
The mother told Dr D that:
… [Z] has never spent a night anywhere without her. She believed [the father] did not have the skills to deal with [Z’s] tantrums, adding that, although he did not have many tantrums with her, he would be more defiant with others.
Dr D stated:
[The mother] was clear she wanted [Z] to spend no overnight time with [the father] until he was around nine years old. She predicted [Z] would say he wanted to go to Daddy’s, as he “thinks it’s all about fun”.
Dr D stated:
Asked at the end of the interview if she wanted to add anything, [the mother] commented she believed in the future [the father] will be “on a vendetta”. She alleged he had said he would see her lose everything if she left him and he was still angry. She added she wanted [Z] to love and be proud of his father and be safe with him.
The father told Dr D that:
…he would accept family therapy if the Court allowed him time with [Z] close to what he wants. He added there would be a problem when he was to attend because he cannot work. He mentioned [the mother] criticised him for not being flexible but he felt she did not understand his situation.
Dr D asked the father whether he had any concerns about the mother and she recorded that he responded that he could not comment “as they had not spoken for years”. The father told Dr D that it had been so long since they spoke and he did not feel angry towards her. The father said that by and large the mother ignores his communication with her and gave as an example his asking her about the size of a bike helmet he wished to purchase for Z and buying a car seat for Z which I discuss later in these reasons.
In her summary Dr D stated:
Both parents are clearly significant to [Z] and he is well aware of them not “get(ting) along”. Of note is the reported history by his parents that he continues to try to get them together and his wish to spend time in his father’s home. During the handover at interrelate [sic] on 10 February 2019, he ran back and forward between his parents.
However the change to unsupervised time with his father in mid-2018 was challenging to [Z] (and probably his mother) as he developed intermittent enuresis for the first three months and some separation anxiety from his mother, as demonstrated in her documentation of their conversations and [Z] “clingy” and somewhat resistant behaviours and occasional “sore tummy”.
Of concern, [Z] seemed to feel he had to reassure his mother he loved [her] “much more than Daddy” (9 September 2018). Other comments by him suggested he felt he needed to choose between his parents.

Dr D reviewed the notes provided by the contact centres, Organisation A and F Group and noted examples of criticisms made by the supervisors notably on 13 May 2018, 27 May 2018 and 30 September 2018. Those criticisms related to the father’s ability to settle Z after an upset. However as Dr D conceded in cross-examination those are isolated instances in a long history of positive observations of Z with the father.
Dr D stated:
[The mother] presented as anxious and had a marked attention to detail. She reported being fearful [Z] was at risk of harm from his father and believed [Z] was being groomed for sexual abuse. She continued to fear for her own safety because of her experience of [the father] as being unsympathetic and self-preoccupied...
Because of their shared very difficult history and her understanding he has a “narcissistic personality”, [the mother] interprets [the father’s] behaviour through a mistrustful lens, perceiving being “a worrying subtext to his emails” …
She experienced his emails holding “a tone” which was critical of her and which seemed to make her feel defensive, for example about her need to put [Z] into after school and holiday care. She held the belief [the father] in the future will be ‘on a vendetta’ and carry through on an alleged threat to ensure she lost ‘everything’.
[The mother] has always been [Z’s] primary caregiver and clearly needs to remain his ‘live with’ parent. Her lack of confidence in [the father’s] parenting and the marked difficulties in their capacity to communicate suggest shared parental responsibility is contraindicated needing to make decisions with him will cause an exacerbation in her anxiety.
In relation to the father Dr D stated that he:
Presented as being restricted in his availability to [Z] because of his work commitments and his impoverished capacity for sensitive attunement in relationships. He seemed unaware of how his difficulties with being flexible with time might be problematic for his relationships with [Z] and [the mother], the latter feeling frustrated and resentful at having to accommodate to his changing requirements (amongst her other experiences of him).
Dr D commented that in making the choice to work as he does the father needs to accept any restrictions on his time with Z which are consequential to those choices. She stated “part of demonstrating a capacity to parent is a record of an enduring capacity to make tangible sacrifices in time, effort and resources to meet the needs of the child”.
Dr D stated in relation to the father:
He showed no awareness solo caring for his son while under pressure was likely to be challenging at times (as most parents find). To assist [Z] to get ready in a timely manner, [the father] will need a good understanding of age appropriate behaviour in a child of [Z’s] age, to have reasonable expectations of him and to support him through firm but fair limits, thereby developing a good working alliance with [Z]. Given the [F Group] reports, I am not confident he can manage [Z’s] challenging behaviours in a manner which will assist [Z] to develop his own self-regulation and interpersonal skills.
Both his lack of insight and flexibility with time, as well as his very poor social support, are impediments to [the father] currently having overnight time with [Z]. I also note [the father’s] comment that he becomes angry in a reactory way to another’s behaviour … He will need to develop a good set of anger management skills to avoid unhelpful responses to a challenging angry [Z].
In conclusion Dr D stated:
[Z] remains a vulnerable child. While with good personal attributes, his psychological development will be compromised if both parents do not find a way to support him or if his mother’s fears about his father’s parenting are realised.
Currently his mother’s parenting and mental health are complicated by [her] anxieties about his father’s capacity to care for him, her dealings with [the father] over parenting matters, these proceedings and fears that [the father] poses a future risk of harm to [Z] and her.

His father’s parenting is compromised by [his] difficulties with mentalisation (his ability to be thoughtful about [Z’s] internal experiences) and to respond in an attuned contingent manner to him in challenging circumstances.

Dr D opined that the father could, with assistance, improve on his emotional availability to Z and recommended particular therapists, however she stated “as with any therapy, he needs to have insight into the need to change and to accept help form another”.

PARENTAL RESPONSIBILITY

It is presumed that it is in the best interests of a child that his parents have equal shared parental responsibility for making major long term decisions in relation to that child. The presumption can be rebutted by evidence that a parent has engaged in abuse of that child, or evidence that its application would not be in the child’s best interests.
As has been made clear earlier in these reasons, there will be no finding that the father has engaged in abuse of Z or that such abuse is likely to occur. Therefore the issue is whether it is in Z’s best interests for his parents to share parental responsibility.
Those decisions are defined as decisions about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The mother seeks an order that she have the sole parental responsibility for Z. The father seeks equal shared parental responsibility. The ICL supported the mother’s position.
The issue is further complicated by the fact that, as urged by Dr D, the matter will be adjourned until late 2020 in order to consider extending the time to overnight time.
The mother asks the Court to deal with the issue of parental responsibility now, on the basis that all of the evidence that could be relevant to the issue has been adduced and there is no utility in postponing the decision.
In cross-examination Dr D was asked about the mother’s habit of keeping notes about her interaction with the father, something she had been doing since before Z was born. Dr D said:
...to me it’s certainly unusual. So it’s certainly to be noted. Does it concern me? Well, I suppose it talks about the lack of trust she had in him, and – and I have already talked about their poor relationship, even when they were supposedly together. So it speaks to me about her – her lack of trust in [the father] and it’s... concerning because how can you have a... co-parenting relationship with someone you don’t trust? It’s just not possible.
There is little evidence that these parents have ever co-operatively parented Z.
There was one occasion before 2016 when Z was injured while playing in the father’s care and the mother drove them to the hospital and they both remained with Z. Neither made any complaint about their interaction on that occasion.
The short time they lived together after his birth seems to have been characterised by disagreement about almost every aspect of Z’s care.
Shortly after separation, the father said he did not want to be included on Z’s birth certificate. Although that issue has now been resolved and the parents have agreed to add the father’s surname as a third given name to Z’s name, it has taken over six years to achieve and it is only in the course of these proceedings, and because orders will be made, albeit by agreement, that the issue of Z’s birth registration will be finalised.
The mother has been dismissive of the father’s wish to have information about Z and involvement in his life.
She moved from the inner west to the southern suburbs without consulting him. She enrolled Z in school without consulting him. When he mother completed the enrolment form for Z’s school she wrote in the section for comments about the father “Not to be contacted – see court orders – but this may change”.
When the father asked the mother what size bike helmet Z needed, she ignored his request.
When the father bought a car in mid-2018 and wanted to buy a car seat for Z he sent a text to the mother asking what booster seat Z needed. The mother’s immediate response was to send an email which read:
It is your responsibility to check the legal requirements for a child restraint for your car, and to ensure you have it fitted correctly.
I suggest you check the RTA website or ask an authorized [sic] installer.
Please abide by our orders and keep contact via email, except for a medical emergency.
The mother co-operated with the father’s request only after the ICL became involved.
In July 2018 the father sent an email to the mother saying that Z had told him he was receiving an award at assembly on Friday and asked him to come. The father asked whether the mother intended to be at the assembly “so I can decide whether or not to attend”.
The mother responded:
I recommend you seek legal advice regarding this, or input from [Z’s] ICL.
Our current Orders only provide for you spending time with [Z] on Sundays.
The father again asked if the mother intended to attend and emailed the ICL asking for her intervention. The ICL indicated that she had no objection to the father attending the assembly provided that the mother agreed.
It would appear that the father’s final email to the mother at 9.52pm on the evening before the assembly, asking whether she intended to attend and suggesting that it would be a shame if neither parent attended, was ignored.
The father did not attend the assembly.
It is not clear what harm to Z was sought to be averted by refusing to allow the father to attend the assembly to see Z receive his award. No doubt, Z would have been pleased to see him there.
Dr D, in cross-examination, said that it is important for Z to see his father involved in his school activities. The orders which are proposed by the ICL will allow that to happen. The orders will also permit the father to have contact with Z at school if he is attending a school function or event.
I propose at accede to the father’s request that parental responsibility not be finally determined at this time but to make an interim order giving sole parental responsibility to the mother. The effect of such an order is, that the Court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
The ICL has proposed orders which give sole parental responsibility to the mother on the basis of significant obligations on her to keep the father informed of matters relevant to Z’s welfare. This is something she has never done and it remains to be seen whether she will comply with those orders.
The final allocation of parental responsibility will be considered at the resumed hearing.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 April 2019.

Associate:

Date: 11 April 2019

[2019] FamCA 218

11 April 2019

Key Legal Topics

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Family Law

Civil Procedure

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Injunction

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