Zlotnik and Gerasimov
[2020] FamCA 713
•27 August 2020
FAMILY COURT OF AUSTRALIA
| ZLOTNIK & GERASIMOV | [2020] FamCA 713 |
| FAMILY LAW – PARENTING – With whom a child lives – Application by the father for final parenting orders – Where the parties agree to equal shared parental responsibility – Where the father is seeking equal time – Where the mother and the ICL oppose equal time – Where it is in the best interests of the child to make orders for the child to spend substantial and significant time with the father – Where the father sought to impose various restrictions on overseas travel – Where the mother is not a flight risk and the proposed restrictions are not appropriate – Best interests of the child – Where the single expert recommends the child live with the mother – Where the Independent Children’s Lawyer supports the mother’s application. |
| Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 62B, 65DA, 65DAA |
| Zlotnik & Gerasimov [2018] FamCA 987 Zlotnik & Gerasimov [2019] FamCA 806 |
| APPLICANT: | Mr Zlotnik |
| RESPONDENT: | Ms Gerasimov |
| INDEPENDENT CHILDREN’S LAWYER: | Clayhills Escobar |
| FILE NUMBER: | SYC | 503 | of | 2015 |
| DATE DELIVERED: | 27 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 29 - 30 January 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Bolovan |
| SOLICITOR FOR THE RESPONDENT: | Genuine Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Clayhills Escobar |
Orders
All previous Orders, parenting plans and undertakings in relation to parenting be discharged.
The father and mother shall have equal shared parental responsibility for the child, B, born on … 2012 (“the child”).
The child live with the mother and shall spend time with the father as follows:
(a) During the school term
(i)On a fortnightly basis from the conclusion of school on Thursday until the commencement of school on Monday.
(b)During inter-term school holidays and subject to the order in relation to international travel:
(i)The child is to spend the first half of the said holidays from the conclusion of school on the last day of term with the father and the second half of the holidays with the mother in odd numbered years; and
(ii)The child is to spend the first half of the said holidays from the conclusion of school on the last day of term with the mother and the second half of the holidays with the father in even numbered years.
(c)During Christmas school holidays and subject to the order in relation to international travel:
(i)The child shall spend the first two weeks of the said holidays from the conclusion of the school on the last day of the term with the father in even numbered years; and
(ii)The child shall spend the last two weeks of the said holidays concluding on the day before the new school term with the father in odd numbered years.
(d) Special occasions:
(i)Notwithstanding any other Orders and provided that the child is in Australia, the child will spend time with each parent on special occasions as agreed and failing agreement as follows:
A.With the father on:
(a) Father’s Day from 9am until 5pm;
(b) The child’s birthday from 9am until 3pm in even numbered years and 3pm to 9pm in odd numbered years;
(c) Christmas in even numbered years from 12pm on Christmas eve until 12pm Christmas Day;
(d) Christmas in odd numbered years from 12pm on Christmas Day until 12pm on Boxing Day;
(e) New Year’s Eve in even numbered years from 12pm, New Year’s Eve until 12pm New Year’s Day.
B.With the mother on:
(a) Mother’s Day from 9am until 5pm;
(b) The child’s birthday from 9am until 3pm in odd numbered years and 3pm until 9pm in even numbered years;
(c) Christmas in odd numbered years from 12pm Christmas Eve until 12pm Christmas Day;
(d) Christmas in even numbered years from 12pm Christmas Day until 12pm Boxing Day;
(e) New Year’s Eve in odd numbered years from 12pm New Year’s Eve until 12pm New Year’s Day.
The mother may take the child overseas for up to four (4) weeks each year during:
(a)The Christmas school holidays, including if necessary, time the child would otherwise spend with the father in order to create a four week period or alternatively
(b)Term 2 school holidays and additional time during school term provided that the child misses no more than two (2) weeks of schooling.
In the event the child is overseas during a period when, pursuant to these orders, the child would have otherwise been with the father, make up time is to be provided to the father during the following periods upon him giving no less than 28 days notice to the mother:
(a)In term 1 school holidays in the event that the mother has taken extra time in the Christmas holidays; or
(b)Alternatively in term 3 school holidays in the event that the child has been with the mother for the whole of term 2 school holidays
The father may take the child overseas once a year during any time the child is with him pursuant to these orders.
Either parent who is intending travelling overseas with the child must:
(a)Give the other parent at least 3 months written notice of the intended overseas travel; and
(b)Provide the other parent with a full itinerary ‘prior to the departure date’ including the address and telephone number(s) of the place or places the child will be staying while overseas and copies of airline and/or other travel tickets.
Upon either parent receiving the notice referred to in the preceding order they may, within a period of fourteen (14) days make an application on short notice for the court to consider whether or not that the then current position of the global COVID-19 pandemic should result in a cancellation or postpone of the proposed overseas travel.
The father shall do all acts and sign all documents necessary to issue and/ or keep the child’s Australian and Country J passports current at all times until the child attains the age of eighteen (18) years.
The costs in maintaining the child’s passport for the purposes of these Orders be shared equally between the parties.
The mother shall retain the child’s Australian and Country J passport.
The father shall provide a request to the mother for the release of the child’s Australian and Country J passports in the event that the said passports are required to facilitate the child’s overseas travel.
The father shall return the child’s Australian and Country J passports to the mother within seven (7) days of the child’s return from overseas travel.
The name of the child B born … 2012 is to be removed from the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia.
Either parent may take the child interstate during a period the child is living with or spending time with them provided that parent:
(a)Gives to the other parent at least one (1) month written notice of the intended interstate travel; and
(b)Provides to the other parent details of the address and telephone number of the place or places the child will be staying whilst interstate.
When changeover is not at school, the father is to collect the child from the mother’s residence upon the commencement of the contact and drop the child at the mother’s residence upon the conclusion of the contact, or as otherwise agreed between the parties.
The child be at liberty to contact either parent at any reasonable time that he expresses a wish to do so, and in that event, the parent with whom the child is with shall facilitate the child contacting the other party by telephone and/ or FaceTime.
Apart from periods of time when the child is overseas or interstate, the parties shall be at liberty to communicate with the child by telephone and/or FaceTime when the child is with the other party provided that such calls are made on Thursday and Sunday between 6pm and 6.30pm.
During periods of time when the child is overseas or interstate, the parent with the child shall ensure that the child has one period of electronic communication a week with the other parent at a time which is mutually convenient to the child and to the parent with whom the child is communicating.
Each parent shall continue to maintain a mobile telephone service able to facilitate both telephone calls and FaceTime.
Each parent shall ensure that the child have privacy during any conversations between the child and the other parent.
Both parents shall keep each other informed at all times of their residential address, telephone number/s including mobile telephone numbers and email addresses and advise the other parent of any change to such details forthwith and in any event by no later than twenty-four (24) hours of the change occurring.
Both parents shall keep the other parent informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the child within forty-eight (48) hours of any appointments.
Both parents shall inform the other parent of any serious medical condition, significant health issue or illness suffered by the child as soon as reasonably practicable and in any event within twenty-four hours and in the event the child attend hospital for any illness or injury the other parent shall be notified within two (2) hours.
Both parents shall inform the other parent of any specialist medical, optical, dental or health appointments (including counselling, psychiatric or any other therapeutic appointments) made in advance for the child within a reasonable period of notice and in any event at least three (3) days prior to such appointments and both parents shall be at liberty to attend such appointments. Both parents agree that no medical procedure or operation be performed on the child except with the written consent of both either mother and father except in the event of an emergency where the child require immediate medical treatment as advised by the treating medical practitioner.
These orders shall be sufficient authority for the child’s treating practitioners and specialist practitioners or other health practitioners to provide any and all information relating to the child to both parents however shall not be taken to discharge the parents’ obligations pursuant to these Orders to keep each other informed of such information.
Both parents hereby authorize, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates obtained by the child and any newsletters, notices or other correspondence, documents or information relating to the child (at the requesting parent’s cost), however shall not be taken to discharge the parents obligations to keep each other informed of such information.
Both parents shall each nominate one (1) person as an emergency contact person providing the nominated persons with authority to collect the child from school or care centre, in the event either parent cannot collect the child from school or care centre. Both parents should provide each other with the nominated person’s contact details such as full name, home address and telephone contact number.
During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and refrain from questioning the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or the presence of the child;
(d)Not denigrate or insult the other parent’s extended family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent’s extended family in the hearing bor presence of the child; and
(e)Remove the child from any situation where they may be exposed to verbal, emotional or psychological abuse.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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 Zlotnik & Gerasimov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 503 of 2015
| Mr Zlotnik |
Applicant
And
| Ms Gerasimov |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents ask the court to make final parenting orders in relation to the child, B, born on … 2012 (“the child”). Since the father filed an application for final parenting orders on 30 January 2015, the matter has been before the court at least 26 times. The father filed a Further Amended Initiating Application for Final Orders on 8 December 2019.
Interim Orders were made by consent on 5 August 2015 for the child to live with the mother and spend time with the father.
The parties separated in February 2013, when the child was around 13 months old. Since the date of separation, the child has always lived with the mother. Immediately prior to starting school, the primary carer for the child had been his maternal grandmother, whom also lives with the child and the mother.
The father now asks the Court to order that the child spend equal time with the parties.
The mother, father and maternal grandmother were all born in Country J. The child’s first language was the Country J language and that is what he speaks at home.
Current Orders
A final Order for equal shared parental responsibility was made by consent on 10 October 2018.
The terms of the interim orders made 5 August 2015 provided the child spends gradually increasing time with his Father once the child had returned from the 2015 trip to Country J and the child now spends time with the father in accordance with the orders as follows:
a)Each Tuesday from 6pm until 6pm on Wednesday;
b)From 3pm on Friday until 6pm Sunday every alternate weekend;
c)Changeovers to occur at the mother’s home.
In addition the child also spends half the school holidays of terms 1, 2 and 3 with the father.
Applications
The full text of orders sought in the father’s Further Amended Initiating Application filed 8 December 2019 is set out in Schedule 1. In summary the father is seeking:
·Orders reformulating the current final order for equal shared parental responsibility (which application was ultimately abandoned);
·The child spend equal time with each parent;
·Week about arrangement during school term;
·Equal time in school holidays, first half with the father in odd years and first half with mother in even years;
·Time with each parent on special occasions;
·Each parent to reside within close proximity to the school;
·The child to have own room at either house and specification as to what should be in that room;
·A suite of orders relating to overseas travel;
·Changeovers at school or parent to deliver to the other whose time is about to commence;
·50% of all costs;
·Child to have a relationship with siblings, including his sisters in Queensland; and
·Set times for phone calls.
The full text of the orders sought in the mother’s Further Amended Response to Initiating Application filed 2 December 2019 is set out in Schedule 2. In summary, the mother is seeking:
·Orders reformulating the current final order for equal shared parental responsibility (which application was ultimately abandoned)
·The child to live with the mother and spend time with the father:
§School term: Thursday from school pick-up until Monday school drop off each fortnight
§Terms 1, 2 and 3 holidays the child spend the first half with the father in even numbered years and the first half with the mother in odd numbered years
§In Christmas holidays for the first two weeks with the father in even numbered years and the last two weeks with the father in odd numbered years
·Special occasions with the father as follows:
§Father’s Day from 9am until 5pm
§The child’s birthday from 9am to 3pm in even numbered years and 3pm until 9pm in odd numbered years
§Christmas in even numbered years from 12pm Christmas Eve until 12pm Christmas Day
§Christmas in odd numbered years from 12pm Christmas Day until 12pm Boxing Day
§New Year’s Eve in even numbered years from 12pm New Year’s Eve until 12pm New Year’s Day
§Any other times as agreed in writing with 28 days’ notice
·Special occasions with the mother as follows:
§Mother’s Day from 9am until 5pm
§The child’s birthday from 9am to 3pm in odd numbered years and from 3pm until 9pm in even numbered years
§Christmas in odd numbered years from 12pm Christmas Eve until 12pm Christmas Day
§Christmas in even numbered years from 12pm Christmas Day until 12pm Boxing Day
§New Year’s Eve in odd numbered years from 12pm New Year’s Eve until 12pm New Year’s Day
I note that under the mother’s proposals, the child would already be spending time with the mother as specified for the child’s birthday and New Year without any additional specific order but I intend to make the orders in the forms requested
·The mother can visit Country J with the child for a period of not more than five weeks each year [this is an amended formulation during the hearing]. The mother to give the father at least three months’ notice prior to departure and a copy of airline tickets once available Communication via skype at least once per week
·When the child is overseas, make-up time to be provided to the other parents as agreed by parties in writing with no less than 28 days’ notice
·Changeover either at school or the father is to collect and drop off from the mother’s residence
·Communication on Thursday to Sunday between 6pm and 6.30pm, by FaceTime or telephone call
·The mother to keep passport/s and the child to be removed from the airport watch list. Shared cost for passport/s
·Each party notify the other within 24 hours of change of contact details
·Access to records at school and doctors
·Each party to keep the other informed of medical conditions within 24 hours and of hospital emergency within two hours
·Keep updated with appointments to health professionals within 48 hours of the appointment
·One contact person each to collect the child from school
·Non-denigration order
The Independent Children’s Lawyer (“ICL”) formally indicated that the ICL supported all the applications sought by the mother, whilst simultaneously expressing some reservation about the viability of the child spending a large block period with the father, being Thursday afternoon through to Monday morning as sought by the mother. The ICL noted that this arrangement for four consecutive nights has not yet been tested, except for school holidays, and submitted that there was no evidence before the court on the suitability of this arrangement. The ICL also expressed a concern that the father will not attend to the needs of the child during this block period, since there is a question as to whether the father accepts the child has anxiety and therefore a question as to whether the father will be in a position to manage the child’s anxiety.
The possibility of the mother moving to Suburb K
On 10 October 2018 I made an order:
2.Pending further order, by consent, the mother and the child be allowed to relocate to Suburb K, New South Wales or a suburb close by to Suburb K, after completing permanent work transfer from V Organisation office in Sydney CBD to V Organisation site in Suburb L, New South Wales as confirmed by letter from the HR Department of the V Organisation and forwarded to the father.
This order was an order made on the basis that the mother at that time was anticipating having the opportunity to advance her career by taking up a new position with the V Organisation working at Suburb L in Sydney.
On 20 November 2018 I made the following orders:
1.In the event the mother relocates to Suburb K or a suburb close by to Suburb K in accordance with Order 2, made 10 October 2018:
1.1The parents do all things and sign all necessary documents to enrol the child in a public school as agreed between the parties or failing agreement, the public school which is reasonably available and proximate to the mother’s new place of residence; and
1.2Order 5.3 made by Rees J on 5 August 2015 be discharged, and in lieu of that order, the following orders be made:
1.2.1The child shall spend time with the father during school term:
a)In week 1, from Friday after school until Monday morning before school; and
b)In week 2, from Monday after school until Tuesday morning before school.
2.It is noted that until the mother relocates to Suburb K or a suburb near Suburb K (if she does), Order 5.3 made by Rees J on 5 August 2015, subject to order 3, remain as the operative order.
At the time of the final two days of the hearing, the mother had remained at her position with the V Organisation in the Sydney CBD. She said she would not contemplate a move to work at Suburb L during 2020. The mother’s Further Amended Response to Initiating Application filed 3 December 2019 sought:
1.That all previous Orders, Parenting Plans and Undertakings in relation to parenting be discharged.
Accordingly, the hearing had taken place on the basis that Order 2 made 10 October 2018 and Orders 1 and 2 made 20 November 2018 would be discharged. During final submissions, counsel for the mother sought to resile from that position. In the face of the father’s opposition, I did not allow the mother to do so. Unfortunately, in the event that the mother in the future seeks to take up an opportunity to work at Suburb L and wishes to move the child to live closer to her work, absent agreement between the parties, that issue and the issue of the child’s future schooling would need to be the subject of a fresh determination.
Documents relied upon
The documents finally relied upon by the parties are set out in Schedule 3.
On 24 October 2019 I made an order that the father file and serve the evidence upon which he sought to rely at the final hearing on or before 29 November 2019. The father failed to comply with that order. The affidavit which the father filed on 3 December 2019 was three short paragraphs, about one third of one page long, primarily highlighting different sleeping arrangements in the two households.
At the commencement of the trial the father was provided with a folder of all the affidavits that he had filed through the course of the proceedings. He was asked to mark what parts of which affidavits he sought to be given an opportunity to rely upon and what other documents he relied upon. That document is Exhibit 7 and is set out in Schedule 3.
I have the report of Dr E dated 8 June 2015. For reasons discussed below, I do not have the advantage of the updated report from Dr E which I ordered.
Short history
The Father was born on … 1957 and is 63 years old.
The Mother was born on … 1977 and is 42 years old.
The parties commenced a relationship in 2003 and commenced cohabitation in 2004.
The child was born on … 2012 and is currently aged 8 years old.
The parties separated on or around 14 February 2013.
The Father commenced proceedings in this court on 30 January 2015.
Detailed chronology
Both of the parties were born in Country J. The father was born on … 1957. The mother was born on … 1977.
The father moved to Australia, settling in Brisbane, in 1992 with his then wife and their two daughters Ms W (now 38) and Ms X (now 34). Ms W and Ms X still reside in Brisbane with their families.
The mother first visited Australia for recreational travel in January 2000. The mother returned to Australia on a student visa in 2001 and commenced study at a university in Sydney.
The parties met online and commenced a relationship during 2003.
The parties commenced cohabitation in 2004. Around the same time, the mother was granted permanent residency.
In February 2011 the parties separated temporarily and the mother moved out of the father’s home.
In April 2011 the mother visited her family in Country J and discovered she was pregnant. The mother subsequently told the father over skype.
In November 2011, the mother was heavily pregnant and father re-commenced cohabitation with the father.
Around December 2011, the maternal grandmother came from Country J on a six month visa and lived with the parties.
The child was born on … 2012. After the birth of the child the maternal grandmother assisted with home duties. When the mother returned home from hospital the parties were staying in separate bedrooms within the home.
When the child was around four months old, in May 2012 the mother and maternal grandmother travelled to Country J with the child. The father consented to the child travelling to Country J and the mother signed an agreement, which was prepared by the father in Country J, stating that she would not take the child to Country J without the father’s permission. This document was tendered to the court but was not translated to English. The child, mother and the maternal grandmother returned to Australia on 26 September 2012, once the grandmother received another Australian visa.
The mother returned to work part-time in October 2012 and recommenced full time work in March 2013. Whilst the mother was at work the maternal grandmother was the primary carer of the child.
The parties agree that final separation occurred in February 2013. The mother, maternal grandmother and the child moved to rental accommodation in close proximity to the father at the end of February. Prior to the final separation there was an attempt to seek the assistance of the Family Relationships Centre, however this was not successful as discussed below.
From April 2013 until December 2013/January 2014 the father was in Asia for the primary purpose of receiving dental treatment. The father and the child would communicate on skype weekly.
The mother communicated with the father, indicating to him her intention to travel to Country J during its summer. The father, in an email, expressed concern and asked numerous questions regarding the mother’s proposed travel arrangements, including whether he could visit the child in Country J. The mother responded addressing those questions and saying that he could visit.
On 17 May 2013 the child, mother and maternal grandmother travelled to Country J. The mother returned to Australia on 10 June 2013 whilst the child remained in Country J with the maternal grandparents.
On 21 August 2013 the mother returned to Country J and travelled back to Australia with the child and maternal grandmother on 15 September 2013. The father did not visit the child whilst the child was in Country J.
In December 2013, the father returned to Australia not having seen the child for eight months. Between December 2013 and April 2014 the father would see the child on an impromptu basis, usually visiting the child at the mother’s apartment or by going to the park or the shops with the mother and the child.
On or around February 2014 the father commenced a relationship with a woman named Inna and commenced cohabiting with her in June 2014.
On 17 April 2014 the child, mother and maternal grandmother travelled to Country J. The mother returned to Australia approximately one month later on 19 May 2014, leaving the child in the care of the maternal grandmother. She then returned to Country J on 27 August 2014. The child, mother and maternal grandmother returned to Australia on 15 September 2014.
In November 2014 the parties attempted to create a parenting plan so that the father spent time with the child which was more defined.
The father filed an Initiating Application in this court on 30 January 2015. On 3 March 2015 the parties attended Family Relationship Centre for a mediation regarding future parenting arrangements.
On 9 March 2015 the mother was served with the father’s Initiating Application seeking to have the child placed upon the Airport Watch List and for the father to see the child for one hour each day.
On 6 May 2015 the parties appeared before Justice Rees. He Honour made orders which, amongst other things, permitted the child to leave Australia from 26 June 2015 to 8 August 2015 and for Dr E to prepare an expert report.
On 26 May 2015 the parties attended an appointment with Dr E, the single expert.
On 20 July 2015 the father made an oral application before Justice Rees seeking that her Honour disqualify herself on the ground of apprehended bias. That application was dismissed on 5 August 2015.
On 5 August 2015 Justice Rees made orders permitting the child to stay in Country J with the maternal grandmother for an additional four months and 20 days until 28 December 2015. During the child’s time in Country J in 2015, the father contacted Country J child protection services in an attempt to have the child sent back to Australia.
At some point during the second half of 2017, the father commenced a relationship with a woman named Ms U. They are now married and have a very young child.
The child travelled to Country J in 2017; 2018 and 2019 and to Country Y in 2018. Each time the child travelled overseas the passports were released to the mother pursuant to Court Orders.
On 27 December 2017 there was an incident between the maternal grandmother and the father, after the child did not want to go to stay with the father. This incident was reported to Police and a subsequent AVO was issued against the father.
Following the incident on 27 December 2017, the mother organised for the child to have a mental health plan. The child, who is now 8, has had over 20 sessions with his treating psychologist.
I deal with more recent events in the discussion that follows.
The father’s and his current wife’s failure to attend dr E for interviews to provide an updated report
On 10 October 2018 I made the following orders:
5.Pursuant to part 15.5 of the Family Law Rules, Dr E be appointed as a single expert to prepare an updating report in relation to the child and that in preparing that report to the Court, the Expert is requested to consider any relevant matter pursuant to s 60CC(2) and (3) Family Law Act, the mental status of each of the parties and the effect that that may have on either of the parties’ parenting capacity and any other matter the Expert considers relevant. The Expert is asked to speak to Dr M in relation to the therapy she has provided to the parents and the child.
6.The parents are to ensure that the child and any other person (including the father’s de facto partner) attend interviews scheduled by Dr E.
7.Each party is to forward to Dr E a copy of all affidavits filed by each party since Dr E prepared his previous report. The lawyer for the mother is to forward a copy of my ex tempore reasons and my reserved reasons when published to Dr E.
8.The parties equally pay the costs of Dr E providing services pursuant to these orders.
9.I request Dr M to provide the single expert Dr E with any answers to any questions that Dr E wishes to ask.
These Orders were made after a contested interim hearing, during which the father opposed the Orders being made. I delivered ex tempore reasons for judgment for these Orders on 10 October 2018 which were, in part:
…
2.The mother has made an oral application before me for an order that an updated report be prepared by Dr E for the purposes of it being available at the final hearing of this matter. The father opposed this application and seeks that the court instead order that the therapist who is providing non-reportable therapy to the parents and the child provide a report to the court.
3.Dr E provided the court with a report in June 2015 and a copy of that report is in evidence before me. That report is 34 pages and makes a series of recommendations. At the time that report was prepared, the child, B, was 3 years of age, he is now 6 years of age. The report contains a number of recommendations including for example:
3.1A recommendation that the child live with the mother; and
3.2That the child transition to an arrangement where he spends substantial and significant time with the father. Dr E, at that time, was suggesting that an end point might be that he spend five nights per fortnight with his father. For example, alternate weekends Friday afternoon to Tuesday morning and a weeknight on the other week and half the school holidays.
4.Dr E also commented on the father’s mental status and raised in his report the issue of the possibility of the father having a narcissistic personality style and the impact that that style could have on others and on himself. He recommended that the father attend a skilled therapist to assist him in that regard but three years later the father has not taken up that recommendation. As foreshadowed in his most recent application, the father may now intend to do so.
5.On 7 May 2018, I made an order that the parties do whatever is necessary to arrange for the child and themselves to have psychological therapy for a further 10 sessions with Dr M and for each of the parties to pay for one half of the cost of those sessions and I ordered that that therapy not be reportable.
6.Inquiries made today by the lawyer for the mother indicate that if an order was made, Dr E should be able to update his report by April 2019. If that happened, subject to judicial resources there might be able to be a hearing in this matter sometime towards the middle of next year. Dr E has indicated that a full report would possibly cost in the vicinity of $15,400 although his hourly rate is $660 per hour and it may be that a shorter updated report would cost less than that ceiling amount.
7.It would greatly assist if the court had Dr E’s updated consideration as to matters relevant under s 60CC(2) and (3) of the [Family Law Act 1975 (Cth)] including any further or updated observations in relation to the father’s personality traits and the effect (if any) they might have upon the father’s parenting capacity.
8.There is, however, an issue arising as to whether Dr E’s report can be paid for. The mother has indicated that she will be prepared to pay up to half of the amount of Dr E’s report. The father says that he cannot pay the other half. On the face of the material that I have I am not convinced that that is so. The mother, of course, is paying for a lawyer. The father is not paying for any legal representation.
9.The father, when the matter was listed before me on 23 August 2018, responded in this way to questions that I asked him:
HIS HONOUR: What do you do?
[THE FATHER]: I am a consultant.
HIS HONOUR: What’s your income, approximately, per annum?
[THE FATHER]: Last year, I made around 120,000.
10.The father explained to me today that that was his estimate at that time for the financial year ending 30 June 2018. He tells me today from the bar table that he believes a more accurate figure is $114,000 a year. He has filed a financial statement which has a weekly figure of $746 per week which commutes to $38,792 per year. I do not accept that as being a realistic estimate of the father’s actual income or earning capacity on an annualized basis. One thing that lends support to that view is Annexure E to the father’s affidavit which is a contract at a rate of $730 per day plus GST, five days a week for the period of time between 17 September 2018 to 1 February 2019. There is a notice period in that contract at four weeks. That contract is at a rate of something around $189,000 per annum if it was a permanent position, which I accept it is not, but still it is at a far higher rate than the annualized income asserted by the father in his financial statement. I assess the father as having the capacity of contributing half of the costs of Dr E and for the purposes of this case, it is an important piece of evidence which I would prefer the court not to do without. Dr E will give a wholistic assessment and considered recommendations as a single expert which will assist in making some determination as to what ultimate arrangements should be made on a final basis in the best interests of the child.
11.In relation to the input of the treating therapist, I will make an order requesting her to answer any questions that Dr E asks of her. I do not intend to be descriptive about what Dr E should ask Dr M and accordingly, I will not be making orders 8 and 9 as sought by the father in his Amended Application in a Case of 8 October 2018. I am not going to require the treating therapist to provide a report on the matters requested by the father primarily because the original order made was for the therapy to be non-reportable. I shall dismiss orders 8 and 9 as part of the general dismissal of the balance of the father’s Application in a Case.
12.Application 7 made in the father’s application on 8 October 2018 seeks an order in the following terms:
7.That the father make arrangements to be examined by clinical psychologist (“therapist”), and:
a.undertake a psychometric test such as Narcissistic Personality Inventory (NPI);
b.adduce to evidence the expert witness report from the therapist by 2 November 2018;
c.undertake any treatment, as and if recommended by the therapist.
It can be seen the father’s assertion that he could not pay one half of Dr E’s fees was rejected.
Exhibit 24 (which I set out in some detail because it is an example of the way the father conducts email exchanges) contains a series of emails between the father and Dr E following the order that was made for the updated report. In an email dated 23 November 2018, the mother’s lawyers informed Dr E about the order. Dr E replied to the parties on 24 November 2018 setting out his terms of engagement and scheduling interviews with the parties on 1 July 2019 with a promise of a report four to eight weeks after the interviews. On 19 December 2018 the mother’s lawyers confirmed the mother was “agreeable to the proposed date and the associated costs” and Dr E confirmed that he would maintain the booking and await to hear from the father.
On 26 February 2019 Dr E wrote to the mother’s lawyers asking if there had been any contact from the father.
On 29 March 2019 Dr E wrote to the father by email and asked him to confirm the arrangements.
The father wrote an email to Dr E on 31 March 2019. The father has not provided a copy of that email in evidence but Dr E gives some clue as to what it contained in an email that he wrote later that day addressed to both the father and the mother’s lawyer:
…
I have today received a reply from [the father], informing me that:
* he does not accept my procedures/fees
* he does not want to attend further interviews with myself
* he would consider a process whereby the mother paid the full sum of my fees would amount to “bias and collusion with the party that solicits [my] services”
…
(As per original)
Dr E then notes that he has not adopted his usual practice of copying the mother into the email which the father had sent him.
Dr E concludes:
…
From this time forward, I will be cc-ing any correspondence received from one party, to the other.
With regard to whether or not the updating interviews proceed, I remain a servant of the court. I will keep the interview dated of 1 July 2019 open for now.
On 27 June 2019 the father wrote an email to Dr E and the mother’s lawyer and copied it to the mother, in the following terms:
I hereby confirm that:
1.I will not participate in updating the existing report prepared by Dr E, and
2.I object, as a matter of the child’s welfare, to involving my son B in any interviews with Dr E for the purposes of updating the existing report.
3.The Family Court registry will be informed as necessary.
4.I draw your attention that following my email of 31.3.19 in response to Dr E’s email below, I received no further correspondence from Genuine Legal c/o Mr [the mother’s lawyer’s surname] confirming their acknowledgment of receipt of my notification therein. Furthermore, [the mother’s lawyer’s firm name] neglected to update their client of this matter, denying me the opportunity to timely discuss the option of a consented agreement on this matter with the respondent mother.
5.I hereby request that Dr E and [the mother’s lawyers] urgently consult with each other, and with the respondent mother (if necessary), and:
a.inform me of their decision how they want to proceed on 1 July 19 and/or
b.copy me on any correspondence they have exchanged since 31.3.19 – if any further discussions already took place between Dr E and [the mother’s lawyers] regarding the interview scheduled on 1.7.2019.
I expect to receive a reply by close of business this Friday 28 June 2019.
(As per the original)
On 28 June 2019 Dr E replied:
…
I will not be conducting interviews on 1 July 2019 because one party is stating clearly that they will not participate in updating the existing report, and is objecting to the subject child being involved in interviews for the purpose of updating the report.
So, the interview date of 1 July 2019 is cancelled.
I will await resolution of his issue. If the matter is resolved in favour of my preparing a report, then I will “fit in” an interview date as best I can at that time.
…
During his evidence, the father sought to assert that it was Dr E who cancelled the appointment for interviews. The following exchange occurred during the hearing:
…
HIS HONOUR: You were asked a question about why you didn’t go to the interviews. You’ve been given free range to explain, I think you’ve had enough opportunity.
[THE FATHER]: One of the reasons was the costs.
HIS HONOUR: That is not the reason you gave me on the occasion where I made the notation.
[THE FATHER]: I am giving it now.
…
HIS HONOUR: Are you asserting that Dr E cancelled the interviews?
[THE FATHER]: Yes, I’m putting it on the record.
HIS HONOUR: Are you telling me that you were prepared to go but Dr E cancelled the appointment?
[THE FATHER]: no.
…
[THE FATHER]: After I wrote to Dr E that I am not going to let my child be exposed to more interviews with him, he cancelled.
As the contents of Exhibit 24 demonstrate, any suggestion by the father that it was Dr E who was responsible for the absence of any updating report, was totally disingenuous.
The father has made a complaint to the NSW Health Care Complaints Commission (HCCC) alleging professional misconduct by Dr E in preparing the 2015 report. He asserts that what Dr E did in his 2015 report is “very similar to what happened in a 2018 case in Western Australia” (Psychological Board of Australia & Managlio [2018] VR 47 [not a case involving Dr E]). The father asserts that in an email to the ICL (part of Exhibit 24) that the State Administrative Tribunal of Western Australia decided that “the [practitioner involved in these proceedings] may not act as a single expert witness, or court appointed expert, in proceedings in the Family Court of Western Australia or the Family Court of Australia” and has ordered that the expert witness pay damages of $20,000.
The father made clear in his email to the ICL on 6 December 2019 (Exhibit 24) that he did not require Dr E for cross examination and accordingly Dr E was not challenged on any opinion he expressed in his 2015 report.
Whilst it wasn’t an issue that the father raised in proceedings on 10 October 2019, the father has formed the view that as at December 2019 the child still suffered from separation anxiety and the reason for that separation anxiety is being separated at the age of almost four years from both his parents, being held in Country J for five months until December 2015. The father believes the interim recommendations made by Dr E facilitated this happening.
The father also holds the view that Dr E wrongly assessed the father as having “prominent traits of Narcissistic Personality Disorder” (NPD) but provided absolutely no evidence of NPD in observing his relationship with the child. The father now gives as a reason for not attending for the updated report with Dr E (apart from any fees that he would have to pay if he were to choose to pay half), “I do not wish to debate with Dr E the details of his 2015 expert report, because irreversible damage to my son and his relationship with me has already been done by Dr E’s professional misconduct”.
As part of making orders for interviews with Dr E for an updated report, an order was made that the father ensure that his current wife attend interviews. Not only did the father not provide evidence from his current wife, the father’s refusal to comply with that court order meant that the court did not have expert evidence about the child’s step-mother’s parenting capacities and observations of their relationship. The father did provide one photograph which was said to be the child making Christmas decorations with his step-mother (Exhibit 19).
Dr M
There was also an issue when making the orders for expert reports as to whether or not the child’s therapist would be required to give evidence. That matter was resolved on 10 October 2018 by my request that Dr M provide Dr E with any answers to any questions that Dr E wished to ask. Because I do not have an updated report from Dr E (as a result of the father’s failure to comply with that order), I do not have the advantage of having a report about Dr M’s up to date opinions as to any current difficulties the child is facing.
There are three short reports from Dr M to Dr Q (the child’s long-term GP but not the one that the father takes the child to see) dated 8 January 2017, 31 December 2018 (Exhibit 9) and 4 March 2019 (Exhibits 15). I am aware that the ICL issued a subpoena to Dr M and that some notes may have been produced, however none of those notes were provided in evidence.
The first report was dated 8 January 2017 (Exhibit 4). In the Christmas holidays 2017/2018, the child saw Dr M for five sessions over a period of seven days. At that time he was five years old and in kindergarten. The maternal grandmother participated in these sessions as well as the mother and father. The child was assessed as having elevated social anxiety, separation anxiety, personal injury fears and generalised anxiety.
In the 2018 report, Dr M says the child attended 12 sessions concerning “anxiety symptoms”. He was six years old at the time. The child was assessed as having worries in a variety of contexts and low assertiveness. The father went to 10 of the 12 sessions. The father offered no explanation as to why he didn’t go to the final sessions in this tranche of therapy provided by Dr M. Dr M reports that the parents were provided with psychoeducation regarding anxiety symptoms, cognitive and behavioural strategies as well as social skills training. Dr M recorded some improvement as a result of the therapy and recommended that the child and his parents continue psychological therapy to address reported anxiety symptoms and proceed with work on social/assertiveness skills if necessary.
The 2019 report (Exhibit 15) reports on a further 13 sessions, 10 of which were attended by the father. It appears that these sessions commenced after August 2018. In her 2019 report, Dr M records that the father stopped coming after the first 10 fortnightly sessions because “he stated that [the child] was better, and continuation of sessions was not necessary”. The father denies this. I find it is unlikely that Dr M would have inaccurately recorded what the father had told her. In the 2019 report, Dr M, who is the last professional I am aware who has seen both parents interacting with one another and with the child, significantly observes:
During all the sessions, I observed that both parents have close relationships with [the child] and that [the child] [sic] attached to both parents. I advised both parents, however, that their disagreements, inability to negotiate and their constant court proceedings do not contribute to [the child’s] wellbeing and his recovery. [The mother] stated that she is happy not to have any court proceedings, however, she must follow the court orders initiated by [the father]. She expressed concern that it all affects her and [the child’s] mental state.
Dr M concluded in her second report that during her last session with the child she did not observe him to be severely affected by anxiety, and both parents reported that the treatment resulted in better results. However, Dr M concluded that the child was still experiencing symptoms of anxiety. Dr M strongly recommended that the child continue with individual group therapy (eg social skills building) as a short term therapy may not yield long lasting results. She also strongly recommended that both parents have psychological assessment and individual as well as family therapy for their own benefit and in the best interests of the child. She referred the parties to a particular child psychologist at Suburb S, Dr R, but the parties only attended one session with her and the child was not present. The father says that this was because the therapist, the mother and he agreed that no further psychological intervention was necessary. When pressed on the issue he claimed that Dr R did not offer continuation of therapy. The mother said follow-up therapy did not take place because of an inability to find a mutually convenient time for the therapy.
The father’s personality style
In his 2015 report, Dr E opined:
246.The father has a narcissistic personality style, in that he shows a pervasive pattern of grandiosity, need for admiration from others, and (in circumstances where his view of self is under threat) lack of empathy.
247.In terms of narcissistic personality traits, the father has a grandiose sense of self-importance, constructs idealised fantasies regarding his own helping role in the lives of others including his current and past partners and the subject child, demonstrates a belief in himself as special and unique, requires excessive admiration, has a sense of entitlement, can be interpersonally exploitative, and lacks empathy in that he can be unwilling to identify with the feelings and needs of others, and can show arrogant or haughty behaviours or attitudes.
Dr E recommended at paragraph 366 of his report, that the father:
… attend a therapist skilled in assisting adults with mental health or personality difficulties, to discuss the concerns that I have raised in this report about his narcissistic personality style, and the impact of this personality style on others and himself.
The father did not adopt that recommendation until April 2019. In my reasons for judgment of 5 November 2019 I said:
14.During the procedural event, the father drew attention to paragraph [3]66 of Dr E’s June 2015 report. Dr E had recommended that the father attend a therapist skilled in assisting adults with mental health or personality difficulties, to discuss the concerns that he had raised in the report about his narcissistic personality style and the impact of his personality style on others and on himself. The father, without objection, tendered in evidence what became Exhibit 5 which was a report from a psychiatrist, Dr O. Dr O indicated that from a diagnostic perspective, he was unable to give an accurate direct diagnosis of the father’s mental status. He said his impression was based on the history provided by the father in interview. Based on the father’s presentation at interview, Dr O doubted that the father fulfilled the criteria for a narcissistic personality disorder.
(Emphasis in original)
A letter sent by Dr O to the father’s treating GP, Dr T, was tendered to the Court and is exhibit 5. This letter reports on what Dr O observed after the initial consultation with the father. Dr O notes in his letter that he wasn’t able to complete the assessment and explained to the father that a “significant background history” would enable a more accurate diagnosis. He later states that “given the absence of background and developmental history and corroborative information, I am unable to give any accurate direct diagnosis”.
In the final sentence of the report Dr O writes “I will review [the father] in two weeks’ time. He is going to furnish me with a copy of the child psychologist [Dr E’s] report so I can further understand the issues that were raised”.
The father only attended one further session with Dr O. In his evidence the father told the court that on the second occasion Dr O did not ask to see the report prepared by Dr E therefore it was never shown to him.
Over the time this matter has been before me as a Less Adversarial Trial and particularly in the final two days of the hearing, I had an opportunity of observing and interacting with the father. He has a personality style which is rigid and difficult. During the final two days of the hearing there were many occasions when the father would simply ignore a direction which I gave him particularly in relation to questions he was asking during cross-examination. The father is an intelligent man and I concluded he was doing it intentionally. On other occasions he would initially comply with the direction only to return to a topic and ignore the initial direction.
As mentioned already, the father simply decided not to comply with the order that he attend for interviews with Dr E for the updated report after unsuccessfully opposing that order being made.
These traits in the father’s personality and the history of the father’s interaction with the mother make the father’s proposal for the child to spend equal time with each parent, problematic.
The approach in children’s cases
The objects of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of the child are met by:
(a)ensuring that the child 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 the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the child 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 chid.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) child has 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) child has 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 child; and
(d) parents should agree about the future parenting of their child; and
(e) child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
Equal shared parental responsibility
An order for equal shared parental responsibility was made by consent on 10 October 2018. Both parties initially sought to revisit that order, seeking to spell out the obligations which the order for equal shared parental responsibility imposed. Initially, the mother submitted “…the presumption [of equal shared parental responsibility] is rebutted having regard to the allegations of domestic violence, particularly between the maternal grandmother and the father in the past”. Ultimately, the matter proceeded on the basis that both parties agreed that the order for equal shared parental responsibility should be remade in the new set of final parenting orders.
For reasons discussed below, I have some disquiet about making such an order. The parties’ attitudes to the other’s parenting abilities and particularly the father’s attitude to the mother’s, is very poor. There is a reasonable chance the parties will not be able to make a decision about a major long term issue making the consent order for equal shared parental responsibility a triumph of hope over experience. That said, this is a somewhat different consideration to the tensions relevant to the father’s application for an equal time order. Firstly, the mother consents to an order for equal shared parental responsibility. Secondly, there are obvious advantages for the child in having both parents’ input in respect of decisions about major long term issue for the child. For those reasons I find that it is in the child’s best interests to make the consent order for equal shared parental responsibility proposed by the parties and supported by the ICL.
Statutory considerations
Primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a))
The mother submitted to the court that it is in the child’s best interests to have a meaningful relationship with the father, which is provided for in the orders she seeks for substantial and significant time with the father.
The father similarly concedes that it is in the child’s best interests to have a meaningful relationship with his mother and maternal grandmother.
Dr E opined at paragraph 97 that:
It would be of great benefit to the child to maintain a meaningful relationship with and to spend substantial and significant time with both parents during his upbringing, though (in my view) with a firm foundation of “home” in maternal care.
I accept the opinion of Dr E that the child has a firm foundation of “home” at the mother’s place. I find that the child will be able to maintain a meaningful relationship with the father through substantial and significant time.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
The father submitted to the court in his case outline that the mother and maternal grandmother have exposed the child to physical harm, family violence and psychological abuse, however he has not drawn the court’s attention to any evidence which would substantiate that assertion.
There have been two instances of family violence perpetrated by the father. The first incident occurred some years ago and prior to the child’s birth. On this occasion, the mother was with her then partner in a hotel room and the father came there. The father assaulted the mother’s partner. This incident occurred nearly nine years ago and the father expressed remorse for this act of violence during his evidence.
The second incident occurred on 27 December 2017 (“December 2017 incident”). On this day a changeover was occurring just outside the mother’s apartment building between the maternal grandmother and the father. The maternal grandmother gave evidence that the child was hesitant to go with the father so the father forcefully dragged the child away. The grandmother started to record what the father was doing, using her mobile phone. When the father saw her recording him, he tried to snatch the phone from the grandmother. During their altercation the father caused bruising to the grandmother when he took hold of her with force. The maternal grandmother reacted by biting the father to attempt to break the hold he had on her. On 10 May 2018 an apprehended violence order was made against the father protecting the maternal grandmother.
The father submits that there is no meaningful pattern of family violence and that these incidents did not involve the child. The December 2017 incident, involved the father and one of the child’s primary carers and was in front of the child, while he was being held by the father and/ or the maternal grandmother. The evidence shows that the child was distressed by what occurred.
Whilst there is no evidence before the court to establish a pattern of family violence there are concerns about the father’s response to situations that anger him.
At the time of Dr E’s report, he noted that he would not describe the parental relationship as one characterised by family violence, however he did note that there was an “unequal power dynamic” between the father and the mother and that there is some risk that the father’s behaviour towards an ungrateful partner or child may again extend to family violence. Apart from that risk, there is no evidence which suggests that the child is at current risk of being exposed to family violence by either parent.
The additional considerations
Child’s views (s 60CC(3)(a))
The child appears to have a good relationship with both parents and enjoys spending time with both parents. He has not expressed any explicit view and, in any event, if he had, I would need to take into account his age and the family dynamics in which he was involved before placing any weight upon them.
Relationships of the child with the parents and other persons (s 60CC(3)(b))
The father lives with his current wife, Ms U, and their recently born daughter, Z. At the time of Dr E’s report, the father was in a relationship with another female so that part of the report is of little relevance. As indicated above, apart from a photograph of one event, where the child was doing craft with Ms U, the father did not produce any evidence by Ms U as to the nature of her relationship with the child. In this circumstance, it is difficult to make any findings about the child’s relationship with his sister and step-mother.
At paragraphs 210 and 211 of Dr E’s report, he opines that an equal time arrangement with a parent with the father’s personality style would be too onerous for the child to manage but that the child could cope and benefit from a regular but lesser period of time.
At the time of Dr E’s report the child had a positive relationship with the mother. There was no evidence to suggest that this relationship has changed. Dr E found at paragraph 106, that “…the child’s foundational attachment relationship, at the symbolic and conscious level, is with the mother”.
The child has a positive relationship with his maternal grandmother. At the time of Dr E’s report the child had only spent six nights of his life apart from the maternal grandmother and as a result the child’s foundational attachment relationship at the procedural day to day level was with the maternal grandmother. Since the child has started primary school the maternal grandmother spends six months per year in Australia and the other half of the year in Country J.
The child’s youngest half-sister is still an infant and lives with the father. The child will develop a relationship with her during periods the child spends with the father.
The father submitted that it is in the child’s best interests to have a meaningful relationship with his two other half-sisters who are aged around 38 years and 33 years and reside in Brisbane with their own children. There was very little evidence about the child’s relationship with the two older half-sisters. I am unable to make any assessment of the child’s current relationship with these women.
The extent to which each of the child’s parents has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the child (s 60CC(3)(c))
Both parents have taken the opportunity to participate in decisions, spend time and communicate with the child.
On this point, there is concern regarding the difficulty in communication between the parents. The father has made decisions about the child and not informed the mother. One example was that the father unilaterally arranged for the child to have additional English as a second language classes at school and the mother was informed by the school sometime after it had commenced.
The mother has been proactive in seeking professional assistance for the child, by obtaining a mental health plan for the child following the December 2017 incident.
Dr E observed:
329.It would appear to me that the mother has taken such opportunities, and is richly involved in the day to day raising of the child. The father has expressed a view (which was not my view) that the mother has not taken such opportunities, and has instead divested such roles onto the maternal grandmother.
330.I observe that the father has sought to take what opportunities he has achieved or been given, but has been disrupted in this process by the parents’ inability to collaborate in making parenting plans, and the mother’s associated reactive resistance to a greater paternal role.
The father complains that the mother delayed return the child from Country J in 2015 contrary to their agreement. The child was in Country J for 5 months in 2015 pursuant to orders made by the Court. The father’s complaint during the hearing whilst cross-examining the mother was that the child was taken “without his consent”. The father then acknowledged the court made orders but said he was “talking from his perspective”.
Both parties seek an order for equal shared parental responsibility which is an acknowledgement that despite difficulties in communication both accept they shall be required to reach joint decisions about major long-term issues in respect of the child.
Extent to which each parent has fulfilled their obligation to maintain the child (s 60CC(3)(ca))
There is evidence from both parties that they each maintain the child.
The father has obligations to pay child support and at the time of the hearing the father was paying $19.17 per month. This amount is insufficient to cover the costs of mother’s care of the child. The father informed the court from the Bar table that, presently he earns $800 per day that he is contracted to work and that he works approximately six months of the year.
The father tendered a schedule on day two of the hearing which purported to show expenses paid by him and not reimbursed by the mother. This was made exhibit 18, however this document was not referred to during the hearing and I will not place any weight on it.
During the 2015 interview with Dr E, the father showed “a spreadsheet of child care payments and contributions”. Dr E said in his report:
332.The father showed me a spreadsheet of child care payments and contributions. Separately in conversation, the father listed the expensive items that he had purchased for the mother and the child, and spoke of having driven them and offered to drive them when needed, for example for them to do the shopping.
333.My impression is that the father has not reliably and adequately provided financially for the child, in particular not in a way that has given the mother security about that provision. I understand that the assessed income of the father has been quite low over recent years, but he informed me that he has a successful and well-regarded business consulting, and can earn “800 dollars a day”.
334.In some ways, the father’s using financial provision as a “bargaining chip” [my words] has been understandable in the unsatisfactory tussle between the parents that has led to the mother “holding out” [my words] on allowing him any substantial time with the child. But, the net result has not been positive for the financial security of the mother and secondarily for the child.
335.In my view, it would be ideal if orders for a clear progression of the child to substantial and significant time with the father, also included clear agreement or orders about each parent’s contribution to the child’s material needs, and in particular clear agreement or orders about child care fees and then later school fees.
There was no application before me to review the amount of child support the father pays but I find the father has not reliably and adequately provided financial support for the child in a way that has given the mother security about that provision.
Likely effect of any change in the child’s circumstances (s 60CC(3)(d))
This is an important consideration in this case. As already mentioned, because of a decision taken by the father, there is no up to date social science evidence to assist me to make determinations in this case. The child, up until the age of 8, has had a history of serious issues arising from his anxiety. I have some evidence as to how the child has coped with the current arrangements. I have no expert evidence to assist me make any assessment of the effect of change on the child if the current time arrangements were increased so that the child spends equal time with each parent in a week about arrangement during school term. A longer exposure to the father’s personality style is likely to create difficulties for the child as he will be being raised in two households which are likely to have very different rules and routines with little ability for the parents to talk about those differences and ameliorate any difficulties for the child which arise from those differences. Even under the current arrangements, problems have arisen. For example, the father complained that the mother retained clothing worn by the child when the child returned to his mother. It lead the father to refer to the mother in derogatory terms.
Practical difficulties and expense of the child spending time and communicating with a parent (s 60CC(3)(e))
At the time of the hearing both parties are residing in Suburb BB. Previously the Court has ordered that the mother be permitted to relocate to Suburb K in New South Wales. This has not occurred. There are no practical difficulties or expenses associated with the child spending time and communicating with a parent.
The capacity of each of the parents (and any other person) to provide for the needs of the child, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s 60cc(3)(i))
The mother and the maternal grandmother have been the primary carers of the child. The father has not provided the level of care to the child as proposed in his application.
Both parents are able to meet the child’s basic needs.
There is no recent independent evidence as to the capacity of each parent to provide for the needs of the child.
In Dr E’s report at paragraph 98 it was noted that the father showed “a quite inaccurate…appraisal and disrespect for the parenting capacity of the mother” and of the grandmother. When giving evidence the father still maintains those views. During his evidence the father described the mother as “selfish” when she organised for the maternal grandmother to pick up the child when he had stubbed his toe at school and was sent home sick, causing the child to walk home from school rather than calling the father who could drive the child home.
The father’s attitude to the mother is poor. The father gave evidence that the mother’s behaviour caused his current wife to miscarry two pregnancies. In cross- examination the father corrected his evidence and said that his wife’s miscarriages were not solely the mother’s fault but the stress she caused contributed to the miscarriages. He then went on to say that the mother is not perfect but he didn’t want to dish dirt on her in court.
Dr E observed:
207.Because of his narcissistic personality style…, the father has a greater-than-average need for affirmation and praise from the other in a relationship, and a greater-than-average need for affirmation and praise from the other in a relationship to take a one-down and appreciative stance towards him. When the father is receiving adequate affirmation, he is generous and attentive to the other, but if he feels unappreciated or challenged, he easily becomes affronted or aggrieved, and can respond with a coercive and persistent self-referential and self-justifying narrative.
208.During the interview with me, the father gave a long and detailed narrative about his parenting of the child, for example about how he would get the child to sleep or his methods for teaching the child about environmental dangers about building/ engineering. I observed in the father a need to see himself and to be seen by others as an excellent and praiseworthy parent. Whilst such a vigilance is to some extent expected during a court-related parenting assessment, this presentation in the father was well beyond the average even in this context, in terms of intensity and idealised narrative.
Dr E opined at paragraph 306 that the father may have difficulty meeting the child’s more complex emotional and intellectual needs:
The father might struggle to meet the child’s emotional and relational needs , if the child was in his care 50% or more of the time, and/ or if there were not well-boundaried [sic] orders in place, in such a setting there would be some risk of the father’s behaviour towards the child amounting to [unintentional, but still damaging] emotionally abusive behaviour.
The mother’s concerns about the father’s parenting capacity are set out in her case outline as:
a.that the father puts a strain on the co-parenting relationship through actions such as refusing to disclose information, including that ordered by this Court to be provided to her, in respect of his partner Ms U;
b.that the father is frequently late to pick up the child at changeover, which disappoints the child;
c.the father does not follow the child’s general practitioner’s advice regarding the treatment of medical conditions such as the child’s allergy; and
d.with respect to the father’s views regarding the mother, grandmother and women generally, and his ability to refrain from exposing the child to his views.
I accept that the mother genuinely holds these views about the father’s parenting capacity and attitudes to parenting. I find that the evidence provides a basis for the mother to reasonably hold those views.
The maturity, sex, background and lifestyle of the child and parents (s 60CC(3)(g))
The child is of Country J ethnicity and the parents have maintained the child’s connection to his heritage. The child has travelled to Country J nearly each year of his life with his mother and maternal grandmother. The child’s main spoken language at home is Country J.
The child attends Country J school on Saturdays and this is encouraged by both parents.
The child speaks in English whilst at school.
Any family violence involving the child or a member of the child’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
The issue of family violence has been discussed above at [102]-[107].
Likelihood of order leading to further proceedings (s 60CC(3)(l))
Unfortunately for the parties and the child, the history of this case has been protracted. There have been 26 court events (including the final hearing); there have been eight interim judgments (five at first instance and three as a result of the father appealing interim orders).
It is likely that the agreed order for equal shared parental responsibility shall lead to impasses between the parents that require further court intervention.
The orders sought by the father are more likely, than the orders sought by the mother, to lead to further proceedings and particularly the orders the father seeks in relation to the child’s overseas travel with the mother which in their terms, require a new consent order on each occasion the mother proposes overseas travel.
As mentioned above, in the event that the mother seeks to advance her career by taking up a position at Suburb L, absent agreement between the parties, the issue of her moving closer to work (if it makes it significantly more difficult for the child to spend some of the designated time with his father) and of the child’s future schooling, may have to be the subject to further proceedings.
Any other relevant fact or circumstance (s 60CC(3)(m))
Not applicable.
section 65daa(1) of the act
Given the remaking of a final order for equal shared parental responsibility is proposed, s 65DAA(1) and (2) of the Act are enlivened. Section 65DAA(1) provides that I must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
The father has sought an order for equal time. The mother and the ICL oppose that order being made.
Is an order for equal time reasonably practicable?
The parties currently live in sufficient proximity to make such an order feasible.
I find that it is likely that serious problems will arise for the mother if I were to make an order for a week about arrangement. In any such arrangement, the mother would still have the significant responsibility of having the child with her for half the time. This would mean that she would have an increasing need to deal with the father as the vicissitudes of looking after the child during school term arose. If there was a dispute about a matter, at least initially the stress on the mother and the child will be greater than it is now. Examples of this happening in the past, some of which have been referred to, are:
a)The fact that although the child goes to the same medical centre, he sees one doctor if he goes with his mother and a different doctor if he goes with the father. The child’s normal doctor is Dr Q. The father does not follow advice from Dr Q because of the difficulties the father believes he has had with the doctor in the past including around giving the father the child’s medical records. The father sees no problem with the child seeing different doctors in the same medical centre as the doctors are able to access one another’s notes. That might be so but it is not ideal for this child and it is symptomatic of the difficulties in the relationship between the father and the mother in respect of issues relating to parenting;
a. The parties disagreed as to how difficult the process of the mother obtaining the father’s consent to regularly go overseas had been;
b. The refusal by the father to allow the mother to know his current wife’s surname or to allow her to have her mobile telephone number or to offer to meet her. Reluctantly and belatedly during the final days of the hearing, the father provided a surname, then a mobile telephone number and at the end of the hearing, made an offer for the mother to meet his new wife (as already observed, an opportunity the court was not given);
c. The father’s lateness for changeover which is systematic at drop off because the father chooses not to count his time travelling with the child back to his mother’s house as part of his time with the child;
d. The father’s complaint that on two recent occasions the maternal grandmother was required to walk the child home from school after the child was injured and his assistance was not sought.
That the party wishing to remove the child from the Commonwealth of Australia must provide at least 4 weeks in advance the following:
a)A Security Bond in the amount of $40,000 held in a Trust Account all or part of that amount is to be paid on demand within 24 hours of the Family Court making an order authorising the release of the aforementioned Security Bond to the other party
b)Evidence of the child’s comprehensive medical insurance policy for the event of the child needing hospital treatment overseas.
That the child cannot be caused to enter the countries which:
a)Australia does not have a bilateral agreement in force on the Hague Convention on the Civil Aspects of International Child Abduction
b)Countries affected by war, natural disaster, epidemic or social unrest.
That the child cannot be caused to miss more than one week of a school term for the duration of the overseas travel.
That until the child turns 16 he must be accompanied by a parent at all times when the child is staying in, or travelling to/from and within an overseas country.
That during the time when the child is overseas the party who takes the child overseas must inform the other party of any change in the child’s location and address that is different from those specified in the agreed travel itinerary attached to the Consent Order.
That the party who contravenes the aforementioned Consent Order be injuncted from applying for any further overseas travel with the child after the contravention is established.
That any make-up time agreed in the aforementioned Consent Order be taken in full or in blocks of time within six months of the child’s return to Australia and the party receiving make-up time to give a two months notice to the party who owes the make-up time.
Travel within Australia
That the parties are at liberty to travel with the child anywhere in Australia at any time when the child is in their care, and:
a)That until the child turns 16 he must be accompanied by a parent at all time during a trip with that parent
b)That if the child is not sleeping overnight at either of the parties’ home the parties must inform each other at least 7 days in advance about the exact location of the child on each affected date to mitigate any potential emergency situations.
Changeover
That changeover take place as agreed by the parties, and if not agreed:
a)At the child’s school on Monday morning before class;
b)If changeover is not at school the parent whose time with the child has finished must deliver the child at 9:00am to the home of the parent whose time with the child is about to start
That if the child is sick on the night before changeover, the changeover take place as agreed by the parties, and if not agreed the party in whose care the child was on the night before changeover must:
a)Deliver the child to school once the child gets well or
b)Deliver the child to the other party’s home if it’s not a school day, and
c)Within 30 days of completing the changeover compensate the other party for equivalent amount of additional make-up time with the child if no medical certificate has been provided.
Communication with the child
That the child be at liberty to contact the parties without restriction any number of times on any day and at any reasonable time, and that the parent in whose care the child is, must:
a)Facilitate the child’s contact with the other parent by providing the child with an internet and/or mobile network connected device capable of making voice and video calls such as skype, Whatsapp or Viber
b)Notify the other parent via text message about the proposed call at least 10 minutes before the child’s call.
That when the child is in the care of one party the other party be at liberty to contact the child via voice or video call such as Skype, Whatsapp or Viber at times agreed by the parties, and if not agreed:
a)For up to 10 minutes on Wednesday afternoon between 7:00pm and 7:30pm
b)For up to 20 minutes on Sunday morning between 8:00am and 9:00am
That the child to have complete privacy when making or receiving a voice or video call with the other parent, and there must be:
a)No intervention, interruption or interference during the call
b)No audio/video recording made during and of the call
c)No eavesdropping of the overheard conversations between the child and the other parent.
Passports – As outlined in section “Overseas Travel” above
Other orders – in addition to agreed Orders 25-30 in the mother’s Amended Response
That the parties nominate only each other as the emergency contact and as a person authorised to collect the child from school, after-school care, sporting venue or any other place where the child attends the activity in accordance with the child’s enrolment form.
That the parties are at liberty to nominate one other additional person from each side who is not an emergency contact, but is an additional person authorised to collect the child if that parent is unavailable.
That no later than one week before the child starts attending the activity he is enrolled in, the parties to provide each other with the full name, home address and mobile number of any additional third party person authorised to collect the child.
That the parties provide each other with the details of:
a)Any enrolment applications for B showing he address of the venue, type of activity, telephone and email contact details of activity coordinator/director, start/finish dates of the enrolment sought
b)Confirmation of any completed enrolment showing that both parents are nominated as emergency contacts and authorised to collect the child.
That the parties do all things necessary to ensure that the email addresses of both parties are entered on the school computer system and that both parents receive simultaneously all emails, bills and other electronic notifications sent by the child’s school to the “primary” parent.
That the parties instruct the child’s school that if any document such as school report is sent or given to one party, the other party needs to be sent or given a second copy too.
That the parties be restrained from instructing any organisation or authority to withhold from the other party copies of any records, documents and information concerning the child.
That within one day of receipt the parties provide to each other a copy or the original of:
a)Any birthday invitation received by the child
b)Any other invitation to an event involving the child at school or at other places where the child carries out activities, and
c)That each party is at liberty to attend such events involving the child regardless of which party the child is spending time with on the day of the event.
Non-Denigration – in addition to Order 32 in the mother’s Amended Response
That the parties and members of their households may not criticise or denigrate each other in the child’s presence, or allow other persons to do so.
That the parties may not pass messages to one another through the child, but use email or text messages instead
That the parties may not question the child about the other parent’s household or conversations the child has overheard.
Time with siblings
That the child be allowed to maintain a meaningful relationship with his sisters and nephews and spend time with them as agreed by the parties, and if not agreed:
a)In the event that one or both of the child’s siblings arrive in Sydney while the child is in the mother’s care:
i)The father to provide to the mother at least two weeks written notice of the sibling’s arrival and departure dates;
ii)The child to be collected by the his [sic] siblings from the mother’s place and spend time with his siblings before his returning the child to the mother’s place:
(1) At least once from 3:00pm to 7:00pm if on a school day;
(2) At least once from 10:00am to 6:00pm if on a non-school day
b)In the event that one or both of the child’s siblings invite the child to visit them and stay with them in Queensland for one week during school summer holidays:
i)The father to provide to the mother with a two months written notice of:
(1) The proposed invitation start/finish dates;
(2) The child’s travel itinerary and emergency contact details
ii)The father to accompany the child to and from Queensland
iii)All costs of the child’s travel to be covered by the child’s siblings.
Child-related expenses
That each party pay equal share, by making a direct 50% payment or by reimbursing 50% to the other party,, towards the cost of:
a)All of the child’s public school fees, books, excursions,, P&C fund raisers, and any other regular expenses related to ongoing schooling process
b)Two sets of the child’s school and sports uniforms including shirts, pants and shorts
c)One set of school hats, shoes, coats/rain jackets and bags;
d)Any agreed regular sports training and necessary sports equipment such as balls, rackets, etc
e)Any agreed school holiday camps and vocational/selective classes
f)Country J school bills, books and activities
That each party be responsible for maintaining the child’s clothes, books and other things the child may lose or damage at school while in that party’s care and replaced it with identical item within two weeks.
That the parties share and pass to each other any prescription medications the child requires.
That the parties reimburse each other (regardless of subsequent medicare rebates or insurance claims) for 50% of the nominal cost of:
a)All mutually agreed elective medical treatment, including doctor’s consultation fees, tests, prescription medicine and therapy
b)The child’s ambulance and/or emergency medical treatment
That all payments are to be agreed and finalised on a case by case basis, and there can be no unilateral “in lieu” credits claimed by either party without prior “square-up” mutual agreement.
That if an order for equal time is made by the Family Court, the parties notify Child Services Agency (CSA) of the new “equal shared care” arrangement and file in accordance with the CSA Police a Binding Agreement reviewed and signed by each party’s solicitor that neither party pay the other party any child support.
That each party bear his/her own costs of and in relation to the family court proceedings.
SCHEDULE 2
Orders sought by mother
That all previous Orders, Parenting Plans and Undertakings in relation to parenting be discharged.
Parental Responsibility
That the Applicant Father and Respondent Mother shall have equal shared parental responsibility for the long-term care, welfare and development of [the child] born … 2012 including but not limited to the following:
2.1Surgery, hospitalisations, specialist and medical treatment required by the child for any serious injury, illness or disability;
2.2Psychological, psychiatric or other therapeutic counselling for the child;
2.3Decisions about the child playing or being involved in any sporting, cultural, artistic or community activities including concerns, competitions, training or meetings or other developmental or extra-curricular activities that:
a.Full whilst the child is in the care of both parents
b.Require both parents to actively be involved in; and/or
c.Require both parents to financially contribute toward.
That the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
a.They shall inform the other parent about the decision to be made
b.They shall consult with each other on terms that they agree; and
c.They shall make a genuine effort to come to a joint decision.
That notwithstanding the provision in Order 2, the parties each exercise sole parental responsibility for the day to day care, welfare and development of the child during those times the child is in their respective individual care.
Living arrangement
That the child lives with the Respondent Mother and spend time with the Applicant Father as follows:
During school terms:
On a fortnightly basis commencing 2020:
a.Thursday from the conclusion of school until the commence [sic] of school on Monday.
During school holidays:
During inter-term school holidays:
a.The child shall spend the first half of the said holidays from the conclusion of the school day on the last day of term with the Applicant Father and the second half of the said holidays with the Respondent Mother in odd numbered years;
b.The child shall spend the second half of the said holidays commencing form [sic] the conclusion of the school day on the last day of term with the Applicant Father and the first half of the said holidays with Respondent Mother in even numbered years
During Christmas school holidays:
Commencing in the year 2020 – 2021:
a.The child shall spend the first two weeks of the said holidays from the conclusion of the school day on the last day of the term with the Applicant Father in even numbered years
b.The child shall spend the last two weeks of the said holidays commencing from the conclusion of the school day on the last day of the term with the Applicant Father in odd numbered years
Any such other times as otherwise agreed between the parties.
Special occasions
Notwithstanding any other Orders and provided that the child is in Australia, the child will spend time with each parent on special occasions as agreed and failing agreement as follows:
i.With the Applicant Father:
a.Father’s Day from 9am until 5pm
b.The child’s birthday from 9am until 3pm in even numbered years and 3pm to 9pm in odd numbered years
c.Christmas in even numbered years from 12pm Christmas eve until 12pm Christmas Day
d.Christmas in odd numbered years from 12pm Christmas Day until 12pm Boxing Day
e.New Years Eve in even numbered years from 12pm New Years Eve until 12pm New Years Day
f.Any other times as agreed between the parties in writing with no less than twenty-eight (28) days’ notice.
ii.With the Respondent Mother:
a.Mother’s Day from 9am until 5pm
b.The child’s birthday from 9am until 3pm in odd numbered years and 3pm until 9pm in even numbered years
c.Christmas in odd numbered years from 12pm Christmas Eve until 12pm Christmas Day
d.Christmas in even numbered years from 12pm Christmas Day until 12pm Boxing Day
e.New Years Eve in odd numbered years from 12pm New Years Eve until 12pm New Years Day
f.Any other times as agreed between the parties in writing with no less than twenty-eight (28) days notice.
That the Respondent Mother shall have the right to visit Country J with the child for a period of not more than 5 weeks each year provided the mother gives the father written notice of the intended travel dates at least 3 months prior to departure and a copy of the airline tickets as soon as she has them; and the mother must facilitate child communicating with the father by Skype or other video means at least once per week while he is in Country J.
When the child is overseas with the other parent, make up time is to be provided to the other parents as agreed by the parties in writing, with no less than twenty-eight (28) days notice.
Overseas and interstate travel
Each party may take the child for a holiday overseas or interstate during times the child is in that party’s care pursuant to these orders, in which case the parent travelling overseas with the child must:
a.Give the other parent at least 3 months written notice of the intended overseas travel
b.Give the other parent at least 1 month written notice of the intended interstate travel; and
c.Provide the other parent with a full itinerary ‘prior to the departure date’ including the address and telephone number(s) of the place or places the child will be staying while overseas or interstate and copies of airline and/or other travel tickets
Changeover
When changeover is not at school, the Applicant Father is to collect the child from the Mother’s residence upon the commencement of the contact and drop the child at the Mother’s residence upon the conclusion of the contact or as otherwise agreed between the parties.
Communication with the child
That the child be at liberty to contact either parent at any reasonable time that they express a wish to do so and in that event the parent with whom the child is with shall facilitate the child contacting the other party by telephone and/or FaceTime.
That the parties shall be at liberty to communicate with the child by telephone and/or FaceTime when the child is with the other party provided that such calls are made on Thursday and Sunday between 6:00pm and 6:30pm.
That each parent shall continue to maintain a mobile telephone service able to facilitate both telephone calls and FaceTime.
Each parent shall ensure that the child have privacy during any conversations between the child and the other parent.
Passports
That the Applicant Father do all acts and sign all documents necessary to issue and/or keep the child’s Australian passport current at all times until the child attains the age of eighteen (18) years.
That the costs in maintaining the child’s Australian passport for the purposes of these Orders be shared equally between the parties.
The Respondent Mother shall retain the child’s passport.
The Applicant Father shall provide a request to the Respondent Mother for the release of the child’s Australian passport in the event that the said passport is required to facilitate the child’s overseas travel.
The Applicant Father shall return the child’s Australian passport to the Respondent Mother within seven (7) days of the child’s return from overseas travel.
The child’s name is removed from the Airport watchlist from the date of these orders.
Other orders
That both parents shall keep each other informed at all times of their residential address, telephone number/s including mobile telephone numbers and email addresses and advise the other parent of any change to such details forthwith and in any event by no later than twenty-four (24) hours of the change occurring.
That both parents shall keep the other parent informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the child within fourth-eight(48) hours of any appointments.
That both parents shall inform the other parent of any serious medical condition, significant health issue or illness suffered by the child as soon as reasonably practicable and in any event within twenty-four (24) hours and in the event the child attend hospital for any illness or injury the other parent shall be notified within two (2) hours.
That both parents shall inform the other parent of any specialist medical, optical, dental or health appointments (including counselling, psychiatric or any other therapeutic appointments) made in advance for the child within a reasonable period of notice and in any event at least three (3) days prior to such appointments and both parents shall be at liberty to attend such appointments. Both parents agree that no medical procedure of [sic] operation be performed on the child except with the written consent of both either mother and father except in the event of an emergency where the child require immediate medical treatment as advised by the treating medical practitioner.
That these orders shall be sufficient authority for the child’s treating practitioners and specialist practitioners or other health practitioners to provide any and all information relating to the child to both parents however shall not be taken to discharge the parents’ obligations pursuant to these Orders to keep each other informed of such information.
That both parents hereby authorize, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates obtained by the child and any newsletters, notices or other correspondence, documents or information relating to the child (at the requesting parent’s cost), however shall not be taken to discharge the parents obligations to keep each other informed of such information.
That both parents shall each nominate one (1) person as an emergency contact person providing the nominated persons with authority to collect the child from school or care centre, in the event either parent cannot collect the child from school or care centre. Both parents should provide each other with the nominated person’s contact details such as full name, home address and telephone contact number.
Non-denigration
That during the time the child is with either parent, that parent shall:
a.Respect the privacy of the other parent and return (sic) from questioning the child about the personal life of the other parent
b.Speak of the other parent respectfully
c.Not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or the presence of the child
d.Not denigrate or insult the other parent’s extended family in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent’s extended family in the hearing or presence of the child
e.Remove the child from any situation where they may be exposed to verbal, emotional or psychological abuse.
SCHEDULE 3 – Documents relied upon by the parties
The father’s trial affidavit (of less than one page) was filed on 3 December 2019.
The following material, as set out in Exhibit 7, is also relied upon by the father:
Affidavit of Mr Zlotnik filed 4 May 2015
Affidavit of Mr Zlotnik filed 25 May 2015
Affidavit of Mr Zlotnik filed 22 June 2015
Affidavit of Mr Zlotnik filed 26 June 2015
Affidavit of Mr Zlotnik filed 3 July 2015
Affidavit of Mr Zlotnik filed 17 July 2015
Affidavit of Mr Zlotnik filed 12 January 2018
Affidavit of Mr Zlotnik filed 8 June 2018
Affidavit of Mr Zlotnik filed 8 October 2018
Exhibit 1 – correspondence with Dr E
Exhibit 2 Statutory declarations from Mr A, family friend
Incident 27/12 with Grandmother: Police Interview and evidence in chief
Affidavit of Mr Zlotnik Jan 2018
Dr E report (certain parts)
Justice Rees reasons for judgment 5 August 2015
Registrar Ryan’s orders
Dr P
The following material, as set out in the mother’s case outline, is relied upon by the mother:
Further amended response to Initiating Application filed 2 December 2019
Affidavit of Ms Gerasimov filed 29 November 2019
Affidavit of Ms C Gerasimov filed 29 November 2019
Key Legal Topics
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Family Law
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