Xiu and Hodges

FAMILY COURT OF AUSTRALIA

XIU & HODGES

[2019] FamCA 251

FAMILY LAW – CHILDREN – Parenting – high conflict family – 16 year old son with significant disabilities – parental responsibility – parents not to access the Court without first obtaining leave.

Family Law Act 1975 (Cth)

Xiu & Hodges (No 2) [2017] FamCA 437

1st APPLICANT:

Ms Xiu

RESPONDENT:

Mr Hodges

INDEPENDENT CHILDREN’S LAWYER:

Ms M Kourtis

FILE NUMBER:

MLC

6222

2008

DATE DELIVERED:

7 February 2019
15 March 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

1 to 3 November 2017, 7 March 2018 and 6 July 2018, 15 March 2019

LAST WRITTEN SUBMISSION:

By the mother on 24 July 2018; by the father on 8 August 2018 and Independent Children’s Lawyer 27 August 2018

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:

Ms Mallett

SOLICITOR FOR THE 1ST APPLICANT:

Victoria Legal Aid

COUNSEL FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr James

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

IT IS ORDERED THAT:

All previous parenting Orders in relation to the child K (“the child”) born … 2002 be discharged.
Subject to paragraph 3 of these Orders, the mother have sole parental responsibility for educational decisions for the child.
That the mother:
(a)Notify the father and keep him notified, in writing, of decisions made in exercise of parental responsibility pursuant to paragraph 2 hereof;
(b)Notify the father and keep him notified, in writing, of any school attended by the child, as well as any education-related professional treating, assisting or advising on the child’s educational needs; and
(c)As soon as practicable after any consultation with such an education-related professional, advise the father in writing of the reason for the consultation, the recommendations thereof and provide the father, at her expense, with copies of any written report.
The father:
(a)Is restrained by injunction from arranging any educational appointments for the child without the mother’s prior written consent, save for the purposes of organising the use of the child’s communication devices;
(b)May attend any relevant meetings at the school with the approval of the school principal;
(c)May attend any activities or school functions to which parents are ordinary invited; and
(d)Is authorised to obtain from the school, copies of school reports, newsletters, school notes and school photographs in relation to the child at his own expense.
That the parents ensure that the child is enrolled to attend school 5 days per week. For the avoidance of doubt, the child will not hereafter be home-schooled.
Each parent ensure the child attends school every scheduled day, no later than 8.45am, unless the child is ill.
Subject to paragraphs 8 to 15 of these Orders the father have sole parental responsibility for all health decisions for the child, including by not limited to continence, dental and allied health services such as speech pathology, occupational therapy and decisions and arrangements for the child’s use of his communication device, whether or not any such service or apparatus is provided by or at the child’s school or used by the child solely or partially at school.
The mother and father be entitled to retain their own general practitioner in respect to the child’s day to day care and minor ailments and make appointments for the child’s attendance when he is in their respective care.
For the purposes of paragraph 7 hereof, the mother and the father:
(a)Will keep the other advised of the name and contact details of the other’s general practitioner for the child; and
(b)Will advise the other as soon as practicable after any consultation with the child’s general practitioner of the reason for the consultation and recommendations and treatment prescribed by the general practitioner.
That the child’s paediatrician shall be Dr Y at the Hospital S or her nominee.
That the father be and is hereby restrained from making specialist health and health allied appointments for the child falling during the mother’s care period unless:
(a)The mother consents; or
(b)It is an emergency; or
(c)It is the only available day and in this event he shall give the mother and the school at least 7 days’ notice in writing;
In all events, the father be responsible for transporting the child to the health and allied health appointment and for this purpose it is sufficient authorisation from both parents to the proper officer of the school for the father alone to have provided to the school details of his collection of the child from school so that he can ensure the child’s attendance at the appointment by public transport and in a timely manner.
That the father and mother shall follow all recommendations and directions of the child’s paediatrician and any other medical or allied health service provider.
That the father shall follow all recommendations and directions of his nominated general practitioner for the child and the child’s paediatrician in respect to referrals to any other health related specialist and service.
That the father:
(a)Notify the mother and keep her notified, in writing, of decisions made in exercise of parental responsibility pursuant to paragraph 7 hereof;
(b)Notify the mother and keep her notified, in writing, of the names of any and all medical and allied health treatment providers;
(c)As soon as practicable after any consultation with a health provider advise the mother in writing of the reason for the consultation, the recommendations thereof and provide the mother, at the father’s expense, with copies of any written report.
Within 14 days the father do all such things and sign all documents necessary to make an appointment with the child’s paediatrician (if an appointment is not already pending) and at the consultation seek assessment and referral for the child for mental health assessment and support in respect of exposure to long term parental conflict.
The mother be restrained from seeking any health and allied health service referrals for the child from her general practitioner or any other health professional including those provided by the child’s school and from making arrangements or appointments for health and allied health services for the child.
Subject to paragraph 2 and 7 in this Order that the parents have equal shared parental responsibility for all other decisions for the child.
Subject to paragraph 19 and 20 hereof,:
(a) During the school term, the child spend time with the father:
(i)On Wednesday after school until 7.30pm; and
(ii)From after school on or 3.00 pm if a non-school day Friday until 6.00pm on Sunday; and
(iii)As otherwise agreed between the parties in writing.
(b) During the school term holidays, the child:
(i)Live with the father from after school on the last day of term until the following Friday at 4.00pm and in each alternate week thereafter from Sunday 6pm until Friday 4.00pm.
(ii)Live with the mother from Friday 4.00pm until Sunday 6pm.
(c)During the long summer school vacation the child live with the father from 4pm on Tuesday to 4pm on Saturday.
(d)The child live with the mother at all other times.
Notwithstanding paragraph 18, the child spend time with the mother:
(a)On Mother’s Day, and three Festival days when the child is not otherwise in her care;
(i)From after school until 7.30pm if it falls on a school day;
(ii)From 12.00 noon until 6.00pm if it falls on a non-school day.
(b)In 2019 and each alternate year hereafter from 3.00pm 25 December until 6.00pm 26 December.
(c)In 2020 and each alternate year hereafter from 6.00pm on 24 December until 3.00pm on 25 December.
Notwithstanding paragraph 18, the child spend time with the father:
(a)On Father’s Day when the child is not otherwise in his care from 12.00 noon until 6.00pm.
(b)In 2019 and each alternate year hereafter from 6.00pm on 24 December until 3.00pm on 25 December.
(c)In 2020 and each alternate year hereafter from 3.00pm 25 December until 6.00pm 26 December.
The mother and the father do all acts and things necessary to ensure that the concessional taxi card issued for the child henceforth at all times travel with the child.
For the purpose of changeover in these orders:
(a)The father or his nominee and mother or her nominee punctually collect the child from and return him to:
(i)School where such time commences on a school day or concludes on a school day;
(ii)The foyer of Suburb NN Police Station of Victoria Police on a non-school day or a school day on which the child does not attend school for whatever reason.
(b)In the event the mother is required to collect the child from the father, including but not limited to the circumstances of paragraph 18(b), (c) and on non-school days in paragraphs 19 and 20 of this Order, and if the mother does not attend the Suburb NN Police Station punctually, the father be at liberty to leave the police station after notifying the police on duty at the police station and deliver the child on the following day by no later than 8.45am to school on a school day or the Suburb NN Police Station on a non-school day.
(c)In the event the father does not attend Suburb NN Police Station punctually when required to do so by this Order, the mother be at liberty to leave the police station after notifying the police on duty at the police station and deliver the child on the following day by no later than 9.00am to Suburb NN Police Station.
(d)The parents to do all acts and things necessary to ensure that all the child’s school possessions, communication devices and school uniforms must be returned with the child at changeover.
That the father and mother:
(a)Keep the other advised at all times of his/her current residential address and landline and mobile telephone numbers; and
(b)Advise the other immediately in the event that the child suffers serious illness or injury whist in their care.
That the mother be and is hereby restrained herself or by her servant and agents from writing letters or sending material to any doctors, health professionals, schools, educators, the father, his family members or friends, or the Department of Human Services with any complaints in relation to the state of the father’s home or car, his day-to-day care of the child or the father’s mental health.
Notwithstanding these Orders:
(a)The mother be entitled to attend upon any of the child’s health service providers without the child; and
(b)The father be entitled to attend upon any educational institution without the child including any school at which the child attends from time to time and any health professionals at the child’s school
That the mother and the father be restrained from denigrating or verbally abusing each other, or each other’s families in the presence or hearing of the child.
That the Independent Children’s Lawyer shall send a copy of these Orders and the Family Report dated 30 October 2017 to PP School, Dr Y and each parent shall give a copy to their chosen GP and psychologist or counsellor.
The parents each do all acts and things necessary to authorise or permit the other parent to have such access to the National Disability Insurance Scheme portal or access to the application process as is necessary for the party with parental responsibility for either health or education to implement such responsibility. In the event that a party fails or neglects to provide such authority or consent a Registrar of this Court is empowered pursuant to s 106(A) of the Family Law Act 1975 to authorise all such documents as are necessary in place of the defaulting party. It is sufficient proof on non-compliance by a party this Order for the independent children’s lawyer to file and serve a brief affidavit detailing the document that is required, the purpose for which it is required and the circumstances of the refusal to execute.
The solicitor for the mother be and are hereby excused from further attendance in this matter without the need to file a Notice of Ceasing to Act. Henceforth the address for service of the mother will be Z Street, Suburb AA. .
Leave is granted to the father and mother to make an application within 28 days in respect of the Disability Support Pension and National Disability Insurance Scheme.
The independent children’s lawyer send a copy of my reasons for decision delivered on 7 February 2019 which will include the addendum reasons for decision this day to PP School, Dr Y, and each parent otherwise be at liberty to provide a copy of the said reasons to their chosen general treating medical practitioner, psychologist or counsellor.
For the avoidance of doubt, the independent children’s lawyer is not discharged until the time provided in paragraph 30 has expired.
Other than provided for paragraph 30 of this Order, that each party is hereby restrained from filing any application under the Family Law Act 1975 (Cth) without first obtaining the leave of a judicial officer.
In respect of costs:-
(a)Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);
(b)Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;
(c)My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);
NOTING THAT any costs so ordered may include the costs of making the application for costs.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS DIRECTED:

That the correspondence from the independent children’s lawyer dated 12 March 2019 be marked Exhibit “ICL1” and remain on the Court file.
That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner at the expiration of the appeal period provided for herein.

IT IS FURTHER ORDERED THAT:

The time in which an appeal may be filed against the reasons for decision of 7 February 2019 with the addendum decision delivered this day will be 28 days from this day.
That pursuant to Sections 65DA(2) and 62B the particulars and 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.
That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

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 Xiu & Hodges 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 MELBOURNE

FILE NUMBER: MLC 6222 of 2008

Ms Xiu

Applicant

And

Mr Hodges

Respondent

And

Independent Children’s Lawyer

REASONS FOR DECISION

Introduction

These proceedings concern the final parenting arrangements for K (“the child’) born in 2002. The child’s parents, Ms Xiu (“the mother”) and Mr Hodges (“the father”) have been litigating in this Court about the parenting arrangements for the child since 2008 and this tranche of proceedings has been their fourth substantive trial. Neither parent has any other children. The child was born with an intellectual disability. He was diagnosed with Autism in 2009. The child requires a high level of care, communicates with the assistance of an electronic device and has ongoing issues with incontinence. The child is now 16 years old and will likely continue to be cared for by his parents into his adulthood. There is much that is good, if not exemplary, about how the child is parented. Unfortunately, these reasons mostly deal with negative aspects of the parents’ behaviour. The task at hand is to harness the benefits the child’s parents can offer in spite of their intransigent conflict, stubbornness and absolute beliefs.
The most recent final parenting orders were made by Dessau J (as she then was) in 2013. Her Honour split the child’s time between the parents and, by way of trying to counterbalance the competition between the parents for control of the child’s care, allocated parental responsibility for health matters to the father and education matters to the mother. Her Honour restrained each party from filing any application under the Family Law Act 1975 (Cth) (“the Act”) without first obtaining the leave of a judicial officer.
In December 2016, the mother sought leave to file an Initiating Application to vary those final orders. In May 2017, the father sought leave to file a contravention application. The parents initially opposed leave sought by the other, but later consented on the basis that each wanted their applications heard. Thornton J granted leave to both parents to file their applications on 23 June 2017. Her Honour’s reasons for judgment, which bear the neutral citation Xiu & Hodges (No 2) [2017] FamCA 437, sets out the history of the parties litigation prior to that point. On 1 August 2017, I granted leave to the mother to file a contravention application, requested the appointment of an Independent Children’s Lawyer and ordered the father to file a response to the mother’s initiating application.
I heard both parties’ contravention applications on 5 and 6 September 2017 and reserved my judgment; which will be delivered on the same day as these reasons. There was a specific request by the Independent Children’s Lawyer and the parents that my decision in relation to the contravention not be delivered until the hearing of parenting matters were finalised.
On 6 September, 2017, I adjourned the applications of both parties for final orders, to 1 November 2017, and ordered a family report which was released on 27 October 2017. The matter resumed as scheduled, and although that hearing was estimated to take three days, a number of half days were allocated to it following 10 November 2017, when I reserved my judgment in this matter, because all parties’ sought the re-opening of the case on two occasions. The first occasion was on 7 March 2018, to allow the Court to receive evidence from the parties about changes to the child’s education arrangements. On the second occasion, the Court heard evidence from Mrs BB and Ms CC (on 6 July 2018), who were witnesses of the Independent Children’s Lawyer and were involved in the education of the child, about which there was substantial controversy.
During the course of proceedings, the father made numerous oral applications seeking that an educational assessment be undertaken for the child prior to final orders being made about home-schooling and parental responsibility for education. Although I initially dismissed his application, he renewed his application on 6 July 2018, stating that there was now the possibility of using funding obtained for the child from the NDIS to pay for such an assessment. That was not canvassed by any party so I allowed each to make written submissions about this issue. The father did not file written submissions but filed an affidavit on 8 August 2018 in which he asserted, at paragraph 10:
I did seek an adjournment before the 6 July 2018 to enable an “independent assessment” to be undertaken. In my request for an adjournment and in my Affidavit to update the Court, which was given to each party but dismissed on 6 July 2018, I did not say that [the child] needed an ‘educational assessment’. An ‘educational assessment’ is a combination of standardised cognitive and academic assessments, which I believed, after discussions with several specialists, would not be needed.
I take it then, that the father no longer seeks an educational assessment. The mother and Independent Children’s Lawyer also oppose an educational assessment. There is no evidence that an educational assessment will advance the child’s interests. In those circumstances, I make no orders for such an assessment.

The decision was to be delivered on 7 February 2019. It then came to my attention that the father had been sending correspondence to my chambers requesting to make further submissions. In a mention on 5 February 2019 it became clear that there was a further issue in regards to the child’s Disability Support Pension (“DSP”) and the National Disability Insurance Scheme (“NDIS”) on which I had not taken submissions during the trial. As the distribution of the DSP and allocation of the NDIS may be impacted by my decision in relation to parental responsibility I ordered that the parties may make submissions in relation to that issue within 28 days after my decision and reason are delivered. This is an exception to the parties otherwise refraining from issuing proceedings without leave of a judge.
The matters for determination are the parties’ competing applications in respect of:
a)Whether the father should be restrained from taking the child to over-age venues.
b)Where changeover is to occur if it is a non-school day;
c)Parental responsibility;
d)Whether the child is to continue being home-schooled by the father on Fridays; and
e)Who is to care for the child from Wednesday after school to Friday after school;

Evidence

There were no significant objections taken to the admissibility or fairness of the evidence relied upon. Nonetheless, there was a large amount of irrelevant material relied on by both parents.
At the trial the applicant mother relied upon the following evidence:
a)Her affidavit sworn 13 December 2016;
b)Her affidavit sworn on 14 March 2017;
c)Her affidavit sworn 26 September 2017; and,
d)Her submissions in regards to the educational assessment filed 24 July 2018.
e)The Family Report of Ms DD dated 30 October 2017.
The mother’s Amended Application was filed 20 September 2017.
At the trial the respondent father relied upon the following evidence:
a)His affidavit affirmed 29 August 2017;
b)His affidavit affirmed 30 October 2017;
c)His affidavit affirmed 8 August 2018.
The father’s Amended Response to Initiating Application filed 27 September 2017.
The materials and evidence arranged by the Independent Children’s Lawyer were as follows:-
a)Family Report dated 27 October 2017 prepared by Ms DD and her oral evidence on 10 November 2017;
b)Mr EE who gave oral evidence on 1 and 2 November 2017;
c)Mrs BB who gave oral evidence on 6 July 2018; and
d)Ms CC who gave oral evidence on 6 July 2018.
In addition, there were numerous Exhibits.

Proof and findings of fact

Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
In these Reasons a statement of fact is a finding of fact.

The Family Report

Pursuant to an Order made by me on 6 September 2017, Ms DD (“the Family Consultant”) prepared a family report based on her interview and observation of the mother and father separately with the child on 13 October 2017; interview by telephone on 18 October 2017 with Mrs Hodges (“the paternal grandmother”); interview by telephone on 20 October 2017 with Mr EE and interview by telephone with Mr Hodges on 25 October 2017.
The Family Consultant noted that some limitation in her report because the child was not formally observed with either parent of the day of the interviews, nor was he interviewed as he was unwell. The Family Consultant reported that the decision was made for the child to go home with the father after he was interviewed, and that the child was observed informally with each parent. I accept the Family Consultant’s oral evidence that given the child’s limited communication levels it is unlikely his expressed views would have much bearing.
In summary, the Family Consultant made the following evaluations:
a)The issues of contention between the parents over the years mainly arise out of the parents’ personalities and how they deal with the issues that arise. The parents have not been able to cooperate effectively, and both parents have been involved in a restrictive form of ‘gate-keeping’ at times, that is, attempts to limit the child’s time with the other parent.
b)There have been several significant arguments that have taken place in the child’s presence. The mother has minimised, that is, fails to recognise, the impact of the child’s exposure to parental conflict. The child has trouble expressing his emotions outwardly, which is consistent with his autism diagnosis. It is likely the child’s experience of the parental conflict is more internal.
c)Both parents and their parenting styles have different things to offer the child. The mother offers the child structure and routine and the father offers the child humour and ways to increase the child’s independence. However, neither parent has managed to co-parent successfully to any degree.
d)The mother has devoted her life to raise the child. She presents with a rigid personality which has impacted the way she chooses to engage, or not engage, with Court Orders. She has never accepted that Final Orders provided the child to be home-schooled by the father and has continued to raise it as an issue. The mother has withheld the child from the father’s care because he was not parenting the way she wanted him to.
e)The father is likely at times to be reacting to the mother’s personality. However, he also presents as rigid in his own way, for example taking the child late to school when it was identified as an issue.
f)Both parents believe their way of parenting is right. Even if these current issues are resolved, new issues will emerge. It is highly likely that if either parent disagrees with Court Orders, they will simply ignore them and do what they think is best, believing they are acting in the child’s best interests.
g)One of the main concerns for the mother is the father taking the child to licenced venues and staying until late in the night. The mother has gone to extraordinary lengths to try and prove the risks to the child, such as attending at the licenced venues and taking photos.
h)The Family Consultant reports that it does not seem inappropriate for the child to attend the occasional licenced venue. However, it may become a problem if it occurs several times a week as it has implications for the child and his sleep pattern. The father may be prioritising his own needs and lifestyle to a degree.
i)The father has admitted he provided no formal home schooling for the child on a Friday. The father made the statement that if the child was to go to school on a Friday it would cut into his time with the child, a statement the Family Consultant states, reflects the prioritisation of the father’s needs rather than considering what would be of most benefit to the child.
j)The father reports that he has managed the child’s health needs by making relevant appointments and has shared information with the mother. The father reports that the mother has interfered with some health appointments and decisions. If true, this reflects the mother’s rigid personality and her inability to allow the father responsibility for this area of the child’s wellbeing.
k)The separation of parental responsibility has not ameliorated the conflict between parents. The mother has still tries to dictate the child’s major health decisions, despite not having responsibility under Court Orders. The other option to be considered is providing one parent to have sole parental responsibility. Although, the conflict may not be ameliorated with this option either, it may provide a clear demarcation that ensures the child’s needs are met.
l)If the father is not able to get the child to school on time it is practicable that the child spend the majority of his weekend time with the father. However, it is not practicable to limit the child’s time with the father to weekends only. The child could spend more time with the father in school holidays.
m)A week-about arrangement is not workable considering the father’s propensity to take the child to school late. Additionally, given the child’s high needs, it may be less burdensome on each parent to share time during the week.
The Family Consultant’s observations accord with my own with the exception that my impression of the father’s desire to take the child to licenced venues. My impression is that the activity is based on wanting to expand the child’s experiences positively and enjoyably rather than the father indulging himself. In all other respects, I accept the Family Consultant’s evidence and accord it weight.
Overall, the Family Consultant recommended the following:
a)The child live with the mother.
b)During the school term, the child spend time with the father from after school Thursday until Sunday 6.00pm in one week and until Sunday 10.00am in the alternate week.
c)During the school holidays, the child spend time with the father from Wednesday 4.00pm until Sunday 6.00pm in one week and until Sunday 10.00am in the alternate week.
d)The child attend school full time.
e)If the child is consistently late or absent from school in his father’s care, changeover is to be Friday after school with the Independent Children’s Lawyer remaining in place to monitor the child’s school attendance.
f)Both parents attend a psychologist as recommended by their respective general practitioners and for the psychologists to be provided with the Family Consultant’s report.
g)Both parents to use an application to communicate with each other.
I do not accept the final recommendation that both parents communicate via an application as, as identified by the Family Consultant in her oral evidence, the emails may be an acceptable option for communication as the father does not have a phone capable of using applications. The mode of communication does not appear to be the issue for the parties but the content of the communication.
The Family Consultant gave evidence orally on 3 and 10 November 2017 and was cross examined. Her evidence was not shaken in cross examination. I accept the Family Consultant’s oral evidence and accord it weight.

Credit & impression of the parties

The Mother

My impression of the mother was that she was fundamentally loving and considers that she always acts in the best interests of the child. However, I accept the Family Consultant impression that the mother presents as having a rigid personality which impacts on how she has, or has not, engaged with Court Orders. The Family Consultant wrote:
“Although Final Orders provided for [the child] to be home schooled by his father, [Ms Xiu] has never accepted this and has continued to raise it as an issue. Although Court Orders clearly provided for [the child] to spend time with his father, [Ms Xiu] withheld [the child] from his father’s care because he was not parenting the way she wanted him too.”
The Family Consultant also reported that the mother presented as a difficult interview subject as she often chose to pursue her own agenda. According to the Family Consultant, the mother provided extraneous detail and went off on tangents. This was also my experience of the mother in the witness box.
In addressing me on the demeanour of the witnesses, Ms Mallett (counsel for the mother) commented that the mother was persistent and found abstract questions and possibilities difficult to comprehend. Ms Mallett submitted that the mother was concrete in her thinking. She added that the cross-examination was difficult as it was done by the father in person which added to the dynamic of the correspondence between them. There is merit in that submission but that direct interaction between parties is what confronts the child and professionals.
The mother was a distracted witness. She lacks insight into how her words and actions impact upon others.
In respect to the father’s allegations that the mother interfered with his parental responsibility in regard to health and making appointments, the Family Consultant opined that, if true “it is a further indication of her rigid personality and her inability to allow Mr Hodges responsibility for this area of the child’s well-being.”
Ms Mallett stated that although the mother may find it difficult if she weren’t given sole parental responsibility in respect of education and health she would not ‘flout the rules.’ My impression is that the mother will continue to try to assert her parenting style on the father and to exclude him.
The Family Consultant reported (and I agree):
“Both parents rigidly adhere to their way of parenting and believe their way is right. Even if some of these current issues are resolved, there will be other issues that emerge. It is highly likely that if either parent in the future disagrees with Court Orders, they will simply ignore them and do what they think is best, believing they are acting in [the child’s] best interest.”
The main area the mother appeared to consistently focus on was the father’s actions of taking the child to licenced venues, which is discussed below. She repeatedly stated that the conflict between her and the father arose primarily because of this issue. When being cross examined by the father, she stated:
“You think about all the fighting, argument is caused by your consistently persisting in taking a [licenced venue], okay? If you stopped taking him to the commercial nightclub, we would have no more argument, no more conflict.”
I do not accept that is so. This is merely a topic on which the mother seizes. If the father ceased taking the child to music venues the parties would find something else to argue about.
I note the Family Consultant’s report in which she reports that the mother could not or did not identify benefits for the child in spending time with his father, although in the witness box the mother stated that she always sought to encourage and foster a meaningful relationship between the father and the child. My impression was that the mother undervalues the father’s contribution to the child’s care.

The Father

The Family Consultant reported that the father presented as thoughtful and considerate in his interview. The Family Consultant reported (and I agree):
“It is likely [Mr Hodges] is at times reacting against [Ms Xiu’s] personality. However, there are indications that he is rigid in his own way, for example, continuing to deliver [the child] late to school when it was identified as an issue. In addition, both parents agree that, although 2013 Court Orders provided for changeover from the father to the mother on a Saturday afternoon, [Mr Hodges] regularly returned [the child] on a Sunday or a Monday morning (to school).”
In her interview with the Family Consultant, the mother asserted that the father had a personality disorder. She claimed that the father had a difficult personality and had been banned from attending Y School for ten years for continuously arguing with the principal. During the trial however, the mother did not present evidence to support this. I cannot exclude the possibility that the possibility that the school cannot deal productively with both parents contemporaneously and therefore may seek to exclude one of the parent. In his interview with the Family Consultant, the father acknowledged that a previous psychiatric report assessed that there was a possibility that he has a personality disorder, however it also identified that the mother may suffer from a disorder, details of which the father could not recall.
The father attends therapy with Dr ZZ, a general practitioner and family therapist. The father stated that he sees Dr ZZ approximately once a fortnight to once every three weeks. It was the father’s evidence that Dr ZZ assists him in making his communication clearer and simpler and avoiding being critical. The Independent Children’s Lawyer pointed out the father that there were many instances of the mother and father both sending rambling emails that were critical of each other.

Relevant Law – Parenting Issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the child’s best interests as the paramount consideration.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws, so that laws and actions affecting children, put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account. The latter is not readily applicable to the child. His level of functioning is not such that he has a voice. In the proceedings the child’s interests are represented but his views and preferences are not directly discernible.
The Family Consultant noted that she was unable to formally observe, or interview the child given the child’s ill health on the day of interviews. I must take into account his limited language and disabilities. I accept the Family Consultant’s oral evidence that given the child’s limited communication levels it is unlikely his expressed views would have much bearing.
I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.
Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting order as it thinks proper.

Determining the child’s best interests (Primary considerations)

In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of the child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[1]
[1] Family Law Act 1975 (Cth) s 60CC(2)(b).
In this case both of the primary considerations are relevant.
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents and the child by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of the child’s parents is going to be beneficial and of advantage to the child into the future.
The second of the primary consideration recognises the necessity of protecting the child from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence. In proceedings instituted after 7 June 2012, family violence is defined broadly in the Act and encompasses “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…or causes the family member to be fearful”.[2] A child is exposed to family violence if the child sees or hears family violence or otherwise experiences it.[3] This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure by the child to physical or psychological harm and formulate orders which protect him from that harm.
[2] Family Law Act 1975 (Cth) s 4AB(1).
[3] Ibid s 4AB(3).
The mother alleges that the child is being harmed by the father taking him to licenced venues. The Father denies this. Although I note some negative impacts of the child attending venues with his father, namely staying up late and being too tired for school, I do not find that this constitutes unacceptable risk. The father taking the child to licenced venues will be further discussed below.
The mother alleges family violence. There have been two inappropriate incidents, discussed below. The father complains that he is at risk of the mother making false allegations of family violence if he has to attend her home for changeover.
The greatest risk to the child’s wellbeing is his exposure to parental conflict which has been disruptive of his routines and diminishes the quality of the parents’ care of him. Neither have adequate insight into the corrosive effect of parental conflict although, my impression is, that the father is more cognizant of it than the mother.

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. Those considerations are:
a)The child’s views.
b)The nature of the children’s relationships. The child is wholly dependent on his parents and will remain so. He loves both parents and they love him. His relationship with both parents is positive. The child also has a positive and loving relationship with the Paternal Grandmother.
c)The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child. This is not a factor in this case.
d)The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child. Both parents have devoted their time and resources to care for the child. To the extent that funds may be available from government schemes, those resources should be shared equitably having regard to each parent’s ongoing responsibilities to the child.
e)The likely effect of any changes in the children’s circumstances. The child is sensitive to change but I will consider the impact of change against the benefit of altercations to his routine, specifically, time spent with his parents.
f)Practical difficulty and expense associated with face to face time and/or communication with the other parent. The parents live a considerable distance apart and neither driver a motor vehicle.
g)Capacity of the parents to meet the children’s needs and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents. I discuss this in detail. In summary the parents do not seem to understand that the conflict in which they are immersed creates significant difficultly for care or service providers for the child, like his school. Due to the child’s high care needs it is appropriate that each parent have respite time where they are not required to care for the child.
h)The children’s maturity, sex, background and other characteristics. The child functions at a lower age. He requires constant care and assistance with most activities such as dressing and toileting. The mother is of a country BBB background and wishes for the child to participate in annual cultural and religious activities to retain a connection with this culture, which I have made provision for in the Orders. The mother also attends a church, I have made provision for in the Orders for the child to attend church services with the mother regularly during school holiday periods.
i)Any family violence involving the children or any member of the children’s family and family violence orders.
j)Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children. There should be minimal further proceedings.
It is only necessary to consider those additional factors which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the child what benefit that may flow from having a meaningful relationship with both parents and so as to ensure that he is protected from harm and exposure to abuse, neglect or family violence.
S 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[4]
[4] B and B: Family Law Reform Act (1997) FLC 92-755.
I now seek to deal with each of the issues before me in turn.

The Father taking the child to bars and licenced venues

An area of conflict between the parents is the father taking the child to licenced venues. This has agitated the mother to such an extent that her counsel, Ms Mallett, suggested it was the primary reason that the mother brought the application for new final orders. The mother sought that the father is restrained from taking the child to commercial/business licenced venues, with the child while he is in the father’s care.
In her affidavit sworn 14 March 2017 the mother deposed:
63.“The father has failed to act in [the child’s] best interest and I feel my only option is to withhold [the child] from the father’s care to prevent his exposure to loud, licenced venues.
64. Even though I have voiced my concerns about this to the father, he continues to show complete ignorance about how this might negatively affect [the child], and tends to rub this defiance in my face, as though it is a personal attack on me, rather than having any regard for [the child’s] wellbeing.”
The father conceded that he would take the child to various licenced venues including ‘Licenced venue W’ in Suburb V and ‘Licenced venue U’ in Suburb NN. He stated that this usually occurred on a Thursday evening, notably, the day before the father is to home school the child. In his affidavit affirmed 20 October 2017 the father deposes that he attends such venues with the child “on average once per week, at most twice a week.” He adds that ‘Licenced venue W’ is now closed so they usually only attend venues on Thursday nights, “but not every Thursday night”.
In her interview with the Family Consultant the mother alleged that the father was comprising the child’s well-being by taking him to licence venues and staying late. The mother’s affidavit evidence also focused on the perceived dangers to the child of being at such venues, for example, exposure to loud music and strangers. Counsel for the mother submitted that the child was exposed to late nights, lack of supervision, inappropriate venues and conflict and difficulties, loud noises and smoke. Counsel for the mother submitted that when taken to the licenced venues the child’s toileting needs and safety (in relation to strangers) were not being met properly. I take into consideration the child’s maturity levels,[5], his maturity levels are closer to a younger child.
[5] Family Law Act 1975(Cth) s 60CC(3)(g).
In her oral evidence the Family Consultant stated that her concern was not about the venues themselves but how frequently the child was taken there, how late it would be and the consequence of him being tired and late for school the next day. The Independent Children’s Lawyer submitted that no harm has come to the child though attending the venues. I accept the Family Consultant’s view. There is insufficient evidence to suggest that the venues, like any other place the parents take the child, do not allow for the child’s immediate toileting needs to be met. Further, in relation to strangers, although the father has admitted he allows the child to stand alone and walk around at the venues, I am satisfied that the father is providing appropriate supervision.
A major concern in relation to the venues is that the child is tired during and after attending the venues with his father. In the witness box the Family Consultant accepted that “a number of years ago” the child had fallen asleep at one of the venues to which the father had taken him. The father acknowledged that the child often slept in on a Friday morning after having been out until approximately 10pm on Thursday nights. It is concerning that the child was so tired that he sleeps in late on Friday’s, the day the father should be home schooling. However, as will become apparent, the child will not be home schooled or with the father on Thursday evenings of a school week.
Before ‘Licenced venue W’s’ closure, the mother was concerned as the father was taking the child out on Wednesday night’s resulting in the child’s late attendance at school on Thursday. It is telling that the father’s affidavit material suggests that the reason he stopped taking the child out on Wednesday nights was because the venue is closed, rather than out of concern about ensuring the child was well rested for school the next day. However, this has also ceased to be an issue.
In her oral evidence the Family Consultant agreed that the father’s motivation of taking the child to licenced venues was about his needs and not the child’s. The father has been unequivocal that he sees his teaching and parenting style as teaching life skills the child through actions and experiences. The father expressed strong beliefs that children with disabilities should not be “wrapped in cotton wool”, or “kept inside” or “kept in special schools”. The father appears to genuinely believe that there are many benefits to taking the child to the venues. During cross examination, the father agreed that he attended the venues to pursue his career but added that “the child gets a lot out of it too.” As indicated, I do not accept that the father’s motivations are only selfish.
Counsel for the mother submitted that the fact the father continued to take the child to these venues in the area proximate to where the mother lives and was trying to aggravate the mother. I do not accept this submission. I am satisfied by the father’s explanation that the reason he attends ‘Licenced venue U’ in Suburb NN was because it was a high-quality venue. I do not attribute any malice to the father. Further, as I have acknowledged, however misplaced, the father places genuine belief in the thought that the child benefits from attending the venues with his father.
I do not accept that the father was taunting the mother. Instead it is timely to acknowledge the father’s submission, which I accept, that the mother repeatedly followed the father to venues, or in the surrounding area, to observe or take photos of the child so she could use it against the father. In cross examination by Mr James (for the ICL) the mother stated that she had passed outside the venues the father had taken the child, in particular Licenced venue U in Suburb NN, on more than ten occasions, incidentally as Suburb NN was ‘her area’. I do not accept her explanation that she simply coincidentally was in the same location as the father and the child at these venues. Her behaviour was inappropriate, intrusive and ultimately not in the best interests of the child. It is another example of the mother believing that she is permitted to do anything so long as she considers it is the right thing for the child.
In her affidavit sworn 13 December 2016, the mother deposes at paragraph 82:
“On 17 June 2016 Friday at the last consultation with Paediatrician [Dr R], the child told [Dr R], that he was unwell but going to [Licenced venue W] with the father at night.[Dr R] warned the father against that, but he again argued to counteract her warnings, stating that it is not illegal to take the child to those venues.”
The father admitted that on one occasion he told the child to a licenced venue when he was ill. The father stated however, that he did not know at first that the child was ill, just thinking that the child was a little tired, but when he realised the child had a cold he left at a reasonable time.
In her interview with the Family Consultant, the Paternal Grandmother stated that she had observed the father asking the child if he wanted to go out and he usually does. She stated that the father does not take the child if he was tired or unwell. The Paternal Grandmother reported that she often attends Licenced venue U in Suburb NN in order to spend time with the child. She stated that some of the venues the father attends are once a month only. The Paternal Grandmother was not a witness in these proceedings and therefore her comments are untested.
Ultimately, I cannot decide whether the child enjoys his time at the venues or not. The mother says he does not, the father says he does, the Paternal Grandmother supports the father. The parents are very likely to be projecting their views onto the child. As the Family Consultant was unable to formally interview the child, I am not satisfied either way of the child’s views on this matter.
Counsel for the mother also questioned the father about the strain it places on the child to be taken from school and passing time in and around Suburb NN with his father before he takes him to sessions on Thursdays at Licenced venue U. The father stated that he takes it slow with the child, he stated:
“We hang around the park. We play with his toys. We sit in that room in [Suburb NN] station which is like a cool hanging out place. We chat with friends along the way. It takes about an hour to do the shopping, which is his time, which is okay. It’s all good.
I am satisfied that the licenced venues are not inherently adverse to the child’s best interests. I am concerned that the child may miss the activity if I prohibit his attendance.
The father has also taken the child with him while he busked in the street. In the witness box the father stated that this was a good for the child. He saw benefits in the child meeting people. He stated that the child usually wanted to choose the songs, or play with his ball on the concrete wall, and would occasionally join in playing the tambourine. Ms Mallett suggested to the father that it was not in the child’s best interest to go busking with his father, and rather the father does not alter his schedule, expectations about what he would like to do with his time to accommodate what is best for the child. The father disagreed and stated that his actions were acts of inclusion for the child.
The mother made a blatant attempt to suggest the father was using the child to ‘beg’ for money. In her affidavit sworn 26 September 2017 the mother deposes at paragraph 37 and 38:
“37. […] [The child] told me that the father sometimes makes him play tambourine when they are there [busking].
38. Taking [the child] out on the street while he busks and begs for money is hardly beneficial for [the child] and [the child] does not enjoy the activity”.
The mother did not press the ‘begging’ allegation forcefully at the trial but it is eloquent of how she regards the father’s motives and catastrophises the implications of aspects of the father’s care of the child. It is also emblematic of how the mother misreads situations. I am satisfied that the father’s care of the child is well motivated and that there are no physical safety concerns. I specifically find that the father does not use the child for financial gain.
I conclude that it would be contrary to the child’s interests to grant the injunction sought by the mother to prevent the father from taking the child to music venues.

Family Violence

In determining the best interests of the child, I am to have regard to any family violence involving the child or any member of the child’s family and family violence orders[6].
[6] Family Law Act (Cth) ss 60CC(3)(j) and (k).
As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property. As the proceedings were instituted after 7 June 2012, s 4AB definition applies.
Both the mother and father made allegations of family violence. Both parents have an intervention order against the other which prevents the parents from approaching each other apart from for the purposes of exchanging the child. It was the father’s evidence that since the intervention orders came into force, the conflict has diminished as it has reduced the parent’s interactions. It was the mother’s evidence that she considered that it was not a benefit of the intervention order that they could not approach each other as she considered they should exchange information.
In her affidavit sworn 13 December 2016 the mother made a series of allegations against the father of family violence including name-calling and pushing. During the trial however, the mother did not press these allegations.
The two instances of family violence which were canvassed during the trial were the “taxi incident” and the “guitar incident”, both occurring on a Wednesday when changeover was taking place. The father stated that both incidents occurred when the mother was attempting to withhold the child. The mother agreed with Mr James that the allegations of family violence arose out of conflictual situations that happened at changeover and added that the cause of the conflicts was the father taking the child to the “licenced venues”.
In regard to the ‘taxi incident’ neither parent mentioned the incident in their affidavit material. However, in her report, the Family Consultant details at paragraph 84 that Mr EE:
“described several incidents he had observed where the parents were arguing as to who would be taking [the child] home, in [the child’s] presence. During one incident in particular, one of the parents had placed [the child] in a cab with them outside the school and the other parent was trying to prevent the cab from leaving.”

The father stated that the ‘taxi incident’ involved him standing in front of the taxi in a bit to prevent the mother from taking the child when the child was meant to be in the father’s care.
In cross examination by the father, the mother described the taxi incident as occurring because the father was taking the child to the “licenced venues”. Her oral evidence was as follows:
“All the conflict, fighting have been caused by your persistence in taking to nightclub for, say, Wednesday, because [Mr EE] received a letter – received instruction from Department of Education to let the mother collect [the child]. That’s why [Mr EE] let me collect him, okay? Department of Education advised the principal to let the mother, me, to collect [the child] Wednesday if I take him for the beneficial activity – for example, go to Scope or computer class or extracurricular like that. That’s what I went to collect earlier because [the child] got a new iPad.”
There was no evidence before me in regards to the veracity of the mother’s claims about the Department of Education’s involvement. No letter was produced.
The mother described that she was collecting the child at 2.10pm and the father had called his mother to collect the child. It was the mother’s evidence that the father forced the taxi driver to with the child in the car to go to the police station. The mother stated that the father blocked the front of the taxi and tried to get the child out of the taxi and shut the door. The father disputes this is so and I am unable to make a finding on the evidence. It was an unfortunate incident and certainly contrary to the child’s interests. My impression is that the mother was the protagonist. She interfered with the father’s time with the child motivated, on her own evidence, by her resolve to prevent the father taking the child to a licenced venue.
In regard to the guitar incident, the mother deposed in her affidavit sworn 13 March 2017:
44. “On 8 February 2017 […] the father again took [the child] to [Licenced venue W]. I was in the area with a friend, [Ms FF] and when I saw [the child] I confronted the father he said words to the effect that “going to [Licenced venue W] is a usual activity when [the child] is in my care I can do whatever I like.
45. The father then physically assaulted me, pushing me over a number of times, verbally abused me and called [Ms FF] a “turd”. […]”
The mother annexed an email from her friend, Ms FF, stating what she had witnessed. Ms FF was not called a witness and therefore was not cross examined on what she observed. I place little weight on this email.
In response to the mother’s allegations the father deposed in his affidavit affirmed 29 August 2017:
16. “Paragraph 44 and 45 deal with an incident that occurred on 8 February 2017 when the child was in my care. [The mother] tried to take the child from me and then tried to take my guitar from me and there was a scuffle and she did fall to the ground. […]”
In his affidavit affirmed 30 October 2017, the father added that at this incident on 8 February 2017, the mother was attempting to take the child and then his school bag and then tried to wrestle the guitar from the father.
In cross-examination, when asked about why the mother interfered with the father’s care of the child, the mother said “coincidently” her friend was driving her home and they drove past the child and the father on GG Street, which was a few streets away from Y School. She said she had gotten out of the car to retrieve the child’s bag because the father had previously failed to return the child’s property, she said it was “my schoolbag”, it was “special” and had “my education logo on it”. When the father asked if she grabbed his guitar from him, she first denied it then went straight back to talking about the bag; I asked again if she tried to take the father’s guitar she said “probably” and then “I can’t remember”; when I asked which it was, she said she couldn’t remember and again, continued on about the bag saying it was her intention to take the bag.
I am not satisfied that the mother and her friend “coincidently” came across the father a few streets away from the child’s school at a time proximate to changeover. I find that her behaviour is another example of her single-minded focus on the issue about the father taking the child to licenced venues and tendency to see her behaviour as justified so long as she considers it is in what she perceives is the best interests of the child.
The father reported that the child did not show any outward sign of distress but thought he “would have been distressed”.
In cross examination by Mr James, the mother stated:
“I don't think that that physical [encounters] is serious. It’s just a one or twice - pushing a bit caused by the argument about [licenced venues]. All the conflict is caused by [licenced venues] issue. […] That’s the key cause of all the conflict, because the nightclub, late to school, cause the verbal abuse each other or push each other or the ..... all that.”
The mother’s statement that all the issues regarded the father’s act of taking the child to licenced venues accords with her rigid personality identified by the Family Consultant.
The taxi incident and guitar incident are demonstrative of the parental dynamic and the mother and father’s personalities. It shows how the battle for control over the child occasionally becomes so intense that it results in physical altercations. Each parent justifies their behaviour by stating that they were acting in the child’s best interests. It should not need to be said, but such behaviour is egregiously unacceptable.
The mother repeatedly stated that such violence was because of the father taking the child to licenced venues which she was vehemently opposed to, this is not an adequate justification for her behaviour. However, I must consider orders which reduce the child’s exposure to family violence. As will be discussed, the father will not have the opportunity to take the child to the licenced venues during the school term by virtue of the father not having the child in his care overnight during the school week.
I am conscious of the fact that both incidents occurred during changeover near the child’s school. In addition to the reasons stated below, in order to minimise the child’s future exposure to incidents of this nature I am satisfied that changeover should occur at Suburb NN Police Station.

Changeover Location

Under the 2013 final orders, the following order was made in respect of changeovers:
2.For the purpose of change-overs in these orders:
(a)All the child’s school possessions, communication devices and school uniforms must be returned with the child at the conclusion of any live with period;
(b)The father or his nominee shall punctually collect the child from and return him to:
(i) School where such time commences or concludes on a school day;
(ii) The mother’s residence when such time commences or concludes on a non-school day.
The father seeks that changeovers take place at a Suburb NN Police Station, when not to occur at school, on the basis that he fears accusations from the mother against him. I have found that the father has contravened the Orders to effect changeover at the mother’s home on 4 occasions and that his excuse that that he feared false complaints and sought that changeover occur at Suburb NN Police station is not reasonable in the context of reasonable excuse as it pertains to contravention proceedings but that is different to considering whether it is an order om the child’s best interests. The Independent Children’s Lawyer recommended that changeovers occur at Suburb NN Police Station. It was the Family Consultant’s view that changeovers should not take place at the mother’s home.
The father’s issue with the changeover at the mother’s home is that he fears being verbally berated by the mother and feels as though he needs a witness. The father stated that also wished changeovers to occur to avoid the child being exposed to conflict between the parents. The father detailed that one instance of conflict that had occurred was in relation to the mother voicing her concern about the father taking the child to licenced venues. The father added, however, that since the intervention orders were put in place changeover had been “better”.
The mother seeks that changeover at the mother’s home on a non-school day and at the HH Church on Sundays at 10am, and the mother’s home on Sundays at 6pm on the alternate week. The father took issue with the suggestion of the Church as a changeover location as he does not feel safe going to the Church due to the presence of the mother’s friends.
Ms Mallett (for the mother) submitted that there was little evidence before me to suggest that there was, or will be, significant conflict at handovers. I do not accept this submission. The mother gave evidence that she believes the child has poor associations with the police station. The father stated that the child had been to the police station with him before and was comfortable and familiar with Police officers and Protective Service Officers who they regularly talk to at the train station. However, as will be discussed there was two significant occurrences of escalated conflict that occurred at handover, being the ‘taxi incident’ and the ‘guitar incident’ which will be discussed below.
Mr EE (the school principal of Y School) stated that in his view he supported changeover taking place at the police station if it were to provide a safer and happier transition for the child and reduce the child’s exposure to the conflict between the parents. Mr EE stated that he did not believe that the child would see the police station as being scary, asserting that generally police station foyers are quiet and clam places.
The father gave evidence that the child was comfortable with the Protective Service Officers (“PSOs”) at railway stations. They ostensibly appear like police officers and are present at the train stations in the evenings. It was the father’s evidence that he considered that the child sees PSOs and police officers generally as “cool”. The father stated that the child would often speak to the PSOs, make jokes and be cheeky with. It was the father’s evidence that the child would tell them to “Go away” and “you’re boring” in a cheeky manner. The father saw this as a “fantastic interaction”. I consider that these interactions between the child and police officers and PSOs should not be encouraged. Although I do not consider the interactions that the father described between the child and the PSOs as appropriate, I do find that it indicates that the child is comfortable around people in positions of authority and that he is unlikely to be distressed if changeover is effected at the police station.
The mother emphasises that a factor supporting change over occurring at her residence is the father’s constant tardiness. She submitted that as the father is often late, she does not want the changeover to occur at a police station, or other location, as if the father is late in picking up the child, the child is away from home where his toys and other comforts are. Additionally, if the changeover location is not at her home, the child is required to make an onwards journey after changeover, rather than being home. Ms Mallett further submitted that the father’s continuing lateness will be hugely problematic and will involve either the father being so late that the mother leaves amounting to an overstay on return or he will be so late that the mother leaves with the child with the father missing out on his time, neither option being in the child’s best interest.
The father disputes that he is regularly late for changeover. He submitted that the mother did not provide sufficient evidence to support this claim. He added that many changeovers were negotiated by the parents between both parents, and each of their requests, to be altered. The father stated that it was typical for the parents to successfully negotiate changeovers.
In her affidavit sworn 13 December 2016, the mother deposed at paragraph 40:
“when they finally do arrive at changeover venues the father makes a big show of taking [the child] to the toilet, changing clothes, sorting out his and the child’s belongings, typing on devices, writing dairy, filing the charts, using his mobile phone and feeding [the child] while I want. The whole changeover process takes one or two hours.”
The Family Consultant agreed with Ms Mallett that it was not in the child’s best interest to have changeover occur over such an extended period of time. Ms Mallett submitted that changeover is not just a “child grabbing a bag” situation, but rather is an arduous process. Therefore, it is submitted that it should occur at the mother’s home where the child has access to the proper facilities to cater for him.
The father disagreed with the submission that changeover was not just a “child grabbing a bag” situation. It was the father’s submission that since the implementation of the intervention orders against both parents, where they are required to not go within five metres of each other that both parents respect the distance.
Counsel for the mother submitted that if changeover was to occur at the police station it would likely that both parents would seek to use the police station to secure evidence of each other’s lateness and poor behaviour and contribute to further contravention and litigation between parties. I do not encourage further litigation but it will provide each party with corroboration. Ms Mallett submitted that changeover at the mother’s home meets the child’s needs first, but also the father’s needs as it allows for flexibility to be late. It was an ironic submission.
The Family Consultant agreed with the Independent Children’s Lawyer that given the parents willingness to over-hold the child, or deliver him or return him that, that it would be appropriate and in the child’s best interest that there be an independent setting where there were independent persons who could keep the parties’ behaviour in check and record whether they are late or not. The Family Consultant stated that, she hoped, this would also lead to the parties complying with the Orders.
I accept the father’s submission, supported by the recommendations of both the Independent Children’s Lawyer and Family Consultant, that changeover should not occur at the mother’s home and rather should occur at Suburb NN Police Station.

Parental Responsibility

Section 61DA provides that when making a parenting order[7], I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
[7] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to the child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to the child.[8] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature 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 children to spend time with a parent.
[8] Family Law Act 1975 (Cth) s 61B.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[9] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[10] and to ‘make a genuine effort to come to a joint decision about that issue’.[11] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[9] Family Law Act 1975 (Cth) s 65DAC(2).
[10] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[11] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The prospect of such cooperation is non-existent. The parents are conflicted. Neither is for turning. They are habituated to disagree with one another. The lack of trust is long standing. For instance, the mother deposed in her affidavit sworn 13 December 2016 that during her pregnancy with the child the father threw things around the house and was born in an emergency induced by high stress caused by the father’s violence. In cross-examination by the father when the father asked the mother about this, the mother responded “Yes, you knew that […] You said you felt guilty for [the child’s] disability. You said you felt guilty.” The mother’s statement reflects the entrenched antipathy she has toward the father.
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply and can be rebutted if the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[12] or abuse of the child or another child who is a member of the parent’s family[13]. Also where evidence is adduced, upon which the Court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child[14], which I am satisfied is the case.
[12] Family Law Act 1975 (Cth) s 61DA(2)(b).
[13] Family Law Act 1975 (Cth) s 61DA(2)(a).
[14] Family Law Act 1975 (Cth) s 61DA(4).
In the final orders in 2013, Dessau J split parental responsibility between the parties, with the father to have sole parental responsibility for the child’s health and the mother to have sole parental responsibility for the child’s education, with the father being permitted to home school the child one day per week. There were other restrictions on the how each parent was to exercise parental responsibility in the final orders. For completeness, the orders about parental responsibility were as follows:
2. That subject to paragraphs 3, 4 and 6 of these orders, the mother shall have sole parental responsibility for educational decisions for the child.
3. That the father shall be permitted to home-school [the child] on one day per week during school terms, on a day when [the child] is living with him pursuant to these orders, and being a day agreed between the parents at the start of each school year, and failing agreement, a day to be chosen by the mother provided that the mother shall be and is hereby restrained from making any educational appointments for [the child] on the home-school day unless:
(a)      The father consents;
(b) It is the only available day and does not involve recurring periodic appointments, and in this event she shall give him 7 days notice; and
(c)She shall be responsible for transporting [the child] to and from any such appointments.
4. That the mother shall arrange an annual case conference to discuss [the child’s] health and education:
(a) To be held at [MM Centre], and if unavailable, that the mother shall arrange premises other than [Y School];
(b) To be facilitated by a person as agreed between the parents and failing agreement as arranged by the mother;
(c)To be held no later than the end of the third school term;
(d) To be attended by each parent and up to 4 people chosen by each of them to include any family, doctors and allied health or teaching professionals, in addition to any other person nominated by the child’s school.
(e) With an agenda to be provided by the mother to the father at least 28 days before the conference, to be returned to her by the father with any additional agenda items within 14 days of his receipt of it;
provided that in the absence of any agreement the mother shall determine the educational issues and shall, between annual conferences, keep the father informed of any educational decisions, and advise him of appointments.
5.        That the mother:
(a) Shall keep the father advised in writing of the names of [the child’s] educational related providers for [the child]; and
(b) As soon as practicable after any consultation with an educational provider advise the father in writing of the reason for the consultation and the recommendations thereof and provide the father at her expense with copies of any written report of the educational provider.
6.        That the father:
(a) May not arrange any educational appointments for [the child] without the mother’s prior consent; but
(b)May continue to take [the child] to [LL Centre] and to organise his use of communication devices;
(c)May consult with any university special education departments in relation to home-schooling and keep the mother informed of the content of the consultations.
(d) May attend any relevant meetings at the school with the approval of the school principal.
7. That if the mother and father fail to agree on [the child’s] attendance at a mainstream school the parents shall follow the recommendation provided by the majority of or a nominee of the following:
(a)      [Y School]:
(b)      [The child’s] paediatrician;
(c)      The Department of Education; and
(d)      The proposed mainstream school
and such mainstream school shall be located within 10 kilometres of the mother’s residence or such further distance with the written consent of the mother.
[…]
12. That the mother shall be and is hereby restrained herself or by her servants and agents from writing letters or sending material to any doctors, health professionals, schools, educators, the father, his family members or friends, or the Department of Human Services with any complaints in relation to the state of the father’s home or car, his day-to-day care of [the child], or the father’s mental health.
13. That subject to paragraphs 4, 14 and 22 of these orders the father shall have sole responsibility for health decisions for [the child], including but not limited to continence, dental and allied health services.
14. That the mother and father be entitled to retain their own general practitioner in respect to [the child’s] day to day care and minor ailments and make appointments for [the child’s] attendance when he is in their respective care.
15.      The mother and the father;
(a) Will keep the other advised of the name and contact details of the other’s general practitioner for [the child]; and
(b) Will advise the other as soon as practicable after any consultation with [the child’s] general practitioner of the reason for the consultation and the recommendations and treatment prescribed by the general practitioner.
16. That the child’s paediatrician shall be [Dr R] or her nominee.
17. That the father be and is hereby restrained from making specialist health and health allied appointments for [the child] on a non-home school day or any other day on which the child lives with the mother unless:
(a)      The mother consents;
(b)      It is an emergency;
(c) It is the only available day and in this event he shall give her 7 days notice; and
(d) He shall be responsible for transporting [the child]
18. That the father and mother shall follow all recommendations and directions of [the child’s] paediatrician and any other allied health service provider.
19.That the father shall follow all recommendations and directions of his nominated general practitioner for the child and [the child’s] paediatrician in respect to referrals to any other health related specialist and service.
20. That the father:
(a) shall keep the mother advised in writing of the names of [the child’s] paediatrician and any other health related providers for [the child]; and
(b) as soon as practicable after any consultation with a health provider advise the mother of the reason for the consultation and the recommendations, directions and treatments thereof and provide the mother at his expense with copies of any written report of the health provider.
21. That the mother be restrained from seeking any health and allied health service referrals from her nominated general practitioner for [the child].
22. In the absence of any agreement in relation to the agenda for health issues at the annual case conference the father shall determine the health issues and shall, between annual conferences, keep the mother informed of any health decisions and advise her of appointments.
23. Notwithstanding these Orders:
(a) The Mother be entitled to attend upon any of [the child’s] service providers without [the child]; and
(b)The Father be entitled to attend upon any educational institution without [the child] including any school at which [the child] attends from time to time and any health professionals at [the child’s] school.

This interaction satisfies me that the mother has interacted inappropriately and is was focused on her own grievances rather than cooperating with the continence clinic and the father in promotion of the child’s health needs.
Furthermore, the father makes multiple complaints about the mother failing to take professional advice in regards to the child’s continence issues, an area that the father has parental responsibility over but requires the mother’s cooperation. The child is not fully toilet trained. The father deposed that the mother tends not to cooperate with the child’s continence training program. The father pointed to the mother failing to use the ‘Ramsay Coote system’ recommended and loaned to the parents by the continence nurse, Ms YY, at the Hospital S. The father deposed the system involved a heavy rubber mat and an alarm box to be used to address the child’s night time incontinence. The father deposed that although the mother had been given precise instructions on how to use the system by the nurse at the Hospital S, “after a few weeks or a month [the mother] have up trying to use it.” The father deposed in his affidavit sworn 30 October 2017 at paragraph 118:
118. […] We’d [the mother and father] had some discussions and I tried to help her understand how to use it and encouraged her to contact [Ms YY], but she resented my offers to help ad said that [the child] needed to sleep without disturbance. She soon refused to communicate any further about it. When the alarm came and went with [the child’s] other belongings at changeovers, I would check the settings and how it was packed. When it came back to me at the next changeover each time, it clearly had not been used or even unpacked.”
The father further deposed:
119. “[The child] used the alarm system with me for about four or five months before we needed to return it. It was a great help in his progress to achieving night-time continence. […] [The child’s] progress would have been faster if [the mother] had cooperated. He still wears pull-ups every night in her care and I believe she is making no effort to train him for night time continence. […] I […] intend to ask her […] if she will cooperate with me on a chart for [the child’s] bowel movements.”
I am not satisfied the mother would necessarily fulfil the child’s health needs better than the father if she was allocated sole parental responsibility.

Conclusion about parental responsibility

In determining the best interests of the child I am also to have regard to whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[19].
[19] Family Law Act (Cth) s 60CC(3)(l).
The entrenched conflict between the mother and father is well documented. The root of the parental conflict is a fundamental disagreement over parenting styles with both parents possessing an uncompromising attitude. As I stated in my interim ex-tempore decision, case neutral citation [2017] FamCA 608, from paragraph 4:
4.There has been an intractable conflict between the parties evidenced by there being 10 folios of court documents.
5. Notably at paragraphs 36 to 39 of [Justice Dessau, as she then was] reasons for judgment on 14 February 2013 her Honour made the following comments:
36.The first is that there must be a stop to this endless litigation and it is very hard for me to feel confident that it will occur. I am concerned that there is a mindset in this family that the court is the place of first resort when there is an issue with [the child].
37.There will always be contentious issues in parenting children even when parents remain together, but certainly when they separate, there are bound to be more complications. With the degree of care that each parent needs to give [the child], the complications here are more profound. But if they rush to court each time there is an issue, then their energy and money and time is diverted.
38.A very poignant piece of evidence I heard was that the parents have sometimes cooperated well, in the context of swapping [the child], when one or the other is working on their affidavit for court. I am not sure the parents could see the irony in that, but it certainly was not lost on me.
39.I will make an order restraining each parent from returning to court without leave of a judge. I am concerned that they must not misinterpret that order, to think that it simply means, “So each time we go to court we just get leave of the judge first”. The idea is that the court will be closed off to them, unless there is a genuinely new and serious issue that only a court can address. […]
I do have not discussed all of the complaints each parent has about the other’s parenting style. The essence of their disagreement is that the father sees the mother as coddling and over protective and the mother sees the father as laissez faire. The Family Consultant assessed that neither parent has a positive opinion of the other nor do they value the other parent’s way of parenting. She reports:
54. “[The mother] considered [the father] was selfish as she claimed he continuously put his needs before [the child’s]. [The mother] was critical of [the father] for never having a stable job […].
[…]
60. [The father’s] thoughts on the underlying factors regarding the parental conflict were that [the mother] never accepted the parental separation, and they have differing personality styles. He described [the mother] as a ‘control freak,’ who would “never agree to parenting my way.” He stated there was conflict before the parents separated. […]
61. [The mother] agreed that the parents have “completely different personalities” and different values.”
Previous decisions and the opinion of the Family Consultant and the Independent Children’s Lawyer is that neither the mother nor father’s parenting styles are deficient. The Family Consultant wrote at paragraph 90 of her report, and I accept:
“Both have different things to offer [the child], for example, [Ms Xiu] offers him structure and routine and Mr [Hodges] offers him humour and ways to increase his independence. However neither parent has managed to co-parent successfully to any degree.”
In her interview with the Family Consultant, the Paternal Grandmother stated that the child “had lived with [the parental conflict] since he was little.” She stated that she believed the conflict had improved somewhat of late and thought the intervention orders preventing the parents from coming within five metre of each other worked well for them.
The mother told the Family Consultant that the child was somewhat aware of the conflict between parents, although she and the father were generally careful not to argue in front of him. I find that the mother’s statement shows that she either sought to underplay the consequences of their conflict in front of the child, or did not appreciate the negative consequences it had on the child.
The father stated that he had occasionally tried to talk to the child about the parental conflict after incidents had taken place, but the child says very little. The Family Consultant reported that this was a “poignant insight” as “poor parental collaboration and high parental conflict are significant risk factors for poor outcomes for children with special needs”.
In his affidavit sworn/affirmed 30 October 2017, the father deposes:
“Both of us [the parents] love [the child] deeply and that seems to me, to perhaps go some way to overcome the suffering our conflict causes him”.
The Family Consultant reported that Mr EE “believed the parental conflict had a negative impact on the child. He believed the child was emotionally traumatised and that in order to cope he tends to dissociate.” In the witness box the father agreed that due to the child’s disabilities the way he copes is to withdrawn or dissociate.
The Independent Children’s Lawyer stated that an issue with the child withdrawing and dissociating is that it can be difficult for the adults in his life to get a gauge on what impact the conflict is having on the child. The Family Consultant reports that as the child has trouble expressly his emotions outwardly, it is likely his experience is more internal, as would fit the autism diagnosis. The Family Consultant reports at paragraph 89 of the report:
“If the child is experiencing the parental conflict on a more internal conflict, it is possible he is at risk for depression.”
The Independent Children’s Lawyer submitted, and I accept, that I should Order that the child’s paediatrician be asked to consider whether and to what extent the child may require a referral for mental health assessment in relation to his long term exposure to parental conflict.
I do not doubt that both parents share a deep love and concern for the child. Mr EE described the mother and father’s relationship to the Family Consultant as a “battle for control”. In cross-examination, the Family Consultant agreed that she had observed elements that would be consistent with a battle for control. I am inclined to accept this assessment. This matter may appear on the face of it, to be about two parents who lives are consumed by their highly disabled son. However, it is my impression that their lives are consumed by the conflict over who is better at caring for their highly disabled son. At one stage, the love and concern for the child may have been the driving factor behind the parent’s behaviour. However, love does not justify a shameless pursuit of power and control over the child.
The father and the mother have engaged in litigation as an extension of their conflict, not to resolve it. It is for this reason that I Order, as Dessau J did, that the parties will be prohibited from instituting proceedings without leave of the Court, with the exception of the issues pertaining to the disability support pension and NDIS within 28 days after the delivery of these reasons.
Ultimately, I must be satisfied that the allocation of parental responsibility generally and in regard to health is in the child’s best interest. On the case before me I must weigh up whether the father is discharging his responsibility in regard to the child’s health, and whether the benefit of possibly reducing parental conflict by awarding the mother parental responsibility for health outweighs the cutting the father out effectively of all health and education decisions for the child.
The Family Consultant wrote:
“It is recommended that, if both parents share parental responsibility across both area, major decisions will always be a source of conflict. However, even now there has been a separation of the responsibilities, it seemingly has not ameliorated the conflict. [Ms Xiu] has still felt responsible for [the child’s] major health decisions, despite not having responsibility under Court orders, and has continued to try and manage areas of [the child’s] health, such as vaccinations.”
On the final day of the trial the Independent Children’s Lawyer recommended that the mother have sole parental responsibility for health. The reason for this was to reduce conflict and to provide consistency, and as the child lived primarily with the mother it made more sense that she was the parent who had responsibility for health decisions. The Independent Children’s Lawyer submitted that they were concerned that the child’s need for security and predictability was compromised by parental conflict.
Before this change of position, however, the Independent Children’s Lawyer submitted in their outline of case that there was little evidence that assigning sole parental responsibility would reduce conflict. The Independent Children’s Lawyer pointed to the personality of each of the parents and the fact that their pattern of interacting is such that when the Court resolves specific issues of conflict between them, further areas of conflict arise. The Independent Children’s Lawyer’s concern, which I share, was that if parental responsibility was allocated to the mother, the primary carer, it would have the effect of giving the impression of having endorsed her approach as the superior parenting approach an creating a further area of conflict around the father’s compliance with decisions made by the mother in exercise of parental responsibility. The Independent Children’s Lawyer submitted that in these circumstances, and where there is no evidence of that the child’s needs are not met, the present arrangement ought to continue. I accept with the original position of the Independent Children’s Lawyer in preference to the later position.
I am satisfied that the child’s health needs are being met by the father having parental responsibility for the child’s health.
I note Dessau J comments in regards to why she divided parental responsibility for health and education in her reasons in 2013 at paragraph 30:
“It simply will not work for [the child] if one parent - either parent – takes over responsibility for all the decisions. It would leave the other parent caring half-time for a child who needs intense care and supervision, whilst nursing the grievance and loss from feeling excluded from important decisions. The way things have evolved, although I had hoped last time that I could have removed some of the uncertainty for [the child], I think it is no longer in his best interests to have a situation whereby either parent feels disenfranchised.”
These comments are still relevant today.
I am not satisfied that awarding the mother sole parental responsibility for health is in the child’s best interests, nor would be necessarily ameliorate the conflict between the parents, as both the Independent Children’s Lawyer and the Family Consultant noted. If I were allocate sole parental responsibility to the mother I would not necessarily reduce the child’s exposure to parental conflict but would certainly disenfranchise the father. I consider that the child’s best interests will not be served if the father is excluded and effectively removed from any decision-making capacity in regards to the child. Although I acknowledge the need for consistency for the child, I consider this would also be effected if the mother was to stop interfering with the father’s exercise of parental responsibility as unlikely as that may be.
The continuation of conflict is seemingly inevitable whatever this Court decides. The mother and father’s parenting styles may not be deficient but the undeniable impacts of their constant conflict on the child should not be ignored. I accept the Family Consultant’s assessment that both parents are rigid. I further accept the Family Consultant’s evaluation that neither parent is capable of making changes to their behaviour without intervention. She recommends that both the mother and the father attend a psychologist as recommended by their general practitioners and for the psychologists to be provided with the Family Consultant’s report. The Family Consultant recommends that it will be optimal to consider one service provider for both parents as “they require a level of intensive and ongoing support that is provided on an individual level.”
In cross-examination by the father, the Family Consultant stated that although it is difficult to estimate how many sessions would be required she thought that approximately 10 sessions that focused on cognitive behavioural therapy, or something that worked on the parents’ thought patterns and attitudes as she considered this was basis of the conflicts that erupt between the parents.
As stated above, the father attends counselling with Dr ZZ. In cross-examination the Family Consultant agreed with the father that is was likely that the father would be more likely to engage meaningfully in therapy than the mother given he is already seeing a therapist and has continued to do so. The Family Consultant’s recommendation was that therapy should be ordered, as although the father may engage voluntarily with a therapist, the Family Consultant doubted that the mother would. Ms Mallett (for the mother) stated the mother did not object to the Family Consultant’s recommendation that both parents attend a psychologist.
I consider that the child would benefit if both parents attend upon a psychologist. However, I am not inclined to order this. The parents have been in conflict for many years, they have had both encouragement and ample opportunity for self-reflection and seek psychological assistance. If any real change is to occur within and between the parents it needs to be self-driven, which I note the father has appeared to take genuine steps toward. It would be ideal if the mother also sought psychological intervention, however, it is inappropriate for me to make an order in that regard.

Conclusion

I have decided to alter the 2013 parenting arrangement only slightly and mostly to provide better arrangements around the child’s education with consequential orders for spend time and residence.
The child will have longer periods of consecutive days with the father during school term holidays and the mother will have weekends. She will have Sundays during school holidays which will allow her to take the child to church. During the long summer school vacation, the child can reside from Tuesday to Saturday with the father. I am satisfied that these arrangements are consistent with the child’s best interests.
I have drawn some orders to implement these reasons. I anticipate that the parents will have difficulty processing aspects of the orders which do not coincide with the outcome he/she sought. There may also be matters on which the parties can agree giving findings I have made. It is in the child’s best interest that the Order be understood by each parent and be workable. Accordingly I will not pronounce orders immediately but will want to hear within seven days from each parent and the Independent Children’s Lawyer as to any further matters which should be included in the Order. This is in addition to the provision for application to be mad about NDIS and DSP entitlements once the parents have details of the parenting arrangement which I have ordered.

Costs

Any party who wishes to make an application for costs may do so in accordance with the orders set out at the commencement of the decision.

ADDITIONAL REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE 15 MARCH 2019

This matter concerns an extensive parenting dispute between the parents in relation to the child. This matter comes before me for mention, having provided draft orders to the parties and having prepared the previous reasons for decision.
The child’s interests have been very capably represented by the Independent Children’s Lawyer and still are. Ms Kourtis appears today.
Ms Grandinetti, solicitor, appears on behalf of the mother who attends Court, although that firm does not have funding for anything after today.
The father appears in person.
I provided the parties with a draft order and I did so because I was concerned not to inadvertently disadvantage either of them or the child by making errors which would easily apparent to them but missed by me. That draft order was largely drawn from minutes submitted by the parties individually but, in my experience, this is a matter where uncertainty in each parent’s interpretation of orders causes enforcement difficulty.
As it turns out, with the assistance of the Independent Children’s Lawyer, all of the parties have highlighted some ambiguity with changeover provisions, and the special day time and residence orders. The final order will incorporate those agreed amendments.
There are some contentious matters which I will now determine.
One of the principal matters that I was required to decide was the allocation of parental responsibility in relation to the child, and in particular where the mother should have, as she sought, sole parental responsibility for all issues to do with the child in an education and health sense, or whether the father should retain his exclusive parental responsibility in relation to health matters for the child.

I decided that the mother have sole parental responsibility for educational decision about the child and the father have sole parental responsibility for health decision for the child. This represents a situation which has been in place for some years, but which has not worked particularly well. I trust that with further definition of what is involved in each role, it can work better in the future. One of the important aspects of this matter is the introduction of the National Disability Insurance Scheme and the rather awkward interface between Family Court orders and the provision for and access to funding under the National Disability Insurance Scheme (“NDIS”).
I do not make any orders against the administrators of NDIS. My orders relate to the parties’ ability to submit claims to the NDIS for the services and care of the child. An area over which the parent’s cannot agree are the health services which the child receives either solely or partially at school. As I currently understand it, the mother says that if it is something that happens at school she has complete authority over it, even if that service clearly be a health-related service and also occurs outside school. I am against the mother on that interpretation. A health service remains a health service, notwithstanding where it is delivered.
That is, a health service may be require by the school or required by the child at school but it still remains a health service. The mother’s proposition also ignores the fact that in some respects, services are not provided solely at or for or at the request of the school. A clear instance of that is the communication device used by the child. He uses it not only at school, but in the private household of each parents and in his other day-to-day life. The independent children’s lawyer and the father seek orders which reflect the fact that health-related matters would remain the father’s responsibility, including his responsibility to seek funding from the NDIS regardless of where they are delivered.
As I deliver those reasons the mother’s reaction indicates that her objection goes deeper than the classification of services. It is that the father should not have responsibility for health matters concerning the child. She believes she should have parental responsibility for health matters but I have already decided that is not in the child’s best interests.
ORDERS DELIVERED
A further issue arises in this matter as to implementation of the order that I have just made. The independent children’s lawyer and the father seek an order that the parents do all acts and things necessary to provide the other with necessary access to the NDIS portal or any other application process. The father does not currently have access to the NDIS portal. He says that it is necessary for the mother to give her consent to him having such access. On behalf of the mother, it is still her position that the NDIS is not something that falls within the portfolio of the husband’s sole responsibility for health matters concerning the child.
It flows that the mother does not and will not consent to the father having any access to the NDIS application procedure or the portal.
I am satisfied that it is essential to the child’s best interest that the parties be able to implement the responsibility in respect of which I have made a determination. That is, that the father has sole parental responsibility for health decision and that the mother has sole parental responsibility for educational decisions. The orders which I have made today, I hope clarify by further defining at least what is included in all health decisions for the child.
It would be quite contrary to the child’s best interests if orders in those terms could not be implemented. Therefore, I will make the machinery issue sought by the father.
RECORDED: NOTE TRANSCRIBED
ORDERS DELIVERED
A matter sought by the father which is, again, a mere machinery provision to orders which I indicated on 7 February 2019 would be made relates to the implementation of these orders vis a vis the child’s school. Paragraph 11 provides that the father not make specialist health or health allied appointments for the child during the mother’s periods of care unless such appointments fall into one of three categories.
First, it is an appointment to which the mother has given her prior consent, it is unlikely that the mother will provide that consent.
Second, that the appointment is required for an emergency.
Third, that an appointment during the mother’s care period, including when the child is at school, “is the only available day” for the appointment. Where the third category arises, there are a number of preconditions. The father must give at least seven days’ notice in writing to the mother and to the school of the time and date that he requires to collect the child from school and the fact that that is the only available appointment within a reasonable timeframe.
The father raises the concern today that the mother will not consent to or will act to prohibit his removal of the child from school to attend any appointments, notwithstanding that he may have met any conditions precedent to the child attending during school hours. He also refers to the possibility of being able to secure a health appointment for the child after school but needing to collect the child during the school day in order to be able to get to the appointment on time and possibly by public transport. The mother has confirmed that she does not consent to anything which involves the concept of the father taking the child to allied heath appointments including allied health appointments that fall during school days. Apart from that, there are no submissions in opposition. I propose to amend the order as sought to clarify the situation for the parties and hopefully make it clearer for the school and less confusing and fraught for the child.
RECORDED: NOT TRANSCRIBED
ORDERS DELIVERED
The orders will engrossed in these terms and appear at the beginning of the reasons for decision that I delivered. There will be further reasons for decision from today following on from my original reasons.
RECORDED: NOT TRANSCRIBED
ORDERS DELIVERED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 March 2019.

Associate:

Date: 12 April 2019

[2019] FamCA 251

7 February 2019 15 March 2019

Key Legal Topics

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Family Law

Legal Concepts

Injunction

Costs

Appeal

Procedural Fairness